11/15/2011 05:11 pm ET | Updated Jan 15, 2012

Cigarette Perfidy

In granting tobacco companies a delay in complying with a government order to put graphic anti-smoking images on cigarette packs, Federal District Court Judge Richard Leon sought mightily to make a case for industry. His problem -- industry doesn't have a case. Decades of deceptive advertising and incriminating medical research have taught us that.

Judge Leon manufactured a justification for industry by suggesting the government-mandated graphic anti-smoking images would violate the tobacco companies' Constitutional freedom of speech. The judge covered his professional tracks by splitting semantic hairs with legal mumbo jumbo. He called the images, which included a corpse and an individual wearing an oxygen mask, too subjective to be considered "factual information," the standard that mandated speech must meet to comply with the First Amendment.

Judge Leon noted that under the law, freedom of speech includes freedom not to speak. Congress, however, can require speech if the statement is factual and conveys important information to the public. This information must also "serve a compelling government interest" and be specifically designed to achieve that interest.

On that basis, you would think Judge Leon would be supportive of the federal authorities. The graphic images of the grim medical consequences associated with smoking would seem well qualified for exposure in the marketplace. Such consequences have been well documented and publicizing them would send a strong deterrent message to would-be smokers. The government has a "compelling interest" because it is responsible for alerting the public to health hazards in the environment as effectively as possible (and what better way than to promote the worst case).

Unfortunately, none of these arguments impressed Judge Leon. An appointee of George W. Bush, he appeared more preoccupied with protecting the tobacco industry's bottom line than the general public's respiratory health. Judge Leon expressed confidence that the gruesome images would fail in a higher court to meet the requisite constitutional test of being factual and non-controversial. He complained that the images "promote views to quit or never start smoking, an objective wholly apart from disseminating purely factual non-controversial information."

Abundant documentation refutes the judge by verifying that the images at issue are consistent with the sad fate of many heavy smokers [An estimated 443,000 Americans die prematurely from tobacco-related diseases each year.]

Judge Leon complained that the images appeared to be "more about shocking and repelling than warning... and were created to evoke emotion."

Since when is "shocking" mutually exclusive from "warning," and advocacy incapable of being an informational tool, especially when dealing with a lethal threat to public health? Indeed, given the toxic nature of the threat, the images fully meet any constitutional test and just as importantly, the government's implicit moral obligation.

Judge Leon then let slip what appears to be the true motivation behind his legal opinion. He wrote that placement of the images on cigarette packs would cause "irreparable harm" to the industry, and what might that harm be? Money! Company executives warned that redesigning the packages would cost them $20 million and deliver a severe fiscal blow. That was apparently enough for Judge Leon.

All I can say is, give me a break. Even if the predicted expenditure were accurate, the tobacco industry enjoys a bountiful cash flow and always will, thanks to its product's addictive nature, enduring legal status, and wide open markets in many overseas locations.

Finally, the judge contended that there was no evidence that the images were an effective deterrent, a claim contradicted by the technique's success in 43 foreign countries.

Not surprisingly, the tobacco industry was delighted with the ruling. As for Judge Leon, he should reflect rather than take satisfaction. If his decision is upheld on appeal, he will surely end up with blood on his hands.