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October 30, 2012



DF Lickiss may be right that government-compelled speech should only be upheld in extraordinary cases. But strict scrutiny analysis is not the answer here because it is not relevant to the risks at stake on either side. (Plus, it might backfire, by granting the government new powers to require citizens and businesses to make all kinds of patriotic or alarmist speech, whenever it invokes compelling interests like "national security" or public safety.)

Rather, a better approach would be to apply the "death is different" analysis used in capital cases. Here, tobacco is different because it is the only consumer product that is legally permitted to kill millions of its own customers - and to do so at enormous expense to the Government, as well as to society at large.

I want Government-compelled speech as rarely as possible. But if courts find that tobacco really is that different, then requiring notices this alarming should be found constitutional.

DF Lickiss

Government compelled speech should be allowed only if it can survive strict scrutiny. To adopt a lower standard is to give political opponents the ability to compel speech (your opponents will eventually win the WH and majority in Congress - doesn't matter what side you're on the pendulum always swings).


So the tobacco company lawyers say "These warnings do not address any information deficit about the health risks of smoking. Rather, consumers are already aware of the health risks addressed by the warnings."

Isn't this the same argument they've made in civil cases going back to the 60s, while at the same time they used a captive "research" group (CTR) to promote the notion that cigarette smoking did not increase the risk of cancer?

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