Tobacco advertising and children: The limits of first amendment protection

Abstract

A recent wave of public interest surrounding the alleged advertising of cigarettes to children has raised First Amendment issues under the commercial speech doctrine. The two most vocal sides of this debate are sharply divided over the amount of constitutional protection that should be offered to tobacco advertisers. Proponents of restrictions on such ads argue that commercial speech does not advance any “ideas” worth preserving and is consequently deserving of less protection than other forms of speech. Their opponents assert that commercial speech should be offered wide protection because of its role in contributing to individual autonomy in the “marketplace of ideas” through informing consumer choice. While I believe that commercial speech should be offered broad protection, I will argue that severe restrictions are morally justifiable and legally defensible when it comes to advertising to children, particularly with respect to harmful products. Since the free market of ideas model is premised upon a notion that there are “reasonable consumers” that can discern falsehood from truth, this model is invalidated when it comes to children since they cannot be expected to possess the same capacity for judgment as adults.