Kirk B. Johnson discusses the free speech implications of advertising laws.
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GUEST: Kirk Johnson
AIR DATE: 4/16/1986
I’m Richard Heffner, your host on THE OPEN MIND. You know parents who proudly refer to my son the doctor and my daughter the lawyer these days may find them more and more on a collision course, for the points at which medicine and the law intersect in America are becoming more and more points of contention. Nor do they just go bump in the night. These days medicine and law collide publicly, noisily, and with considerable hostility. Medical malpractice suits so often set practitioners of the two great professions at odds. So does the debate over the right to life and the right to die. So does the insanity plea. And so now a number of lawyers, particularly those concerned with time honored First Amendment protections of free speech, balk at the American Medical Association’s recent decision at long last to back a governmental ban on all cigarette and other tobacco advertising. Snuff too. And not just ads on television and radio. That was accomplished years ago. With the tobacco slack much more than just taken up in all the other media, now the AMA would ban pushing the filthy weed everywhere. In newspapers, in magazines, on billboards, posters, decals, signs, matchbooks, really everywhere. Skywriting too. So now I had thought that perhaps we ought to invite a tobacco industry spokesman here today, and will do that soon out of fairness. Or my friend, Floyd Abrams, that self-confessed First Amendment voluptuary to do battle with the AMA on the free speech issue. I know he believes that if speech is ever troubling, like tobacco ads, we shouldn’t ban it but rather counter it with more speech. Like the Cancer Society’s extraordinarily compelling posthumous Yul Brynner anti-smoking ad. But instead I thought today we’d devote our program to exploring the issue with the doctor’s own lawyer, Kirk B. Johnson, General Counsel to the American Medical Association. And I do appreciate that you’re here. Mr. Johnson, I wondered whether as a lawyer you don’t have some qualms about whether the ban that your association proposes might not be hazardous to the health of the issue or the cause of free speech?
Johnson: No I don’t, Richard. We’ve looked at the issue very carefully before we called for the ban. And physicians around the country maybe more than any other group are concerned and value highly their constitutional rights. We’re speaking out on all kinds of issues and asking for all kinds of things in the public and with our state legislatures and with Congress. So we value the right to free speech very highly. Btu we’re dealing here with a very unique substance. A uniquely dangerous substance that today is advertised in a way which we think is deceptive. And we think that given the enormously dangerous and serious health effects of tobacco that it was time for the American Medical Association in its commitment to improving the public health to take a strong stand. We examined the question of the constitutionality very carefully. And what we found is that the commercial speech which is involved in advertising is not nearly as protected by the First Amendment as what we traditionally view as First Amendment expression: the right to express yourselves, the press, freedom of religion, of assembly. And the whole variety of core protections that we know of today as being important to the First Amendment are quite distinct from commercial advertising. And in fact the Supreme Court has made plain on many occasions the “common sense” distinction between commercial peddling and the core of the First Amendment that we all cherish and want to protect.
Heffner: There are many members of the legal profession, your own profession, who do feel that suggested legislation, the kind of legislation that the AMA wants, would be liable to scrutiny and perhaps overturned.
Johnson: Well, we would expect a challenge. Our first problem is, or course, getting it through Congress.
Heffner: You think you will?
Johnson: I think we have a good chance at it now.
Heffner: What makes you think that?
Johnson: Well, I think that we have now about 20,000 studies in the last decade alone that continue to link directly cigarette smoking with so many serious diseases. A thousand people a day die from smoking-related diseases. The surgeon general has said that cigarette smoking is the number one preventable cause of death in this country. A million people a year die from cigarette related diseases. So the medical evidence which is what first and foremost we’re expert on, is about as clear and as overwhelming today as it can be. That we have a very serious product on our hands. And organizations throughout this country, indeed the world, have called for bans on advertising. Particularly the kind of advertising that we see in magazines and articles every day. In fact, it’s unrelenting in the public consciousness.
Heffner: You say unrelenting. When did the AMA begin to understand the lethal nature of tobacco?
Johnson: Well, the link to tobacco and heart disease and lung disease and emphysema and a long list of other serious diseases has been apparent for quite some time.
Heffner: Than what was the AMA waiting for?
Johnson: What has happened is we’ve developed first a clear understanding that cigarette smoking is a powerfully addictive drug. It’s really only been within the last few years that the evidence has shown that it is more addictive than almost anything else we commonly see or use today. It’s eight times more addictive, for example, than alcohol. And studies continue to pour in with regard to the long term consequences on the public health, the cost to the public health. And we have really reached the point of calling for a total ban because the measure that we have supported over the last decade step-by-step, careful, moderate, sensible, reasonable approaches have not done the job. Cigarette smoking is not declining in America today. And after taking measures which we thought were reasonable and we’ve promoted increasing excise taxes, a series of other measures, the labeling, the warnings, the ban on electronic advertising, it’s time now to take the final step and try to obliterate this false consciousness that advertising of cigarettes presents us today that it isn’t’ really all that bad.
Heffner: What do you mean the final step? You make it sound like the final solution, which wasn’t the final solution for the Nazis. And final step, wouldn’t the final step be here banning the filthy weed?
Johnson: Well, the final step in terms of what we’re most concerned about, which is educating people, which is giving them the choice of the freedom to make informed choice…
Heffner: Excuse me. You say give them the freedom to make an informed choice. But your legal opponents are saying that’s exactly what you do not want to do. You don’t want me to say, smoke, please smoke. You want to be free to say, don’t smoke. So you’re not really providing for that freedom of expression.
Johnson: If the advertising today was truly informational advertising, if there was a way to honestly convey the fact that this product even used as intended is going to kill you, we’d be in favor of any kind of public statements, any kind of public direct informational content in any of the advertising that we have today. In fact, the net effect of it, whether it’s the design or not is of no relevance. The net effect is to counter the accurate, truthful message that this product alone among any product you can buy today in America will you if used as intended.
Heffner: Do you think that most Americans are not familiar on some very important level with the kind of lethal effect of tobacco that you describe?
Johnson: No, they are not. It is shocking. But 50% of Americans do not associate cigarette smoking with heart disease. Fifty percent of pregnant women don’t’ understand that they’re endangering the fetus of the smoke. Most Americans don’t realize that when they smoke they’re inhaling carbon monoxide.
Heffner: Do you know anyone who smokes?
Johnson: Yes, I do.
Heffner: Are they educated by you or by the world around them as to the dangers?
Johnson: There are many well educated people who do smoke, who find it almost impossible to quit and struggle with doing it. And ultimately they do manage to do it. But I say that as long as this unrelenting public exposure of images of the healthy, active, youthful, sexy, charming, young activities continues to obliterate our consciousness, deep down inside in our unconscious, particularly for the younger members of society, the adolescents, they’re basically going to think it really can’t be all that bad.
Heffner: Suppose you and I agree on this. It doesn’t make any difference whether I do. Certainly the powerful AMA has said its piece, Mr. Johnson. Suppose though we go on and you and I agree at this table that we should say the same thing about violence on television. We should say the same thing about what we would consider pornographic pictures and films and books. We could probably make a pretty darn good case, couldn’t we, about the effect of such material? And then go right on to say that it shouldn’t be advertised, and maybe then go on to say that it shouldn’t be printed. Where do you stop? Where do you draw the line once you start on the slippery slope?
Johnson: We’re drawing the line.
Johnson: We’re not looking beyond tobacco. It is unique.
Heffner: What about alcohol?
Johnson: Alcohol has redeeming values. Alcohol used in moderation will not kill you. There is nothing like tobacco. We care about the First Amendment. We have never before gone as far as we’re going with regard to what anybody can say about anything in our society. And we want to preserve the right for people to choose to smoke. To go out and buy it if they want, assuming they understand what they’re doing. That would be a far more intrusive measure, to ban the production or the sale of cigarettes. We don’t want to go that far. We want to preserve those freedoms. There’s nothing quite like cigarettes and tobacco and its effect on our health today.
Heffner: It’s 1986. It’s a long time since the Surgeon General came to the conclusion that smoking is bad for your health. A long, long time. It’s what, fifteen years since it was banned? Advertising for cigarettes were banned, was banned, on television and radio. What’s been going on at the AMA? What’s been the nature of the struggle? There must have been a struggle taking place before you could get to this point. Finally you make the recommendation.
Johnson: Well, as I said, we saw the ban on electronic advertising. We saw the ban on electronic advertising. We saw the development of labels and warnings. We saw and were successful with getting increases in the excise tax on tobacco. We’ve expanded the warnings on smokeless tobacco.
Heffner: Excuse me. You talk about the warnings. Does that mean to you that our fellow Americans warned, still kill themselves this way?
Johnson: Those warnings, Richard, cannot compete with the images of a Marlboro man and the pristine scenes and the young. It’s too much. It’s too much to have a little blanked out piece of a giant billboard suggest that there may be something wrong which isn’t rad or looked at or remembered by the majority of Americans. To compete with that image which goes so deep in our consciousness and our sense of attractiveness, it just isn’t any competition.
Heffner: Do you regret the fact that advertisements for smoking went off radio and television and therefore in largest part the anti-smoking advertisements went off, too?
Johnson: Well frankly, there was a great effect with the commercial advertising messages which were anti-smoking. It had a tremendous effect. You were forced to watch it. You were forced to see it. You were forced to listen directly to the other side of the story. And in fact there was an increase in smoking when there was a ban on the electronic advertising of cigarettes because you lost those anti-smoking commercials.
Heffner: Do you assume that there was anyone in this country who’d presumed that that would be the case?
Johnson: I don’t know. I…
Heffner: What do you think?
Johnson: I don’t know. The tobacco industry is hard to fathom. Some of the things that are said today, for example, that advertising doesn’t increase consumption, I mean, can they really believe that? It’s an insult to our intelligence. And…
Heffner: You mean an insult to their effectiveness?
Johnson: Well, advertising is effective. There…we can go back in history and show that the two billion dollars which is spent today on advertising cigarettes just doesn’t tell people switch to another brand. I don’t know why, what the position of the tobacco industry is, when they think back on the ban on electronic media whether they weren’t satisfied with the result on balance. But I do know that they’re fighting this ban today. And they’re fighting it hard with a lot of money. And that leads me to believe that the ban will have the effect we intend it to have, a reduction in the consumption of cigarette smoking.
Heffner: Of course, I do go back, I must go back to the question why don’t’ you bite the bullet and try to ban if you think it’s poisonous? Why don’t you try to ban it?
Johnson: Well, my recollection of Prohibition begins and ends with “The Untouchables.”
Johnson: And it would create a massive kind of black market because thousands and thousands, millions of people, there are fifty million people smoking today many of whom are addicted to it, would in effect violate federal law or to encourage others to do it. And ultimately it’s far more intrusive on our freedoms. And the AMA has never been in a position where they want o force people to do what’s good for them.
Heffner: You really do think we’re a nation of sheep, don’t you?
Heffner: We’re advertised into suicide.
Johnson: I think that, and I’m glad you used the term suicide because Justice Jackson once said that the amendment is not a suicide pact in trying to detail the limits of First Amendment protections. I just think that the two billion dollars today that’s going into giving the public, youngsters, and all of us, the sense that it really can’t be that bad is having an effect, is having a counter-educational effect. And I think that in order to be effective, really effective about our number one disease causer, the number one killer in our society today, it is not asking too much and it isn’t’ bumping up too hard against the First Amendment to say with regard to these commercial panderers that they ought to stop doing it.
Heffner: Well, you know if Floyd Abrams were here, and I really wanted this opportunity just to talk together, if Floyd were here I’m sure he would repeat his insistence that if there is an idea or if there is speech that you don’t like, and you do not like the tobacco company’s speech, you speak against it, that the solution isn’t banning it, but speaking more loudly.
Johnson: Well, let me respond to that because there are a lot of self-styled constitutional scholars around. Floyd Abrams is a real live one. But he probably is in the minority in thinking that Congress could not ban the advertising promotion of cigarettes. The Supreme Court decided a case just two years ago, the Central Hudson Gas and Electric case vs. the Public Utility Commission in New York, in which the Court set down a test for restricting advertising of lawful products. It said two things that are important. First, with regard to deceptive advertising there is no constitutional protection, and we will make the argument that cigarette smoking, cigarette advertising isn’t inherently deceptive. Secondly, the court said even with regard to non-deceptive lawful product advertising it can be restricted, it can in fact be banned by the government if certain tests are met. And those tests we think we can meet.
Heffner: Yes, but you know you’re talking about passing muster constitutionally. You do, perhaps, and you don’t perhaps. And the question is whether this group of lawyers or that group of lawyers is correct. The law is as has been said what the judges say it is. The question it seems to me is not so much whether it’s five to four one way or even nine judges on one side or the other way, but whether we aren’t taking a chance with speech that goes beyond the question of whether you’re going to win or not win a case before the court, even the highest court. I’d like to ask you though, it’s a difficult one after all. Your client is the American Medical Association, and you’re General Counsel. Do you have any problems at all with this whole business? Is there any down-side? And it’s a question, not really an unfair one, but a traditional one I’ll ask my guests at this table. Is there any down-side in your estimation to the suggestions that have now been made? Down side in terms of the immediate? Down side perhaps in terms of impact later on?
Johnson: No. I’ve thought about it long and hard. We’ve all thought about it long and hard. We’ve been through ten years of attempts to try to cut the increase in smoking in this country. I don’t see any down-side. And let me say something about the First Amendment. I come from a family of lawyers that…my ancestors were lawyers. And I’ve studied under Newton Minnow and other great lawyers in this country, and I have a great respect for the First Amendment and for Floyd Abrams and for the Constitution. I think we dilute the First Amendment when we extend it to advertising a product like cigarettes. I think we give it less value than we should when we say that protects freedom of religion. That protects freedom of the press. And it also protects this commercial pandering which is inherently misleading. Which does suggest there’s something healthy about a product that will kill you even when used as intended. So the down-side which could be an erosion of our constitutional freedoms, I do not see. I see it just the other way. I see to hold the First Amendment up to protect this kind of thing is to dilute its strength and to make it less effective when we really need it.
Heffner: You know, I could…I’d like as an American historian to go along with that. I find it very difficult. I don’t say that I would disagree. You haven’t’ asked me. Nobody cares. I don’t disagree with what the AMA is suggesting. But I sure as hell am concerned about that slippery slope. I don’t find it as easy as you do to say we spend ten years debating this and now we’re certain. The same words you use about tobacco I’ve heard used about, not substantive…substances, necessarily, but films and television and books and plays. You know that’s a tradition. The crying fire in a crowded theater is always anathema to us but doesn’t it depend upon what you consider the counterpart?
Johnson: Well, you can’t cry fire in a crowded theater. And there is a limit to the nature of obscenity that the First Amendment protects. And there are restrictions on alien sedition activities which involve expression which are not covered by the First Amendment. Deceptive information is not covered by the First Amendment. Never has been, should not be. And as far as the slippery slope goes, I think you have to judge this proposal on the merits for what it is. And wait and hope that constitutional scholars and even the AMA the next time somebody wants to restrict somebody’s alleged right to speak, will be there on the right side. We just have to have faith in the constitution that has survived change. And has survived minute and gradual changes in the way it’s applied over years and years and years and still exists and still firm.
Heffner: But you know historically in this country when someone has said, trust me, we’ve put out backs in the air and said hey, I trust you, but I won’t trust you with my constitutional liberties, with my rights, with my future. Let me move away from that. I talked at the beginning about the struggle that seems to be going on not just on the level of what you folks are doing about smoking and advertising. But what you’re doing about malpractice insurance, what you’re doing about many other areas where the two professions seem to be at odds. What is happening now with these when one picks up a newspaper and reads a story about the ABA and the AMA as if they were warring armies?
Johnson: Well, it’s a shame. We’re in the middle of a crisis in this country. The doctors have been leaders in it, but now bus lines, day care centers, small cities and municipalities, small businesses the Federal government, everybody is reeling under a liability crisis. And their lawyers are the keepers of our legal system. They’re the judges, they’re the ones who generate income to argue our cases, who each day exist in the courtrooms and the legal environment of our country. And they have all at stake. They have a lot to protect. And they have a fine tradition to protect. And you don’t make change in something like our fundamental legal rights easily. And I don’t expect them to easily do it… buti do expect them to look around to see what we’re saying. To look at the facts. To recognize that the number of lawsuits, the nature of the awards given today, expansion of liability way beyond concepts of fault. The huge transaction costs and delays in going to court today is a real problem. It is a real problem for all of us. And it’s up to the lawyers and their organizations to help us find a way out. And we want to work with them.
Heffner: Of course the lawyers are saying listen you fellows over there and at the AMA it’s up to you to clean those stables. The malpractice suits come because you are not handling malpractice matters within your own association, within your own profession. You are not taking to task those many, many doctors among them many, many more who perform so brilliantly and so well. You’re not taking to task, you’re not taking your own responsibility for policing the medical establishment. So don’t turn to the legal profession to let you off the hook and to provide for less insurance for the individual who is put upon because you’re not taking care of your own problems.
Johnson: First let me say this. It isn’t the incompetent doctors causing the bus lines and the day care centers and the small cities in America to have liability…(inaudible)…
Heffner: How about malpractice suits?
Johnson: It is sometimes an incompetent doctor who is a defendant in a malpractice suit. But the bulk, the great majority of malpractice cases are brought against good doctors. You know the neurosurgeon in New York is paying $100,000 a year. The distinguished neurosurgeon. He may have one, two, or five claims pending against him. It is a very complex science. And the high risk specialties, the high risk specialties will inevitably have accidents occur or even make mistakes. But that doesn’t mean we’re dealing with an incompetent physician.
Heffner: But you know the trouble is, it would be too bad if on this most important issue we just sort of passed over each other. And you set forth a series of arguments, and I tried to be a surrogate here and set forth another series of arguments. I’m asking you as a lawyer and the General Counsel to the American Medical Association what about the charge that is made that the doctors are not, and one can demonstrate that statistically and one can demonstrate it case by ugly case, are not so concerned about cleaning their own house. That we can sit back and say, yeah, they’re doing an important enough job.
Johnson: Well, we are concerned. We are very concerned.
Heffner: Well, what are you doing about it?
Johnson: I’ll tell you what we’re doing about it. We’ve introduced Federal legislation that will try to attack the heart of the problem. Here’s part of the problem.
Heffner: Wait a minute. You control your own profession, don’t you?
Johnson: Yes, we do.
Heffner: Doctors are peers and make judgments about their own peers?
Johnson: Every day doctors in this country do not refer patients to who they might think are bad doctors. And every day in hospitals in this country doctors are saying, let’s not give privileges to this doctor. And that’s about the extent of what a physician can do. Physicians in the AMA do not license doctors. We can’t drum a physician out of the profession. We can refuse to refer patients to them. We can report them to the state board. And we can do the best we can not to let them practice with us in hospitals.
Heffner: It’s clear we’ve just started a topic that we’re going to have to finish, not finish but develop some other time. Please come back and join me another time, MR. Johnson. Thanks for being here today.
Johnson: Thank you, Richard. Thanks very much.
Heffner: And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about today’s program, today’s guest, today’s theme, and it’s a controversial one, please write to THE OPEN MIND in care of this station. Meanwhile, as another old friend used to say, “Good night and good luck.”
Continuing production of this series has generously been made possible by grants from: The Richard Lounsbery Foundation; The Mediators and Richard and Gloria Manney; Mr. and Mrs. Lawrence A. Wien; Pfizer, Inc; and the M. Weiner Foundation of New Jersey; the New York Times Company Foundation.