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October 14, 1971

John MITCHELL, Attorney General of the United States, and Thomas Flannery, United States Attorney for the District of Columbia, Defendants

The opinion of the court was delivered by: GASCH

GASCH, District Judge.

Petitioners, six corporations which operate radio stations under licenses granted by the Federal Communications Commission, seek to enjoin enforcement of Section 6 of the Public Health Cigarette Smoking Act of 1969 and to have Section 6 declared violative of the First and Fifth Amendments to the Constitution. The National Association of Broadcasters has been permitted to intervene.

 The Court requested Professor John F. Banzhaf, III to file a brief amicus curiae. Plaintiff and intervenor have filed replies to the amicus brief. The Court wishes to take this opportunity of expressing its appreciation of Professor Banzhaf's analysis of the issues and his contribution to their resolution.

 This three-judge court was convened pursuant to petitioners' application under 28 U.S.C. §§ 2282 and 2284. We conclude that the Act in question does not conflict with the First or Fifth Amendment.

 In 1965, in an attempt to alert the general public to the documented dangers of cigarette smoking, Congress enacted legislation requiring a health warning to be placed on all cigarette packages. *fn1" By 1969 it was evident that more stringent controls would be required *fn2" and that both the FCC *fn3" and the FTC *fn4" were considering independent action. Under such circumstances Congress enacted the Public Health Cigarette Smoking Act of 1969, *fn5" (hereafter referred to as the Act) which, as pertinent hereto, provides:

"Sec. 6. After January 1, 1971, it shall be unlawful to advertise cigarettes on any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission."

 Petitioners allege that the ban on advertising imposed by Section 6 prohibits the "dissemination of information with respect to a lawfully sold product * * *" *fn6" in violation of the First Amendment. It is established that product advertising is less vigorously protected than other forms of speech. Breard v. City of Alexandria, 341 U.S. 622, 642, 71 S. Ct. 920, 95 L. Ed. 1233 (1951); Murdock v. Com. of Pennsylvania, 319 U.S. 105, 110-111, 63 S. Ct. 870, 87 L. Ed. 1292 (1943); Valentine v. Chrestensen, 316 U.S. 52, 54, 62 S. Ct. 920, 86 L. Ed. 1262 (1942); Banzhaf v. Federal Communications Commission, 132 U.S. App. D.C. 14, 405 F.2d 1082, 1101 (1968) cert. denied, 396 U.S. 842, 90 S. Ct. 50, 24 L. Ed. 2d 93 (1969). The unique characteristics of electronic communication make it especially subject to regulation in the public interest. National Broadcasting Co. v. United States, 319 U.S. 190, 226-227, 63 S. Ct. 997, 87 L. Ed. 1344 (1943); Office of Communication of United Church of Christ v. Federal Communications Commission, 123 U.S. App. D.C. 328, 359 F.2d 994, 1003 (1966). Whether the Act is viewed as an exercise of the Congress' supervisory role over the federal regulatory agencies or as an exercise of its power to regulate interstate commerce, Congress has the power to prohibit the advertising of cigarettes in any media. The validity of other, similar advertising regulations concerning the federal regulatory agencies has been repeatedly upheld whether the agency be the FCC, *fn7" the FTC, *fn8" or the SEC. *fn9" Petitioners do not dispute the existence of such regulatory power, but urge that its exercise in context of the Act is unconstitutional. In that regard it is dispositive that the Act has no substantial effect on the exercise of petitioners' First Amendment rights. Even assuming that loss of revenue from cigarette advertisements affects petitioners with sufficient First Amendment interest, petitioners, themselves, have lost no right to speak -- they have only lost an ability to collect revenue from others for broadcasting their commercial messages. See, Business Executives' Move For Vietnam Peace v. F.C.C., 146 U.S. App. D.C. 181, 450 F.2d 642 at 654 (D.C. Cir. 1971). Finding nothing in the Act or its legislative history which precludes a broadcast licensee from airing its own point of view on any aspect of the cigarette smoking question, it is clear that petitioners' speech is not at issue. Thus, contrary to the assertions made by petitioners, Section 6 does not prohibit them from disseminating information about cigarettes, and, therefore, does not conflict with the exercise of their First Amendment rights.

  The dissent relies upon Banzhaf v. F.C.C., 132 U.S. App. D.C. 14, 405 F.2d 1082 (1968), cert. denied, 396 U.S. 842, 90 S. Ct. 50, 24 L. Ed. 2d 93 (1969), for the proposition that since cigarette commercials implicitly state a position on a matter of public importance, such ads are placed within the "core protection" of the First Amendment. As we read this decision, with which we are in full accord, it carefully distinguishes between First Amendment protections as such, and the rather limited extent to which product advertising is tangentially regarded as having some limited indicia of such protection. Banzhaf, supra, at 1101-02. The fact that cigarette advertising is covered by the FCC's fairness doctrine *fn10" does not require a finding that it is to be given full First Amendment protection, especially in light of contrary existing authority. See, Breard v. City of Alexandria; Murdock v. Pennsylvania; Valentine v. Chrestensen, supra. We do not understand Banzhaf or any other decision which the dissent cites to go that far and we are unwilling to blaze that trail in this case.

 Petitioners' Fifth Amendment contention raises a more direct constitutional question. Petitioners state their objection "is not that any ban upon cigarette advertising would violate the due process clause. Rather, it is Congress' attempt, in Section 6 of the Act, to classify media in two categories -- those prohibited from carrying cigarette advertisements and those who are not -- which contravenes the Fifth Amendment because the distinctions drawn are 'arbitrary and invidious.'" *fn11" To withstand due process challenge a statutory classification must have a reasonable basis, and if such basis exists, the validity of the statute must be upheld without further inquiry. Dandridge v. Williams, 397 U.S. 471, 485, 90 S. Ct. 1153, 25 L. Ed. 2d 491 (1970); McGowan v. Maryland, 366 U.S. 420, 426, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961); United States v. Carolene Products, 304 U.S. 144, 154, 58 S. Ct. 778, 82 L. Ed. 1234 (1938). "[The] law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it." Williamson v. Lee Optical, 348 U.S. 483, 487-88, 75 S. Ct. 461, 464, 99 L. Ed. 563 (1955). Finally, Congress is entitled to a presumption "that if any state of facts might be supposed that would support its action, those facts must be presumed to exist." International Ass'n of Mach. & A. Workers v. National Mediation Board, 138 U.S. App. D.C. 96, 425 F.2d 527, 540 (1970).

 Under the above criteria there exists a rational basis for placing a ban on cigarette advertisements on broadcast facilities while allowing such advertisements in print. In 1969 Congress had convincing evidence that the Labeling Act of 1965 had not materially reduced the incidence of cigarette smoking. *fn12" Substantial evidence showed that the most persuasive advertising was being conducted on radio and television, and that these broadcasts were particularly effective in reaching a very large audience of young people. *fn13" Thus, Congress knew of the close relationship between cigarette commercials broadcast on the electronic media and their potential influence on young people, and was no doubt aware that the younger the individual, the greater the reliance on the broadcast message rather than the written word. A pre-school or early elementary school age child can hear and understand a radio commercial or see, hear and understand a television commercial, while at the same time be substantially unaffected by an advertisement printed in a newspaper, magazine or appearing on a billboard.

 The fact is that there are significant differences between the electronic media and print. As the Court stated in Banzhaf, supra,

Written messages are not communicated unless they are read, and reading requires an affirmative act. Broadcast messages, in contrast are 'in the air.' In an age of omnipresent radio, there scarcely breathes a citizen who does not know some part of a leading cigarette jingle by heart. * * It is difficult to calculate the subliminal impact of this pervasive propaganda, which may be heard even if not listened to, but it may reasonably be thought greater than the impact of the written word. *fn14"

 Moreover, Congress could rationally distinguish radio and television from other media on the basis that the public owns the airwaves and that licenses must operate broadcast facilities in the public interest under the supervision of a federal regulatory agency. Legislation concerning newspapers and magazines must take into account the fact that the printed media are privately owned. See, National Broadcasting Co. v. United ...

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