STATEMENT OF ROBERT S. PECK, LEGISLATIVE COUNSEL, AMERICAN CIVIL LIBERTIES UNION Regarding

STATEMENT OF ROBERT S. PECK, LEGISLATIVE COUNSEL, AMERICAN CIVIL
LIBERTIES UNION

Regarding THE UNCONSTITUTIONALITY OF SENATOR HARKIN'S TOBACCO
ADVERTISING TAX PROPOSAL

March 17, 1993

Later today, Senator Tom Harkin of Iowa will announce his plans
for legislative action to limit the deductibility of tobacco
advertising and promotion. The ACLU believes that Senator
Harkin's proposal would be an infringement of First Amendment
rights because it targets a particular viewpoint on a legal,
commercial product for unfavorable treatment.

Attempts to censor or burden advertising of legal products are
based on the premise that the people do not know what is good for
them. Silence the speech, or in Senator Harkin's case, force
cutbacks in the speech because of financial burdens, and what the
people don't know won't hurt them.

Fortunately, the First Amendment prohibits such abusive
paternalism. Recently, the Supreme Court invalidated New York's
"Son of Sam" law on the grounds that a "statute is presumptively
inconsistent with the First Amendment if it imposes a financial
burden on speakers because of the content of their speech." Simon
& Schuster Inc. v. Members of the New York State Crime Victims
Board, 112 S.Ct. 501 (1991). In doing so, the Court reaffirmed
its 1984 declaration that "[r]egulations which permit the
Government to discriminate on the basis of the content of the
message cannot be tolerated under the First Amendment."

Even the most offensive and reprehensible speech cannot be
burdened on the basis of the viewpoint expressed, as the decision
in the recent cross-burning case demonstrates. R.A.V. v. City of
St. Paul, 112 S.Ct. 2538 (1992). Moreover, under the 
Constitution, it does not matter whether the financial burden
being imposed is an additional tax or the denial of a tax
deduction. See Committee for Public Education & Reliqious Liberty
v. Nyquist, 413 U.S. 756 (1973).

The conclusion that the Harkin proposal violates the Constitution
is not altered by the fact that tobacco advertising is commercial
speech. The Court has recognized that commercial speech should
receive substantial protection, in part, because a consumer's
interest in the free flow of commercial information "may be as
keen, if not keener by far, than his interest in the day's most
urgent political debate." Virginia State Board of Pharmacy v.
Virqinia Citizen's Consumer Council, 425 U.S. 748, 763 (1976).

Obviously, at a minimum, it should receive more protection than
the so-called "unprotected speech" at issue in the cross-burning
case, and therefore, the content-neutrality principle must apply.
Some claim the tobacco products are uniquely dangerous, so it is
perlllissible to ignore the First Amendment just this once. Yet
even before the tobacco deductibility debate has finished, other
Members of Congress are lining up to attack the commercial speech
rights of other legal products. Congressman James Moran of
Virginia recently introduced a bill which would completely repeal
the deductibility for tobacco and alcohol beverage promotion.
Senator William Cohen of Maine recently called for similar action
with respect to the promotion of prescription drugs. Can it be
long before someone attempts to do the same for the promotion of
abortion services?

Censorship, the Constitution teaches, is never right.  And the
Supreme Court has said it cannot stand where we are speaking of
lawful activity and we are not being misleading.

Fortunately, Congress may have the foresight to reject 
Senator Harkin's proposal because of the constitutional risks it
presents. The Senator offered a similar amendment in the last
Congress which was defeated by a vote of 56 to 38. We will be
working hard to see that this vote is maintained.

I am pleased to be joined today by Alan Slobodin of the
Washington Legal Foundation. Our organizations are often on
opposite sides, but here we agree.

Before I turn the floor over to Alan, I should let you know that
we are not alone in raising these constitutional objections to
Mr. Harkin's proposal. When the senator offered his amendment
last year, many groups raised constitutional concerns, including
the Thomas Jefferson Center for the Protection of Free
Expression, the Freedom of Expression Foundation, media lawyer
Floyd Abrams, the Media Coalition, law professors Ronald Rotunda
of Illinois and Burt Neuborne of NYU, among others.

In sum, the differential treatment of a particular commercial
enterprise, based solely on disapproval of its promotional
message, violates the Constitution. The Harkin proposal should be