Give them liberty to give us death?

It seemed like a great way to promote family values. On August 10, President Clinton announced a campaign to protect children from the dangers of smoking by severely restricting cigarette advertising on outdoor billboards, at sporting events, in magazines, and on promotional items.

Hours later, however, opponents were in court claiming that the regulations violated the First Amendment. The protests of censorship came not from political dissenters and avant-garde artists, but from some of the wealthiest corporations in the United States: Philip Morris and R.J. Reynolds. Is Bill Clinton the Joe McCarthy of our times?

Hardly. The First Amendment guarantees the right to freedom of speech, but not all speech is equally protected. Securities fraud, perjury, and sexual harassment, to name three examples, get no First Amendment protection. The central types of protected speech are political and artistic speech, which promote the values of democratic culture, self-governance, personal autonomy, and self-expression. The liberty interest in commercial speech, on the other hand, is not much different from the liberty to pursue a trade or business, which is generally subject to regulation by the democratic process. The Supreme Court has held that commercial speech, or "speech which proposes a commercial transaction," receives considerably less protection. Until 1976, in fact, the Supreme Court didn't recognize its constitutional status at all.

Thus, the government can ban advertisements for the sale of heroin, but it cannot jail communists who advocate the violent overthrow of the U.S. government. False and misleading political speech is constitutionally protected, but there is no similar privilege for false or misleading advertisements. The government can even require businesses to disclose information about products that they would rather keep under wraps, if this would prevent misleading consumers. But the rules are different in politics. For better or worse, we can't sue politicians to force them to tell the whole truth.

The Supreme Court protects commercial speech because of the value in distributing true information about products to willing consumers. Ironically, most advertising, and most cigarette advertising in particular, is of a completely different character. Modem promotion of beer and cigarettes is primarily image advertising; it does not convey information about a product but instead tries to associate it with something the consumer already desires, such as youth, sexual attractiveness, or popularity. Image advertising has brought us the Marlboro Man and the slogan, "You've come a long way, baby." Not surprisingly, image advertising is the most effective way to attract teenagers to smoking.

The Clinton proposals seek to reduce teen smoking by limiting the reach of this imagery. The Administration wants to ban brand-name advertising on products not related to smoking (such as T-shirts and baseball caps), and to require that all remaining outdoor tobacco advertisements be in "tombstone format"--black and white and text only. The tombstone rules also would apply to advertising in publications with a substantial youth readership, which includes youth publications like Seventeen and more general publications like TV Guide.

Because it is illegal to sell cigarettes to minors, the government can prevent advertising to minors. But can the government restrict nonmisleading advertising aimed at adults that also reaches children? The tobacco companies contend it can't. According to a 1980 decision by the Supreme Court, the test is whether there is a good enough fit between the end the government seeks and the means it selects, and whether those means are unduly restrictive.

In one case, the Court suggested that Puerto Rico could ban all casino gambling advertising aimed at its residents because it had the power to do something much more restrictive--ban casino gambling altogether--and that made less restrictive alternatives irrelevant. Applying that logic, since the government could ban cigarette manufacture entirely, it could ban all advertising of cigarettes. And if it could ban all advertising, it could certainly ban only the advertising most likely to seduce children into smoking.

More recent cases suggest that the court will be suspicious of government actions that are badly adapted to their stated ends. Last term, for example, the Court struck down a law banning advertisements of alcohol content in beer because the government's reasons were belied by the patchwork nature of the ban. Indeed, in some cases the government even required disclosure of alcohol content.

It's reasonable to think that reducing exposure of children to cigarette advertising, and especially image advertising, will tempt fewer children to smoke. But could the government do this in ways that don't affect adult advertising? The problem is that advertising for adults often can't be segregated so that children are not exposed to it--you can't have, say, one section of the ballpark visible only to adults and another only to kids.

The tombstone rules actually strengthen the government's case by targeting image-based ads while allowing the dissemination of truthful information about price and features--the core concern of commercial speech protection. Adults can still receive truthful information about products, and the tombstone rules don't apply at all to magazines with overwhelmingly adult readers.

Clinton's proposals would also ban tobacco advertising within 1,000 feet of schools. The tobacco companies' defenders argue that this will cut off most prime advertising space. But this seems hardly less burdensome than regulations upheld by the Supreme Court that ban adult bookstores within the vicinity of schools and churches.

Finally, the tobacco companies would be required to pay for a $150 million advertising campaign aimed at convincing the young to stop smoking. At first glance, this looks about as constitutional as asking the Ku Klux Klan to finance a course on multiculturalism. But we are dealing with commercial, not political, speech. Cigarette manufacturers already have to put a black-and-white sign on their ads--and on every pack of cigarettes--announcing that they are, in effect, selling carcinogens. We can't require Newt Gingrich to wear a sign saying "I haven't a clue what I'm talking about" when he delivers a speech on foreign policy, but we can compel retailers and manufacturers to provide warnings and additional information.

Opponents of the restrictions may object that liberals are equally opposed to censoring TV and cyberspace to protect kids. But the cases are different. First, there is no "C-chip" that would allow parents to block out every passing Joe Camel T-shirt. More importantly, the Constitution regards commercial speech as less essential to our freedom than political or artistic speech. Simply put, we shouldn't confuse the right to denounce an unjust government with the right to denounce a competitor's roll-on deodorant. We've come a long way, baby, but not that far.