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.1 By 1969 it was evident that more stringent controls would be required2 and that both the FCC3 and the FTC4 were considering independent action. Under such circumstances Congress enacted the Public Health Cigarette Smoking Act of 1969,5 (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 * * *"6 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,7 the FTC,8 or the SEC.9 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., 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 doctrine10 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.'"11 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). "[T]he 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.12 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.13 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.14
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 States, supra; Red Lion Broadcasting Co. v. F. C. C., 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969).
Thus, Congress had information quite sufficient to believe that a proscription covering only the electronic media would be an appropriate response to the problem of cigarette advertising. Petitioners emphasize that much of the revenue formerly allocated to television and radio cigarette advertisements has been diverted to newspapers and magazines. The fact that the Act may create a new and perhaps potentially serious situation in the print media is not sufficient evidence to establish a due process violation. The Fifth Amendment does not compel legislatures "to prohibit all like evils, or none. A legislature may hit at an abuse which it has found, even though it has failed to strike at another." United States v. Carolene Products, supra, 304 U.S. at 151, 58 S.Ct. at 783. Speculation concerning the final impact or success of the classification in question cannot erode the valid factual distinctions upon which such classification was predicated.
The petition for injunctive and declaratory relief is, accordingly, denied.
J. SKELLY WRIGHT, Circuit Judge (dissenting):
Cigarette smoking and the danger to health which it poses are among the most controversial and important issues before the American public today. Yet Congress, in passing the Public Health Cigarette Smoking Act of 1969,1 has suppressed the ventilation of these issues on the country's most pervasive communication vehicle—the electronic media.2 Under the circumstances, in my judgment, no amount of attempted balancing of alleged compelling state interests against freedom of the press can save this Act from constitutional condemnation under the First Amendment. The heavy hand of government has destroyed the scales.
It would be difficult to argue that there are many who mourn for the Marlboro Man or miss the ungrammatical Winston jingles. Most television viewers no doubt agree that cigarette advertising represents the carping hucksterism of Madison Avenue at its very worst. Moreover, overwhelming scientific evidence makes plain that the Salem girl was in fact a seductive merchant of death —that the real "Marlboro Country" is the graveyard.3 But the First Amendment does not protect only speech that is healthy or harmless. The Court of Appeals in this circuit has approved the view that "cigarette advertising implicitly states a position on a matter of public controversy." Banzhaf v. F. C. C., 132 U.S.App.D.C. 14, 34, 405 F.2d 1082, 1102 (1968), cert. denied, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969). For me, that finding is enough to place such advertising within the core protection of the First Amendment.
The Banzhaf case, decided three years ago, upheld an FCC determination that, since cigarette advertising was controversial speech on a public issue, the so-called "fairness doctrine" applied to it.4 Stations carrying cigarette advertising were therefore required to "tell both sides of the story" and present a fair number of anti-smoking messages.
The history of cigarette advertising since Banzhaf has been a sad tale of well meaning but misguided paternalism, cynical bargaining and lost opportunity. In the immediate wake of Banzhaf, the broadcast media were flooded with exceedingly effective anti-smoking commercials. For the first time in years, the statistics began to show a sustained trend toward lesser cigarette consumption.5 The Banzhaf advertising not only cost the cigarette companies customers, present and potential; it also put the industry in a delicate, paradoxical position. While cigarette advertising is apparently quite effective in inducing brand loyalty, it seems to have little impact on whether people in fact smoke.6 And after Banzhaf, these advertisements triggered the anti-smoking messages which were having a devastating effect on cigarette consumption. Thus the individual tobacco companies could not stop advertising for fear of losing their competitive position; yet for every dollar they spent to advance their product, they forced the airing of more anti-smoking advertisements and hence lost more customers.
It was against this backdrop that the Consumer Subcommittee of the Senate Committee on Commerce met to consider new cigarette legislation. The legislative prohibition against requiring health warnings in cigarette advertisements7 had just expired, and the Federal Trade Commission had indicated that it might soon require such warnings if not again stopped by Congress.8 In addition, the FCC was moving toward rule making which would have removed cigarette advertising from the electronic media.9 Thus Congress had to decide whether to extend the ban on FTC action and institute a similar restraint against the FCC or, alternatively, to allow the regulatory agencies to move forcefully against cigarette advertisements.
The context in which this decision had to be made shifted dramatically when a representative of the cigarette industry suggested that the Subcommittee draft legislation permitting the companies to remove their advertisements from the air.10 In retrospect, it is hard to see why this announcement was thought surprising. The Banzhaf ruling had clearly made electronic media advertising a losing proposition for the industry, and a voluntary withdrawal would have saved the companies approximately $250,000,000 in advertising costs,11 relieved political pressure for FTC action,12 and removed most anti-smoking messages from the air.13
At the time, however, the suggestion of voluntary withdrawal was taken by some as a long delayed demonstration of industry altruism.14 Congress quickly complied with the industry's suggestion by banning the airing of television and radio cigarette commercials. Moreover, the new legislation provided additional rewards for the industry's "altruism" including a delay in pending FTC action against cigarette advertising15 and a prohibition against stricter state regulation of cigarette advertising and packaging.16 The result of the legislation was that as both the cigarette advertisements and most anti-smoking messages left the air, the tobacco companies transferred their advertising budgets to other forms of advertising such as newspapers and magazines where there was no fairness doctrine to require a response.17
The passage of the Public Health Cigarette Smoking Act of 1969 marked a dramatic legislative coup for the tobacco industry. With the cigarette smoking controversy removed from the air, the decline in cigarette smoking was abruptly halted and cigarette consumption almost immediately turned upward again.18 Thus whereas the Banzhaf ruling, which required that both sides of the controversy by aired,19 significantly depressed cigarette, sales, the 1969 legislation which effectively banned the controversy from the air, had the reverse effect. Whereas the Banzhaf decision had increased the flow of information by air so that the American people could make an informed judgment on the hazards of cigarette smoking, the 1969 Act cut off the flow of information altogether.20
Of course, the fact that the legislation in question may be a product of skillful lobbying or of pressures brought by narrow private interests, or may have been passed by Congress to favor a particular industry, does not necessarily affect its constitutionality. Cf. United States v. O'Brien, 391 U.S. 367, 383-385, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); Arizona v. California, 283 U.S. 423, 455, 51 S.Ct. 522, 75 L.Ed. 1154 (1931). But when the "inevitable effect" of the legislation is the production of an unconstitutional result, the statute cannot be allowed to stand. See Gomillion v. Lightfoot, 364 U.S. 339, 342, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). The legislative history related above shows that the effect of this legislation was to cut off debate on the value of cigarettes just when Banzhaf had made such a debate a real possibility. The theory of free speech is grounded on the belief that people will make the right choice if presented with all points of view on a controversial issue. See Emerson, Toward a General Theory of the First Amendment, 72 Yale L.J. 877, 881 (1963); A. Meiklejohn, Political Freedom 26-28 (1960). When Banzhaf opened the electronic media to different points of view on the desirability of cigarette smoking, this theory was dramatically vindicated. Once viewers saw both sides of the story, they began to stop or cut down on smoking in ever increasing numbers.21 Indeed, it was presumably the very success of the Banzhaf doctrine in allowing people to make an informed choice that frightened the cigarette industry into calling on Congress to silence the debate.
This is not an ordinary "free speech" case. It involves expression which is ostensibly apolitical, advocating a particularly noxious habit through a medium which the Government has traditionally regulated more extensively than other modes of communication. But the unconventional aspects of the problem should not distract us from the basic First Amendment principles involved. Any statute which suppresses speech over any medium for any purpose begins with a presumption against its validity. If the Government is able to come forward with constitutionally valid reasons why this presumption should be overcome, then of course the statute will be allowed to stand. But where, as here, the reasons offered are inconsistent with the purposes of the First Amendment, it becomes the duty of the courts to invalidate the statute.
Thus it may be true, as the Government argues, that the special characteristics of the electronic media justify greater governmental regulation than would be permitted for the print media. See National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L. Ed. 1344 (1943). But such regulation is constitutionally justified only because it serves to apportion access to the media fairly. As Mr. Justice Frankfurter argued in National Broadcasting:
"* * * Freedom of utterance is abridged to many who wish to use the limited facilities of radio. Unlike other modes of expression, radio inherently is not available to all. That is its unique characteristic, and that is why, unlike other modes of expression, it is subject to governmental regulation. * * * But Congress did not authorize the Commission to choose among applicants upon the basis of their political, economic or social views, or upon any other capricious basis. If it did, or if the Commission by these Regulations proposed a choice among applicants upon some such basis, the issue before us would be wholly different. * * *"22
Cases such as Red Lion,23 Banzhaf, and United Church of Christ24 are consistent with this approach in that they uphold Government power to insure wider access to the means of communication and persuasion. But these decisions in no way serve as precedent for the use of Government power to shut off debate on a vital public issue. If the First Amendment means anything at all, it means that Congress lacks this power. There is no constitutional warrant for Government censorship of any medium of communication. Compare United States v. Paramount Pictures, 334 U.S. 131, 166, 68 S.Ct. 915, 92 L.Ed. 1260 (1948), with Citizens Communication Center v. F. C. C., D.C. Cir., 447 F.2d 1201, at 1213, (decided June 11, 1971).
Thus the Government fails to meet its burden by simply asserting broad regulatory power over the broadcast media. If the statutory ban on cigarette advertising is to withstand constitutional scrutiny, there must be a further showing that either the advertising is not speech within the meaning of the First Amendment or it creates a clear and present danger of such substantial magnitude that governmental suppression is justified.25 While the Government in fact makes both of these arguments, I find neither of them persuasive in the context of this case.
Although the status of commercial or "product" advertising under the First Amendment has not been finally resolved,26 it must be conceded that some cases seem to accord it lesser protection than political or artistic speech.27 Indeed, as the court in Banzhaf stated: "As a rule, [product advertising] does not affect the political process, does not contribute to the exchange of ideas, does not provide information on matters of public importance, and is not, except perhaps for the ad-men, a form of individual self-expression."28 Commentators too have argued that product advertising is generally unrelated to the values which the First Amendment was designed to preserve, and that broad state regulation should therefore be permitted.29
These arguments are no doubt persuasive when applied to most of the activities of Madison Avenue. But it does not follow from their general validity that the words "product advertising" are a magical incantation which, when piously uttered, will automatically decide cases without the benefit of further thought.30 Thus when commercial speech has involved matters of public controversy,31 or artistic expression,32 or deeply held personal beliefs,33 the courts have not hesitated to accord it full First Amendment protection.
In my view, this circuit's decisions in Banzhaf and Friends of the Earth v. F.C.C.34 implicitly recognize this special status which certain forms of product advertising enjoy. Both Banzhaf and Friends of the Earth suggest that the fairness doctrine is not relevant to normal commercial messages.35 Yet the doctrine was applied in the case of cigarette and automobile advertisements because they, unlike ordinary commercial speech, were controversial statements on important public issues. It can hardly be contended that cigarette commercials are "controversial speech" for purposes of the First Amendment based fairness doctrine, yet mere "product advertising" for purposes of the First Amendment.36 The Banzhaf court recognized that the desirability of cigarette smoking had become a vital question of public concern, and that cigarette advertisements were a part of the debate surrounding that question. The court then went on to hold that "[w]here a controversial issue with potentially grave consequences is left to each individual to decide for himself, the need for an abundant and ready supply of relevant information is too obvious to need belaboring."37
Indeed, the desirability of cigarette smoking has become still more controversial since Banzhaf was decided. Issues such as whether Congress should end price supports for tobacco, require stricter health warnings, or even outlaw the sale of cigarettes altogether are matters of widespread public debate. The Surgeon General has stated38 and reiterated39 his official position that the health hazards of cigarette smoking make it an undesirable habit. The Government is, of course, entitled to take that position and to attempt to persuade the American people of its validity. But the Government is emphatically not entitled to monopolize the debate or to suppress the expression of opposing points of view on the electronic media by making such expression a criminal offense.40
Of course, it is true that the courts have on occasion recognized a narrow exception to these general First Amendment principles. Where otherwise protected speech can be shown to present a "clear and present danger" of a severe evil which the state has a right to prevent, suppression of that speech has on occasion been permitted.41 The argument is made here that the state has an overwhelming interest in the preservation of the health of its citizens and that cigarette advertising poses a clear and present danger to this interest.
Although this argument is superficially attractive, it cannot withstand close scrutiny. The clear and present danger test has always been more or less confined to cases where the state has asserted an overriding interest in its own preservation or in the maintenance of public order.42 While it cannot be denied that public health is also a vital area of state concern, it is different from the state interest in security in one crucial respect. Whereas there are always innocent victims in riots and revolutions, the only person directly harmed by smoking cigarettes is the person who decides to smoke them. The state can stop speech in order to protect the innocent bystander, but it cannot impose silence merely because it fears that people will be convinced by what they hear and thereby harm themselves. As cases like Stanley v. Georgia43 and Griswold v. Connecticut44 make clear, the state has no interest at all in what people read, see, hear or think in the privacy of their own home or in front of their own television set. At the very core of the First Amendment is the notion that people are capable of making up their own minds about what is good for them and that they can think their own thoughts so long as they do not in some manner interfere with the rights of others.
This opinion is not intended as a Magna Carta for Madison Avenue. In my view, Congress retains broad power to deal with the evils of cigarette advertising. It can force the removal of deceptive claims, require manufacturers to couple their advertisements with a clear statement of the hazardous nature of their product, and provide for reply time to be awarded to anti-cigarette groups. But the one thing which Congress may not do is cut off debate altogether.
The only interest which might conceivably justify such a total ban is the state's interest in preventing people from being convinced by what they hear—the very sort of paternalistic interest which the First Amendment precludes the state from asserting. Even if this interest were sufficient in the purely commercial context, the Banzhaf decision makes clear that cigarette messages are not ordinary product advertising but rather speech on a controversial issue of public importance—viz., the desirability of cigarette smoking. The Government simply cannot have it both ways. Either this is controversial speech in the public arena or it is not. If it is such speech, then Section 6 of the Public Health Cigarette Smoking Act is unconstitutional; if it is not, then Banzhaf was wrongly decided. Although I respect the opinion of my colleagues in this case, my own view is that the Banzhaf decision was correct and that this law is unconstitutional.45 I come to that position not only because stare decisis dictates it, but also because I think that when people are given both sides of the cigarette controversy, they will make the correct decision. That, after all, is what the First Amendment is all about. And our too brief experience with the Banzhaf doctrine shows that the theory works in practice.
I respectfully dissent.