Can the federal government require tobacco companies to put scary pictures on cigarette packs? At least one federal district judge has said "no." You can regulate commercial speech to protect consumers. This means you can punish tobacco companies for making false claims, denying the health risks associated with smoking. And you can even require cigarette packaging to contain labels disclosing those risks. But you can't compel makers of cigarettes to participate in a campaign against smoking. That crosses the line, wrote Judge Richard Leon.
The New York Times, in an editorial this week, defends the government's position, and urges overturning Judge Leon's decision. Anti-smoking warnings don't need to be ineffective, they argue, to be constitutional, and they add: "There is evidence that the current surgeon general warnings on the side of cigarette packs are ineffective and virtually invisible."
Now, I do not want to defend smoking or tobacco companies. Nor do I wish to enter into the niceties of the law of the First Amendment. But it strikes me that there is something very wrongheaded about the government's thinking here, and that of the Times. There are important values at stake here.
I did a double take when I read the Times' editorial. The current warnings are "virtually invisible"? Hogwash! The current warnings on cigarette packages are perfectly visible. They are legible, clear and informative. Why would you say they are invisible when this is not true? Why would you falsely claim that there is evidence that they are invisible, when there is surely no evidence for such a preposterous claim?
What's really doing the work here is the idea that the warnings are ineffective. And now we get to the point. The warning labels are certainly effective conveyers of truth and information. But they are not an effective means of influencing or controlling behavior. In a word, the warning labels, as they now stand, are not effective propaganda. Propaganda, by definition, is communication that aims to promote or further a cause. In this case, the "cause" is public health.
Should the government be in the propaganda business? Should we, as a people, seek to use fear and sensational images to dictate behavior? How about only when it's for a good cause and backed by sound science? Maybe.
Does the government have the right to compel companies to carry out propaganda campaigns for the government? Maybe.
Reasonable people will differ on how to answer these questions. And constitutional law scholars will have something to say.
But what concerns me is the general tendency — nicely on display in The New York Times editorial — to obscure the difference between propaganda — speech that aims to further an end — and other forms of informed and informative speech.
The thing about propaganda, is that it seeks to achieve an end, but by whatever means necessary. Even when propaganda is in the service of propagating sound advice backed up by good science, propaganda aims to manipulate or control. Propaganda measures its success by its effectiveness, not by its truthfulness or informativeness, as the Times editorial makes explicit.
Argument also seeks to persuade or convince. But this does not mean argument aims at manipulation. It is cynical and immoral to suppose otherwise. And it is a striking fact about contemporary American life that we seem to have lost a grip on this difference.
Whereas propaganda frequently seeks to by-pass judgment and independent thinking — for example, by using images to promote fear and so to bring about a change in behavior — argument targets the autonomous judgment of the other person. Argument takes for granted that the one you are arguing with can understand and assess information just as you can. Whereas the propagandist views not only rhetoric and imagery, but other people, as means to be manipulated in the pursuit of certain ends, the proponent of argument shows a basic respect for others.
Perhaps defenders of the FDA's new packaging requirement will point out that what is at stake here are children. Children are below the age of reason. They are not informed citizens or consumers. Maybe the point is to protect them, and it is right to use the same means to protect them that tobacco companies use to try to ensnare them. We don't aim to persuade children. We rightly aim to control them.
But this is a bad argument. It's wrong to manipulate people, even children, to do what you want or what you believe is right. And that's the problem: propaganda, even when it is based on firm fact and good science, has more to do with manipulation than it does with truthful communication.
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