Capital Broadcasting Company v. Mitchell

333 F. Supp. 582, 23 Rad. Reg. 2d (P & F) 2001, 1971 U.S. Dist. LEXIS 11235

Opinions

MEMORANDUM OPINION

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 required 2 and that both the FCC ³ 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 * x- *»⁶ jn 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 dis-positive 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 audi ence 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.

Footnotes

1

. The Federal Cigarette Labeling and Advertising Act, 15 U.S.C. § 1331 et seq. (1965). The required warning states: “Caution: Cigarette Smoking May be Hazardous to Your Health.”

2

. HEW, Report to Congress, 1968, FTC, Report to Congress, 1967, as reported in H.R.Rep.No.91-566, 91st Cong., 1st Sess. 3-6 (1969).

3

. Id., at 6.

4

. Id.

5

. Pub.L. 91-222 (April 1, 1970), 15 U.S.C. § 1335.

6

. Petition for Permanent Injunction, p. 4.

7

. See, New York State Broadcasters Association v. United States, 414 F.2d 990 (2d Cir.), cert. denied, 396 U.S. 1061, 90 S.Ct. 752, 24 L.Ed.2d 755 (1969), upholding the ban on broadcast media of lottery information, 18 U.S.C. § 1034.

8

. See, F.T.C. v. Standard Education Soc’y, 302 U.S. 112, 58 S.Ct. 113, 82 L.Ed. 141 (1937); Giant Food, Inc. v. F.T.C., 116 U.S.App.D.C. 227, 322 F.2d 977 (1963), cert. dismissed, 376 U.S. 967, 84 S.Ct. 1121, 12 L.Ed.2d 82 (1964), upholding 15 U.S.C. § 45 which empowers the FTC to prevent unfair and deceptive practices, including advertising.

9

. See, United States v. Re, 336 F.2d 306 (2d Cir.), cert. denied, 379 U.S. 904, 85 S.Ct. 188, 13 L.Ed.2d 177 (1964), which upheld the Securities Act of 1933, § 5, as amended by 15 U.S.C. § 77 et seq. which empowers the SEC to regulate information disclosed in the solicitation of stock.

10

. We note in passing that the Fourth Circuit lias recently upheld an FCC ruling that “smoking and health” has ceased to be a controversial issue. Larus & Brother Co., Inc. v. F.C.C., 447 F.2d 876 (4th Cir. 1971). It is not necessary at this time, however, to speculate as to any possible effect on the Banzhaf holding.

11

. Brief in Support of Plaintiffs’ Cross-Motion for Summary Judgment, p. 13.

12

. Pursuant to Section 5(d) (1) of the Cigarette Labeling and Advertising Act, the Secretary of Health, Education and Welfare made recommendations to the Congress in his 1968 report which stressed the need for strengthened legislation in the cigarette advertising area. Pursuant to Section 5(d) (2) of the Act, the Federal Trade Commission made three annual reports to the Congress stressing the strength of the smoking habit, the pervasiveness of broadcast commercials and the need for new legislation. H.R.Rep. No. 91-566, 91st Cong., 1st Sess. 3-6 (1969).

13

. The FTC Report of 1967 cited supra, n. 12 fit 13, presented strong evidence of a great attraction on the part of young people to the broadcast media. Typical of the data is the following: Teenage boys surveyed averaged 4.3 hours of radio listening daily; teenage girls surveyed averaged 5.3 hours; in every half-hour segment from 8:00 P.M. until 11:00 P.M. radio delivers a minimum [audience] of 24.1% of all teenagers; and 87.9% of teenage girls hear radio on the average day. The statistics for television were equally impressive. Id., at 5. Among other experts, Congress had the benefit of tlie testimony of Joseph Cullman, Chairman of Philip Morris, Inc., who stated: “ * * * I think further that broadcast is quite different from print media. We think that the print media appeals to a more adult person and as such is a more appropriate place for cigarette ads.” Hearings on H.R. 6543 Before tlie Consumer Subcommittee of the Committee on Commerce, 91st Cong., 1st Sess., at 115 (1969).

14

. 132 U.S.App.D.C. 14, 405 F.2d 1082, 1100-1101 (1968), cert. denied, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969), (footnote omitted).