Steve's post below: Compelling Tobacco Companies to Carry Graphic Warnings on Cigarette Packages.
Here's what Milton scholar and law professor Stanley Fish has to say in his post "The Tobacco Horror Show," New York Times online, 11/14/11:
I’m sure you’ve noticed those TV ads for pharmaceutical products that include an incredibly long list of side effects and possible hazards recited by a cheerful voice as men and women are shown living the happy lives made possible by a drug that can inflict on them everything from bloating and joint pain to death. This combination of positive and negative communications is mandated by the government requirement that drug manufacturers must disclose all the risk factors attending the product they are hawking.
The result is what one might call the “battle of information.” The drug companies are providing information about the benefits of their product, and under duress (it would not be their choice to do this) they are also providing information about the dangers of that same product. It is their hope that the positive message will have more impact than the negative one, and that hope is supported by the fact that they get to tell their happy story in images (look what this drug can do for you), while the other, distressing story (hear what this drug can do to you) is conveyed by words. The companies are counting on the fact that not all information-delivery systems are equal and, as the old proverb goes, a picture is worth a thousand words.
The same dynamics are on display in a case decided on Nov. 7 in the United States District Court for the District of Columbia, but the positions are reversed: it is the government that is deploying images and the drug companies — in this case tobacco companies — that are standing up for words.
The case — R. J. Reynolds et al v. United States Food and Drug Administration — concerns the F.D.A.’s plan to augment the textual warnings on cigarette packages with graphic color images, including diseased lungs, a cadaver on an autopsy table and a man blowing smoke from a hole in his throat. The tobacco companies requested an injunction on the implementation of the plan until certain constitutional matters could be resolved in the courts. They argued that the “mandatory graphic images unconstitutionally compel speech”; for were they in place every cigarette package would be a “mobile billboard” for a message the companies did not choose to proclaim, but one they were required to display and, in effect, pay for. (This of course would not be materially different from the list of risk factors drug manufacturers are required to insert in ads they pay for.)
The companies also claim that “the purpose and effect of the warnings is to drown out Plaintiff’s own constitutionally protected speech and replace it with the Government’s emotionally-charged anti-smoking message.” “Emotionally-charged” is the key phrase here. The companies do not object to particular images, but to the use of images at all because they speak to the emotions and, in this instance, are “designed to shock, disgust and frighten” rather than “provide purely factual and uncontroversial information.”
But is the producing of an effect, even of an effect that is visceral, unrelated to the communication of information? Maybe yes if we’re talking about a horror movie where the eliciting of shock, disgust and fear is the entire point. That’s what people go to horror movies for — to experience an emotional rollercoaster that is unattached to any cognitive message.
In the case of the tobacco warnings, however, the emotions intentionally produced by the graphic images bring a cognitive message home. It is in fact a horror-message — if you smoke, all kinds of horrible things are likely to happen to you — and it is the government’s judgment, expressed in its brief, that the print warnings we are now accustomed to have become “stale” and no longer “convey [the] relevant information in an effective way,” no longer, that is, convey the message.
Of course, the tobacco industry has lived with print warnings for a long time and is fully aware of how humdrum they have become. What alarms them is the specter (another kind of horror show) of warnings that might really convey the relevant information effectively. What alarms them is not that the proposed images distort the truth, but that they tell it. “Ultimately,” the government’s brief concludes, “plaintiff’s objection to the pictorial health warnings is not that they are false, but that they are true.”
Given that the conveying of true information about the risks of a legal product has been held constitutional even when the government burdens a manufacturer’s delivery of its message, one would have expected the government to prevail. But is does not. Judge Richard J. Leon issued the injunction sought by the tobacco companies and gave as a reason the illegitimacy of images as conveyers of information: “[T]he government’s emphasis on the images’ ability to provoke emotion strongly suggests that the government’s actual purpose is not to inform, but rather to advocate a change in consumer behavior.” And again, “the graphic warnings cross the line from information to advocacy.”
This is wrong in both directions.
Images can inform and the bare recital of information can advocate by appealing to the emotions. The line Leon wants to draw is, at best, a blurry one, as is his contrast (borrowed from the plaintiff’s brief) between images “calculated to provoke the viewer to quit” and “disseminating purely factual and uncontroversial information.” It takes only a second’s thought to undermine the contrast. Is the factual and uncontroversial assertion that “ smoking can kill you” (one of the new print warnings) without persuasive intent or effect? “Oh, I just thought I’d tell you that smoking kills and can harm your children. Nothing hortatory on my mind, just sayin’.” And just as the information that smoking kills is offered with the intention to “provoke” the informee to quit, so is the image of a cadaver on a slab offered with the intention of conveying a piece of factual and uncontroversial information — smoking kills.
Leon regards that image as non-factual and therefore controversial because, he says, the government does not offer “a single shred of evidence to support the proposition that smoking causes autopsies.” But the proposition is not that smoking causes autopsies, it’s that smoking causes death, and there’s plenty of evidence of that. In order to draw from the image the conclusion he wants to reach, Leon must read it in an obtusely literal way as claiming that every time a cadaver lies on an autopsy table it has been brought there by smoking.
The claim, however, is at once narrower in scope and less controversial, in fact not controversial at all: if you continue smoking, one of the things likely to happen is that you’ll end up on a slab. The image of the cadaver stands in for death, for the proposition that smoking kills. It is an example of metonymy, a figure of speech in which a thing or concept — in this case death — is not presented directly but by reference to something — the condition of being in a morgue — with which it is closely associated. As a figure of speech, metonymy operates at a remove from the object it points us to; it requires an inference. But the inference, once made (and it is no trick at all to make it), puts us in direct and forceful contact with an uncontroversial fact.
If Leon’s objection to the image were taken seriously, if assertions of fact could be made only in the absence of figures of speech — no metonymies, allusions, metaphors, comparisons, similes, patterned repetitions and a thousand other deviations from an impossible literalism — the account of even a single fact would fill 300 pages. As John McEnroe is fond of saying, “you cannot be serious.”
But apparently Judge Leon is serious and one can only wonder why. The answer given on some left-wing blogs is that he is in the pocket of the tobacco industry. But a more generous and analytic answer might point to a very old philosophical/theological tradition in which he enrolls himself, perhaps unwittingly. That tradition is marked by two related oppositions. The first opposes the verbal to the visual and stigmatizes the latter as the medium of deception and false appearances. Aristotle’s distrust of spectacle (opsis) founds an anti-theatrical prejudice that finds a high (or low) watermark in Stephen Gosson’s “School of Abuse” (1579) and Ben Jonson’s invectives against the set designer Inigo Jones. The theological counterpart to this prejudice is derived from the second commandment (“thou shalt not make unto thee any graven image”) and 1 John 2:16: “For all that is in the world, the lust of the flesh, and the lust of the eyes, and the pride of life is not from the Father, but is from the world.” The fruits of these texts can be seen in the periodic eruption of iconoclastic frenzy.
The second opposition in the tradition is located within the realm of the verbal itself. The literal, identified with pure observation and description, is opposed to the rhetorical, identified (again) with deception and with a surrender to the lure of surfaces and to base emotional appeals.
Either singly or in combination, the two binaries — words vs. images and literal, information-bearing words vs. words aiming to persuade — have led to a search for what Thomas Kuhn has called a “neutral observation language,” a super-literal language uninflected and uninfected by the distortions of any human, or as Leon terms it, “subjective” perspective. Although there have been innumerable attempts to come up with such a language — from the efforts to recover the language of Eden, to the linguistic reforms (no figures of speech) proposed by England’s Royal Society in the 17th century, to the 20th century logical positivists, to the construction of artificial languages with universalist ambitions like Esperanto — it has never been found and never will be found. One could say, then, that Judge Leon’s reasoning and the decision it leads to are based on a linguistic mirage, a will o’ the wisp, although the damage the decision might allow to be done, if it is upheld, is no mirage at all.
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