Re: The Recent Trend in "Collective Contracts"

[Tim May <tcmay@got.net>]

A thoughtful response from Peter Swire.

(Note to the lawyers, law professors, and other "reasonable" list readers
out there: We "extremists" might not be so consistently extremist if more
of you would write articles and/or responses. I used to write a lot of
fairly "reasonable" articles...of late I've lost much of my former patience
under the onslaught of major legislative proposals. The lack of articles
from the "reasonable" camp, for whatever reasons (*), has also helped shift
the debate to the more extreme side. (* Maybe they're tired of being
reasonable, too.))

At 3:36 PM -0700 7/10/97, Peter Swire wrote:
>At 09:29 AM 7/10/97 -0700, Tim May wrote:
>
>>I'm not a lawyer, but I am interested in the various ramifications--and the
>>constitutionality--of recent "sweeping contracts" between vendors,
>>lawmakers, consumers, etc.
>>
>>Two recent example:
>>
>>1. The "tobacco agreement." Supposedly a deal involving the transfer of
>>$360 billion from some number of tobacco companies in exchange for dropping
>>of liability suits, immunity from future claims, voluntary restrictions (!)
>>on advertising, etc. (And the "etc." is especially complicated in this huge
>>case.)
>
>        So far as I know, the agreement has no legal effect until and unless
>a bill is enacted in Congress. Once a bill is enacted, there can obviously
>be far-reaching ramifications.  For instance, an individual's right to sue
>in tort can be cut off.  Punitive damages can be abolished for the defined
>class of suits, etc.

Interestingly, the public officials/lawyers fighting the tobacco companies
are making clear statements of what will now happen. I agree that the
Congress has to pass the enabling legislation, blah blah.

But what Mike Moore, Attorney General of Mississsippi and the lead
prosecutor/whatever in the Grand Deal, said today is, paraphrasing: "There
will be no more Joe Camel ads, no more Marlboro Man ads, no more ads to
entice smokers."

This certainly sounds to me like a major law enforcement official crowing
about the deal reached. (And he seems to be implying that even companies
not in the Grand Deal will be similarly affected.)

Does this fit with the scenario you described (later in your post) for
evidence that the agreement was not voluntary? And are non-participants in
the Grand Deal to be bound by the legislation Congress will likely pass?
(My answer is the same as yours, I think: the Grand Deal will only be used
to trigger legislation. All companies will of course be bound by this
legislation. Some of the companies or civil liberties groups will sue on
various grounds. Supreme Court outcome unclear.)

>        If such a bill is enacted, various groups would likely sue on the
>basis that it is unconstitutional.  That's what happened with CDA -- the
>indecency provisions first became law, and then were overturned in the courts.

The Deal will likely unravel in various ways, except that the worst parts
of it--tightened restrictions on tobacco--will be enacted by Congress.

(I say "worst" in the liberty/freedom of choice sense. Personally, I have
never smoked a single cigarette and think anyone who does is foolish. But
being foolish is everyone's right. Taking away choice is not a solution a
free society can live with. This applies to advertising, which is pure
speech, in my view--the aforementioned point about sponsorship of sporting
events, or print ads, has zero, zip, nada to do with any alleged FCC role
in limiting use of the "public airwaves," so it's a speech issue. There are
possible FTC (advertising claims) and FDA (safety of nicotine if it is
deemed a drug) roles that some could plausibly argue, but these are not
central in the Grand Deal discussions, and are not at all the same as
halting sports advertising, etc. Lots of issues, obviously, and our posts
are only touching on a few facets.)

>>2. The "voluntary ratings" agreement being announced today by Al Gore and
>>some of the television networks. (Earlier "voluntary agreements" were
>>implemented, but, according to supporters of censorship, "failed." Hence
>>the new push for newer voluntary restrictions.)
>
>        The big legal fight on ratings is whether any "state action" takes
>place.  The First Amendment governs efforts by a federal or state government
>to restrict speech.  If private companies "voluntarily" agree to do
>something, the First Amendment simply does not apply.  But if the coercive
>power of the state forces them to do the same thing, then the courts can get
>involved under the First Amendment.

And getting back to the tobacco case,  Mississippi Att. General Mike Moore
seems mighty convinced that this "deal" will result in Joe Camel, the
Marlboro Man, etc., being permanently off the advertising pages of
magazines, off the sporting events, and so on.

If it remains an "industry deal" I see no way it could apply to Tim's
Tobacco Company, who was not a party to any such agreement.

And if Congress passes a law saying that no tobacco company may use cartoon
characters to advertise its products, this seems like a clear case of prior
restraint and dictation of advertising copy. Ditto for sporting events, etc.

A third possibility, and one which deserves a longer essay by someone, is
the role quasi-private organizations play. To cut to the chase,
organizations like the American Bar Association, American Medical
Association, etc.

These "guilds" are an interesting case of self-policing where there is no
option for opting out. (I don't believe it is possible to practice law or
medicine without approval/licensing from these kinds of
organizations/guilds.)

If the AMA cuts a deal with the government, can doctors argue that their
constitutional rights have been infringed upon?

(I can imagine cases where this is so, such as if the AMA adopted a
requirement that doctors speak in English only as a condition for retaining
their licenses. And so on, for other examples. But it is also clear that
these kinds of guilds are usually the preferred route of implementing
policy....)

Licensing in general is something I think is getting out of hand.

--Tim May



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