0:00:00.2 Speaker 1: Your argument now, number 00596. Lorillard Tobacco company versus Thomas Riley.

0:00:09.0 Leon: Hey everyone, this is Leon from Fiasco and Prologue projects. On this week's episode of 5-4, Peter, Rhiannon, and Michael are talking about Lorillard v. Riley. In this case, a tobacco company argued that a Massachusetts law that restricted where they could advertise was a violation of their free speech. When the case was heard in 2001, the negative effects of cigarette smoking were already well known, as was the power of advertising to make kids wanna start smoking.

0:00:37.5 Speaker 3: Big Tobacco makes money off of product that kills people and they denied the truth about cancer and addiction for decades. Those are the facts. Judge for yourself.

0:00:45.0 Leon: The justices ruled in favor of Lorillard, the tobacco company that brought the suit, thereby intervening to overturn a state law in the name of protecting commerce. This is 5-4, a podcast about how much the supreme court sucks.

0:01:06.4 Peter: Welcome to 5-4. Where we dissect and analyze the supreme court cases that have stifled our liberty, like allergy season has stifled our nasal passages. I'm Peter, I'm here with Michael.

0:01:19.5 Michael: Hey everybody.

0:01:21.1 Peter: And Rhiannon.

0:01:21.2 Rhiannon: Hello, hi.

0:01:21.8 Peter: I don't have allergies but solidarity.

0:01:24.0 Rhiannon: Oh, I do.

0:01:26.2 Michael: Yeah, I have bad allergies.

0:01:29.2 Rhiannon: Yeah. 'Tis the season.

0:01:30.4 Peter: It's weakness. That's weakness in your body.

[laughter]

0:01:34.2 Peter: If you were praying to the right god, you guys wouldn't have that.

0:01:36.5 Rhiannon: Okay, grandpa.

0:01:39.6 Peter: Have you heard that line before, Rhiannon?

0:01:41.4 Rhiannon: Yeah, I have. Yeah.

0:01:46.2 Peter: Before we get into the case... Heavy news week for the supreme court. We had the confirmation hearings for Ketanji Brown Jackson, who looks poised to be confirmed in the coming weeks, barring some real drastic shift in the zeitgeist here.

0:02:04.3 Rhiannon: Well, yeah, and not withstanding Republicans' attempts at smearing her with QAnon bullshit. Racist questioning, that the likes of Amy Coney Barrett didn't get, right?

0:02:16.2 Peter: I think we can divvy up the categories of criticism, right? So first was the pedophile stuff, led by Sen. Josh Holly, who pretty heavily implied that she has a soft spot for sex offenders, pedophiles in particular, and referred to a student note she wrote at Harvard about the constitutionality of sex offender registries, which by the way was a very open question, and her note was cited by state supreme courts.

0:02:43.4 Rhiannon: Yes, yes.

0:02:44.8 Peter: And the question went to the supreme court several years later, so it was a very valid question, anyway, whatever.

0:02:50.0 Rhiannon: Right, and topical.

0:02:51.6 Peter: And talked about her sentences in a couple of cases, and this is great for the Republican base because that's their main thing right now, is a fictional war against a fictional cabal of pedophiles.

0:03:03.3 Rhiannon: That's right.

0:03:04.1 Peter: Yeah, then there was critical race theory, which is just 'cause she's black.

0:03:09.2 Rhiannon: Yes.

0:03:10.5 Peter: And they were like, "Well, explain yourself."

0:03:11.5 Rhiannon: Ted Cruz asking if she believes babies are born racist.

0:03:14.8 Michael: Some GOP official account tweeted out a photo of Ketanji Brown Jackson, and it said "KBJ," and there was a line through it, and it said "CRT," which gives the game away, right? She's black. CRT, that's it, automatically.

0:03:34.5 Rhiannon: Right. Automatically.

0:03:38.1 Michael: Yeah.

0:03:38.2 Peter: Yeah, and then there was the LGBT adjacent critiques which revolved around substantive due process and their critique of the 14th Amendment and the rights in Roe v. Wade, etcetera. The most notable thing about that is that they barely talked about Roe, and instead had moved on to Obergefell, the gay marriage case. And some other... And trans issues, signaling that they were like, "Well, obviously we're about to overturn Roe. So like, next."

0:04:09.2 Michael: "Next battle. That battle is won and we're on to the next one." Yeah.

0:04:10.8 Peter: Anyway, she did quite well. Stumbled here and there, 'cause there's only... Sometimes people are like, "man, she didn't handle that question well," and it's like, "Well, it's fucking four straight days of someone accusing you of being a pedophile, so yeah, there's gonna be moments where it's not fantastic." But I thought she did well.

0:04:24.2 Rhiannon: Right. There's only so many ways to answer the question, "Do you believe babies are racist?"

0:04:29.4 Peter: Yeah. There's only one way. Yes.

[laughter]

0:04:34.7 Peter: Babies should all be sent to prison until they can recite capital in full.

[laughter]

0:04:43.7 Peter: That's the world I wanna live in.

0:04:47.4 Rhiannon: Memorized.

0:04:48.1 Peter: Believe it or not, that was the second-biggest supreme court-related story of the week.

0:04:52.5 Rhiannon: 'Cause Ginni's up to stuff.

0:04:55.2 Michael: Third, maybe.

0:04:56.4 Peter: Maybe third.

0:04:57.5 Michael: Clarence Thomas.

0:04:58.1 Peter: It depends whether you consider this Ginni and Clarence two stories or one.

0:05:03.2 Michael: 'Cause there's the mystery hospitalization of Clarence Tomas and the, "Is he or is he not dead?" Sorry to report, it appears he lived.

0:05:11.3 Peter: It was like Sunday?

0:05:11.3 Michael: Yeah.

0:05:13.6 Peter: Yeah, on Sunday, it was disclosed that he was in the hospital with some kind of infection, flu-like symptoms, and they're like, "Yeah, he'll be out in a day or two."

0:05:22.3 Michael: He had been since Friday.

0:05:23.8 Peter: Right, and then several days later, he was not out, it looks like he was released on Friday morning, but throughout the week there was this, "Is Clarence Thomas about to die?" sort of thing, and on Thursday night, some more Ginni drama dropped, where it turns out that Ginni was texting with Mark Meadows, Trump Chief of Staff on January 6th. The most obvious implication of that being that when Clarence Thomas was the sole dissenter in a case about subpoenas sent to the Trump administration concerning January 6th, he was protecting his wife's interests, perhaps.

0:06:03.8 Michael: Right.

0:06:03.8 Rhiannon: Sure.

0:06:06.4 Michael: Right.

0:06:06.4 Rhiannon: Maybe doesn't want those texts disclosed.

0:06:11.8 Michael: And so that's like a problem for Clarence Thomas, the obvious conflict of interest that he ignored, but it also is just... There's a general concern about a sitting supreme court justice's wife maybe doing a little light insurrection. A little light sedition, seditious conspiracy. That on its own, whether or not Clarence Thomas does anything to protect her at the court, I think that's problematic. Some Republicans will try to say, "Oh, it's his wife." No, I don't think you can just say, "Well, his wife is a separate person, I think that's a big deal."

0:06:49.6 Rhiannon: Yeah, yeah.

0:06:51.3 Peter: First you have the conflict of interest, like supreme court justice, his wife is a prominent Republican activist who you know is involved in January 6th organizing, she was openly organizing for the day. She claimed of course, not have been part of the violence, but everyone knows that she was organizing for 1/6 itself, like the protest, and you know that she's connected to the Trump administration. The conflict is so obvious that so far conservatives haven't even tried to defend it too much, I've seen a little bit here and there, but for the most part, people are just being like, "Oh, so you can't have a wife in politics, I guess."

[laughter]

0:07:28.9 Rhiannon: It's like, "No, that's not quite what we're saying."

0:07:34.4 Michael: One reporter said that they had sources saying they saw her at the... Oh fuck, what's the hotel called? Whatever the hotel was that was like the base of operations for the military, the proto military organizations.

0:07:47.1 Rhiannon: Four Seasons Landscaping.

[laughter]

0:07:53.9 Michael: Four Seasons Landscape..., but there was some hotel that they were operating out of in DC, and apparently multiple people have said that they saw Ginni there on January 6th.

0:08:06.5 Peter: Yeah. I saw her bumping lines off a mirror in the lobby.

[laughter]

0:08:08.9 Peter: First of all, she was obviously fucking involved.

0:08:10.6 Rhiannon: Right, right. Yeah.

0:08:12.6 Peter: Once it got crazy violent, I'm sure she was like, "Oh, that was a little much," and walked away, but that's not like a moral achievement even if it happened.

0:08:18.6 Michael: Maybe, but maybe not. Also from the text, she was like, "Joe Biden's gonna be in Gitmo," so she may have thought that they were like on the verge of establishing Trump's new order.

0:08:32.5 Peter: Can we talk about that? The QAnon shit, because like, yes, we know that she's a fucking crack, but this is probably the first real evidence that she believes in QAnon because you do not see "the democrats are going to Gitmo" shit outside of QAnon circles, you just don't.

0:08:47.6 Rhiannon: Right, yeah.

0:08:49.3 Peter: So that means that at home, she talks about QAnon, and Clarence Thomas is like, "Yeah, I love this woman." So we were discussing this, the conservative response has been like, "It's not illegal to have a wife who believes in crazy stuff," and then the liberal legal response has been, "It's not about that, it's about the conflicts of interest that arise." And it is, but also I wanna add that there has to be a line, right? There has to be a point at which someone's wife is too stupid, and we need to draw a line and say, "No, I'm sorry, but for someone in a position of power, your wife can't be that stupid. That's not okay."

0:09:31.4 Rhiannon: It is a major liability.

0:09:32.9 Peter: That's a real position that I have. I think we all have that position, but the real issue is that we haven't seen wives get to that point yet, we have seen husbands to get to that point, and I admit we do tend to forgive it, but we have to establish... There has to be a line. Your spouse can only be so nuts before it's like, "Well, I would like to hear just a quick paragraph about what you're seeing in this person because they do seem to be completely insane."

0:10:00.1 Rhiannon: Before it's a problem literally for our democracy. I've been thinking about this for the past couple of days, and it's just wild to think like what it comes down to in terms of all of these layers, like she's texting staff members in the Trump Administration. She is organizing January 6, she is getting paid by Republican party interest groups on issues that Clarence Thomas is deciding at the supreme court. When you break all of that down, it's like Clarence Thomas is getting paid to issue these opinions, he's getting paid to be the fringe right-wing freak on the supreme court that we thought he always has been, and that is just wild, it's a wild level of corruption and I don't know what's going to happen in response, and I think...

0:10:53.8 Peter: Oh don't worry, I'm sure the Dems will do great. They're gonna take the reins here and lead the charge against corruption in the supreme court, we're like 24 hours out the time of recording from these revelations, nothing from the White House that I'm aware of. The head of the DNC tweeted that John Roberts should do something.

0:11:15.3 Rhiannon: Yeah, like he can fire a supreme court justice.

0:11:19.0 Rhiannon: Like that was my reaction, like does he think that the chief justice is the boss of the other justices?

0:11:23.3 Rhiannon: Right. Yeah, that's not how it works.

0:11:27.3 Peter: John Roberts, please hire someone new and replace Clarence Thomas. Clarence Thomas is given a severance package and walked out the door.

[laughter]

0:11:40.8 Rhiannon: Yeah, the only thing I think like if this doesn't call for impeachment of a supreme court justice, I don't really know what does, right?

0:11:49.0 Michael: They should be fucking hauling him in front of the January 6 committee, both him and his wife under subpoena and under penalty of perjury and asking how involved she was, how much Clarence knew, what he knew at the time, he heard that case about the subpoena in Trump's documents, like there should be big public hearings about this, this should be a big deal and the entire party should be calling for his resignation. He's not going to, but I can't get over how comically corrupt it is.

0:12:22.0 Peter: It is insane.

0:12:25.8 Michael: It's a cartoon. It's cartoonish.

0:12:26.0 Rhiannon: Yes, yes.

0:12:27.5 Peter: It is insane.

0:12:30.1 Rhiannon: It's the first chapter of legal ethics, right?

0:12:30.3 Peter: This would be an example that you would use to introduce a law student to the concept of legal ethics.

0:12:36.3 Rhiannon: Yes, right.

0:12:38.0 Peter: Like, "You wouldn't rule on a case where your wife was being subpoenaed, right?" And they're like, "No." And you're like, "That's legal ethics."

0:12:44.3 Rhiannon: Exactly, it's like that egregious that it's obvious.

0:12:47.8 Michael: There's something that's such a good illustration of like I think our criticisms of legal culture though, which was like a lot of law professors have been like... Or legal experts or whatever, have been like, "Yeah, this is outrageous. He should recuse himself from cases going forward." "What? What? Don't do it again, you've been very bad. And next time I'm gonna send you to your room if you keep this up." Like what kind of fucking response is that? How can your response be, "There should be no repercussions, but please stop doing this." It's unbelievable.

0:13:26.4 Peter: If your position is like, "Look, the impeachment of Trump was politically not particularly effective, and you're never gonna get the necessary amount of votes to impeach, which is two-thirds of the senate." So all you're doing is making a show and that might backfire by rallying the conservatives. Now, I tend to think that conservatives will rally behind anything, so don't worry about it, and also the thing is, if you believe in institutional legitimacy even as a concept, even as an ideal that you might wanna strive towards slightly, you've gotta do something, you have to take some sort of stand. It can't just be like tweets to the chief justice, like the fucking equivalent of adding Delta when you're waiting in the fucking boarding room or whatever for your late flight, that can't be the Democratic party's response. I don't expect them to do anything significant but I would like to see something that looks like an attempt to govern the country, that would be sweet.

0:14:30.7 Rhiannon: Yeah, I'm interested in somebody like Sheldon Whitehouse maybe saying something, coming out with a plan, something.

0:14:37.9 Michael: Something strong, yeah. Yeah, that's the thing is, it's like this pathology. I don't wanna stray too far from our lane but this does implicate courts and stuff, so, but I do think there's this pathology with the Democrats of just like wanting somebody else to do shit for them, wanting Bob Muller to take down Trump, hoping that Pence will use the 25th Amendment to get rid of Trump after January 6th. Literally, publicly asking John Roberts to handle this.

0:15:09.7 Rhiannon: These calls for internal accountability.

0:15:12.9 Michael: This is your fucking job, this is what you're there for, like this is... You control every lever of power in the elected branches of government, why are you asking your daddy fucking John Roberts to do this for you?

0:15:28.6 Rhiannon: Daddy John Roberts.

0:15:31.0 Michael: "Clarence Thomas has been breaking the rules, Dad. "

0:15:34.0 Rhiannon: "Please do something."

0:15:35.5 Michael: "He flipped the Monopoly board and he threw the pieces everywhere. You send him to his room." Like what the fuck is wrong with you? They're so worthless.

0:15:48.4 Peter: It's like the politics of inevitability, they believe that justice will prevail because they have that end-of-history narrative in their head still, like righteousness will eventually overcome because it's inevitable, not because anyone is doing anything, but because it must, that is the natural course of history. And so I feel like they think a lot of this stuff will go away and like the evil will be defeated, and they don't need to worry about how because to them, it's something that just happens.

0:16:21.9 Michael: The arc of history or whatever.

0:16:23.4 Peter: Right. Anyway, let's do the case.

0:16:30.5 Michael: Let's talk about tobacco regulations.

0:16:32.7 Peter: Free speech, free speech. Today's case is Lorillard Tobacco Co. V. Riley, this is a case about free speech but more specifically, it is about the free speech rights of tobacco companies to advertise cigarettes and other tobacco products. Massachusetts passed some laws restricting the sale and advertising of tobacco products near schools, tobacco companies sued because like it's America, land of the free, etcetera, etcetera. And the supreme court sided with the tobacco companies in a decision written by Sandra Day O'Connor saying that these companies have a First Amendment right to advertise their products near schools, and also that states do not have the authority to regulate these matters because of a vague federal law from the 1960s. So, Rhi, you wanna hop in with the context?

0:17:34.1 Rhiannon: Yeah, and there's quite a bit of context here. This case comes down in 2001, but if you were around in the '90s, then you know that there was major litigation over the course of that decade regarding tobacco companies and tobacco use, how they advertised and targeted children in their advertising, and in general, just about the detrimental effects on people's health that tobacco use caused.

0:17:58.5 Peter: This was the first time that as a society, we were like, "Okay, so this stuff's bad for you," right?

0:18:04.6 Rhiannon: Right. Yeah, I was a kid but I remember the commercials, right?

0:18:08.7 Michael: Oh, yeah.

0:18:08.8 Rhiannon: I even remember adults talking about like, "Oh, there was this big master settlement." So at the end of that litigation, there was a massive settlement agreement in 1998 called The Tobacco Master Settlement Agreement, in which the four largest tobacco companies in the United States, those are Philip Morris, RJ Reynolds, Brown and Williamson, and Lorillard, the company that's a party to this case. Those four tobacco companies agreed to pay a minimum of $206 billion over the first 25 years of the agreement, and this money was basically for reimbursing states for their Medicaid costs for tobacco-related health care costs. It was also for creating a new anti-smoking advocacy group called the Truth Initiative and a bunch of other stuff.

0:18:58.0 Peter: Remember those commercials?

0:18:58.9 Rhiannon: Yeah, yeah. In addition, the companies agreed to change their marketing practices, and they agreed to pay states annual fees in perpetuity for tobacco-related health care costs. So this litigation doesn't have much to do directly with the case at hand, but it's important to place us historically in the moment after the deceptive practices of the tobacco industry and the danger of its products to consumer health were exposed. The tobacco industry was really beaten back by massive consumer protection litigation.

0:19:31.8 Michael: Right.

0:19:32.3 Rhiannon: But there were loopholes in that settlement. It didn't cover every possible advertisement or all of the ways the tobacco industry might sneakily try to advertise to kids. So this case comes up out of not the Master Settlement Agreement, but specifically regulations passed in Massachusetts, like Peter said, the year after the Master Settlement Agreement. So the Attorney General in Massachusetts announced that these regulations would close the loopholes in the settlement agreement, and they were necessary to "stop big tobacco from recruiting new customers among the children of Massachusetts." So these regulations were about the sale and advertising of tobacco products, and among other things, they said that tobacco products had to be out of reach of customers, like behind the counter, and there could be no outdoor advertising for tobacco within 1,000 feet of a public school or playground, and point-of-sale advertising had to be higher than five feet from the ground if the retail establishment was within 1,000 feet of a public school or playground.

0:20:38.4 Peter: Keep it away from those kids' little hands.

0:20:40.4 Rhiannon: Right, exactly. Keep it out of reach, out of sight for tiny customers. So Lorillard sued, saying that there was a federal law from the 1960s that preempts all these laws, and that this was an infringement on their First Amendment rights to free speech.

0:20:56.6 Peter: Hell yeah. So this decision has a ton of different opinions with various partial concurrences, partial dissents. The bottom line is that most of the Massachusetts laws are struck down. The first reason is that the majority argues the cigarette regulations are preempted by federal law, so we should explain what that means, the constitution divvies up state and federal power and specifically grants a bunch of powers to the federal government. Now, just because the federal government can regulate something, doesn't mean states can't too, but sometimes when the federal government passes a law, they will say expressly like, "This is the sole prerogative of the federal government, any state law that contradicts it is preempted and therefore rendered null and void."

0:21:46.3 Rhiannon: Right, yeah.

0:21:47.7 Peter: So here, there were a couple of Laws from the 1960s, where Congress laid out rules for cigarette advertising and labeling with the purpose being to ensure that people know smoking is dangerous, and also that there is consistent messaging concerning smoking across different states. So the court says that these laws preempt the Massachusetts laws about outdoor advertising and point of sale. Now, some of this is deep in the weeds statutory interpretation stuff, so I don't wanna get too far into it, but as Justice Stevens points out in his dissent, this doesn't make a ton of sense. The federal law was about the content of cigarette advertising, but the Massachusetts law is for the most part, about the physical location of the advertising, right? It can't be too close to schools and playgrounds. They are regulating completely different things. The whole point of the preemption doctrine is that you don't want state laws to conflict with federal law and create a confusing patchwork of laws and regulations, but these laws don't actually conflict, they're doing totally different things.

0:22:55.5 Rhiannon: Exactly.

0:22:58.6 Peter: Now, preemption, a dry topic, but I think it's interesting to see the ways in which conservatives have leveraged it aggressively, despite being the ones who claim that they are all about states rights. So here they're saying that states can't even regulate where certain billboards go in their own state, that's somehow the prerogative of the federal government. It's both ridiculous on its face and just clear evidence that conservatives aren't interested in state's rights per se.

0:23:25.7 Rhiannon: That's right.

0:23:27.8 Peter: Then we turn to the big constitutional question, do these restrictions violate the First Amendment? Do they violate the tobacco companies right to free speech? So the court does uphold the sales practices and indoor advertising laws, like the rules saying cigarettes must be behind the counter and five feet off the ground or whatever, says those are okay, they don't violate the constitution, but it strikes down the thousand foot rule, the rule that says you can't advertise tobacco within 1,000 feet of schools and playgrounds, they strike that down saying it is a violation of tobacco companies right to free speech. As Justice Stevens describes it in his dissent, "It unduly restricts the ability of cigarette manufacturers to convey lawful information to adult consumers."

[laughter]

0:24:17.1 Peter: Okay, the court says that this law isn't tailored enough because even though it's targeting cigarette ads for children, it's impacting the ability of adults to see the information as well.

0:24:30.0 Rhiannon: My God.

0:24:30.0 Peter: But isn't that always the case? Like there aren't that many types of ads that kids can see, but adults cannot, right?

0:24:38.5 Rhiannon: Right, right.

0:24:39.3 Peter: If that's all that they can regulate, then what you're really talking about is maybe some children's TV shows or something, right. The law specifically targets ads right near schools where kids are likely to be. How is that not tailored enough? The ostensible constitutional violation here is predicated on the idea that some adult will have to walk slightly farther from a school to hear about the smooth taste of Marlboro cigarettes.

0:25:05.1 Rhiannon: I must see the Camel guy, I need it every block I walk.

0:25:10.3 Peter: Where is the cowboy? Where's the camel? I'm just an adult looking for information.

0:25:18.3 Rhiannon: Right.

[laughter]

0:25:20.9 Peter: I think it is time for a quick break.

0:25:24.9 Rhiannon: Okay, we are back.

0:25:25.9 Michael: I feel like there's not a lot of thoughtfulness to the First Amendment analysis here, right?

0:25:32.2 Rhiannon: No.

0:25:33.7 Michael: And that's typical, but a core idea in First amendment jurisprudence in America is that it's important to protect the marketplace of ideas because in an open and competitive marketplace, the best ideas will rise to the top.

0:25:54.5 Rhiannon: Yeah.

0:25:55.5 Michael: I've taken issue with that before I think in a pretty early episode of our podcast where I pointed out, to buy this analogy, you'd have to believe McDonald's has made the best hamburgers in existence because they are the most accessible hamburger seller, but I think the analogy there highlights the issue with this approach, which is that convenience and price matter just as much as quality, and in the realm of ideas, that means ideas that are self-flattering and comfortable and maybe avoid uncomfortable truths are gonna have a lot of purchase even if they are not very useful. I think a better approach to the First Amendment is to think of it as a part of the necessary foundations for a democracy, and if you look at the First Amendment in general, I think that tracks the freedom of the press is important for free and fair elections to have meaning.

0:26:58.0 Michael: Political association is important for free and fair elections to have meaning, and the right to speak, to speak your mind is important for free and fair elections to have meaning. And so taken together, I think a better read on the First Amendment is that core political speech should be very protected, very protected, but the further away you get from that, the less protections there should be, and so fucking billboard advertisements for cigarettes, who gives a shit? Like who cares? What does it fucking matter? I'm sorry. I think that the free speech absolutists are just like out to lunch on this shit. I know, I'm sure a lot of our listeners are in that camp, and I disagree, like I just do.

0:27:51.0 Peter: We should point out, there's fairly robust left discourse about what the best position on the First Amendment is, and there are people on the left, on a legal left who disagree pretty markedly on this issue, but I think I'm with you on this, Michael, I hear the people that say, "Well, it's a slippery slope," but there has to be some connection to the idea that we are fostering an environment where people can express themselves politically, where you are protecting the ability of people to engage in our democracy meaningfully, and that has to be the heart of the analysis.

0:28:33.3 Rhiannon: Yes.

0:28:33.3 Michael: Yeah, I don't think the slope is that slippery. It might be like a far drop, but it's like a fucking plateau or a mesa, just don't run over the edge and you're fine, you're on solid ground. I just don't think it's that hard to say like, "Yeah. Where do we stop slicing the salami?" That's like a law school phrase... Sorry, let's just skip that.

0:28:58.3 Peter: Let's keep that in. Let's keep that in.

0:29:00.8 Michael: I just don't think it's hard to make these distinctions, I don't, especially when it comes to commercial speech in general, right, which I think is a good segue into pod favorite.

0:29:14.8 Peter: Yes. Clarence, Clarence.

0:29:16.3 Michael: Justice Thomas.

0:29:18.3 Rhiannon: Yes, Thomas, Thomas, Thomas. So Justice Thomas has a concurrence here, and this is an example I think of a Thomas concurrence where he's alone in writing for whatever it is that he's thinking on the day of but in the long term, this has really paid off for conservatives because what used to be fringe lunacy on the right in a Thomas concurrence is now coming back in majority opinion, so maybe this is something to look out for. So what Thomas is talking about in his concurrence here, what he says is that commercial speech should actually get the highest form of scrutiny, the highest form of protection from the court.

0:30:00.5 Peter: That's right.

0:30:00.5 Rhiannon: Any laws that infringe on commercial speech would be closely scrutinized and the state would have to have a compelling reason why it's regulating any commercial speech, and even then, the law has to be narrowly tailored to achieving that result, and Thomas says this is because to him, laws restricting commercial speech could just run rampant, and then before you know it, there might be rules about advertising cigarettes and alcohol. So he says, "calls for limits on expression always are made when the specter of some threatened harm is looming. It is therefore no answer for the state to say that the makers of cigarettes are doing harm, perhaps they are, but in that respect, they are no different from the purveyors of other harmful products or the advocates of harmful ideas. When the state seeks to silence them, they are all entitled to the protection of the First Amendment." Which to me is like a weird way for Thomas to say he loves cigarette commercials 'cause he thinks smoking makes him cool. Just say that, Thomas.

0:31:02.5 Michael: He loves Joe Camel.

0:31:04.8 Rhiannon: Yeah. That's right.

0:31:05.0 Peter: What is more American than that noble Camel?

[laughter]

0:31:08.0 Rhiannon: It's forever weird to me how conservatives frame criticisms on commercial speech and corporate activity as baseless, that it's just a claim someone made up based on vibes that tobacco is harmful like, "Oh, the states are just claiming that cigarettes are harmful to kids." Think of all the litigation that preceded this, the history, the research, the congressional findings, all of it. We're talking about the tobacco industry, we know who these guys are, and he's like, "Well, they're just saying that tobacco is bad for you, and they can just say it about anything else they like." And it's like, no, not if you are using your brain, that's not how it works in reality where everyone is using their brain.

0:31:56.5 Peter: And probably worth noting, this is 2001, I believe Ginni Thomas was still doing work for the Heritage Foundation, who was actively collaborating with Philip Morris at this time. It's a little Ginni fact.

0:32:09.5 Rhiannon: Yeah, we're always thinking about Ginni over here.

0:32:12.5 Peter: All my Ginni heads know.

[laughter]

0:32:15.1 Peter: Alright, so you have Clarence Thomas arguing for the broad view of commercial speech, shall we say? So I wanna talk about commercial speech. Now, historically, it was not considered protected under the First Amendment, that changed in the 1970s when there was a case that held that commercial speech is in fact protected speech, that holding was based on a couple of principles. First, they said it's not about the right, it's not just about the right of the speaker to say something, but the right of the listener to receive information. When you're sitting on a couch covered in crumbs listening to the Doritos people say that they have the nacho cheesiest chips, that is actually your constitutional right somehow, or their constitutional right somehow? Whatever. You may notice that the right has been inverted here, it's written as a right to speech but it's being treated as a right to listen. Now, I don't necessarily oppose that interpretation per se, but it's certainly not a strict textualist reading of the constitution, it's a pretty creative take, frankly.

0:33:21.4 Rhiannon: That's right.

0:33:21.5 Michael: Yes.

0:33:21.6 Peter: And the court also said, "look, you can't say that it's not protected speech just because money is transacted through the speech," and they give the example of political contributions and expenditures, but that seems to miss the point even if you agree that political contributions should be protected because with commercial speech, the entire purpose and intent of the speech is to generate money.

0:33:46.2 Rhiannon: It's an ad.

0:33:47.3 Peter: With political expenditures, you're using money to express yourself or otherwise achieve some political end. That's a pretty big difference, right? It's this garbage logic that forms the foundation for the modern courts approach to commercial speech.

0:34:04.7 Rhiannon: Yeah.

0:34:06.3 Michael: Yeah. And I think it's good to talk and to think about this historically like that, like TV is relatively new at this point in the history of the country.

0:34:15.3 Rhiannon: Sure.

0:34:16.5 Michael: It only became big in the '60s, and like Peter said, advertising in general was pretty regulated through the '60s and '70s, it was in the '80s when the patron saint of the Republican party, Ronald Reagan took office that things changed, they deregulated a lot and opened up advertising to children, which is why there was an explosion of toys and candy and shit like that, and cartoons that were just 20-minute advertisements to kids like Transformers, GI Joe, etcetera, cartoons I loved as a child, there are things that still to this day work their magic on me, forever inscribed on my brain the Transformers' theme song, but it was only in the '90s when under Clinton, after Reagan and Bush had had left office, that the executive branch was like, "Maybe we should look into these tobacco companies like advertising to kids." And the FDA tried to regulate this in the mid-'90s, and the supreme court struck that down in 2000 in a different case, one that we might end up covering called FDA v. Brown & Williamson, and so that was a year before this case, and so what you had was basically the federal government trying to do this, and the court knocking it down.

0:35:40.0 Michael: And then state governments trying to do this, and the court knocking that down as well, and it was only in 2009, where we finally had a law passed, a federal law, saying, "Yes, the FDA can regulate the tobacco industry, and yes, they can't advertise to children," that is 15 to 20 years of fucking wild west tobacco companies trying to get kids hooked on their products, hundreds of thousands, if not millions of people who got addicted to an incredibly addictive substance that will almost undoubtedly shorten their lives, and those numbers are much bigger than they had to be because the supreme court stepped in on more than one occasion to make sure that it was as difficult as possible to regulate this industry. And I think that highlights another point, which I wanna hit really quickly, which is that tobacco is pretty unique among commercial products, in that it is really addictive and it's just really addictive. It's hard to...

0:36:57.8 Michael: I was a psych major at one point, and I took some classes after school as well, and I had a professor who did addiction stuff as his main area of research, and I remember him saying one day that they teach rats, like they press a pedal, they get amphetamine or whatever, right? They press a pedal and they get cocaine, they press whatever, and then they see how long that behavior... Once the rats have learned the behavior, how long it takes to extinguish. If you stop giving them amphetamine, how long do they keep pressing the pedal before they're like, "I guess I'm not getting my... "

0:37:34.4 Peter: Can you imagine how annoying would it be to have a cocaine pedal and then it stops working?

0:37:36.1 Rhiannon: And then it stops? That's just bullshit.

0:37:38.6 Michael: Yeah, it's fucking torture, man.

[laughter]

0:37:42.0 Michael: And so he said that all the drugs had some period, some were longer, some were shorter, except nicotine. Nicotine rats pressed the pedal for the rest of their lives.

0:37:53.9 Rhiannon: Oh my God.

0:37:54.4 Peter: Jesus.

0:37:57.0 Michael: They never stop fucking pressing the pedal. It's like... [chuckle]

0:38:01.5 Rhiannon: Holy shit.

0:38:01.8 Michael: Like that is...

0:38:02.4 Peter: Oh my God. They're on their little rat death bed, and they're like, "Maybe this time."

0:38:05.9 Michael: Maybe this is the one. That's how fucking addictive it is.

0:38:10.1 Peter: Oh, no, poor little buddies.

0:38:12.2 Rhiannon: Yeah.

0:38:12.3 Michael: And kids are so impressionable, right? Kids can't tell the difference between programming and advertising at all.

0:38:19.3 Peter: We were talking about this in prep, where it's like, do you remember being a child and seeing an infomercial and being like, "Oh my God. Mom."

0:38:27.1 Rhiannon: "I gotta have this." Yeah.

0:38:29.1 Peter: "You gotta get it. You've been chopping your vegetables like a fucking moron, mom. You've gotta get this guy. You've gotta get the Mega Chopper 3000.

0:38:38.0 Rhiannon: Yes. Yeah.

0:38:39.3 Michael: The Slap Chop, baby. I remember the Slap Chop infomercials. We were saying we both remember the CrossFire ad and the jingle for it. I remember an ad for Simon, do you remember Simon?

0:38:53.2 Peter: Yeah. Yeah.

0:38:53.3 Rhiannon: Oh yeah.

0:38:53.9 Michael: The pretty cool one with a kid in a leather jacket, like, "It's Simon," with a circle of kids around and they're all like, "Whoa, Johnny," And he's like, "That's right. Thanks, Simon." Cool kid.

[laughter]

0:39:06.3 Michael: Kids fucking... This shit imprints on them.

0:39:10.1 Rhiannon: Yes, yes.

0:39:11.0 Peter: Yeah. It does.

0:39:11.3 Michael: It does. So yeah, even if you buy, that commercial speech should have robust First Amendment protection. Even if you buy that. Tobacco is special in a way that the government should have very broad power in how it's marketed and to whom it's marketed.

0:39:30.1 Rhiannon: Yeah.

0:39:30.5 Peter: Right. There's plenty of jurisprudence that puts limits on speech based on the danger posed by the speech. Couldn't be a more obvious and well-documented danger posed than the one posed by tobacco products, right? So it's not protected for me to say, "Hey, I'm gonna fucking kill you." because that's a threat, that's an immediate threat, but it is a tobacco company's constitutional right to actively and purposely foster a culture where as many people as possible partake in a pastime that we all know has a horrific death toll. Just because the damage done is a little abstracted, it's a little downstream, it doesn't happen immediately, it's just not tenable and it doesn't make any fucking sense. And you know, I wanna point out what I think is the only reasonable counterargument to our position, which is that the line between commercial activity and non-commercial activity can be blurry. So if you make a movie, a movie is art, it's expressive, and therefore it is speech, but you're also probably making money off of it. So there are these gray areas where expressive speech and financial interests overlap, and I do think it makes sense to be cautious in some of those gray areas.

0:40:46.3 Michael: If you're computer-generating images of apes that are tied to a unique code on the blockchain.

0:40:51.0 Peter: Yeah, if you have a computer-graphic drawing of an ape with a little crown on its head. That's obviously art, there's no question. That's all the way over to the art spectrum. That's worth at least $400,000, done deal. Let's do a two-hour NFT tangent in this episode.

[laughter]

0:41:09.4 Peter: But look, this is just very simply not one of those cases where there's overlap with real art. We're talking about billboards advertising cigarettes. There are no social or political values being expressed. It is someone who has cigarettes informing you that they will trade them for money. That is the full scope of the message being sent.

0:41:33.7 Rhiannon: Exactly.

0:41:33.8 Peter: And by the way, worth pointing out that while this doesn't match any reasonable definition of speech, it does meet a reasonable definition of commerce.

0:41:47.2 Michael: Absolutely.

0:41:47.3 Rhiannon: Yes.

0:41:47.4 Peter: And commerce is mentioned in the constitution not as a right that people have, but as something that government can regulate. So high level, the constitution basically is just a list of things the government can and cannot do. It can't interfere with speech but it can regulate commerce. So not only does this not make sense as a protected constitutional right, it fits perfectly into the category of very specifically unprotected activity that the government is expressly empowered to regulate.

0:42:18.5 Rhiannon: Yes. Yeah, and so we're talking about actually state governments here, not the federal government. So it's not that the constitution empowers state governments to regulate interstate commerce, but the point is still the same, that these are two different categories. The constitution contemplates that government, the federal government can regulate interstate commerce. So the constitution treats commerce and speech as two distinct categories.

0:42:51.3 Peter: So we've put ourselves in a situation where a stupid fucking billboard advertising something is free speech and also not commerce. It's silly on its face. Absolute fucking bullshit. And I think this whole doctrine, this is my... This is like our Clarence Thomas position, this whole doctrine needs to be ripped up from the root, sent back to 1940 when commercial speech wasn't protected and be done with it.

0:43:17.9 Michael: That's right.

0:43:19.2 Peter: And something I always bring up on our free speech episodes is, what's the conservative position on the First Amendment? It's not originalist. We've talked about this because at the time of the founding, free speech was basically a malady, you could arrest people expressly for political speech, that the Alien and Sedition acts that was allowed for the government to arrest political opponents of the government. It's not originalist, what the conservatives believe. Is it textualist? No, I just outlined how the court makes a big fuss in this case and has in the past about the importance of the listener, the rights of the listener to hear things, despite the fact that that's not mentioned at all in the First Amendment.

0:44:04.6 Peter: So what is the conservative position, what's their mode of analysis? The only way to make sense of it is, powerful people get speech and weak people don't. That's all there is to it. The amount of robust protections being given to companies, large companies especially, is enormous. The amount being given to your average person to express themselves in the ways that are available to them, almost absent. We covered Nieves V. Bartlett about retaliatory arrest, which is when police arrest you based on your speech.

0:44:37.5 Rhiannon: Right, 'cause they don't like what you said.

0:44:39.8 Peter: It's barely protected. It's barely protected. And that's the most visceral, fundamental way that a person can express themselves. You talk some shit to a cop, you say something that a cop doesn't like, it's not against the law, cop figures out an excuse to arrest you anyway. The court has okayed that.

0:44:55.7 Rhiannon: Right.

0:44:57.1 Michael: Yeah.

0:44:57.2 Peter: And here we are talking about the rights of tobacco companies to advertise near schools. Are you fucking kidding me?

0:45:06.2 Rhiannon: It's absurd.

0:45:06.6 Peter: That's the gap between what rich people are allowed to do and what poor people are allowed to do. So I don't think that conservatives have any fucking coherent theory of the constitution. That's what always like pisses me off about modern speech discourse, which is entirely about some dip shit being able to talk on campus without being yelled at or whatever by angry students, instead of the fact that the very real part of our society where you can just get arrested by a cop for saying something he doesn't like. One of those is a problem that applies to every single person in this country, and conservatives haven't ever expressed their displeasure with it, not once.

0:45:42.7 Rhiannon: Right, right.

0:45:44.8 Michael: Right. Something I thought, a particularly stupid point in the majority opinion that I wanna highlight, that relates to what you're saying, Peter, with their lack of theory about this stuff. They make the point like, "Well, this is over-broad because when combined with other zoning regulations, limiting the ability of anyone to put up billboards, but especially tobacco companies, for the purposes of this case, makes it difficult for the tobacco companies to advertise anywhere in the city." Something like 80% to 90% of the city would be off limits, 'cause there are a lot of schools in a lot of areas that I'm sure are zoned residential, so no billboards there and blah, blah, blah. And so they're like, "Well, that can't be the case." And my question is basically, "Why not?"

0:46:32.2 Rhiannon: Right.

0:46:33.3 Michael: Why not? If the zoning regulations are constitutional, how does their presence make something that would otherwise be constitutional unconstitutional. How could it be that this would be fine if it only closed off 40% or 30% of the city but it's not fine when it closes off 80%, that's fucking stupid, it's a dumb idea of what narrow tailoring is. This is tailored to where kids are, kids are in schools or they go to and from schools, and so you don't want billboards around schools, that is tailoring.

0:47:10.9 Rhiannon: And it's 1,000 feet, it's not like miles, come on.

0:47:15.6 Michael: Yeah, but it goes back to what you're saying, Peter, which is like, really, the majority is just like, "Wait, you're telling me tobacco companies can't advertise?" That is the offensive idea to me, that can't possibly be right in their mind. And so this is a bunch of nonsense backfilling of that intuition, their intuition that companies should be able to advertise in large portions of the city. And why? Why?

0:47:46.5 Rhiannon: Right, there is no...

0:47:47.4 Michael: I don't understand what's...

0:47:48.5 Peter: Because Michael, you have to imagine, there's a guy, he's near a school, and he's just looking all around and he's like, "What's going on with cigarettes these days?" I need... "

0:47:57.2 Michael: "Can I get cigarettes?"

0:47:58.9 Peter: "I need the information, where's the information?"

0:48:01.4 Michael: "Who makes them? What's in them?"

0:48:04.0 Rhiannon: "I have dollar bills and I want... "

0:48:05.4 Peter: "Joe Cool, where are you?"

0:48:07.1 Michael: "Do they still make menthol cigarettes? I don't know, I hope someone can tell me."

0:48:12.3 Peter: "I need to see a cowboy on the Great Plains with a cigarette in his mouth on a billboard, otherwise I don't have enough information."

[laughter]

0:48:23.0 Michael: But earlier I said, commercial speech I don't think should have much First Amendment protections, but even if you think there's a thin line there, corporate speech, corporate speech is something, I think Peter made this point just recently, that corporations are legal entities, they exist at the whims and pleasures of our government, you have to register with local governments to become incorporated, and in so doing, you get special legal protections.

0:48:53.1 Rhiannon: Exactly.

0:48:53.7 Michael: So yeah, why not say, and in exchange, some of your corporate rights are curtailed, and that means you might not be able to advertise everywhere.

0:49:03.6 Rhiannon: Exactly.

0:49:04.5 Michael: Tough shit.

0:49:06.1 Rhiannon: Right.

0:49:06.3 Peter: What is Lorillard Tobacco, right? If you are the CEO, you wanna go pop up a billboard that says, "Joe Biden sucks," that's a First Amendment issue, right?

0:49:17.2 Rhiannon: Right, right.

0:49:17.9 Michael: Absolutely.

0:49:18.0 Peter: What is the corporation, Lorillard Tobacco, the idea that in and of itself, it should have rights to speech or anything else? I'm not sure I agree with that, right?

0:49:29.4 Rhiannon: Right.

0:49:29.8 Michael: But especially the right to say, "Buy my products." Who fucking cares? Who cares? I don't understand why and how you could care about this.

0:49:38.4 Peter: No matter what slippery slope you're worried about, it doesn't apply here, it doesn't apply here.

0:49:43.7 Michael: Exactly, exactly.

0:49:44.6 Michael: It doesn't, it doesn't. If your leftism brings you to a First Amendment position where you are defending the rights of tobacco companies to put a billboard next to a school saying, "Buy these cool-as cigarettes, they'll make you look cool," you've got it fucking wrong.

0:50:01.8 Rhiannon: Right, right.

0:50:02.1 Michael: You've got it wrong.

0:50:03.8 Rhiannon: Re-evaluate your position.

0:50:04.6 Michael: I'm sorry.

0:50:07.6 Peter: Yeah. I have no recollection of the first time I smoked a cigarette.

0:50:09.6 Michael: I was trying to impress a girl.

[laughter]

0:50:13.8 Rhiannon: I've never smoked a cigarette.

0:50:16.8 Peter: Never? I'm pretty sure that I was drunk at a party and then someone was like, "You want a cigarette?" And I just tried one and immediately got nauseous. Well, not opposed to smoking, I'll smoke the occasional cigarette or whatever, but probably the first dozen cigarettes I smoked, I was absolutely blackout drunk, and someone gave me one and that was the end of the night. Next step was the spins.

0:50:39.7 Michael: Yeah, I had already been drinking and smoking pot for a while, and I was starting to see this girl, and she smoked Parliament Lights. And one night, I was really high and kinda drunk, and I was like, "Yeah, give me one of those. Why not?"

0:50:54.6 Peter: You thought you could be Joe Cool, "I'm gonna show her how cool... "

0:50:57.6 Michael: That's right, that's right.

0:51:00.2 Rhiannon: And then she kissed you on the lips. Yeah, I've never smoked a cigarette, I don't know why, it just hasn't come up for me.

0:51:08.2 Peter: I think a cool thing for our real fans would be to make you smoke a cigarette live on stage for the first time at our live show.

0:51:17.7 Rhiannon: Which we should say is sold out.

0:51:20.6 Michael: That's right.

0:51:23.0 Peter: Sold the fuck out.

0:51:23.1 Michael: Sold out.

0:51:23.2 Peter: We gave Patreon subscribers first dibs, and I think they got more than half of the tickets, and the rest was filled by our generic fans.

0:51:31.3 Rhiannon: Our regular, degular, shmegular fans.

0:51:33.7 Peter: The people who are unwilling to pay for our Patreon but will pay money to see us in person, I don't understand these people at all. I appreciate that, but I don't understand them at all.

[laughter]

[music]

0:51:52.1 Peter: Next week, we won't be doing a regular episode 'cause we'll be in Berkeley, California, sunny California, doing a live show. Follow us on Twitter @5-4 Pod, subscribe to our Patreon, Patreon.com/5-4 Pod, all spelled out. We've got special events, a slack where you can chat with us, discounts on merch, early access to live shows, all sorts of shit. We'll see you next week.

0:52:20.4 Rhiannon: Bye.

0:52:21.7 Michael: Bye.

0:52:23.0 Leon: 5-4 is presented by Prologue Projects, this episode was produced by Rachel Ward with editorial support from Leon Neyfakh and Andrew Parsons. Our production manager is Percy Oberlin, our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.

0:52:43.7 Peter: It's time to call for Clarence Thomas to get a divorce.

0:52:46.6 Michael: [chuckle] Yeah, that's right.

0:52:48.7 Peter: I will settle for that, and I think maybe that's what we should be pushing for. I know you're not gonna recuse yourself, bro, but you can do better, leave her.