d to be resilient for the Dept. of Justice litigation, even though it has not proceeded at a rapid rate. An avenue of prosecution that has not been pursued is Constitutional in nature, grounded specifically in the idea that the aggressive advertising and promotion of tobacco violates the First Amendment in virtue of the fact that such marketing is an act of harmful speech.
The issue of harmful speech is not unknown in contentious litigation involving business practices. In 1973, in Miller v. California, the Supreme Court ruled that language deemed "patently offensive," or involving "lewd exhibition of the genitals" was not protected speech and that, accordingly a state could prosecute purveyors of perverted sex in a work "lack[ing] serious literary, artistic, political, or scientific value" without violating First Amendment protections. A famous concept linked to the responsible use of the First Amendment guarantee of free speech comes from Schenck v. United States, decided in 1919. In that case, Justice Oliver Wendell Holmes said that the "most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic." The issue in Schenck was whether, during a war, it was permissible to advise people against submitting to the miliary draft. The Court concluded that it was not, noting that the circumstances in which an act is committed determines its character. If the circumstances are such that harm, such as a panic, would come about if a particular speech act took place, then the First Amendment would not protect that speech.
Cigarette advertising and promotion aimed at women represents a speech act that must be judged as an instance of unprotected speech because, to the degree women respond to the advertising and promotion by smoking, they are vulnerable to lethal harm. The situation has been summed up by antismoking advocates:
Cigarettes are the only product advertised which are l...