Want to protect kids from tobacco? Let local government set standards, too
More than a decade ago, Prince George’s County approved a couple of ordinances that effectively prohibited cheap cigars from being sold in quantities fewer than five. It was a narrowly crafted effort, exempting tobacco shops or cigars costing
$2.50 or more. The idea was to protect younger customers who might show up at their local corner store and fork over 75 cents for a single sweet-tipped stogie. This would discourage such behavior. The state’s highest court subsequently struck down the ordinances as being in conflict with state law, casting doubt on the rights of local government to regulate tobacco in any form.
Now, there’s an effort in the Maryland General Assembly to clarify that counties and municipalities have the right to set tougher standards for the sale of tobacco in their communities.
Under legislation sponsored by two Democrats, Baltimore Del. Samuel I. “Sandy” Rosenberg in the House and Montgomery County Sen. Ben Kramer in the Senate, local governments are expressly granted the ability to enact and enforce tobacco laws that are more restrictive than the state’s. This covers not just cigarettes, cigars and pipe tobacco, but also all other tobacco products and electronic smoking devices. Local government could not make licensing decisions or raise taxes on tobacco. That would remain the province of the state. The measure even makes clear that its sole purpose is to overturn the Court of Appeals 2013 decision in Altadis, et al v. Prince George’s County.
The principle here is fairly simple. Local governments who are most attuned to the needs of their residents should be able to set tougher policies. For example, Maryland lawmakers are already debating a measure to ban flavored tobacco products. Use of e-cigarettes has been on the rise with young people and allowing menthol flavored vaping refills has a demonstrated appeal to African Americans. This statewide restriction may or may not pass (a similar bill failed last year) but under House Bill 1011/Senate Bill 410, Mayor Brandon Scott and members of the Baltimore City Council could decide that they’d like to set a higher bar to protect public health. They could weigh the health benefits versus the economic impact on licensed tobacco vendors, a formula that might seem somewhat different in neighboring Baltimore, Anne Arundel or Howard counties.
And to further the example, if some people object to the possibility of city government cracking down on tobacco sales — if there are fears that police might be used to criminalize the purchase of menthol cigarettes — then city residents would have a bigger voice in that choice, too. Mayor Scott and the City Council could decide not to set tougher standards or expressly prohibit enforcement of the regulation by police. Again, the more regulatory power is left in the hands of local government, the greater the say local residents have in how those powers are used. That’s a level of protection city residents don’t have when standards are set exclusively in Annapolis. Although it should also be mentioned that the bill’s sponsors specifically oppose any enforcement action taken against tobacco users; their legislation is intended to target tobacco companies and vendors.
Still, the proposal does raise a question: Is tobacco
adequately regulated now? That’s an easy one. The answer is no, and the proof is in the terrible public health impact. About 7,500 Marylanders die each year from tobacco-related causes. And the financial drain on the health care system by tobacco use is substantial at roughly $2.7 billion every year. Most adult smokers started in their teens. And it’s become a particularly troubling issue for young people who are attracted to vaping and are far likely to use a flavored product than an adult. A 2020 government survey found one in four high school students used some form of tobacco product. Electronic cigarettes are by far the most popular with them. As the U.S. Surgeon General has noted, it’s a bad mix when a developing brain is repeatedly exposed to the heavy metals, volatile organic compounds, flavoring agents and nicotine contained in the heated aerosol produced by a vaping device.
The tobacco industry has long had much clout in D.C. and Annapolis but whether their lobbyists can be as effective in city halls and county council chambers is another question. There’s no denying that tobacco regulations are most effective when they are imposed nationally or at least statewide. But that shouldn’t preclude local governments from looking out for the health and welfare of local residents, especially their children.
The British courts have sweeping bans against press coverage of ongoing trials, and the Federal Judicial Conference, after several experiments, banned broadcast coverage in United States federal courts. Many state courts, too, forbid such recording, including Maryland’s, which in 1981 outlawed the use of electronic news media, cameras and recording devices. It is the only state I know of to impose an unequivocal ban by statute.
Two U.S. Supreme Court cases drove much of the thinking in this area.
In 1965, in the case of Estes v. Texas, the high court overturned the conviction of a notorious defendant because of media coverage; four justices — Chief Justice Warren, joined by Justices Douglas, Goldberg and Harlan — delivered impassioned opinions in support of an absolute ban. Yet, 16 years later, in the case of Chandler v. Texas in 1981, another set of justices, decided that broadcasting did not necessarily violate the Due Process Clause nor prohibit a state experimenting with evolving technology.
A decade later, a Court TV network had been developed as a branch of the entertainment industry, and a few years after that, the 1995 O.J. Simpson trial illustrated the corrupting effect that the possibility of money and fame have against any discretionary controls short of an absolute ban. All the major participants in that trial — prosecutors, defense counsel and even the judge — were rewarded with lucrative media contracts.
Currently some media organizations, including Jeff Bezos’ Washington Post, are mounting an attack on the Maryland statute, which was upheld in a reasoned opinion by U.S. District Court Judge Richard Bennett. The case is pending before the Fourth Circuit Court of Appeals. The media briefs are signed by the usual plethora of bored associates in large firms seeking to redeem their sense of having “sold out” by supporting modish “civil rights” causes — an exercise in dilettantism.
But as a wise 2008 report, by a committee appointed to study the issue for the Maryland Judicial Conference, pointed out, it is important that they fail.
“The Committee found that broadcast news coverage of criminal matters neither educates the public nor instills confidence in the system’s ability to accomplish the sole objective of a criminal trial — to fairly and reliably determine guilt,” the authors wrote, concluding that state “prosecutors, public defenders, organized bar and victims’ rights advocates were properly concerned that the potential to prejudice the trial significantly outweighs any purported public benefits of extended coverage.”
Broadcasting gives listeners the illusion that the chosen snatches of testimony that they are shown by the all-powerful media are all that there is to know about a case, and that the selected case is transcendently important and the reporter’s comments on it are gospel. Participants in a trial, all or part of which is to be televised, know that their friends and neighbors may thus acquire fashionable opinions about it and that they may thus be stigmatized for their role as jurors or witnesses.
Even when their faces are obscured, it will at the least be necessary to insulate them from broadcast coverage while the trial goes on, requiring the expense and difficulty of sequestration and eliminating from the jury pool those with family responsibilities requiring them to stay at home.
It is our highly concentrated media, much of which are owned by the richest men on earth, who will determine: what trials will be broadcast, what sensational testimony will be excerpted, and what comments will be made on the outcome of trial verdicts, the testimony of particular witnesses, and the conduct of judges, prosecutors and defense counsel.
“The hand that rules the press, the radio, the screen, and the far-spread magazine rules the country,” Judge Learned Hand once observed in the heyday of Josef Goebbels, the Nazi minister of propaganda.
The stillness of the courtroom, its delays and deliberateness, its insistence on full context, is one of the few remaining sanctuaries from the pervasive power of the broadcasting networks and their ever-more-shrill partisan propagandists, magnified by the internet far beyond their immediate listeners. Maryland’s statutory ban, an example for the common-law world, must be preserved.
George Liebmann (george.liebmann2@ verizon.net) is president of the Library Company of the Baltimore Bar and the author of numerous works on law and history, including “The Common Law Tradition: A Collective Portrait of Five Legal Scholars” (Transaction Books) and most recently ” Vox Clamantis In Deserto: An Iconoclast Looks At Four Failed Administrations” (Amazon 2021).