Legal Reasoning, Cigarette Labels, & False Dichotomies in Rhetoric

Over the past few days I have been catching bits and pieces of news that a U.S. District Court for the District of Columbia had issued an injunction against the FDA’s new rules requiring graphic visual labels on cigarette packs until the case can work its way through the legal system. After reading more on the case and Justice Leon’s ruling I find myself not necessarily opposed to the ruling but disturbed to some of the logics and assumptions about the nature of rhetoric, language, and discourse in the ruling itself. Armed with my outrage, I took to twitter to air my disagreement:

The ruling takes issue with the FDA’s use of persuasive rhetoric instead of informative rhetoric. Judge Leon is partially walled in because precedent in the law distinguishes between informational and persuasive language and this differentiation has been written in to the law. That said, it is worth making the point that such distinctions are problematic within contemporary theories of rhetoric.

Justice Leon argues

“This fundamental failure, coupled with the 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.”

As my tweets foreshadow there are two issues in the line of reasoning present in the law and in the decision. First, informative and persuasive speech are problematically divided. Second, rationality and emotionality are implicitly held as separate modes of reasoning that carry legally distinct weight.

First, the ruling assumes that the government has a proper role in informing consumers about the statistical dangers posed to consumers by tobacco but that the government cannot compel cigarette producers to place speech on their packages that would persuade consumers not to buy the product. Here the logic sounds simple, but is not. The government can delineate risks, but cannot argue outright that a consumer should not use a product. The problem with this line of reasoning is that it reifies the notion that statistical information (like that currently contained on cigarette warning labels) is objective and value-free as opposed to recognizing that even the delineation of risks is persuasive subjective speech. As such the question is not where is the line between informative and persuasive speech, but what types of persuasive speech will be allowed and what types of persuasive speech cannot be compelled by the government. It is ridiculous to assume that the current labels avoid any advocacy of “change in consumer behavior.”

Second, Justice Leon seems particularly concerned of the image’s ability to “provoke emotion” instead of rationally informing the consumer about the dangers of tobacco. The fallacy here is the assumption that appeals to emotion or reasoning based in emotion is less valuable or reasonable compared to appeals to logic. The long held assumption that logic is reasonable while emotionality is unreasonable negates some of the primary modes by which humans make decisions in our everyday life. Many of our everyday decisions are based not on some artificial standard of rationality and objectivity but on the subjectivity of human experience. As Edwin Black argues, “there is no outrage to reason we can imagine that has not ample historical precedent.” My colleague Nicholas Russell and I recently argued at the 2011 Alta Conference on Argumentation that, “Reason is summoned to serve the interests of State politics, which in turn erase subjectivities (and desires) that are at odds with the state” (Publication forthcoming in the conference proceedings). This is to say, that what is reasonable, as opposed to irrational, is an artificial difference and usually is divided between the so-called logical and emotional. We must recognize the fallacious nature of this distinction both in the ruling and the law that suggests that the use of pictures are too provocative and thus overwhelm the capacity to just inform and take on the work of persuasion. After all, as I stated in my first objection it all does the work of persuasion.

All of this being said, Justice Leon does get one issue correct-images are qualitatively different than words and in our logocentric world we too often textualize images instead of developing ways of dealing with images as non-textuals forms of persuasion. Much of this problem in the discipline of communication has been at the heart of Kevin Michael DeLuca’s current work on visual rhetoric. The use of image-based warnings are qualitatively different than the current textual warnings that the government is allowed to compel and images warrant more in-depth examinations.

In sum, it is a mistake to reify the simplistic reasoning that assumes we can draw a line between persuading and informing. No such line exists because language is always already saturated with persuasion. There is no way for rhetoric to function absent a field of persuasion. All of this being said, this is not to say that some distinctions cannot be made among types of discourse. My friend and mentor Professor Sean Lawson aptly reminded me on twitter that distinctions need to be made and lines need to be drawn. My argument is just that those lines are not between persuasive and informative discourse.

As long as the court and the law rests on this distinction it fails to grasp the nature and power of rhetoric, especially given the ideological nature of rhetoric-in its entirety.

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