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Big tobacco wields First Amendment argument

By Tony Mauro
First Amendment Center legal correspondent
02.22.10

WASHINGTON — Tobacco companies are relying heavily on the First Amendment in challenging the government’s prosecution of cigarette makers under the federal racketeering statute.

Several big tobacco companies filed briefs at the Supreme Court on Feb. 19, seeking reversal of an appeals court ruling that upheld a finding of guilt under the RICO law (Racketeeering Influenced and Corrupt Organizations Act). The finding was based on a “multi-faceted, sophisticated scheme to defraud” the public about the dangers of smoking.

The companies assert that the First Amendment protects statements made to congressional committees and in press releases that the government pointed to in its prosecution. The district court and the U.S. Court of Appeals for the D.C. Circuit ruled that because the statements were examples of fraudulent commercial speech, they were not protected by the First Amendment.

If the rulings are allowed to stand, Philip Morris USA told the Supreme Court, “the government will henceforth be free to pervert RICO into a device for … penalizing and chilling public debate on scientific matters, and constraining constitutionally protected speech.” D.C. lawyer Miguel Estrada, author of the brief in Philip Morris v. U.S., asserted that under the 1984 Supreme Court ruling Bose Corp. v. Consumers Union, the appeals court should have fully reviewed the record because of the First Amendment issue involved.

In a separate brief in the parallel case R.J. Reynolds Tobacco Company v. U.S., R.J. Reynolds said the statements challenged by the government were valid opinions at the time, not fraudulent statements. For example, when companies and the now-defunct Tobacco Institute denied the harmfulness of secondhand smoke in the 1980s, their view was “shared by very reputable scientists,” wrote D.C. lawyer Michael Carvin in the R.J. Reynolds brief.

Carvin also invoked the so-called Noerr-Pennington doctrine, developed by the Supreme Court in the 1960s to protect companies from liability for statements they make in trying to influence legislation or regulation. Under the appeals court’s ruling, Carvin asserted, “the government can successfully prosecute under RICO and/or fraud statutes any industry that offers views on the health and environmental effects of its products, or regulation of those products.”

The R.J. Reynolds brief cited a statement in last month’s controversial campaign-finance decision, Citizens United v. Federal Election Commission, that “by suppressing the speech of manifold corporations … the government prevents their voices and viewpoints from reaching the public.”

Carvin attacked the appeals court as well for upholding the district court’s order that tobacco companies promulgate “corrective” messages in the media. That, he said, violates the principle of Wooley v. Maynard, in which the Supreme Court articulated a right to refrain from delivering an unwanted government-mandated message.

From the other side of the case, U.S. Solicitor General Elena Kagan also filed an appeal on Feb. 19. Hers objected to the part of the lower court ruling that rejected one of the possible remedies in the case: ordering the tobacco companies to disgorge or surrender $280 billion in “ill-gotten gains.”


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