The Irony in the Tobacco Companies Suing So That They Can Tell the "Truth"

Most of the nation's largest tobacco companies have sued to stop a federal law which curtails their marketing and forces them to print graphic warnings on their packages. (NYTimes, 9/1/09) The companies are insisting on their right to communicate truthful information about their products to adults who have the right to receive such information. It is the industry's desire to protect its right to speak the "truth" under the protection of the First Amendment that I find so ironic.

First, I think some disclosures are in order. I was the presiding judge over the first two major tobacco cases -- Cippolone and Haines. After numerous tries, the cigarette companies were finally successful in having me removed from the cases because of the following, single paragraph in one of my many opinions in these cases:

All too often in the choice between the physical health of consumers and the financial well-being of business, concealment is chosen over disclosure, sales over safety and money over morality. Who are these persons who knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and who believe that illness and death of consumers is an appropriate cost of their own prosperity! As the following facts disclose, despite some rising pretenders to the throne, the tobacco industry may be the king of concealment and disinformation.

The history of tobacco advertising and public relations demonstrates that it was aimed at getting people to smoke by making it appear fashionable and safe; encouraging them to continue by debunking its risks; asserting the ease of quitting and denying the existence of addiction and finally encouraging the young to take it up to replace those who were quitting (with great difficulty) or dying from the product or other unrelated causes.

The companies decry their right to discuss and publicize their potential "reduced harm" products. Most of you are too young to remember when cigarette advertisements proclaimed, by way of someone posing as a doctor, that a particular brand was good for your "T Zone" -- somewhere, as I recall, around your chest and lungs. I don't consider anyone to be a greater advocate of free speech than I. Furthermore, I note that Floyd Abrams represents some of the companies. There is no greater expert nor anyone for whom I have greater respect in this field. I make no prediction as to the outcome of the litigation. But if history is any teacher, I can think of no industry more deserving of scrutiny and strict government regulation consistent with their free speech rights guaranteed by the First Amendment.

Limits on free speech in the commercial world must be narrowly construed and directly advance a substantial government interest. Those limits should be imposed with great hesitancy, but if ever an industry deserves them based upon prior conduct, it is the tobacco industry.

Comments

[geneb5]

Wow. I can't tell you how thrilling it is to see Judge Sarokin here. He is an absolute TITAN.

Those who haven't lived it have no idea what it was like to go against the wishes of the tobacco industry in those days. It's no cakewalk now, but at that time, they absolutely owned the media, the Congress, they had vast stores of wealth to throw at every problem from every direction--everything. They even had spies on Sarokin(!)

Info on the landmark Haines and Cipollone trials are online. They make for astounding reading. Younger readers may be shocked at how little we knew then, and how tough it was to pry out the smallest scraps of information on a product that was (and still is) killing hundreds of thousands a year.

[Judge H. Lee Sarokin - Huffpost Blogger]

geneb5 - Many thanks for the kind words

[Judge H. Lee Sarokin - Huffpost Blogger]

LeftRight - I can understand your point of view, but the Supreme Court has already decided that commercial speech has some protection although not as extensive as for individuals

[LeftRight]

I agree, but it's something that should change, rather than to simply accept it.

[LeftRight]

Judge Sorkin, you are wrong. Free speech in the commercial world shouldn't exist!! The fact that corporations are considered "persons" is reasonable, so that they can sign contracts and own property independent of the owners of the corporation, but to declare that they have basic human rights while "living" forever and being able to buy and sell others of their type shows that the courts don't understand the point of corporate personhood!!!

[geneb5]

Don't forget, these "persons" can't go to jail; they aren't obligated to any real responsibility for their actions.