Are the First Amendment rights of tobacco companies violated by a court order that they issue factual statements about the harms of tobacco use and disclose their own past deceptive conduct?
The Issue: In 2005 the nation’s largest tobacco companies were found liable under federal anti-racketeering law for engaging in a decades-long conspiracy to deceive the American public about the dangers of smoking. The trial court imposed various civil remedies, including the publication of corrective statements in various media. The remedies were upheld on appeal against a variety of industry challenges, including the claim that the corrective statements would constitute compelled speech in violation of the First Amendment. Nevertheless, after the specifics of the mandated corrective statements were determined, the tobacco companies appealed again, arguing once more that the required corrective statements violated their First Amendment rights. They objected in particular to a requirement that the corrective statements include preambles disclosing that a federal court had found the companies to have deceived the public and had ordered the corrective statements in question.
Why It Matters: First, the government’s case against the tobacco companies is itself of paramount importance. The case concerns what is likely the most pervasive and harmful commercial fraud ever perpetrated on the American people. The largest tobacco companies conspired for decades to deliberately deceive the public about the toxicity and addictiveness of a product that – when used precisely as intended – inflicts premature death on millions of Americans. Because this well-financed and deliberate campaign of deception was so successful at sowing public doubt and confusion through suppression of scientific evidence, hiding and destruction of documents, and enlistment of supposedly objective research institutions and scientific experts that were surreptitiously paid by the tobacco industry, explicit corrective statements are needed to dispel the perception that there is scientific dispute about, for example, the dangers of second-hand smoke or the fact that “light” cigarettes are no less dangerous than other cigarettes. Second, the implications extend even further. If strongly worded corrective statements are impermissible even in the face of such egregious, deliberate, sustained, and well documented fraud with such devastating human costs, it would call into question the government’s ability protect the public from any deception by any business.
Contribution of Public Good: Public Good filed a brief arguing that First Amendment review in this case must consider the appalling six-decade history of industry fraud. Public Good reminded the Court of the egregiousness of deliberate industry deception through numerous examples revealed by industry documents, and explained that this history amply justified the mandated remedial statements. Because the mandated statements–including the preambles about adjudicated past deception–were factual and uncontroversially true, and any tobacco company speech that might be burdened would be commercial speech, a lenient standard of First Amendment review should apply, requiring only that the mandated statements be reasonably related to a legitimate government interest. The mandated statements, Public Good argued, easily met this standard.
Amici represented by Public Good: Public Good’s brief was filed on behalf of the Tobacco Control Legal Consortium.
Outcome: The Court of Appeals upheld the required statements about the harms of tobacco use, but held that required acknowledgements of tobacco companies’ past misconduct were punitive and were therefore not a remedy authorized under RICO. The Court did not reach the question of whether the required acknowledgements would violate the First Amendment.
801 F.3d 250 (D.C. Cir., May 22, 2015)