Jump to full article: First Amendment Center at Vanderbilt University , 2010-02-22
Author: Tony Mauro First Amendment Center legal correspondent 02.22.10
Intro: 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.
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