A company’s right to lie?

Yesterday federal District Court Judge Gladys Kessler issued a ruling requiring tobacco companies to use their own revenues to inform the public that they have lied about the dangers of tobacco use:

“Defendants have known many of these facts for at least 50 years or more. Despite that knowledge, they have consistently, repeatedly and with enormous skill and sophistication, denied these facts to the public, the Government, and to the public health community.”

The pattern of dishonesty perpetrated by Big Tobacco and their supporters is well-documented. Naomi Oreskes and Eric Conway connected the dots in between the campaigns of misinformation about tobacco, DDT and climate disruption and those who designed them.

But here’s the question:  will the tobacco companies get away with it? Is corporate deceit protected by the Constitution? We may be about to find out.

In the wake of the ruling, both Philip Morris and Reynolds America told The Guardian that they are “studying the decision.” You bet they are. It is inconceivable that the tobacco companies will not appeal this decision–they have specialized in lengthy, expensive legal delaying tactics for decades. They have objected before to having to display specific warning language on their packages, so it’s safe to say that they will object to having to list the five specific areas of deceit they have promulgated:  adverse health effects, addiction, mythical “safer” cigarettes, nicotine delivery, and dangers of second hand smoke as well as the specific court rulings against the tobacco companies in each area. Included in the lengthy proposed mea culpa is a list of facts that Big Tobacco have denied, including:

• Smoking kills, on average, 1,200 Americans. Every day.

• More people die every year from smoking than from murder, AIDS, suicide, drugs, car crashes, and alcohol, combined.

• Cigarette companies intentionally designed cigarettes with enough nicotine to create and sustain addiction.

• All cigarettes cause cancer, lung disease, heart attacks, and premature death – lights, low tar,ultra lights, and naturals. There is no safe cigarette.

• When you smoke, the nicotine actually changes the brain – that’s why quitting is so hard.

In the last couple of years, federal courts have upheld tobacco company objections to graphic warning labels as being violations of the companies’ right to free speech, thus establishing that the First Amendment protection of freedom of speech applies to corporation. So far, the Fifth Amendment protection against self-incrimination has not applied to corporations. It is not too-far-fetched to imagine a defense which would combine those two concepts into “you can’t force us to use our own money to incriminate ourselves when what we’re doing is constitutional.”

You have to remember that in June the Supreme Court declared 6-3 in United States v. Alvarez that lying, in that case lying about military honors, ie “stealing valor,” is a protected form of speech. The US Appeals Court Judge Milan Smith originally threw out the Stolen Valor Act with the statement, “The right to speak and write whatever one chooses–including, to some degree, worthless, offensive and demonstrable untruths [emphasis added]–without cowering in fear of a powerful government is, in our view, an essential component of the protection afforded by the First Amendment.”

Is it too much of s stretch to imagine a constitutional lying defense? Maybe. But given the audacity, vehemence, and level of historical dishonesty of Big Tobacco, it’s plausible. Maybe the tobacco companies will finally tell the truth:  about lying.

Photo Ian Britton on FreeFoto.