Gian Turci, CEO of FORCES International, in a column about my recent posts, has laid out what he perceives to be the 4 commandments of the tobacco control movement. The third commandment is quite interesting, and I think is worthy of some exploration and discussion:
"Public health is the paramount value of society. All other values - such as liberty, constitutionality, truth, economics, free enterprise, personal responsibility and moral integrity - are absolutely irrelevant and/or have to submit unconditionally. Any dissent from that credo only defines the enemy to be silenced."
The Rest of the Story
Well - it's sad to say, but in many ways, I agree.
The best example of this is the actions of a number of anti-smoking groups, led by the Campaign for Tobacco-Free Kids, the American Cancer Society, and the American Heart Association, to try to achieve public health gains by giving away the rights of American citizens to pursue justice by exercising their legal rights through the court system.
In 1997, these organizations, working as the ENACT coalition, lobbied for federal legislation (known as the global tobacco settlement) that would have achieved a number of anti-smoking goals (including a greatly increased federal cigarette excise tax, huge payments from the tobacco industry, restrictions on cigarette advertising, and FDA regulation of tobacco products).
Just one small problem. These public health gains could only be achieved by sacrificing the legal rights of American citizens to pursue justice in the courts. The legislation would have permanently curtailed the rights of smokers, for example, to meaningfully seek damages for wrongs they may have suffered.
Whether or not one agrees with the argument that smokers were deceived by tobacco industry statements about the safety of its products and that they are entitled to compensatory and punitive damages, it is quite well-established that smokers certainly have the right under our legal system to pursue justice by suing the tobacco companies for damages. Yet the above anti-smoking groups wanted to take away these basic legal rights from American citizens in order to achieve what these organizations viewed as being public health gains.
It was, then, precisely an example of anti-smoking organizations putting public health above all other values, including basic civil liberties and civil rights.
Perhaps the organizations did not view these legal rights as being irrelevant, but they certainly argued that these legal rights would have to submit unconditionally to the organizations' perceived value in achieving the federal tobacco settlement and its public health gains.
Fortunately, there were at least some anti-smoking groups that did not subscribe completely to the 3rd commandment, and they opposed the idea of sacrificing legal rights and civil liberties in order to achieve public health gains. A second coalition - SAVE LIVES - formed to oppose the idea of giving tobacco companies immunity from liability in order to achieve the settlement and its public health gains.
Nowhere is the view that public health concerns trump any and all concerns about liberty and civil rights demonstrated more vividly than in Michael Pertschuk's book: "Smoke in their Eyes: Lessons in Movement Leadership from the Tobacco Wars."
In the book, Pertschuk essentially argues that concerns about infringing upon the legal rights of American citizens to use the court system to pursue justice should not have played a significant role in determining public health groups' support for the global tobacco settlement, because the public health gains that would have accrued from that settlement completely trump concerns about the legal rights of citizens.
Perhaps the most telling quote in the book is from a veteran lobbyist from the American Cancer Society, who said: "I'm getting sick and tired of people who talk about immunity as though it is the only important issue on the table. What bugs me most is that you never hear any of them talking about the public health parts of the legislation and how they could be strengthened. It's just, 'No immunity, no immunity, no immunity.' I'd rather be talking about raising the federal excise tax and pricing cigarettes beyond what has been proposed, strengthening the minors' access provisions and possibly going further on advertising and marketing. These are the things that will save lives and prevent suffering. These are the things I'm prepared to ruin the current deal and any legislation over. Instead, they just prattle on solely about immunity."
This, I believe, quite accurately characterizes the view of the Campaign for Tobacco-Free Kids, ACS, and AHA on this issue. The "public health" parts of the legislation were the paramount concern, and there was little concern that in order to achieve these gains the legal rights of American citizens would have to be taken away.
Looking back on this episode and re-reading the book, I am glad to see that I was in the camp that did place a great weight on liberty and civil rights and did not let the desire for public health gains to trump these critical societal values. According to Pertschuk, I wrote ("indignantly") at the time: "This is an issue of integrity, both of individuals and organizations. It is about making commitments and breaking them. It is about saying one thing and doing another. It is about assuming a mandate beyond that given by the people one represents. It is about selling away the rights of other people to try to gain individual and organizational advancement. ... It is about putting political and organizational advancement and economic gain above principles and values, above individual rights, and above the pursuit of social justice."
Pertschuk describes me (and quotes me) as follows: "Fourth, there were those, like Michael Siegel, who considered fundamentally unethical any trade-off of tort claims for public health laws, no matter how many lives might be spared nor how tenuous and unlikely ever to be realized in the courts: 'The real question is now, and has always been, whether or not it is right for us to sacrifice the legal rights of present and future victims of tobacco products...There is truly a moral issue here. I do not think it is right for us to sacrifice the legal rights of present and future generations of people.'"
I am gratified to see that I had the courage to go up against the Campaign for Tobacco-Free Kids, and that I attempted to bring some consideration of liberty and civil rights issues into the debate over this legislation. (I would also be remiss if I didn't point out that the tort claims were so "tenuous" and "unlikely" to be realized that there are now two pending lawsuit appeals, with punitive damages totaling over $150 billion.)
But what is most interesting in Pertschuk's book is not just the negative way in which he views anyone who would dare suggest that civil liberties and rights play a substantial role in a public health policy debate, but the abusive and downright nasty way in which he characterizes any such person: "Michael Siegel's excommunication as a movement Judas of anyone who would entertain any diminution of any tobacco victim's (largely theoretical) day in court ... poisoned what might otherwise have become a reasoned intramovement debate."
So in other words, bringing civil rights and liberty into the public health debate poisoned it.
Sounds like Gian Turci's 3rd Commandment of the anti-smoking movement was alive and well in 1997.
But the corollary of Turci's 3rd Commandment was also apparently alive and well: "Any dissent from that credo only defines the enemy to be silenced." Because I dissented from the credo that public health gains were paramount to concerns about liberty and individual rights, I needed to be painted as "poisoning" the movement, rather than as making a critically important contribution to the debate.
(Not to mention the fact that the "largely theoretical" day in court of smokers resulted in a $145 billion jury verdict in their favor).
I won't even begin here to get into a discussion of my opinion that the so-called public health gains of the global tobacco settlement were not gains at all. It was largely, I believe, about money.
The issue, for now, is that Gian Turci appears to be right. The anti-smoking movement is largely characterized by groups that place perceived public health gains as paramount to any other societal values, including liberty, justice, and individual rights. And the movement does appear to be characterized by attempting to silence any dissent from that credo.
Unfortunately, I see this as just the beginning of the rest of the story. In many ways, I think the Campaign for Tobacco-Free Kids' and the ACS' and AHA's support of the global tobacco settlement of 1997 marked the beginning of the downfall of the anti-smoking movement. Because it did, in my view, mark the cooptation of the movement by groups that continually place their own perception of (largely theoretical) public health benefits above the rights of citizens, moral integrity, and the rule of law.