Saturday, June 18, 2005

Americans for Nonsmokers' Rights Uses False Information to Stir Members to Action

In an action alert intended to outrage its readers and stir them to demand an investigation of the recent change in the Department of Justice's requested smoking cessation remedy, Americans for Nonsmokers' Rights (ANR) informs the public that Associate Attorney General Robert McCallum is "a former tobacco industry lawyer."

The alert also informs the public that: "The only rationale given [for the change in smoking cessation remedy] was that the cessation services should only be provided to future smokers addicted in the first year after the trial."

The alert concludes by asking readers to demand an investigation into "why DOJ reversed their position on cessation, whether high-ranking DOJ employees interfered with DOJ's case, and whether witnesses have been coerced into softening their testimony."

At the same time, ANR has posted and will apparently take out an advertisement accusing the Justice Department of having a "cancer" in it and of trying to "torpedo" the case because of its being led by political appointees with tobacco ties.

The ad also states that: "Remedies prescribed by the government’s expert witnesses include making the industry fund a full generation of smoking cessation programs worth $130 billion, stop marketing to kids and deceiving adults about addictiveness, and more."

The Rest of the Story

There is no question that an investigation into the Department of Justice's handling of the tobacco lawsuit is warranted and it is perfectly appropriate for ANR to call for such an investigation. However, I do not think it is appropriate or ethical for ANR to use misleading or false information in its attempt to stir readers to action.

In its action alert, ANR presents false information by informing the public that Robert McCallum was a former tobacco industry lawyer. From the best available information I can find, McCallum has never represented any tobacco industry client.

No matter how egregious the Justice Department's actions may be, I do not think that justifies an organization using false information to attempt to motivate the public to action. Especially when that false information could defame the character of an individual in the public eye, and on false grounds.

With minimal research, ANR could have found out that McCallum worked for a law firm that did work for R.J. Reynolds but that he did not represent the company himself. The careless disregard for the truth, especially when making a personal attack, is not justified in my opinion, no matter how important we may feel the ultimate cause is.

According to ANR's claim, one would have to conclude that anyone who has ever worked for a firm that represented a tobacco client was a "tobacco industry lawyer." Given the size of the firms that represent Big Tobacco, this would make the majority of the attorneys in this country "tobacco lawyers."

There are a number of other problems with ANR's actions:

1. First, ANR also misleads the public in stating that "the only rationale given [for the change in smoking cessation remedy] was that the cessation services should only be provided to future smokers addicted in the first year after the trial." Actually, the rationale given was not that the cessation services should be provided to future smokers, but that the laws of the United States, as interpreted by the D.C. Court of Appeals, clearly do not allow a backwards-looking remedy such as requiring a cessation program for current smokers. A forwards-looking remedy (a cessation program for future smokers) was justified by DOJ on the grounds that it represented a remedy that was consistent with the appellate court decision in this case, and therefore, more likely to actually be upheld.

2. Second, ANR seems to be passing along a misunderstanding of the way the lawsuit works in stating that remedies were "prescribed" by expert witnesses. The witnesses in the case do not prescribe remedies; they provide expert testimony that the lawyers in the case may use to support the remedies they decide to request. But the decision to request remedies is the lawyers alone and they are under no obligation to follow the exact recommendations of the witnesses. They have other important considerations to take into account: namely, the law and what it allows.

3. Third, it seems inappropriate to me for ANR to call for an investigation of DOJ on the one hand, and on the other hand (and at the same time), to attack DOJ and proclaim that they have torpedoed the case for political reasons. If ANR has enough information to conclude that DOJ's political appointees have torpedoed the case, then there is no need to waste taxpayer's money on an investigation. And once ANR has called for an investigation, it undermines the investigation to prematurely attack DOJ and to conclude, before the investigation, that political appointees have torpedoed the case.

You can't have it both ways. Either call for an investigation and be sincere about that call by waiting for the findings before bashing the Bush Administration. Or, just bash them but don't call for an investigation to support your bashing. This has the appearance of ANR making a political attack first, and then hoping that the investigation will provide the findings to support their action.

I will not address here what I think is a more fundamental problem with these actions by ANR: namely, that the change in the requested smoking cessation remedy actually strengthens the case, rather than torpedoes it, because there was no chance for a backwards-looking $130 billion program to be upheld, but there's at least some chance that a forward-looking $10 billion remedy could be upheld (see previous posts for more details on that argument).

The rest of the story reveals that in its zeal to attack the Bush Administration's political appointees for killing the DOJ tobacco case, ANR has been careless with the truth and has misled the public in two important ways. While the ultimate aim of putting pressure on the Administration not to settle the DOJ case may be a good one, the tactics being used by ANR to achieve this aim are at best inappropriate, and at worst, unethical.

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