• The Federalist Society, Sam Iannarino, interviewed Professor David Mayer, the faculty advisor for the organization.  Sam Iannarino is a second year evening student and Editor-at-Large of the Federalists' Paper.

 This month I had the pleasure of interviewing Professor Mayer about "Big Tobacco." As he and I share an ideology about all things having to with freedom and individual choice, I thought it might need some "spicing up." Therefore, I played the role of devil's advocate. However, it was unnecessary to do so, as Professor Mayer needed no prodding.
 This interview should come with its own advisory warning: This article is not for the feint of heart statists, supporters of paternalistic government or anti-smoking zealots. It has been found to cause increased blood pressure, difficulty in breathing, loss of consciousness, and possibly a thoughtful reevaluation of your beliefs. Let's just leave it at this: If you disagree, write your editor.

 The Federalists’ Paper (FP): During his State of the Union Address, the President announced that the Justice Department will be pursuing a case against "Big Tobacco." The purpose--they allege--is to thwart teenage smoking and force tobacco companies to pay for increased medical costs paid by the government for smoking-related illnesses. Both of these, it seems to me, are rather disingenuous. Isn't it rather hypocritical to insist we cannot stop teenagers from engaging in sexual intercourse, and therefore, we should supply them with condoms; at the same time we insist teenagers should stop smoking?

 Prof. David Mayer (DM): Well, of course, hypocrisy is a hallmark of the Clinton administration, so it's not surprising to find it here.  The federal government's "war" against so-called "Big Tobacco" is part and parcel of the Clinton administration's broader effort to expand the reach of Washington into every American's life, to expand the "nanny state."  And one way to do that--it's a technique that purveyors of paternalism have been using for several generations now--is for politicians to demonize a particular company or particular industry, to inflame public opinion against it, and thus mask the expansion of government.  At the turn of the 20th century, politicians like Teddy Roosevelt and Woodrow Wilson did it with "Big Oil"--the co-called Standard Oil "monopoly," which really wasn't a monopoly at all, in the true sense of the word--and now politicians like Clinton and power-hungry bureaucrats like David Kessler, the former head of the FDA, are targeting "Big Tobacco." It's the demon of the moment.
 It doesn't take any political courage to demonize the tobacco industry. Real courage would be for politicians to stand up for the right of Americans to decide for themselves whether they want to smoke, and for the right of the tobacco companies to freely market their products.

 FP: Although some would agree that the tobacco industry is getting a bad rap on the legal front, many insist that it is because it is a drug. Since cigarettes are a drug with addictive qualities, it should at the very least be regulated. We regulate alcohol and many other drugs. Shouldn't cigarettes be regulated as such?

 DM: No, not at all.  It's no more dangerous than any number of products, legal or illegal, which Americans use for their personal pleasure.  Now, I'm not saying that smoking is good for you; there's abundant evidence of the health risks associated with smoking.  But there's a greater issue here than the health concern, and that's the issue of individual freedom.  People own themselves; that means they should be free to decide for themselves what substances they want to use in their own bodies.  (And here I don't stop with just legal substances: the same argument justifies, in my view, decriminalization of all drugs, from caffeine and alcohol and nicotine, to marijuana and cocaine and heroin.)  If someone wants to jeopardize their own health, it's their own business.  It's not the government's.
 Jacob Sullum puts it nicely in his excellent book, For Your Own Good, which exposes the true nature of the anti-smoking movement and its crusade for a "smoke-free" society (Editor: See Sidebar below).  Tobacco's opponents resort to censorship, punitive taxes, violations of property rights, and other coercive tactics which threaten everyone's freedom, not just smokers'.  Sullum points out that smokers have the same rights as other individuals: "They have a right to control what goes into their bodies.  They have a right to purchase a product from a willing seller, without paying a fine because someone thinks the product is sinful.  They have a right to use the product in any place where their host does not object.  They have a right to buy and wear whatever clothing they like (including clothing embossed with certain brand names or characters), even if it offends powerful people."  He adds that these rights aren't "trivial," and that if we permit them to be overridden in the name of "public health," we should all beware: that rationalization can become an all-purpose excuse for tyranny.

 FP: Certainly you don't mean to say that even the most dangerous drugs should go unregulated. Even the most liberal states regulate drugs. We know that cigarettes have great negative consequences for those who smoke-including possibly death. Doesn't the government owe some duty to protect those who would smoke from the many dangers, or are you advocating a total laissez-faire approach?

 DM: Virtually, yes.  The only possible legitimate justification for government regulations restricting smoking would be to protect the health of non-smokers, because the only actions that government should restrict are those directly harmful to others.  But there's no valid scientific evidence that secondhand smoke causes any significant health risks.  The controversial 1993 report by the EPA, which asserted that secondhand smoke was a Class A carcinogen, was based on "junk science" which showed no statistically significant relationship between secondhand smoke and lung cancer, as a federal judge correctly concluded last year.
        And let me make this clear, in response to anyone who might think I'm biased in this regard.   I say it as someone who's a non-smoker and someone who's not particularly fond of cigarette smoke, because I find it irritates my eyes.  So, personally, I'd rather not be in a smoky environment, especially when I'm eating.  In restaurants, I usually choose the non-smoking section.  But I don't think government should dictate to businesses whether or not they can permit their customers to smoke; it's the business owners' property, and they should set their own policies.  Most restaurants have found that non-smokers like myself prefer smoke-free environments, so they segregate smokers and non-smokers, to keep their customers happy.  That's the free market working as it should.

 FP: Funny you should mention that. When I lived in Los Angeles, they banned smoking from all restaurants in Los Angeles County. It was a disaster. No one wanted to go out to eat or to drink in non-smoking bars. Many restaurants went out of business (mostly the smaller Mom-and-Pop restaurants). It did make it easy to get a table, however.  What about Joe Camel and cigarette advertising generally?

 DM: Tobacco companies have an absolute right to advertise, and to advertise free of government dictates: it's part of the First Amendment freedom of speech clause.  I know the Supreme Court has held otherwise, carving out an exception for so-called "commercial speech," but the Court is wrong.  The "commercial speech" exception, like the "obscenity" exception, has no basis in the text of the Constitution, which is absolute: "Congress shall pass no law abridging freedom of the press," and "no law" means NO LAW!  But where are the so-called civil libertarians--the ACLU and various other First Amendment advocacy groups--on this issue?  No where.  Again, it takes political courage to defend the rights of tobacco companies and smokers these days, the kind of courage that most of these supposedly "liberal" advocacy groups lack.  Sadly, the tobacco companies themselves have rolled over and volunteered to waive their First Amendment rights, beginning with the ban on TV advertising in the early 1970s--killing off the "Marlboro Man"--and now killing off "Joe Camel."
 Incidentally, the argument advanced by the FTC, that the "Joe Camel" ad campaign is responsible for the increase in teenage smoking, is absolutely ludicrous.  It's the anti-smoking Nazis, more than anyone else, who are encouraging teenagers to smoke, by their very efforts to stop them.  If the federal government seriously thinks advertising will affect teenage smoking, it ought to create an ad showing Al Gore with a lit butt sticking out of the corner of his mouth.  That would instantly making smoking un-cool!

 FP: Well, if nothing else, in my role as devil's advocate, I must get you to at least agree with me that teenagers should not be permitted to smoke. Shouldn't the government do everything within its power to stop teenagers from smoking?

 DM: Hell no!  Teenagers have been smoking in America for nearly 400 years, going all the way back to the first cultivation of tobacco in the Southern colonies in the early 17th century.  And now, at the end of the 1990s, it's suddenly a big problem?  Please!--it's only that it's the "cause du jour," the latest effort of the social engineers to use the coercive power of government to shove their notion of the good life down the throats of all the rest of us.
 Camille Paglia put it nicely in a Jan. 20 column she wrote for Salon: "Tobacco, an aromatic Native American herb, has made extraordinary contributions to Western civilization in the past 400 years.  It focuses thoughts, stimulates energy and improves efficiency. ... Tobacco, with all of its long-term health risks, is a far better choice for teenagers than the host of other legal and illegal drugs that are out there, which dull the mind over time.  Tobacco is a handmaiden of the arts--while Ritalin, which dopes kids into servitude, will be the end of art as we know it."
 She has a valid point.  I'd rather see teenagers smoking cigarettes, and demonstrating their independence--and let's face it, today, with all the anti-smoking propaganda we're bombarding them with, kids are naturally going to smoke as an act of rebellion--than having our kids turned into mind-numbed conformists, wearing school uniforms, and repeating the same old tired political cliches and bromides of their "soccer mom" parents.

 FP: How about the argument that tobacco's dangerous because it contains nicotine, an addictive drug, and there's no legitimate reason for people to smoke otherwise--that they don't do so freely?

 DM: I think that view rests on an outrageous assumption, one which might reflect the anti-smoking crusaders' own biases.  Many of the most militant people in the anti-smoking movement today are people whose zeal is emotionally-based; they've become fanatic in their quest to stop smoking because they blame tobacco, and tobacco companies, for the death of a loved one--say, a family member or close friend--who died of a smoking related disease.  I think it's hard for them to accept that their loved one chose to smoke, so they demonize the product as a way of transferring blame from that person to those hated "Big Tobacco" companies.
 But many people smoke simply for the pleasure of it--just as many people ski, or race cars, or climb mountains, or engage in various other activities that might be life-threatening, and which other people might find objectionable.  Why do they do it?  For many smokers, I think, it's a way to deal with stress, a way to relax.  For many people, smoking also has symbolic importance.  Ayn Rand, who was something of a chain-smoker herself, put it rather poetically in her great novel, Atlas Shrugged: "I like cigarettes. ... I like to think of fire held in a man's hand.  Fire, a dangerous force, tamed at his fingertips.  I often wonder about the hours when a man sits alone, watching the smoke of a cigarette, thinking.  I wonder what great things have come from such hours.  When a man thinks, there is a spot of fire alive in his mind--and it is proper that he should have the burning point of a cigarette as his own expression."

 FP: They used to sell a brand of cigarettes called Death Cigarettes. The packaging was black with a big white skull on the front of it. Right above the skull in big scary letters was "DEATH." People smoked them like crazy. Would you then say that government-mandated health warnings, the Surgeon General warnings, have any effect? Moreover, are they justified?

 DM: No, because it's not the role of government to provide information.  We're not a totalitarian state--yet--and I'm opposed to anything like a "ministry of propaganda," which force-feeds information to people directly or doing the equivalent, indirectly, by having regulatory agencies like the FDA or Office of Surgeon General dictate to businesses what they can or cannot say on their own products.  I think the media--and here I mean not only newspapers, TV and radio, but all sources of news and information, including particularly today, the Internet--does a fine job in informing people about health concerns.  We don't need the government forcing manufacturers to put warning labels on their products when the information is so readily available anyway.  People aren't total idiots, as the nanny-statists assume they are.

 FP: Well, that is arguable. Some people must be total idiots. I saw them smoking Death cigarettes by the carton. Again, I want to approach this idea of the government bringing lawsuits. What about the various lawsuits that have been brought against tobacco companies, not only by the states' attorneys general but also by individual smokers?

 DM: I really have mixed feelings about the lawsuits.  If tobacco companies are committing fraud--if they're deliberately deceiving smokers about the health dangers of tobacco products or if they're adulterating their products with poisonous chemicals--I think injured parties should be able to use the tort system to seek compensation for their damages, the only form of government "regulation" that I'd countenance, by the way.  So some of the individual smokers' lawsuits--such as those filed by people who became addicted to tobacco back in the 1950s and early 1960s, before the health hazards of smoking were known, and when tobacco companies arguably were deceiving the public--those suits might be valid.  But not today, for anyone who began smoking in the past several decades, when the health hazards have become public knowledge.  Anyone who smokes today assumes the risk; they have no one but themselves to blame if they develop cancer or emphysema.
 Here, you see, is the crucial, larger issue: individual responsibility, which goes hand-in-hand with individual freedom.  Just as people should be free to decide for themselves what substances they ingest in their own bodies, they also must assume the responsibility for the consequences of their choices.  A big problem with the legal system today--with torts, in particular, in the realm of products liability law--is that it's being used to distort individual responsibility, to shield people from the consequences of their own actions, by shifting the blame to others, under dubious theories of causation, simply because the others have "deeper pockets" and therefore are assumed to be better able to bear the costs.  But what about justice?  Justice demands that people bear the burden of their own acts, and that's especially so in a free society.  By undermining the concept of individual responsibility, we're also undermining freedom.

 FP: I often wonder when people say they didn't know smoking was bad for them what they did think. Could anybody honestly say that they thought it was good for them? What did they think-it was a vitamin? As one who smoked for 10 years, I can say that the first time you walk up a flight of stairs after smoking you get the idea it might not be that good for your health. Nevertheless, a jury awarded a smoker $51.5 million dollars for smoking injuries-50 million of which is punitive damages.

 DM: Yes, that illustrates exactly what I'm talking about.  That idiotic jury in California first committed a gross injustice by holding Philip Morris responsible for $1.5 million in compensatory damages for the plaintiff's medical expenses, pain and suffering-all of which was directly caused by the woman's own actions as a smoker.  The jury compounded the injustice when they awarded her $50 million in punitive damages, on the theory that she was "misled" about the dangers of smoking.  On what planet has that woman been living?  If anyone should have been assessed punitive damages it should have been the plaintiff herself, if not for her stupidity, then for bringing a totally frivolous suit which never should have seen the light of day.  And, of course, the greatest injustice being done is the windfall that such suits bring to plaintiffs' lawyers, who make out like bandits, profiting handsomely (in that case-what, one-third of $51.5 million!) from a perverse tort system which permits out-of-control juries to indulge their anti-business biases and reward sympathetic plaintiffs for the folly of their own actions.  One of the greatest scandals of the legal profession today is this class of parasites, the trial lawyers, who profit from the sufferings and misplaced moral outrage of others, and who are the ones most responsible for the undermining of the concept of personal responsibility in our society.
 As for the government lawsuits--including Clinton's latest proposal for the Justice Department to get involved in the tobacco "war"--they're totally unjustified.  First, they're based on false premises.  As Jacob Sullum observes in his "Ten Myths of the Anti-Smoking Movement," the claim that tobacco increases health-care costs ignores the fact that the costs of treating tobacco-related illnesses are balanced, and probably outweighed, by long-term savings traceable to smoking: savings on Social Security, nursing home stays, and medical care in old age.  To put it simply, we should all be grateful to "Big Tobacco" for shortening smokers' lives!

 FP: Besides the loss of our individual liberties, is there a dangerous precedent being set here? Do we run the risk of seeing this kind lawsuit for other issues?

 DM: Yes there's a bigger issue involved here, and not just simply the erosion of the concept of individual responsibility: it's a very dangerous precedent that such lawsuits set, one that threatens all Americans' rights.  As Sullum points out, by the same logic used in the tobacco suits, government could sue "the manufacturer of any product associated with disease or injury, including alcoholic beverages, fatty foods, candy, firearms, swimming pools, bathtubs, skateboards, and automobiles."  His claim isn't absurd; the cities of Chicago and New Orleans already have filed suit against gun manufacturers, trying to shift the blame to these businesses (like "Big Tobacco," another easy target for demagogic politicians) for government's failure to perform its legitimate function of protecting people from violent crime.  Who will be the government's next target--the Hershey Company, perhaps, on the theory that consumption of too many chocolate kisses this Valentine's Day increases the costs of treating heart disease?  As Sullum concludes, "The makers (and consumers) of such products should not be blamed because politicians decided to pay for health care with taxpayers' money."
 What's really involved with the state attorney-generals' lawsuits--as with Clinton's new assault on the tobacco industry, his threat of a Justice Department suit and his proposed 55-cent hike in cigarette taxes--is a blatant grab for money.  Bob Levy of the Cato Institute, who spoke about this topic last semester here at the Law School, had an excellent column in the Wall Street Journal on Feb. 8 entitled "Clinton's Illegal Assault on the Tobacco Industry," in which he points out the real danger posed by the government's money grab.   It's yet another way in which the Clinton administration is undermining the rule of law.  Clinton's calling for the Justice Department, which has no statutory authority to bring a direct suit against tobacco companies, to bring the suit with or without the help of Congress, bypassing both the legislative process and the Constitution itself; in effect, he wants his Justice Department to ask the federal courts to create new law, bypassing not only established principles like assumption of risk but also the requirement that causation be demonstrated on a smoker-by-smoker basis--all in an effort to make "Big Tobacco" the scapegoat.  As Levy observes, "When the objective is to replenish depleted Medicare coffers, anything goes--including the rule of law."
 Levy also points out why another tax increase on cigarettes, in the name of discouraging teenagers from smoking, makes absolutely no sense.  There are several reasons: it will create black markets (and thus may actually increase teenage smoking), it's an especially regressive tax, and it's simply unfair to make some 44 million adult smokers pay higher taxes because some retailers are breaking the laws prohibiting sales to minors. Most importantly, Levy notes, every scholar who has examined the data has concluded that existing excise taxes more than cover the so-called "social costs" of smoking.  "The uncomfortable truth is that federal and state governments have benefited handsomely from tobacco taxes."  Government already is literally making out like a bandit, at the expense of smokers, and Clinton's proposing to steal even more money out of their pockets.  Why? Because "Big Tobacco" and its customers--the nation's millions of smokers--are an easy target.  We're doing it "for the children," which has become the mantra chanted by today's socialists for every new scheme to limit freedom.  Clinton's plan, as Levy aptly sums it up, is "yet one more raid on private wealth--a bald attempt to fatten the federal treasure chest without regard for individual liberty, personal responsibility, or the rule of law."

 FP: Thank you for the interview - next time I hope we can get you to be a little more frank and candid in your responses.