Posts Tagged ‘tobacco’

“Using RICO against climate change skeptics an attack on free speech”

I’m interviewed at Vermont Watchdog about the truly terrible idea of aiming a civil RICO/racketeering action or investigation against the forces of “climate denial” over wrongful advocacy. The notion seems to have some well organized friends, including Sen. Sheldon Whitehouse (D-R.I.) and, more recently, twenty scientists who recently signed a letter calling for such a probe. “I have no idea how it affects the First Amendment” says one of the letter’s signers, a Vermont scientist, according to a companion report. I should note that when I speak of RICO in the interview transcript, I am referring to the civil-litigation side of the law (“civil RICO”) as distinct from the law’s other wing, “criminal RICO.”

I note, and reject, the idea that the First Amendment protects only truthful speech and thus has no application here because climate skepticism is false. (As Cato and many others argued in last year’s Supreme Court case of Susan B. Anthony List v. Driehaus, controversial speech need not be true to be protected, and in practice an “only truth has rights” rule would give the state a stifling power to punish advocacy in debates that it considers settled.) In substantial part, I note, debate in Washington (and not just in Washington) proceeds by way of advocates’ deployment of half-truths, selectively marshaled data, scientific studies with agendas, and so forth. It is common for both sides to use these techniques. The same techniques are also accepted as standard currency within the adversary process itself, in which the law takes such pride, which makes it particularly absurd to propose defining it as unlawful racketeering to “use dubious information to advance a cause.”

Among those promoting this bad idea: BoingBoing, often regarded as a pro-free-speech site.

P.S. Adapted together with an earlier post into one at Cato at Liberty.

September 16 roundup

  • Study hyped as showing vaping serves as gateway to smoking doesn’t actually show that [Jacob Sullum]
  • Your guano ticket to land-based wealth: 1856 law on bird droppings can help you claim an island [Mark Mancini, Mental Floss]
  • Dignity of the bench: “Judge lied about claimed toilet-lid attack outside courthouse, jury finds” [ABA Journal; Waterloo, N.Y.]
  • Someone’s using someone: “Providence using plaintiffs bar to become player in antitrust cases” [Jessica Karmasek, Legal Newsline, related]
  • Competitive Enterprise Institute picks what it considers the nation’s six worst state AGs, most names are familiar to our readers [Hans Bader/CEI, more, full report in PDF, and thanks for link]
  • “Frivolous Serial Pro Se Litigant Upset Journalists Portrayed Him As A Frivolous Serial Litigant” [Tim Cushing, TechDirt]
  • Model of arbitration in Njal’s Saga: binding, provided it roughly tracks outcome of averted violence [Tyler Cowen]

August 19 roundup

  • “Photos of Your Meal Could be Copyright Infringement in Germany” [Petapixel]
  • National Labor Relations Board opts to dodge a fight with college football [Daniel Fisher, Forbes]
  • Governor’s commission charged with recommending new redistricting system in Maryland includes possibly recognizable name [Washington Post, Southern Maryland Newspapers; thanks to Jen Fifield for nice profile at Frederick News-Post]
  • Trial bar’s assault on arbitration falls short: California Supreme Court won’t overturn auto dealers’ standard arbitration clause [Cal Biz Lit]
  • Ontario lawyer on trial after prosecutors say sting operation revealed willingness to draft false refugee application [Windsor Star, more]
  • “Vaping shops say FDA regulation could put them out of business” [L.A. Times, The Hill] Meanwhile: “e-cigarettes safer than smoking, says Public Health England” [Guardian]
  • I was honored to be a panelist last month in NYC at the 15th annual Michael R. Diehl Civil Rights Forum, sponsored by the law firm of Fried, Frank, alongside Prof. Marci Hamilton (Cardozo) and Rose Saxe (ACLU) discussing the intersection of religious accommodation and gay rights [Fried, Frank] Also related to that very current topic, the Southern California Law Review has a symposium on “Religious Accommodation in the Age of Civil Rights” [Paul Horwitz, PrawfsBlawg]

July 15 roundup

Liability roundup

  • Analyzing the Norton Rose survey numbers: US business faced the most litigation, followed by UK, Canada had least [Above the Law, earlier]
  • Daimler doomsday? “Under the proposed law, any claim against a foreign company that registers with the New York secretary of state could be filed in New York courts, regardless of where the alleged wrongdoing took place or who was harmed.” [W$J, Alison Frankel last year, defense of bill]
  • BP Gulf spill: “Seafood companies owned by man previously convicted of fraud accused of perpetrating $3 million Deepwater Horizon fraud” [Louisiana Record]
  • “Facing Sanctions, Law Firm Tries To Block Interviews With Thalidomide Clients” [Daniel Fisher]
  • Litigation finance: speculator’s handling of Beirut car bombing payout raises eyebrows [W$J via Biz Insider]
  • “American Energy Companies Latest Victims of TCPA Lawsuit Abuse” [Chamber’s Institute for Legal Reform] “FCC Has A New Robocall Ruling, And It Doesn’t Look Pretty for Business” [Henry Pietrkowski]
  • Bad US idea reaches Canada well after peaking here: “Tobacco companies ordered to pay $15B in damages” [CBC]

June 10 roundup

  • Alan Dershowitz, Harvard lawprof, suing TD Garden over slip and fall in bathroom three years back [Boston Globe]
  • “Harsh Sanction Proposed For Attorney Who Blogged About Probate Case” [Mike Frisch, Legal Profession Blog]
  • Maryland veto sets back reform: “Governor Hogan, Civil Asset Forfeiture Is Inherently Abusive” [Adam Bates, Cato]
  • “‘Vape’ bans have little to do with public health” [Jacob Grier, Oregonian in February]
  • Academics prosper through expert witness work, part one zillion [Ira Stoll]
  • Sounds good: call for civil procedure reform includes fact-based pleading, strict discovery limits, case-specific rules, and more [Jordy Singer, Prawfs, on recommendations from American College of Trial Lawyers Task Force on Discovery and Civil Justice and Institute for the Advancement of the American Legal System]
  • Draft plan would arm FTC with vast power over data practices [James C. Cooper, Morning Consult, via @geoffmanne]

California moves to raise smoking age to 21

Which won’t, of course, be the last step as prohibitionists work out the implications of what they call a “tobacco-free” America. But it does at least raise a slogan-atic question: Old enough to fight, old enough to vote, why not old enough to drink and smoke too? [Debra Saunders, San Francisco Chronicle, who also reminds us that for all the nostalgic talk of Reagan and individual liberty, Reagan was the one who signed the bill (passed by a GOP Senate) arm-twisting states into putting the drinking age up to 21]

June 3 roundup

  • Ohio appeals court: code enforcement officers in town of Riverside can be personally liable for towing cars off man’s property without due process [The Newspaper; Vlcek v. Chodkowski, Second Appellate District, Montgomery County]
  • “FDA’s proposed cigar crackdown could effectively ban up to 80% of stogies currently sold in US” [James Bovard, Washington Times; earlier here, here]
  • Don’t decriminalize subway farebeating, says Nicole Gelinas, it’s a deliberate theft and a damaging one (though “enforcing the fare helps enforce New York gun laws” may not work as an argument unless you admire those gun laws) [New York Post]
  • Lawyers take Fifth and (via their attorney) blame paralegal over DUI setup of a trial opponent [ABA Journal; Adams and Diaco, Florida]
  • “The Questionable History of Regulatory Reform Since the APA” [Stuart Shapiro and Deanna Moran, Mercatus]
  • Did American rebels of 1776 fight for English liberties, or universal Rights of Man? [David Boaz, Cato, taking issue with Daniel Hannan]
  • “Appeals court scolds Apple monitor, but does not remove him” [Jeff John Roberts, Fortune; Eriq Gardner, THR; Colin Lecher, The Verge; earlier]

Sen. Whitehouse urges RICO suit against climate wrongthink

Another step toward criminalizing advocacy: writing in the Washington Post, Sen. Sheldon Whitehouse (D-R.I.) urges the U.S. Department of Justice to consider filing a racketeering suit against the oil and coal industries for having promoted wrongful thinking on climate change, with the activities of “conservative policy” groups an apparent target of the investigation as well. A trial balloon, or perhaps an effort to prepare the ground for enforcement actions already afoot?

Sen. Whitehouse cites as precedent the long legal war against the tobacco industry. When the federal government took the stance that pro-tobacco advocacy could amount to a legal offense, some of us warned tobacco wouldn’t remain the only or final target. To quote what I wrote in The Rule of Lawyers:

In a drastic step, the agreement ordered the disbanding of the tobacco industry’s former voices in public debate, the Tobacco Institute and the Council for Tobacco Research (CTR), with the groups’ files to be turned over to anti-tobacco forces to pick over the once-confidential memos contained therein; furthermore, the agreement attached stringent controls to any newly formed entity that the industry might form intended to influence public discussion of tobacco. In her book on tobacco politics, Up in Smoke, University of Virginia political scientist Martha Derthick writes that these provisions were the first aspect in news reports of the settlement to catch her attention. “When did the governments in the United States get the right to abolish lobbies?” she recalls wondering. “What country am I living in?” Even widely hated interest groups had routinely been allowed to maintain vigorous lobbies and air their views freely in public debate.

By the mid-2000s, calls were being heard, especially in other countries, for making denial of climate change consensus a legally punishable offense or even a “crime against humanity,” while widely known advocate James Hansen had publicly called for show trials of fossil fuel executives. Notwithstanding the tobacco precedent, it had been widely imagined that the First Amendment to the U.S. Constitution might deter image-conscious officials from pursuing such attacks on their adversaries’ speech. But it has not deterred Sen. Whitehouse.

Law professor Jonathan Adler, by the way, has already pointed out that Sen. Whitehouse’s op-ed “relies on a study that doesn’t show what he (it) claims.” And Sen. Whitehouse, along with Sen. Barbara Boxer (D-Calif.) and Edward Markey (D-Mass.), has been investigating climate-dissent scholarship in a fishing-expedition investigation that drew a pointed rebuke from then-Cato Institute President John Allison as an “obvious attempt to chill research into and funding of public policy projects you don’t like…. you abuse your authority when you attempt to intimidate people who don’t share your political beliefs.”

P.S. Kevin Williamson notes that if the idea of criminalizing policy differences was ever something to dismiss as an unimportant fringe position, it is no longer.

April 28 roundup

  • “The makers of smokeless tobacco products like to claim that their products are safer than cigarettes.” Hey, New York Times, that’s ’cause it’s true! [Jacob Sullum]
  • New York Attorney General Eric Schneiderman pursues high-profile case against Standard & Poor’s, accepts $50K contribution from CEO of another credit rating firm [Richard Pollock/Daily Caller, some background]
  • Megan McArdle on child support and the difficulty of replacing social norms with law [Bloomberg View, my recent Cato post and podcast]
  • “Wisconsin Chief Justice Shirley Abrahamson should drop her lawsuit” [Milwaukee Journal Sentinel editorial, earlier; AP (federal judge declines to block law’s implementation while suit is pending)]
  • CVS opposes certification of securities class action, saying government pension managers filing it were influenced by political donations from plaintiff’s law firm [Law360, reg]
  • “Has Conley v. Gibson really been overruled? (And did the Fourth Circuit just tee up the next big SCOTUS case on pleading?)” [Adam Steinman, Civil Procedure Blog, arguing from premises different from mine, on Fourth Circuit’s decision in McCleary-Evans v. Maryland Department of Transportation]
  • The Maryland knife law angle in the Freddie Gray story [Patrik Jonsson, Christian Science Monitor; my post at Free State Notes]