Criminalizing Big Tobacco: Legal Mobilization and the Politics of Responsibility for
Health Risks in the United States
Michael McCann, William Haltom, and Shauna Fisher1
“I’m convinced the tobacco companies lie and cheat and cover up, and do
everything in their power to get kids to smoke…The verdict…has to be
huge…to punish the tobacco industry for its corporate sins…..”
“What will happen to the tobacco industry if we bring back a big verdict…?”
“Legally, economically, or politically?”
“All.”
“…..(T)he industry will never be the same if we do what we should do.”
Dialogue from John Grisham’s The Runaway Jury, 1996, p. 524, 531
“Cigarette Makers Get Away with Murder.”
Elizabeth M. Whelan in The Detroit News, 2003.2
“(The tobacco) industry’s deceit was the crime of the (last) century.”
Allan Brandt, Harvard health historian
1. Introduction
Legal activists and tactics have played prominent roles in the campaign to
challenge, regulate, curtail, and render accountable the U.S. tobacco industry over
the last forty years. Many insiders have trumpeted the view that litigation has
been a transformative resource and site in this struggle with Big Tobacco (Gostin
2002). “Law…provides a tool for dramatically changing the course of public
health…Indeed, the tobacco litigation suggests how lawyers may move an issue
dramatically, “ wrote one observer in a high profile public health conference
(Parmet: 2002: 202). Former FTC chairman and noted consumer advocate
Michael Pertschuk specifically celebrated the litigation strategy of leading
lawyers: “Dick Daynard’s…greatest contribution to public health came from the
strategic application of the lawyerly tool of litigation to the achievement of public
health goals – a tool that evolved from an “all thumbs, no fingers” hammer to a
calibrated instrument of public policy” (2002). Lawyers who led the challenge
against tobacco have made similar claims, echoing the type of dramatic rhetoric
cited in the epigraph above from Grisham’s legal fiction. “The most important
1
Funding for this study was generously provided by the National Science Foundation, Award # 0451207
McCann worked on this project while enjoying a Guggenheim Fellowship. The authors dedicate this
article to Daniel Lev, a mode socio-legal scholar, mentor, and colleague whose inspiration was central to
the two most senior of us. Dan died of lung cancer, after smoking all of his adult life, in 2006.
2
Even Bush administration Surgeon General Richard H. Carmona later agreed that tobacco must be
controlled or even “banned,” because of the growing “consensus that tobacco is a killer, is addictive, and
sometimes has been sold through questionable practices to consumers ” (Washington Post 2003)
1
public health litigation ever in history,” is how Mississippi Attorney General
Michael C. Moore described the lawsuit he had filed on behalf of his state against
the tobacco industry in 1994. He boasted to a New York Times reporter, “It has
the potential to save more lives than anything that’s ever been done.”(Sack 1997).
Social scientists have varied widely in their assessment of this legacy, however.
Some scholars view anti-tobacco litigation as both consequential and transformative or
effective (Mather 1998). Others, following Gerald Rosenberg’s familiar argument, view
the litigation as a “hollow hope,” as relatively inconsequential and hence either irrelevant,
diversionary, or largely triumphant for industry (Godshall 1999; Kluger 1996). Yet
others view the litigation legacy as highly consequential but a fundamentally misguided
and suboptimal as a policy mechanism for regulating tobacco (Derthick 2002; Kagan and
Nelson 2001; Melnick 1999).
Our study differs from most of these previous analyses in at least three key ways.
First, we demonstrate that reinterpreting how the specific forms, agents, and venues of
legal action proliferated and changed over time as a dynamic, complex process of
struggle is critical to assessing how much and why they mattered for the tobacco wars.
Specifically, we call attention to the fundamental, if gradual and subtle, transformation in
the core legal strategy from a standard civil tort model of product liability to a white
collar criminal, or “crimtort,” model that redefined the larger political dynamics and
policy agenda.
Second, we examine the ways in which this profound transformation in the legal
campaign resonated within and throughout the broader political culture. In short, the
criminalization of the tobacco industry developed momentum in the courts of mass media
and public policy discourse even more than in official courts of law, although this
cultural transformation was thoroughly constituted by shared conventions of legal
knowledge. This argument builds on and confirms the insights of many scholars who
underline the power of legal norms and knowledge as a constitutive force in social and
political interaction (McCann 1994; Haltom and McCann 2004; Ewick and Silbey 1998).
Third, our analysis in turn focuses attention on the broader socio-legal context of
the struggle. One especially important contextual factor that we identify has been the
enduring allegiance of Americans to the moral ethos of individual responsibility. This
deep ideological commitment has not only directly frustrated legal challenges on behalf
of consumers against Big Tobacco, but it also has been at the heart of the two important
political movements that dominated the backdrop of the tobacco wars: the backlash
against private tort litigation and lawyers that developed in the 1970s (Haltom and
McCann 2004), and a parallel cultural celebration of public prosecutorial action against
alleged criminal behavior that preoccupied American society over the same time period
(Scheingold 1984; Beckett 1997; Simon 2008). To a large extent, our primary theme is
that legal activists challenging the tobacco industry advanced their cause by distancing
themselves from the first trend and, in a creative counter-hegemonic strategy, identifying
with the symbolic politics of the second, otherwise conservative, hierarchy-supporting
current.
One general implication of our approach is to suggest that scholarly assessments
seeking to isolate “litigation,” “adversarial legalism,” and the like as discrete,
independent causal forces fail to account for the complexity and variability of law’s
2
manifestations in the tobacco wars.3 We instead ground our analysis in a multidimensional, context-contingent, process-oriented “legal mobilization” framework for
understanding the politics of rights in action. Building on this approach, we continue our
past efforts to transcend simplistic judgments about episodes of litigation as either
transformative and consequential or inconsequential and cooptive; the legal campaign
against Big Tobacco is best understood as exemplifying all these features and more. Our
account builds on previous work in this tradition by us4 and others, especially Professor
Lynn Mather’s terrific studies, but it develops earlier interpretations of the tobacco wars
in significant new ways, extends the temporal frame by nearly a decade, and adds
abundant new data to assessment of the legacy.
II. Tobacco Policy and Politics in the U.S.: An Interpretive Overview
The general historical outlines of tobacco politics after WWII in the U.S. are well
known among socio-legal scholars (Kagan and Nelson 2001; Mather 1998). We build on
earlier analyses by constructing that history in terms of distinct periods or “waves” of
political and legal mobilization challenging the tobacco industry (Mather 1998; Rabin,
2001; Haltom and McCann 2004). Our account here goes rather further, however, both in
documenting the most recent period and in analyzing the very different forms, venues,
actors, and claims that marked legal mobilization during each period. The overall trend,
we suggest, has been less replacement of one form of litigation by another in each
successive period than a steady accumulation of different modes of legal action into an
increasingly complex, interactive, and tangled web of multi-dimensional legal
contestation. We will in subsequent pages identify important markers of changing policy
substance and relative group power during this process, but our aim is to offer a complex
analytic narrative rather than isolate specific causal variable variables for measurement.
Four Waves of Challenge. As Baumgartner and Jones (1993) document, Big
Tobacco, which had established close financial and political connections to state and
national government since our nation’s founding, was challenged little prior to the
1950s; the industry monopolized the policy subsystem. Most media attention and
congressional action was dominated by questions regarding governmental subsidies to
tobacco growers and similar concerns about the economics of the industry. The first wave
of political challenge to Big Tobacco began in the 1950s, peaked in the mid-1960s, and
continued into the early 1980s. The challenges were waged primarily by coalitions of
health experts and scientists outside and inside of government. The key disputes in this
period focused on the certainty of scientific evidence about the health hazards of tobacco
as well as about corporate liability for consumer choices, which was largely muted by
broad social consensus on consumer responsibility for risks inherent in smoking.
By far the most significant event was The Surgeon General’s report in January
1964 indicating scientific evidence that consumption of tobacco was related to various
diseases, followed in the next year by congressional legislation requiring warnings on
3
Of course, many studies recognize that private litigation was joined by state lawsuits in the 1990s, which
led to the MSA. But the key elements, deeper logic, and larger cultural implications of this transformation
that we underline so far have gone mostly unrecognized, or at least dramatically under-recognized.
4
We have chosen to bypass the usual review of our own scholarship as well as that by other scholars on
which this study builds, largely because it has been outlined so often elsewhere. Suffice it to say that this
essay synthesizes a legal mobilization (McCann 1994; Scheingold 2004) approach and the constructivist
analysis of legal knowledge production advanced in Distorting the Law (Haltom and McCann 2004).
3
cigarette packs. This development generated a somewhat contradictory strategic position
by the industry. On the one hand, Big Tobacco defended itself by contesting the reliability and conclusions from disparate scientific studies, aided by, as we now know, the
skewed studies that the industry sponsored, misreported, and then shielded as “attorney
work product” (Mather 1998; Glantz et al 1996; Kluger 1997). On the other hand, the
industry welcomed the mandate of package labeling as further justification for pinning
the blame for injury on those individuals who chose to consume tobacco products despite
clearly marked warnings. The industry tolerated substantial excise taxes by state and
national authorities as a necessary concession to ward off further regulation.
Hundreds – over 300 between 1954 and 1992 -- of individual civil lawsuits also
were initiated by private plaintiffs’ attorneys on behalf of those aggrieved by smokers’
deaths, but all failed due to successful corporate defense strategies disputing scientific
evidence and trumpeting individual responsibility for assumed risk (Rabin 1993; Kagan
1993, 2001). These suits did, however, force the industry, and its collective lobbying
organ, The Tobacco Institute, to make lawyers along with public relations specialists
leaders of the larger political defense strategy. State policies varied widely in specifics,
but they included the initial restrictions on smoking in various indoor venues during the
latter part of this period. Generally, media reporting and congressional hearings reflected
increased challenges to Big Tobacco in national politics, although most observers agree
that the industry preserved its relative monopoly status (Baumgartner and Jones 1993).
Our primary interest in this paper begins with the second wave of political
contestation, which is usually demarcated as between 1983 to 1992. Three important
developments in this period deserve mention. First was the formation of the Tobacco
Products Liability Project, led by Professor Richard Daynard at Northeastern University.
A growing group of legal activists developed a classic legal mobilization strategy aiming
to deploy litigation to force tobacco producers to release likely incriminating information
through discovery, to take advantage of media attention around lawsuits to dramatize the
harms knowingly imposed by the industry, and thus to bolster both the salience and
substance of the public policy agenda around tobacco. As Mather notes, what is
significant is that “litigation was thus the centerpiece of an overall political strategy, one
that would require media coverage and public engagement to counter the tobacco
industry’s strong influence over Congress and state legislatures” (1998:908).
This new offensive by sophisticated challengers and growing scientific evidence
of the harmful effects “caused” by smoking put the tobacco industry on the defensive,
leading to what often has been labeled a “Scorched Earth, Wall of Flesh” strategy of
well-funded attrition against increasing numbers of privately-initiated civil lawsuits
(Zegart 2000; Kluger 1996). Big Tobacco expended enormous resources to fund an
aggressive, sustained, and well-coordinated campaign against every legal challenge. This
proved successful until Mark Edell, a veteran of litigation against asbestos companies,
managed in Cipollone v. Liggett to generate serious discovery revealing gross duplicity
and knowing manipulation of scientific data by tobacco companies, leading to a verdict
and damages for the plaintiff from a jury, despite the more than $50 (some estimate $75)
million expended by the tobacco industry for its legal defense (Kluger 1996: 663-677).
The1988 jury award was eventually reversed on appeal by the Third Circuit Court of
Appeals, largely because the 1966 federal statutory requirement of warning labels
preempted legal challenges for industry liability. The U.S. Supreme Court subsequently
4
reversed that decision and remanded the case for rehearing. However, Big Tobacco, a
classic repeat player, triumphed through their standard strategy of outspending and
outlasting financially and emotionally depleted opponents, who gave up the battle.
“Stung, perhaps, but not shaken, the cigarette makers claimed once again what they have
all along: the industry has never paid and never settled, and people who smoke must take
responsibility for their own actions,” reported The New York Times (Crum 1992).5
Nevertheless, the Cipollone case marked the beginning of a transformation in the
struggle over tobacco. Most important, the Supreme Court ruled that the earlier legislated
requirement of warning labels did not preempt individual claims of harm except in
limited ways, nor, more important, did it preclude claims about industry conspiracy to
defraud the public through false claims or advertising. The initial trial itself drew little
media attention, but the ruling the Supreme Court was widely reported as a breakthrough.
The deceased smoker, Rose Cipollone, her family, and the lawyer Mark Edell, were
covered extensively and sympathetically as the Court considered the case; the New York
Times announced after the ruling that “the Supreme Court today opened the door wide to
damage suits by smokers against the cigarette industry in a surprisingly broad decision
rejecting many of the industry's arguments that such lawsuits were barred by Federal
law” (Greenhouse 1992). The Cipollone litigation proved to be path breaking both in
exposing evidence that tobacco companies had conspired to deceive the public in a
variety of regards and symbolically in sparking hope that jury victories were possible.
Finally, attention and action regarding “second hand smoke” accelerated in this
period. Surgeon General C. Everett Koop used his authority to lead a campaign to reduce
environmental tobacco smoke during the 1980s. Media coverage of the topic increased,
litigation commenced challenging tobacco as an indoor environmental hazard, and
smoking was banned on airlines and selectively in restaurants and public spaces in a few
states. Perhaps the most significant development at stake was the increasing shift from
viewing tobacco primarily as a risk voluntarily assumed by consuming individuals to a
costly health hazard involuntarily imposed on non-smoking citizens in the general public.
At the same time, smoking rates in the U.S. continued the long term decline in the 1980s,
dropping to almost half of the 1964 level by 1989 (CDC).
The most numerous, diverse, and dramatic events unfolded during the third wave,
1992-1999. Much of the activity did not directly involve litigation, although it clearly
was related, especially to Cipollone: 1) news media reported increasing revelations from
whistleblowers and investigators that the tobacco industry willfully misled the public
about scientific research and their spiking of tobacco with addictive nicotine; 2) at the
very same time in 1994, congressional hearings featured representatives of seven tobacco
corporations who continued to deny knowledge or complicity in these matters; and 3)
Clinton administration FDA chief David Kessler set about gathering evidence to support
expansion of his agency’s regulatory authority over tobacco (Kessler 2001). Amidst
these developments the litigation efforts multiplied greatly in number, changed
dramatically in form, and expanded substantive claims about industry wrongs.
One notable development in private civil lawsuits was the initiation of several
large class actions for large numbers of plaintiffs. In 1994, small-time attorney Stanley
Rosenblatt filed a class action suits for 60,00 flight attendants subjected to second-hand
At that point, the scoreboard read: “Eight hundred and thirteen claims filed against the industry, twentythree tried in court, two lost, both overturned on appeal. Not a penny paid in damages” (Pringle 1998:7).
5
5
smoke (Broin v. Phillip Morris et al), which followed up another suit (Engle v. R.J.
Reynolds Inc.) first filed in 1991 and approved in 1994 on behalf of all Florida smokers.
Meanwhile, again in 1994, 60 private law firms, flush from mass tort actions over
asbestos and other products, pledged a large amount of resources to challenge seven
industry giants in New Orleans federal court on behalf of nearly 100 million people. This
“Castano Group” claim was annulled by an appellate court in 1996, but this initial action
announced the era of wide-ranging class action lawsuits and other collectively-oriented
legal efforts.
More dramatic yet, in 1994 Mississippi Attorney General Mike Moore teamed up
with private attorneys to file lawsuits on behalf of state citizens against tobacco
manufacturers in an effort to recover Medicaid and other “public” costs imposed by
injured or dying smokers. Over the next several years, attorneys general from 40 states
joined or paralleled Moore’s legal action, even though the legal theory supporting the
“public costs” argument was largely untested and had to stretch far for support from
precedential rulings in other types of disputes. These actions produced a congressional
effort to legislate a “global” settlement, but the first bill failed when Democrats rejected a
provision for industry exemption from future lawsuits, and the tobacco industry walked
away when the punitive damages were raised to $500 billion in the second version in
1998 sponsored by Senator John McCain (R-AR). Later that year state attorneys general
negotiated directly the Master Settlement Agreement, which provided that the industry
would pay nearly $250 billion to the states over 25 years, accepted assorted restrictions
on cigarette advertising and sales, and committed to support public health education
(Haltom and McCann 2004: 239 fn.20). Amidst negotiation prompted by state litigation,
between 1995 and 1998, hundreds of additional legal actions – private individual actions,
class actions, and government lawsuits by state and national officials – were initiated.
The proliferation of litigation slowed but remained steady in the period starting in
1999, in what we label the fourth wave, thus producing an ever more complex tangle of
legal challenges to Big Tobacco. Rather than offering more details more about this wellknown period, however, we venture a broad reinterpretation about the changed forms and
substance of legal action that followed from the end of the second wave until the present.
Legal Mobilization and the Creeping Criminalization of Big Tobacco. Legal
mobilization efforts did not just grow in number, scale, and significance during the
1990s. Equally important if less obvious, the very character, form, and substance of the
overall legal campaign against the industry changed in subtle but fundamental ways. At
the center of these changes were the state lawsuits, which constituted a hybrid of elements taken from both civil and, especially criminal, models that some legal scholars
refer to as “crimtorts” (Koenig and Rustad 2004; Simons 2008; see generally Youngdale
2008) But the changes in logic were manifest at all levels as activists picked up on and
contributed to an evolving campaign to “criminalize” the tobacco industry (Kagan 2001).
It is relevant at this point to note that civil tort mechanisms and criminal mechanisms for
dealing with harm long have been somewhat interrelated; the lines between them are
hardly clear or rigid, and often both mechanisms are routinely mobilized to deal with
certain types of harm (Simons 2008). But the shifts from the early classic forms of
individual civil litigation to a more quasi-criminal phase in the tobacco wars are
significant and, we think, important for understanding the symbolic politics of agenda
6
transformation at stake. We identify four general features of the changing legal campaign
that signal this transformation in the form and content of legal mobilization.
The first fundamental shift is in the interpretive claims about corporate
culpability or liability. The early lawsuits relied heavily on traditional tort principles.
This required, variously in different forums, that plaintiffs: 1) produce factual evidence
that tobacco products caused actual injuries, which generally resulted in disputes over
scientific research; and 2) establish that the producers were negligent or reckless, could
foresee the harmful impacts of their products, and thus breached their duty of due care for
consumers. Tobacco corporations routinely foiled legal claims by disputing scientific evidence about causality and by insisting that the statutorily required warnings on cigarettes
adequately informed consumers about the risks, thus fixing responsibility on the choices
of smokers and preempting later claims of liability after injuries were sustained. In practice, juries and judges attributed great weight to the principle of “individual responsibility,” an ethos that runs deep in American society, and insulated corporate producers from
findings of legal liability.
After persistent failures in hundreds of actions invoking conventional tort claims,
claimants in and out of court began to focus on a different challenge – that corporations
knowingly, willfully conspired to supply disinformation or outright lies intended to mislead the public about scientific research on tobacco and to hide their eventually demonstrated practices of boosting tobacco impact with nicotine as well as deliberately targeting
advertising to children and minority groups. The focus shifted from familiar tort principles of negligence or reckless indifference to claims “packaged in the language of whitecollar crime: "fraud," "misrepresentation," and "conspiracy" (Sebok 2000).6 Judge Lee
Sarokin had sparked this trend with his inflammatory rulings in Cipollone and other
cases. Alleging that the “tobacco industry may be the king of concealment and disinformation,” he ordered release of incriminating files from industry. “The court concludes
that the evidence overwhelmingly favors applying the crime/fraud exception in this
case…” (Frontline 1998a).
The extensively documented revelations in subsequent years by whistleblowers
like Merrell Williams and Jeffrey Wigand furthered this quest to demonstrate, as the former’s book was titled, an Intent to Deceive about the industry’s knowingly dangerous
products that went far beyond mere negligence or breach of duty for care to quasicriminal liability. Dr. William Glantz’s collection of such disclosures, including those
delivered by the mysterious Mr. Butts, in The Cigarette Papers likewise focused on the
“campaigns of disinformation” that “duped” the citizenry and government alike.
Whistleblowers Wigand and Williams separately divulged their insider information about
corporate deception early on to Mike Moore and other state attorneys and became their
chief witnesses, providing the additional leverage of criminal fraud claims to force
6
.Sebok (2000) observes “…that cigarette companies lied about their product… is this kind of claim that is
at the heart of every recent case in which Big Tobacco has lost and then been hit with massive punitive
damages….Smokers are now arguing that what harmed them was not cigarettes, but lies told by cigarette
companies about smoking… (T)hese new legal claims are packaged in the language of white-collar crime:
"fraud," "misrepresentation," and "conspiracy",
7
concessions from industry. As Moore told Frontline, the evidence provided by Wigand
and Williams sealed his commitment to take on Big Tobacco:
… I , I saw with my own two eyes, seven tobacco executives raise their
right hand and swear, before Congress, that nicotine was not an addictive
drug. …And then, the very next couple of weeks, I had in my hand, a
memo that proved that they were lying. This is evidence of a crime. And
when an Attorney General of this country has evidence of a crime, he has
a duty to put it in the hands of those people who can do something about
it…We sent them to the Justice Department. We sent them to the Food and
Drug Administration. And we saved a copy to use in our case. (Frontline
1998c; italics added).
Pressures for criminal investigation by the Department of Justice mounted from
multiple sources in this period. After the brazen testimony vowing innocence by tobacco
executives in the 1994 congressional hearings, congressman Marty Meehan (D-MA), a
former federal prosecutor, delivered a “prosecution memo” – a document that outlines
allegations of criminal behavior and the applicable laws – to Attorney General Janet
Reno. The memo focused on acts of perjury, fraud, and conspiracy by tobacco officials.
Reno did not respond immediately, but by 1997 a full-time Task Force in the Fraud
Section of the Criminal Division of DOJ was established to investigate the allegations of
conspiracy under the RICO Act, drawing heavily on evidence made available by whistleblowers and civil discovery processes. A DOJ lawsuit developed over the next year.
Moreover, states such as Minnesota and Florida produced scores of thousands of
documents during the Medicare cases by invoking the “crime-fraud” exception to strip
away the attorney/client shield from lawyers for Big Tobacco, building on Judge
Sarokin’s ruling in Cipollone. In fact, a Florida judge suggested that what he learned
from the Medicare case seemed appropriate for RICO criminal action. That led Florida
Attorney General Bob Butterworth and plaintiffs’ attorneys to seek out federal prosecutor
G. Robert Blakey, who had drafted the RICO law. He in turn submitted his own legal
analysis of the tobacco industry’s conspiracy to destroy evidence to the DOJ. The Clinton Administration eventually decided in 1999 to file the charges as civil rather than
criminal actions for strategic reasons (mostly the lower standard of proof), but the use of
the RICO Act symbolically equated Big Tobacco with organized crime. “For more than
45 years, the cigarette companies conducted their business without regard to the truth, the
law, or the health of the American people,” Attorney General Janet Reno announced.
From 1994 on the palpable threat of the ongoing criminal investigation and possible
prosecution surrounded the state litigation campaign. In the words of confirmed American Cancer Society lawyer and lobbyist Clifford Douglas, “the threat of criminal prosecution” was ever-present during the state lawsuits; it “benefited the civil cases, adding
weight and heat to our litigation.” Indeed, many participants have noted that the threat of
criminal prosecution was a key factor that compelled the industry to accept a settlement,
far more than the untested and arguably infirm legal claim for recovering public costs of
health services. 7 As Congressman Meehan put it, “while the tobacco industry might
7
The Master Settlement Agreement forced the big tobacco companies to pay fees to the state on futures
sales of cigarettes in return for an end to all state claims against the companies for fraud, anti-trust
8
have abandoned attempts to work with Congress on legislation, when it comes to the
threat of criminal prosecution, ‘there is no such thing as big tobacco walking away from
that table’” (Frontline. Clifford Douglas. 1998.)
Such disclosures also encouraged FDA chief David Kessler in 1994 to undertake
his own quest to demonstrate that the “deadly industry” willfully manipulated its product
to produce consumer addiction and intentionally lied about its actions. The result, writes
one reviewer of Kessler’s later book outlining his campaign, A Question of Intent, was
“one of the most disturbing crimes against public health” (Lampheare 2001). Kessler
himself told an interviewer from 60 Minutes that “…(d)ismantling is the only appropriate
way to handle an industry that has engaged in the greatest of conspiracies and, in the process, knowingly put the nation's health at risk." When asked directly in 1998 if the industry was “criminal” he responded cautiously that “I am not going to say that,” but then he
went on to talk about the lies, perjury, and cover-ups that he found. Later, when asked
about the criminal case that was being prepared by the Department of Justice at the time,
he said this: “…the criminal case, as I understand it, is you lied. You lied to federal
authorities. You lied to the FDA. You lied to the Congress. You committed conspiracy
… to defraud the United States Government” (Frontline 1998b). When the DOJ case
finally produced a symbolic victory in federal court, the judicial ruling on the RICO
charges produced headlines such as “A Judge Accepts a Claim Paralleling the Mafia and
the Tobacco Industry” (Sebok 2006).
As we shall develop in coming pages, the transformative appeal of this altered
strategy, of the changed “framing” for claims, is not just that it undermined traditional
corporate strategies shifting responsibility for health risks to consuming individuals. At
the same time, the criminal model turned the responsibility ethos back on corporate officials who, in the words of Grisham’s Nicholas Easter (see epigraph above), knowingly
“lie and cheat and cover up, and do everything in their power to get kids to smoke.”
A second fundamental shift from civil to criminal law models was in the chief
enforcement agent and mechanism activated by the state government lawsuits. Traditional civil tort actions, like most of those in the first two waves of litigation against the
tobacco industry, are initiated by private attorneys representing identifiable, usually individual, plaintiffs who have suffered injuries or deaths of loved ones. In cases where such
legal actions have aimed in part to regulate corporate behavior more broadly, the lawyers
have been regarded as “private attorneys general.” Criminal actions, by contrast, generally are brought by public prosecutors or executive branch regulators representing the general public (“the people”), with limited consultation or involvement of discrete ‘victims”
in whose name they act (Simons 2008:719). And the latter is very much the form of action initiated by the state lawsuits. Private attorneys like Richard Scruggs and Ron
Motley were key players, to be sure, but the state attorneys general took the public lead
and received most of the attention. Their actions, moreover, were advanced in defense of
the general public – not just specific victims – who bore the costs of increased health services or were subjected to illegally fraudulent behavior of corporate giants. And it is clear
that the attorneys general and select legislators who negotiated the settlement emerged as
violations, and smoking-related Medicaid expenses. Bill Snyder. “Tobacco Settlement Leaves Acrid
Aftertaste.” Stanford Business Magazine . August, 2007.
http://www.gsb.stanford.edu/news/bmag/sbsm0708/kn-tobacco.html
http://www.illinoisattorneygeneral.gov/pressroom/2006_04/20060419c.html
9
the media “heroes” of this episode, just as in routine criminal prosecutions; the private attorneys were relegated to the background, except for a very short period in 1997 when industry officials saturated newspapers with stories of excessive attorneys’ fees. In short,
the mechanism and agents driving the state litigation were far more similar in fact, and
even more in mass mediated accounts, to prosecutorial action against white-collar crime
than to private tort actions.
We think that this point at once fortifies and reinterprets speculations by Mather
and others about the symbolic authority that attorneys general brought to the legal mobilization efforts. The primary source of that authority was not just their public, governmental status per se, we suggest. Private tort attorneys historically have received little
respect, especially amidst the tort reform campaigns of the previous decades, but there is
little evidence that most government officials are trusted much further (see Haltom and
McCann Ch. 4). Rather, we propose that the specific stature of attorneys general as
public prosecutors acting for a victimized public in an age where popular entertainment
celebrates such enforcers of criminal law is critical. Based on media accounts, it is highly likely that the public identified the widely celebrated Mike Moore, who initially made
his name as a Gulf Coast district attorney chasing down white collar criminals, more
with, say, District Attorney Jack McCoy on TV’s extraordinarily popular Law and Order,
than with the increasingly stigmatized private tort lawyers who stayed behind the scenes. 8
In the next section, we will visit evidence suggesting that just such a strategy of quasicriminal action by public prosecutors transformed the anti-tobacco campaign in the mass
media and reshaped mass public opinion.
Third, the specific remedies sought by the state lawsuits and subsequent logics
of regulatory action likewise were much closer to criminal than to traditional civil
models. The conventional focus of private tort law has been compensatory damages to
redress individual injuries, to make victims whole; remedies are reactive and retrospective, subsequent to the injurious action. Criminal law, by contrast, is generally more anticipatory and proactive, seeking to deter injurious action as a regulatory force; 9 its remedies usually reduce the liberties of injurious agents by some combination of incarceration,
severe monetary penalties, or injunction. Moreover, when monetary penalties have been
applied in criminal cases, the funds are directed to government control rather than to private citizens or their attorneys. The very introduction of punitive damages into tort law
has been recognized as a blending of civil and criminal features in modern mass torts by
both supporters and detractors (Simons 2008:72).
The fact that punitive damages were negotiated at all in the Master Settlement
Agreement points to the crimtort model of modern mass torts at stake. But the almost
unparalleled scale of punitive damages – nearly $250 billion, although that was only half
of the amount stipulated in the final congressional bill that went down to defeat – was
represented and justified in almost entirely in public regulatory, deterrent, and punitive,
which is to say quasi-criminal, terms. And “punishment” was the term that the tobacco
8
We note that Mike Moore was asked to play himself as the straight-laced, upstanding, handsome state
attorney in the movie The Insider, while his leading partner, private attorney Richard Scruggs, whom
Newsweek dubbed “the most influential man in America that you’ve never heard of” (cited in http://
www.lawcrossing.com/article/1193/Story-of-Richard-Scruggs/) was portrayed by a professional actor.
9
The regulatory force of criminal law is usually statutory, where tort relies on common law. In this regard,
much of the legal action against tobacco companies was grounded in torts. The actions based on the
congressionally authorized RICO Act veered more clearly into the territory of white collar crime.
10
industry used repeatedly in the wake of the settlement, largely to fend off further lawsuits. As Florida Judge Robert Kaye noted in the Engle case, “The industry is trying to
say ‘We have been punished enough because we agreed to pay so much money to the
states’” (McQullen 2000). Moreover, the fact that the bulk of the monetary damages
went directly to government in a form much like long term excise taxes, and not to private victims, likewise is far more similar to criminal penalties, underlining the quasicriminal nature of crimtorts. The fees allocated to private attorneys, at once absolutely
huge and proportionately small, retained only small semblance of the civil law model. Of
course, the fact that the initial settlement was undertaken by congressional statutory authority, and eventually was worked out by state legislators along with the attorneys
general, made it more closely linked to legislated statutory authority that is the conventional source of criminal (and not tort) law. The ongoing criminal investigation by DOJ
and subsequent civil actions filed under the congressionally legislated RICO Act likewise
underlined further similarities to the criminal model. Finally, it is also notable that only
federal criminal sentencing guidelines allow wealth to be considered as a basis for calibrating punitive damages. Such a consideration has become common in mass crimtort
cases, and nowhere more so than in the state litigation settlement with Big Tobacco. All
in all, the general normative logic, and especially the public representation, of the settlement – imposing regulatory restriction as well as moral stigma on the defendants,
reinforcing social norms and punishing behavior – is much closer to a criminal than a tort
law model (Simons 2008; see Kagan 2002).
Finally, we note that the private and public quasi-criminal litigation against
tobacco companies became inextricably intertwined with explicitly criminal prosecutorial action from the mid-1990s until present. Both private and public lawsuits from
the early 1990s until the present have continued to focus on the white collar issues of
fraud, conspiracy, and misrepresentation. The decade-long investigation and litigation
grounded in the RICO Act became the dominant event shaping framing of Big Tobacco
in criminal terms. At the same time, new concerns about other dimensions of criminal
complicity in illegal smuggling by the tobacco industry surfaced following the Master
Settlement episode. Cigarette smuggling on a massive scale from low tax tobacco states
to high tax states like New York had long been a favorite activity of organized crime.
And smuggling cigarettes into countries in Europe and Asia to avoid taxes or undermine
a national tobacco monopoly was a big business that could only thrive if U.S. tobacco
manufacturers were supplying the cigarettes that are then smuggled. Federal investigations were initiated by a U.S. Customs undercover team against Brown and Williamson
in New Orleans for connections to criminal smuggling of cigarettes into Canada, leading
to a successful prosecution. This was followed by more investigations, charges, and
trials. We note some irony in the fact that tobacco defenders warned that increased taxes
and penalties would increase crime of smuggling, a reality to which the corporations
themselves were accused of trying to hasten as reality. Many charges in the US, but
nations around the world drew much attention. In 2003, a racketeering lawsuit against
R.J. Reynolds and Philip Morris was filed by the European Community and 10 member
nations. A Saturday Globe and Mail headline on March 1, 2003, ran “Tobacco executives charged in $1.2 billion fraud.” Since 2004, two major tobacco companies, Philip
Morris International and Japan Tobacco International, have agreed to pay a combined
$1.65 billion to the European Community and 10 member states to settle litigation that
11
would have further exposed their involvement in cigarette smuggling. Most of these
actions again were technically civil in foundation, but the allegations of racketeering,
smuggling, and fraud, often joined to international protests that the tobacco industry was
maliciously committing “crimes against humanity,” again underlined the long developing
quasi-criminal public indictment in public life.10
All in all, in official legal venues legal action against tobacco mixed elements of
civil with criminal in an increasingly complex, tangled web of legal challenge. Technically, the bulk of the action was in the civil arena, but the claims, agents, and forms of
legal mobilization drew increasingly on hybrid crimtort logics of white collar crime
prosecution during the 1990s. But how did this story play out in the courts of mass
media, public opinion, and political discourse beyond the realms of litigation? Did the
shift in the logic of the legal mobilization campaign enhance the struggle to shift the
public agenda in discernible ways? We thus now turn to examine how tobacco litigation
and policy discussion generally resonated in mass society from the 1980s to present.
III. Tobacco Wars and Legal Mobilization: Mass Media Constructions
Earlier studies (Haltom and McCann 2004; Mather 1998) have shown how opponents of tobacco had made advances in media stories during the Third Wave by building on instrumental and symbolic effects of litigation. Our previous research in particular
focused attention on how the individual responsibility frame supporting corporate producers was neutralized and even overshadowed somewhat in media coverage during the
1990s, although public opinion remained wedded to the ethos. We follow up those
studies here with results from a new research design that added attention to three key
elements. The first new wrinkle was to track media coverage of the “corporate duplicity”
frame that was at the heart of the quasi-criminal legal campaign that developed in the
1990s. We will link findings on this frame to other themes in order to show how the
media tracked, contributed to, and amplified the discursive “reframing” that took place.
The impact on framing of overall “responsibility” themes, we shall see, was far more
substantial and complex than our earlier study suggested. Second, we examined the
“characterization” of key disputants in media coverage, testing specifically to determine
whether some voices were vilified in the news, thus likely discounting their messages.
Third, we extended the period of study through 2006 to assess whether transformations in
media framing were sustained in the fourth wave of legal contestation.
Research Design: Litigation-Heavy and Litigation-Light Samples. To probe
more deeply the media constructions before, during, and after the Master Settlement
Agreement, which seemed to close off at least some types of state lawsuits against “Big
Tobacco,” we sampled coverage in The New York Times of legislative, litigative, and
other arenas over the last decades. In particular, we determined to contrast newspaper
coverage concerning tobacco reform in reports most and least concerned with specific
lawsuits to see what differences lawsuits make in news construction.11 We drew our contrasting samples from The New York Times via Lexis Nexis Academic under “General
Our brief review does not cover the extensive literature contending that tobacco use actually “causes”
crimes by smoking individuals. See The Crime Prevention Group.2003.
11
This move could be viewed as a fourth significant upgrade of our earlier research design discussed in the
immediately preceding paragraph.
10
12
News.”12 Our first sample sought articles that most featured litigation: lawsuits, threats
of lawsuits, potential lawsuits, or other negotiations “in the shadow of the courthouse.”
This created what we shall call our “Litigation-Heavy Sample” of 290 newspaper articles
that mentioned 440 lawsuits overall [on average, 1.5 lawsuits per coded article]. Our
contrasting “Litigation-Light Sample” isolated reports, features, editorials, commentaries,
and letters that mentioned only six lawsuits in 296 coded articles [0.02 lawsuits per coded
article]. The primary focus of these articles is other related dimensions of the tobacco
dispute such as scientific studies, educational issues, and legislated regulations.
Almost two-thirds of frames and actors that we coded issued from episodic
coverage, spot reports of events or actions in their most concrete, immediate, and particularized settings (Iyengar 1991:14).13 Because episodic reports follow happenings that
come to the instant attention of reporters or editors, such coverage followed increases in
agitation and litigation against “Big Tobacco.” Attention to tobacco policies and disputes
increased over time, more among articles little concerned with specific lawsuits than
articles that featured one or more lawsuits. Across samples and especially within the
Litigation-Heavy Sample, articles peaked between 1997 and 2000. Immediately after that
flurry of obviously litigative activities, articles began to recede, which enables a glimpse
of echoes of news media’s framing and characterizing into the present century.
Issue Attention or Publicization. Litigation and other legal mobilization must
“make the news” if public attention and policy agendas are to be reshaped. We know that
periodicals indexed in Readers Guide publicized litigation and regulation in the late
1990s (Mather 1998). We find that The New York Times showered similar publicity on
efforts to regulate nicotine and to reform Big Tobacco.
Our searches in Lexis-Nexis Academic recovered at least 7,830 reports, features,
editorials, op-eds, or letters to the editor [hereinafter called “items”] that The Times
published between January 15, 1984 and December 16, 2005. That averages nearly one
published item per day over that span of nearly 22 years [355.9 published items per
annum]. Our samples represent tails of those thousands of items. Roughly 3.8% of the
items in Lexis-Nexis Academic were selected from among items least concerned with
specific suits. Another roughly 3.7% of items in The Times were selected from items
most laden with specific suits.
Bar Chart One displays the distribution of more than one-half million words in
The Times in 586 items from our two samples combined.14 The Litigation-Heavy Sample
[black bars] ranged from 393 words in an article in 1989 to 31,279 words in 27 articles in
1997, when efforts to reach a master settlement between Big Tobacco and state attorneys
general were pitched.15 The Litigation-Light Sample [white bars] returned 3,720 words
in four articles in 1991 but 31,030 in 32 articles in 1994, the same year in which the
Castano Group, Stanley and Susan Rosenblatt, and Attorney General of Mississippi, and
several other states filed major suits. Considered together, the two samples reveal that
The New York Times tended to lavish words on tobacco disputes between 1984 and
12
Appendix A provides the Lexis Nexis commands by which samples were created and reproduces the
coding instructions that operationalize “frames” and “actors” in this research. Please note that since we
drew our samples, Lexis-Nexis Academic has changed its format for searches.
13
See Appendix B for greater detail.
14
Counts of words were recorded by Lexis-Nexis Academic.
15
For a capsule summary of these efforts, see Haltom and McCann 2004: 239, n. 20.
13
2005.16 Even without extrapolation to account for the other 92% of coverage in The New
York Times, the degree of publicization of the “Tobacco Wars” seems considerable.
Bar Chart One
Annual Sums of Words in Litigation-Light and Litigation-Heavy Articles
Although samples 2000-2005 totaled more than 100,000 words on nicotine or tobacco matters in 129 articles and although coverage of Wave Three litigation has declined since the 1990s crests, litigation and agitation appear to have publicized efforts to
regulate nicotine and tobacco into the 21st Century.17 In relative terms, the decline in
publicization since the Master Settlement Agreement is substantial. In absolute terms,
however, 10,000 to 20,000 words per year in each sample seem impressive publicization,
especially when we recall that the two samples together make up but 7.5% of all items in
16
Articles that featured the fewest specific suits [six references to specific suits in 296 items] provided
261,909 words of publicity for regulatory efforts, with a median of about 811 words per item. “LitigationHeavy” items referred explicitly to at least 439 suits in 290 items and provided 274,267 words of publicity
about 877 words [median][ per item.
17
The distribution of words across “modes” of newspaper items is fairly stable across waves. During the
fourth wave [2000-2005], episodic articles – i. e., spot reports of specific incidents, announcements, or
motions – accounted for 73% of the 111,577 words in our samples while thematic articles – features or
essays that cover trends or less particularized, less perishable happenings – accounted for 24% of those
words. From 1993 through 1999, the ratio of episodic to thematic words was 67% to 29%. We cannot be
certain whether thematic features or episodic reports propagate “radiating effects” more or longer. However, we do take from the distribution of words that more than 90% of the verbiage appeared in formats
more visible than editorials, op-eds or other commentaries, and letters to editors.
14
The New York Times. The Litigation-Heavy Sample varies after the Master Settlement
Agreement but approaches a lack of publicity only in 2000. The Litigation-Light Sample
is less protean throughout Wave Four, although it is on the whole distinctly down from
Waves Two and Three. The more than 100,000 words in our two samples alone seem to
us to sustain attention to tobacco issues during Wave Four, but we concede that some observers might find that degree of publicization relatively or absolutely deficient.
That litigation attracted words relative to coverage not about lawsuits is less open
to dispute. Coverage crested 1994-1997 through proliferation of items in the LitigationHeavy Sample but also through propagation of items in the Litigation-Light Sample.
While Wave Four reflected diminished litigation after the Master Settlement Agreement,
items and words persisted. Tobacco litigation elicited words regarding lawsuits and of
wider issues alike in The New York Times. One trend continued in Wave Four from
Wave Three – litigation-heavy articles outpaced attention to litigation-light articles, at
least relative to the earlier periods.
Graph One
Frames Displayed Longitudinally
[Litigation-Light and Litigation-Heavy Samples Combined]
Reframing the Tobacco Dispute in the News: Tracking the Timeline. Legal
mobilization efforts must be assessed not just by the level of attention they generate, but
according to the changing substantive themes that coverage expressed about the dispute
over a twenty two year period as well. We identify a variety of shifts over time in the key
thematic frames related to “responsibility” for health risks associated with tobacco, which
were our primary interest in the research design. But we underline in particular how
significant changes in the quantity and content of media coverage track both key moments of litigation – especially the transformational Cipollone lawsuit that took off in
15
1988, and the state lawsuits in 1994-98 – and the general shift in legal attention to quasicriminal issues of corporate fraud and deceit over the entire period.18
The most significant spikes in thematic frames in these two periods involved allegations of “Corporate Responsibility” for health risks and “Corporate Duplicity.” These
findings track exactly the events outlined in the historical narrative. In short, the shift of
opponents to a legal focus on disclosures about corporate intent to produce dangerous
products, to add addictive elements, and to prevaricate about scientific evidence attracted
much media attention. In many ways, the two frames highlighting corporate wrong are
closely interrelated and interact to advance the core substantive claim of the white collar
case against Big Tobacco. Attention to “Government Responsibility” for dealing with
corporate wrongs – whether injurious products or deceit about them – also ascends notably, if less dramatically, during these two periods. Coverage thus seems responsive to the
increased prosecutorial action by both state attorneys general and the Department of Justice as well as state regulations. Not surprisingly, attention to “Public Costs” of health
care associated with tobacco use also rose in relative significance in 1994-98, publicizing
the primary legal theory of the state lawsuits. But attention to that issue is also far less
significant relative to the other themes, especially the focus on corporate responsibility
and duplicity. These findings would tend to support our thesis that the shift to quasicriminal focus on corporate intent and deceit that drew greatest attention and most altered
the terms of the dispute, while the argument about health care costs was too abstract,
legalistic, esoteric to dominate media attention.
We also call attention to the trends in other frames. Most important is the
“Individual Responsibility” frame, which ran almost exactly even with each of the two
corporate-liability frames around the Cipollone case (late 1980s) but plummeted to a low
if steady level from that point forward relative to the other thematic frames. In short,
there is much reason to think that increasing attention to corporate duplicity shifted media
attention away from classic “victim blaming” themes to emphasis on the relative
responsibilities corporations and, secondarily, government regulators after 1988.
It is also interesting that attention to “Attorneys’ Fees,” a proxy for the pervasive
animus against private plaintiffs’ attorneys in modern America, remains very low relative
to other frames during most of this entire era. It is tempting to attribute this to the shift of
the legal mobilization toward a more quasi-criminal prosecutorial mode, but the low level
of attention preceded that transformation beginning in the late 1980s. In fact, as we have
noted previously (Haltom and McCann 2004), the tobacco industry worked hard to make
private attorneys and their fees a major issue during MSA negotiations in 1997-98, but
attention was short-lived and returned to earlier low levels by 1999.
Wave Four Patterns. One goal of the present research project was to update previous results to account for Wave Four, which in our timeline is roughly 1999 until present, although our study stopped in 2005. The declining number of articles and words in
The New York Times since the Master Settlement Agreement [1998] has, of course, diminished the frequency of pro-plaintiff as well as pro-defendant frames, one species of
18
Our initial research design followed earlier research in hypothesizing changes in coverage that followed
important litigation. Our argument about the substantive redefinition of challenges in quasi-criminal terms
was not imagined in the research design, but rather the interpretation itself was prompted by reflection on
our data and then developed through additional research. In short, the data serendipitously surprised us and
generated a major rethinking of the era, which is presented here.
16
“radiating effects” in coverage of agitation and litigation. Nevertheless, the most notable
general pattern is a stabilization of the changing thematic coverage from the previous two
waves. For example, the two “pro-plaintiff” frames – “Corporate Responsibility” and
“Corporate Deceit/Duplicity -- constituted nearly 40% of frames in The New York Times
during Wave Four [1999-2005], decidedly overwhelming the “Individual Responsibility”
frame, which persisted but only at a moderate relative level. Attention to “Public Costs’
continues at a stable, higher level than “Individual Responsibility,” while “Government
Responsibility” levels off below “Individual Responsibility” but even further below
“Public Costs.” “Attorneys Fees,” the favorite theme to bludgeon legal challengers to
corporate power, faded into virtual insignificance in Wave Four.
Aggregate Media Framing. The patterns that emerge from our content-analyses
above tend to confirm our interpretive historical narrative: Proliferating lawsuits with
“crimtort” themes appear to have shifted frames in coverage decidedly against Big
Tobacco and in favor of legal mobilizers and activists. Third-wave litigation increased
pro-plaintiff, anti-defense frames while pro-defense, anti-plaintiff frames increased
slightly. After 2000, the majority of pro-plaintiff, anti-defense frames endured but did
not burgeon and the minority of pro-defense, anti-plaintiff frames was stable albeit that
assertions of individual responsibility may have increased a bit relative to others over
Wave Three levels.19
Table One
Frequencies and Percentages of All Frames Detected
Count
Corporate Responsibility
Corporate Duplicity or Disclosures
Good Science
Individual/User Responsibility
Governmental Responsibility
Public Costs
Junk Science
Attorneys’ Fees / Motives
Shared Responsibilities
Parental Responsibility.
Totals
480
450
393
271
235
211
83
81
31
11
2246
Of All
Frames
21.4%
20.0%
17.4%
12.1%
10.5%
9.4%
3.7%
3.6%
1.4%
0.5%
100.0%
Cumulative
Percentage
21.4%
41.4%
58.9%
71.0%
81.4%
90.8%
94.5%
98.1%
99.5%
100.0%
An account of aggregate media framing over the twenty-two year period provides
another, simpler way to make sense of the larger contest. It is worth remembering that
Big Tobacco totally dominated in courtrooms, legislatures, and public opinion prior to
1988. From 1984 through 2005, by contrast, “pro-plaintiff” frames dominated across
According to our data, “Individual Responsibility” themes did not dominate before 1993, and attributions of responsibility and duplicity to tobacco merchants were already growing as the Third Wave
commenced. This raises the possibility that Big Tobacco’s prowess in courtrooms and public relations may
have camouflaged its liabilities before Wave Three. If so, changes during Wave Three may impress us less
than previously.
19
17
waves of litigation. The ten frames detected in 586 items in The New York Times [296
items from the Litigation-Light Sample; 290 from the Litigation-Heavy Sample] arrayed
in Table One show that tobacco’s challengers developed considerable advantages. Assignments of responsibility to corporations outnumbered designations of individual responsibility by a ratio of about 1.8 to one. If one combined “Individual Responsibility”
and “Attorneys’ Fees” frames as detriments to tobacco plaintiffs, “Corporate Responsibility” and “Corporate Duplicity” taken together arose almost three times more often.20
Adding “Public Costs” and “Governmental Responsibility” further increases pro-plaintiff
themes to a 4:1 ratio over pro-defense themes.
Contrasting Article Types. The symbolic power of litigation, and legal mobilization broadly, is underlined when we contrast reports laden with lawsuits with articles
that raise few or no lawsuits. Pie Chart One presents our “Litigation-Light Sample” [296
articles with that mentioned but 6 lawsuits] and our “Litigation-Heavy Sample” [290 articles that brought up 434 lawsuits explicitly] together and separately to reveal how “proplaintiff,” “pro-defense,” and “Governmental Responsibility” themes differ from one
another. Litigation-Light articles exhibit pro-plaintiff frames [“Corporate Responsibility”
plus “Corporate Deceit/Duplicity” plus “Public Costs”] less in Waves Three and Four
than in the Litigation-Heavy Sample, where pro-plaintiff frames make up more than 85%
of all frames detected. The frames that may redound to the benefit of tobacco merchants
[“Individual Responsibility” plus “Attorneys’ Fees”] do not quite make up a quarter of
litigation-light articles by the 21st Century, but among litigation-heavy articles frames
favoring tobacco defendants decline monotonically from roughly a third of frames in
Wave Two to barely more than 10% of frames in Wave Four. “Governmental Responsibilities” make up between one-fifth and one-third of the frames when articles do not address legal disputes or suits but form consistently minute slices of reports of litigation.
Reading the rows of Pie Chart Two from upper to lower, we see anew how coverage of tobacco suits radiated pro-plaintiff frames. Reading the columns of Pie Chart Two
from left to right, however, reveals that, in the absence of named lawsuits [column left],
items tended to devote greater attention to the responsibilities of governments and to
frames helpful to defendants more than items that referred explicitly to disputes or lawsuits [columns two and three]. Items that featured lawsuits with no identifiable governmental party [the middle column of Pie Chart Two] over the three periods promulgated
pro-plaintiff, anti-tobacco frames and barely raised governmental responsibilities amid
adversarial struggles. When lawsuits featured one or more governments as parties [the
rightmost column], governmental responsibilities got more attention than in suits without
governmental parties but less than in items that did not specifically raise suits.
20
About the only advantage that could have accrued to tobacco interests was “Good Science,” which
accounted for one frame in six, an advantage to defendants scarcely offset by the one frame in 28 that
concerned “Junk Science.” We are disinclined to see this advantage as important because neither inside nor
outside courtrooms did references to “scientific” studies contradicting the carcinogenic or addictive
properties of tobacco products persuade anyone whom we could find. See Haltom and McCann 2004: Ch.
7. We defined frames for “Shared Responsibilities” and “Parental Responsibilities” based on pilot studies,
but coders detected so few instances of use of such frames that we do not report those results in this paper.
18
Pie Chart One
Pro-Plaintiff, Pro-Defense, and Governmental Frames by Waves and Samples
Wave 2 (1984-1992)
149
372
77
586
Waves of Suits & Coverage
Wave 3 (1993-1999)
164
128
Composite Framings
Pro-Plaintiff Frame
Governmental Frame
Pro-Defendant Frame
Wave 4 (2000-2005)
39
30
183
Composite Framings
Pro-Plaintiff Frames
Governmental Frames
Pro-Defendantal
Frames
Samples
Litigation-Light Sample
Litigation-Heavy Sample
127
250
122
62
…
118
47
468
81
50
24
133
Wave 4 (2000-2005)
16
6
23
Waves of Suits & Coverage
124
Wave 3 (1993-1999)
40
Wave 2 (1984-1992)
22
19
In sum, coverage of litigation tended to radiate frames publicizing tobacco plaintiffs’ perspectives more than tobacco defendants’ perspectives and more than attributions
of governments’ responsibilities. In The Times at least, Wave Three coverage changed
quantitatively but not qualitatively the makeup of perspectives 1984-1992. Interrelations
of pro-plaintiff to pro-defendant and governmental perspectives persisted after the Master
Settlement Agreement, but Wave Four items were markedly fewer than Wave Three
items, so the promulgation of themes from Wave Three may have lessened in Wave Four.
Pie Chart Two
Pro-Plaintiff, Pro-Defense, and Governmental Frames by Parties and Waves
Party or Parties Explicit
No lawsuit(s)
mentioned
No governmental
parties mentioned
Government
parties mentioned
114
6
156
66
206
10
1
175
250
33
89
161
62
24
40
81
Wave 4 (2000-2005)
7
6
10
22
Waves of Suits & Coverage
83
6
Wave 3 (1993-1999)
29
52
Wave 2 (1984-1992)
33
Composite Framings
Pro-Plaintiff Frame
Government Frame
Pro-Defendant Frame
Vilification. Scholars have tied the shift in legal strategy that followed Cipollone
to the routine “demonization” and vilification of “corporate evil” in the 1990s (Kagan
2001:21; Derthick 2001). There is some undeniable truth in this claim. Convenient as it
would be for anti-tobacco activists if they could parlay the institutional negatives inherent
in some frames [“Corporate Duplicity” provides the starkest example] with personal
negatives in reports, however, such reports would openly violate norms of reporting. Letters to editors, editorials, and thematic pieces may vilify defendants and their lawyers far
20
more and far more readily than spot-reports of lawsuits.21 Reporters are trained to be objective in “straight reporting.” Editors police reports to keep them fair and balanced.
Parties to lawsuits monitor coverage and sometimes work the journalistic referees.22
Journalistic canons eschew taking sides and journalistic practices root out biases that are
too obvious and are not attributed to sources. As a result, predominately episodic reportage should be expected to characterize actors in a fairly neutral manner even when
thematic framing is skewed in one direction or another.23
That is what our coding revealed. In more than 96% of about 22,000 references
to actors or agents that coders found and scored, coders were unable to spot meliorative
or pejorative aspects. True, corporations drew negative and positive characterizations
more than we should expect from marginals alone, the only actor or agent in our coding
for which that is so. Other actors – governments, consumers, experts, victims or plaintiffs, public interest groups, the Food and Drug Administration, and defense attorneys –
drew neutral coverage in more than 97% of the references detected. Much maligned
plaintiffs’ attorneys garnered references more than 96% neutral and only 1.8% pejorative.
In contrast to trial attorneys, corporations’ negatives were about 5.8% of references.
Given the abundance of neutral characterizations, analysis of pejorative and meliorative sketches adds little to our findings. For example, governments elicited negative
descriptors less often than statistics would have led us to expect, but these “shortfalls” of
negative descriptions average less than one per year.24
In the Fourth Wave, we found 79 negative characterizations across twelve actors,
57 [72%] of which concerned corporations. The Fourth Wave extended the overwhelmingly neutral characterizations characteristic of Waves Two and Three. Thus, our data
showed that pro-plaintiff themes continued to prevail along with negligible vilification
through spot-reports and other articles in the 21st century Times.
What Our Data Showed. Taken as a whole, our data show the ramifying effects
of lawsuits on coverage in The New York Times. In the pages of The Times and by transitivity in print and broadcast media guided by Times coverage, we have found increased
attention to tobacco-related problems and perils and persisting shifts of responsibility
from consumers to corporations and, to some extent and for some time, governments.
In our samples from The New York Times, however, “Corporations” and “Corporate Interest Groups”
are the only agents or actors characterized more negatively than one would expect from proportional
distributions in marginal frequencies. In the ten other categories, “neutral” codes are more numerous than
expected from marginal frequencies, and observed counts in pejorative and meliorative categories alike are
less than or about equal to expected counts. Regarding corporations, counts for episodic items hover
somewhat above expected counts across the board and substantially above expected counts for pejorative
references. Items other than episodic items, however, are far more negative than are episodic items.
22
Anyone who doubts that tobacco lawyers policed coverage should consider the travails of Morton Mintz
in covering Cipollone v. Liggett for the Washington Post. (Kluger 1996:669-671).
23
Overall, 72.3% of all agents or actors [16,190] were found in episodic items. Thematic items supplied
5,485 actors or agents [24.5%].
24
That is, marginal frequencies indicate that, all other thing presumed equal, in 96 instances an item in
NYT would be mildly negative. The observed count is 76 instances. The difference between expected and
observed is 20 instances. Our Lexis-Nexis sample ranges across 22 calendar years. If we extrapolated
from Litigation-Heavy characterizations of governments to all articles in NYT, the difference in mild
pejoratives might approach 14 per year. Even if we overlooked massive infusions of neutral characterizations that likely would accompany mild negatives, one or two descriptions per month seem few.
21
21
Our data also show that executives and agents of Big Tobacco have not been directly
vilified or libeled in The Times. Although coverage in Wave Four has predictably declined relative to Wave Three, we find that attributions of responsibility and of deceptions have continued to favor tobacco reformers and to disadvantage Big Tobacco. Our
signal finding has been that coverage of lawsuits exacerbated the disadvantages of tobacco defendants and increased the advantages of tobacco plaintiffs in Wave Four as in
Wave Three. One might have expected that after the Master Settlement Agreement
reports and concomitant bad publicity would recede. Especially when litigation
occasions reportage, no such recession is in evidence. The tarring of Big Tobacco via
crimtorts, on the evidence we have reviewed, has persisted into the 21st century. The
complex, escalating legal mobilization campaign at once redefined the terms of the
contest by criminalizing Big Tobacco and dramatically altering the relative positions of
the contestants in public policy discourse.
IV. Popular Culture: Beyond News Frames.
When news headlines regularly focus on deception, fraud, conspiracy, cover-ups,
and DOJ lawsuits under the RICO Act by DOJ prosecutors and FDA regulators, it is likely that the civil dimensions were overshadowed by the quasi-criminal features, especially
in an age when crime drama saturates headline news, televisions dramas, cinema screens,
and paperback novels. Specifically, headlines such as “Tobacco Industry Accused of
Fraud in Lawsuit by U.S.” (Lacey 1999) and “U.S. Wins RICO Case Against Tobacco”
(NYT August 16, 2006) exemplify how the quasi-criminal framings redefined the legal
battle. And ample evidence exists that anti-tobacco activists were working hard to “spin”
the news around this new frame (Derthick 2000: pp. 90-117).
The increasing news media focus on duplicity and irresponsibility that we associate with the criminalization of tobacco corporations was echoed and encouraged in other
domains of popular culture as well. From the early 1990s on, public discourse increasingly was filled with explicit allegations about the “criminal” actions of the tobacco industry. “Cigarette Makers Get Away with Murder,” read the headline of a 1993 article by
American Council on Science and Health author Elizabeth Whelan in The Detroit
News.25 Others echoed Harvard health historian Allan Brandt’s claim in a published
interview that the tobacco “industry’s deceit was the crime of the (last) century.”
The role of television journalists was especially critical to popularization of these
charges. In particular, the efforts of producer Lowell Bergman at CBS’s 60 Minutes to
tell whistleblower Jeffrey Wigand’s story exposing corporate duplicity, which, due to
legal considerations and initial resistance of owner Laurence Tisch, aired in severely
edited form during 1995 but in more complete form the next year, proved highly important. The show not only exposed the industry deceit directly on television amidst the proliferating news about litigation, but Bergman managed to publish the story with The New
York Times, which was followed by a spirited defense of Wigand and condemnation of
the tobacco industry’s “character assassination” by The Wall Street Journal. The entire
drama of the legalistic tobacco wars, replete with extensive attention to the DOJ “criminal probe” and “criminal timeline,” was then chronicled in a series of 1998 television
25
Even Bush administration Surgeon General Richard H. Carmona later agreed that tobacco must be
controlled or even “banned,” because of the growing “consensus that tobacco is a killer, is addictive, and
sometimes has been sold through questionable practices to consumers ” (Washington Post 2003)
22
shows and Online Web format by PBS’s Frontline, which Bergman also produced. The
story of Wigand and CBS then was reproduced again in the widely viewed and much
celebrated 1999 film, The Insider, which went far to paint the tobacco industry as both
fraudulent and thuggish. Starring Russell Crowe, the film earned seven Academy Award
nominations, including Best Picture, Best Director, and Best Leading Actor, as well as
won several other awards or prizes (see Dixon, et al. 2001). In short, criminalizing
portrayals of Big Tobacco traveled quickly from legal courtrooms into serious news
reporting and then into mainstream entertainment media.
At the same time, stories and allegations of criminal activity by corporations were
flooding other domains of mass culture. Stanton Glantz’s The Cigarette Papers and
David Kessler’s A Question of Intent drew extensive attention in the years following the
state lawsuits. Popular intellectuals like Jeffrey Reiman and Paul Leighton published
widely cited, oft-assigned books advocating “getting tough on corporate crime” and protesting that The Rich Get Richer and the Poor Get Prison, using the legacy of the tobacco
industry as a prime example of routine corporate crimes left unpunished.26 Litigation
against the tobacco industry became the subject of the best-selling novel by John
Grisham, The Runaway Jury (cited in our opening), which again identified Big Tobacco
with a long list of ordinary and extraordinary crimes. The popular movie Thank you for
Smoking (2005) further turned tobacco industry deception and murderous deception, now
seemingly widely accepted as fact, into hilarious satire. These cinematic exposes of Big
Tobacco appeared amidst a host of other popular movie dramas portraying the willful,
quasi-criminal complicity of large corporations in causing deadly environmental pollution (Erin Brockovich, A Civil Action) and other harms, including violent murder of a
whistleblower (Silkwood). As we have analyzed elsewhere, over a dozen films in recent
decades have celebrated “ordinary” populist heroes who have deployed litigation and
legal claims to challenge rampant, quasi-criminal corporate wrongdoing and injury to the
general public (McCann and Haltom, 2008).
One feature of the latter films, though, is that plaintiffs’ attorneys generally have
been portrayed in unflattering ways, often as negatively as the corporate defendants and
their attorneys. Heroic images of attorneys do saturate popular culture in this period, but
they tend to be criminal prosecutors rather than the civil plaintiffs’ counsel. Among the
most popular and widely repeated shows on television, after all, are Law and Order –
first aired in 1994, the year the state lawsuits were filed -- and its many spinoffs or imitations. We have already noted the easy association of the morally upright Mississippi
State Attorney General, Mike Moore, with the much heralded Jack McCoy (Sam
Waterston) and other heroic prosecutors routinely lionized on home TV screens. It is,
perhaps, indicative of the larger trends that the other popular law-related television show,
The Practice, featured several episodes involving litigation against tobacco companies in
1998, as the MSA was being completed. Not only did the civil case focus on issues of
industry fraud and misrepresentation as well as the deadly effects of tobacco, but the
Reiman’s book was published first in the 1980s and is now in eighth edition as we write this essay. See
also James William Coleman, The Criminal Elite.
26
23
Mike Moore, Attorney General
Jack McCoy, District Attorney
narrative was interspersed among several ongoing smaller stories about ordinary crimes
such as drug sales, murder, and purse snatching, thus blurring the lines among various
illegal actions addressed by the lawyers. All in all, these allegations of willful fraud and
quasi-criminal conspiracy supplemented, if not overshadowed, traditional tort claims that
routinely floundered on deference to individual consumer responsibility and a populist
version of contributory negligence shielding Big Tobacco.27 Even cartoonists picked up
on the theme, comparing tobacco executives to terrorists, as evidenced below.
July 14, 2000
VI. Beyond Media: Public Opinion and Behavior
It is clear that tobacco policy and politics underwent significant changes in both
the salience and content of media coverage. Moreover, these changes in news constructions not only paralleled major legal mobilization efforts, but they were featured most
Simons 2008:724. “In criminal law, victim fault hardly ever matters. Contributory negligence is not a
criminal law defense, but it is routinely taken into account in tort law.”
27
24
prominently in articles where litigation was a central issue. The complexity of legal action over decades makes drawing simple causal lines somewhat futile, but it is almost indisputable that legal action played a major role in shaping knowledge production and issue interpretation in mass culture. But did this changing knowledge produce changes in
public opinion and behavior? We briefly review extant evidence.
Public Opinion. We have outlined previously both why we are wary about public opinion polls and why we nevertheless consider them relevant to assessing the
development of tobacco politics in the U.S. (Haltom and McCann 2004). The extant
findings from pollsters vary widely, but some simple trends and complex generalizations
emerge. We summarize the simple findings first:28
 Americans have steadily increased recognition of the scientific evidence for severe health risks associated with smoking and tobacco use. While “relatively
low” in the 1950s, public understanding about health risks climbed significantly
after the Surgeon General’s report and required warnings on cigarette packs in the
1960s; understanding rose steadily until it leveled off in the 1990s, when 95% of
those polled link smoking to cancer. In 2008, 82% of those polled identified
smoking as “very harmful.” Recognition about other health risks – heart disease,
birth defects, and the like – trails a bit in the few polls on the subject.
 Public recognition about the harmful effects of environmental, or second-hand,
smoke was low through the 1980s, but it grew rapidly in the 1990s, with 55%
identifying it as “very harmful” and 90% as at least “somewhat harmful” by 1997.
 We could find no direct polling about tobacco industry duplicity or “fraud,” but
public trust in the industry plummeted to extremely low levels in the 1990s. In
2000, 71% of those polled by Harris had an “unfavorable” view of the industry; a
Harris poll in 2005 rated tobacco corporations at the bottom of U.S. enterprises,
with only 4% expressing “trust” in them.
 Our previous report (Haltom and McCann 2004) holds a decade after the Master
Settlement: Despite extreme distrust and dislike of Big Tobacco, Americans overwhelmingly blame individuals who choose to smoke for their maladies. Between
1989 and 2008, polls consistently reflected over 60% support for the ethic of individual responsibility in assessing blame for the consequences of tobacco usage;
only 6% in 1999 placed the entire blame on the industry. In 1999, only 34% responded to polls asking if the tobacco industry should pay those who suffered illness or death due to smoking. This changed little in the next decade; a 2008
Rasmussen poll reported that 71% of those questioned thought that the industry
should not be held liable for smoking-related illnesses. The primary reason that is
reported is that smokers must know of the risks involved in using the product.
 Public support for litigation and government regulation has, however, grown over
time. Over half of the polled public agreed with the Supreme Court decision
overruling an award of $80 million to a widow whose husband died from smoking-related illness, but just over half of those polled also supported the DOJ lawsuit against the industry in 2008. Poll results about the pending congressional
authorization of FDA regulatory authority over the tobacco industry have varied
28
The bulk of our results came from Saad (2002), but these findings were supplemented more recent
studies and reports. List them…
25
widely, although support seemed to grow to well over a majority (2:1 in some
polls) in the decade after 1998. Very little (less than 10%) support has been detected for banning tobacco sales and use altogether. One notable if unsurprising
finding is that support for regulation grows dramatically if restrictions on advertising and access to children are mentioned. The public also has been moderately
supportive of continuing to restrict indoor smoking in public spaces and raising
taxes on tobacco products. Support for using tax revenues to fund education and
prevention is far greater than covering health care costs for those suffering from
the effects of tobacco.
Our reinterpretation of the tobacco wars provides us reason to interpret these
findings on public opinion in subtler terms than in our previous work. In short, the public
increasingly has viewed smoking as harmful, but individual consumers are by far held
most responsible for the harms they endure, even though Big Tobacco is not liked or
trusted. The public generally does not look favorably on litigation against the industry,
but it seems far more supportive of government litigation – the state and DOJ lawsuits –
than private litigation. This confirms our argument that private litigation grounded in tort
claims about corporate responsibility for health hazards still founders on the individual
responsibility ethic; smokers still receive the bulk of the blame. Most public litigation, by
contrast, has focused at least in large part on corporate deception and lies, which again
have become palpable as knowledge about health risks has increased. The focus on willful, intentional deception about health hazards redirected the question of responsibility
ethos away from individual consumers and toward corporate officials who openly lied
about complicity in producing and peddling deadly products.
Public attitudes about regulation also make sense along these lines. Generally, a
solid majority of the citizenry tends to support most regulation once it is passed even
though majorities often do not encourage more government action in general or in advance. Not surprisingly, the primary forms of regulation that the public approves are in
matters of harm that cannot be pinned on irresponsible consumer choices – deceptive industry labeling or advertising; industry product appeals and access to non-adults (children); exposure to second-hand smoke; and tax increases to discourage smoking and fund
educational efforts. Polls have varied widely about public support for expanding FDA authority over tobacco, but support seems to be very strong (over 70%) when such authority
is linked to protecting children or preventing deceptive advertising. In short, public attitudes are soft and mixed, but seemingly supportive toward certain limited types of regulation and taxation that bypass the blame shifting to consuming individuals.
Our legal mobilization approach cautions about offering clear or strong causal arguments about how litigation has figured into these complex attitudes. The trends in public opinion have developed over many decades and have been shaped by multiple factors.
But abundant evidence supports the thesis that the proliferating, ever changing litigation
campaigns played a substantial role in amplifying and redefining the tobacco wars; the
public model of crimtort litigation starting in the 1990s transformed both news construction and public opinion in ways supporting increased regulatory action over the last
dozen years.
Individual Behavior: Smoking Rates. It should not surprise anyone that patterns of
individual behavior largely followed trends in public understanding and opinion about the
26
risks of tobacco use. Most important, overall rates of smoking have declined steadily
over the last 40 years, from around 40% of the population in the 1970s to 21% in 2008.
Moreover, smokers report that they are smoking far less – around half – of the cigarettes
than reported decades previously. Teen smoking also has declined, although it remains
higher than for adults and actually jumped in the mid-1990s before starting to drop again
to all-time lows. Individual behavior of non-smokers is more difficult to document, but
there is evidence to suggest that smoke-free environments have thrived. Overall, it again
seems warranted to assign some credit to legal mobilization for reduced tobacco use and
access to these patterns, including the continued decline in tobacco usage over the last
few years after many analysts projected a plateau had been reached by 2004
VI: Beyond Media: The Changing Agenda and/of Government Action
Finally, we briefly take up the issue of government action in the wake of
escalating, ever-changing legal mobilization campaigns, media coverage, and shifting
public opinion.29 Three levels of governmental action draw our attention.
Litigation Redux. We begin with a point so obvious at this point that it could
easily be overlooked. In short, each wave of challenge to corporations has built on the
previous activity, especially involving litigation and broader campaigns of legal mobilization. The fact that new forms of public litigation in waves three and four proved highly
significant should not obscure the ways litigation in that era built on the private efforts at
earlier stages, especially the discovery, jury verdict, and judicial rulings produced in the
Cipollone case, as well as the cumulative impact of litigation over multiple decades. Litigation need not prevail in court to matter for political campaigns (McCann 1994); the
capacity of litigation, even when it fails to win in the short run, to generate or fuel an ongoing campaign of more litigation that eventually redefines the public agenda must be
recognized for its significance. Any effort to isolate one particular moment of litigation
from this larger process is likely to yield simplistic, misleading assessments. This is not
to say that litigation was ever the best, much less optimal, tactic, but it is hard to imagine
what other tactics might have been realistic options for altering the policy agenda in the
U. S. context. And we should expect continued litigation, especially in light of success
by both the DOJ and private plaintiffs’ invoking state consumer laws to challenge deceptive advertising for “light” cigarettes. Indeed, The New York Times headline declared in
December, 2008 that “Altria Case Deals Blow to Efforts Reining In Lawsuits” focusing
on deceptive marketing.
For the many reasons outlined here, it is tempting to conclude that governmentled (or joint public/private) litigation focusing on marketing issues is likely to yield more
future gains than private lawsuits, either individual or class actions. However, just days
before we drafted this paper, a jury in Florida (Hess v. Philip Morris 2009) awarded $8
million to a solitary private plaintiff, one of the 8000 or so claimants left to individual
action after the $145 million class action award in Engle v. Liggett Group was overturned
by a state court in 2006. “We’re delighted that the jury saw through Philip Morris’s
attempts to blame the smoker” for his injuries, said Ed Sweda, a senior attorney for the
29
We underline that we are not suggesting a linear causal or temporal relationship among factors.
Governmental regulatory action is one component of the developing multi-dimensional, multi-sited
process. As such, government action is a constitutive component, at once cause and caused by other
dimensions of the process.
27
Tobacco Products Liability Project. “We’ll certainly be looking forward to the 8,000
other trials.” (Feeley and Lucoff 2009). Perhaps the long legacy of expanding legal
challenges on multiple grounds has weakened the individual responsibility shield for
corporate action. Rulings in Engle and Hess alike joined focus on tort negligence to
recognition of intentional deception (fraud) by the tobacco industry.
State Government Action. It is undeniable that states have increased their
regulatory intervention on tobacco-related issues over recent decades, and especially
since the state litigation campaign during the mid-1990s. The following provides a
quick, incomplete but suggestive summary:30
 Restrictions on smoking in restaurants and bars increased steadily. Between
2004-2007, 18 states strengthened restrictions for restaurants, with numbers
requiring smoke-free rising from 7 in 1990 to 21; 12 for state increased restricttions for bars, with increase from 4 in 1990 to 13 in 2007. The number of states
with no restrictions declined form 16 to 8, and no state relaxed restrictions. By
2007, 24 states had comprehensive smoke free laws. At the same time, however,
the number of states in which state level mandates preempted stronger local ordinances rose from 724 from 1990 to 2004.
 The number of states requiring licensing of sales jumped from 30 in 1990 to 49 in
2007. At the same time, the number of states with laws preempting stronger local
ordinance on youth access grew from 19 in 1990 to 24 in 2004.
 More than 30 states imposed an excise tax on cigarettes over more than 50 cents,
and the average sales tax in 2008 was $1.19. However, taxes vary widely, from 7
cents per pack in South Carolina to $2.75 in New York.
However, most studies assess these trends as highly disappointing compared to
the aspirations and prescriptions of health reformers such as the American Lung Association. It is especially relevant for this paper to note that the modest degree of observed
change has involved regulations that affect those persons generally excused from responsibility for risk – minors and recipients of second-hand smoke. Moreover, while taxes
have increased, the investment by states in education about the risks of tobacco use is
very low, and expenditures for tobacco cessation treatments are even lower. In 2008, the
American Lung Association gave two states a grade of “A” and two “Bs” for prevention
and cessation efforts, while 41 states earned an “F,” which means the states were funded
below 50% of the recommended levels. (American Lung Association 2008). Again, the
strong cultural commitment to individual responsibility - registered in news reporting,
opinion polls, and political discourse – placed important obstacles to many types of
regulation and investment, especially that involving health care.
Social scientists have tended to agree with health reformers that, whatever the
dramatic impact on news coverage and subtle shifts in public opinion, the reform campaign has not dramatically upset the “policy equilibrium” long dominated by Big Tobacco. The reason, scholars and activists agree, is that the tobacco industry increased
significantly its expenditures for public relations and lobbying to fight further regulation
and taxation following the MSA in 1998. “From 1990 to 2003, the primarily negative
feedback occurring through the “rules of the game” that shaped state tobacco legislation,
30
These numbers are derived from Givel 2006; Wood 2006; Tynan 2008; American Lung Association
2008.
28
meant that the dominant policy monopoly favoring the tobacco industry did not significantly and sharply change in the 50 states,” concluded one study (Givel 2006:415). Some
significant increases in regulation did take place, especially in licensing of sales, in the
four years after 2003, but there still is little reason to revise that story today.
National Regulation. The national government has yet to engage in major regulatory efforts beyond DOJ litigation. However, the campaign by FDA David Kessler and
former Surgeons General as well as ongoing litigation campaigns by DOJ after 1997
arguably have created much momentum for congressional authorization of the FDA to
undertake regulation of tobacco as a drug. In the last several years, bills have received
considerable support in both houses for such legislative authorization, and the Obama
administration is almost certainly to support the cause. Such authorization of the FDA is
regarded by many advocates as a key goal; if successful, it could provide some reason for
reassessment of the reform effort, one including judgment that the proliferation of
litigation over the last decades contributed to a “tipping point” recalibrating the
equilibrium in tobacco policy (Wood 2006).
VII. Discussion: Legal Mobilization in the Corporate State
Our primary contribution in this paper has been to reinterpret the legacy of legal
action against tobacco corporations. This reinterpretation has hinged on recognizing the
ways that reform lawyers creatively generated and responded to revelations of deliberate,
arguably intentional corporate wrongdoing in the 1990s. This led to a new framework of
legal claiming about corporate deception and fraud, leadership by a new corps of public
attorneys acting like prosecutors, and successful promotion of increasingly punitive remedies -- all elements of what we have labeled the quasi-criminalization of Big Tobacco.
We then traced the substantial imprint of these manifold legal developments on news
media coverage, the subtle reshaping of public opinion to bypass traditional values
privileging the individual responsibility ethos, and the steady but limited increases in
state regulation and campaign for FDA regulation that followed.
This legal legacy is interesting for many reasons. For one thing, it turns on its
head the familiar thesis about the “law and order” campaign that has dominated the
United States in recent decades. Critics are surely right that this latter political development authorizing a radical expansion of state surveillance and mass incarceration was
fueled in large part by explicit backlash or reaction against inclusionary rights claiming
by minority citizens in the post WWII era (Simon 2008; Beckett and Godoy 2008;
Scheingold 1984). However, legal mobilization theorists often underline that historical
currents of legality can cut different ways, as dominant trends are appropriated for arguably quite different, even counter-hegemonic ends (McCann 1994). In this case, health
activists took advantage of the punitive criminalizing ethos, in both hybrid crimtort
models of legal leveraging and symbolic media “prosecution,” and transformed it into a
resource for challenging irresponsible corporate power. This ironic appropriation holds
not just for legal mobilization against Big Tobacco, but also arguably for legal actions
against gun manufacturers and clergy abuse (Haltom and McCann 2008; Lytton 2008).
The legal legacy of the tobacco wars demonstrates the paradoxes of hegemonic
power in yet a more fundamental way. It is difficult to deny the creative struggles and
substantial achievements of cause lawyers who took on the corporate giants of Big
Tobacco. It is also likely that we will witness more litigation, both private and public, in
29
coming decades as well as authorization of regulatory authority by the FDA, which some
activists think is the gold standard for the campaign. But we also confidently predict that
regulation and taxation will be largely constrained to the types of measures that we see in
place now. One reason is that the ethos of individual responsibility continues to shield the
primary activity of tobacco producers and vendors – selling tobacco products to willing
consumers for profit. There is little reason to doubt the ingenuity or capacity of corporations to refashion and to market successfully their products, both in the U.S. and abroad.
The FDA may increase restrictions on how producers package and even produce their
products, on advertising and access for children, of shared spaces where consumers
smoke, and of taxes that producers owe. We hope that this reduces the health risks for
those of us whose choices are limited. But the primary source of tobacco’s harms for
“voluntary” smokers will continue. Second, it is clear that Big Tobacco has increased the
resources and resourcefulness that it has devoted to protecting its interests. The tobacco
industry is far more than a powerful interest group; its influence permeates all domains of
American corporate, mass mediated, and institutional life (Givel 2006; Haltom and
McCann 2004). In short, the instrumental power of Big Tobacco tobacco’s political influence and marketing reach remains phenomenal, almost unparalleled among corporate institutions in modern society
The third very important reason is, for lack of a better word, “structural.” In short,
state officials want and need the substantial revenues that taxation of the tobacco industry
provides. King James I of England recognized that tobacco was "loathsome to the eye,
hateful to the nose, harmful to the brain," and "dangerous to the lungs" ((Middleton,
1953: 93), but this did not stop production of the weed from becoming an engine for
revenue generation in the American colonies. Ever since, tobacco has been an extraordinary source not just of private profit, but also of jobs and taxes that public officials
value. In 1994, U.S. manufacturers produced almost $27 billion worth of tobacco products, employed more than 42,000 people directly, providing wages and compensation of
nearly $2.1 billion, and indirectly generated over 150,000 more jobs. Taxes are arguably
even more important. Alexander Hamilton's tax package of 1794 proposed the first
federal excise taxes upon tobacco products. Taxes on tobacco provided government $4
million by 1900, over $1 billion by 1950, and well over $2 billion by 1970. The Tobacco
Institute proclaimed that the industry paid over $35 billion in federal and state taxes
1995. The Master Settlement Agreement dramatically added to the ledger of taxes some
$240 billion over twenty five years. This explains why public authorities welcomed the
public litigation, falling all over themselves to grab the windfall, while remaining mixed
about private lawsuits, which bypass government and redistribute awards directly to
claimants and their attorneys. Such is the core structural bargain between Big Tobacco
and government – the former will endure regulation, litigation, and taxation in exchange
for security as profitable enterprise. And preservation of the industry, its taxes, jobs, and
other economic outputs no doubt will mark the limitations of the legal challenge far into
the future. With apologies to Mr. Grisham’s fictitious Nicholas Easter, the tobacco industry is highly likely to remain “the same” in these regards far into the future despite continuing litigation, however successful. Such are the limits of law’s transformative power
in the corporate capitalist state.31
31
We write this essay in a period overwhelmed by the downward spiral of thoroughly corrupt and
destructive investment-based, corporate capitalism. Hence we offer a coda: Former Mississippi Attorney
30
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