Tobacco Documents Online

07- 26!93' 16: 40 $`202 637 1505 PHILIP MORRIS CO --> P)t 1"i 25TH-PP Q 002[U-17 i ALLIES: The ACLU and the TOBACCO INDUSTRY by Mortan Mintz Published by: . . muffin=1730 Rhode Island Avenue, NW Suite 600 Washington, DC 20036 202/659-8475 II ` . July 1993

07/26-93 16:40 '2202 637 1505 PHILIP MORRIS CO -.4i Ps DiI' 25TH-PP CM003r.U-17 The sponsors of "ALLIES: The ACLU and the TOBACCO INDUSTRY," a report by Morton Mintz, arc the Center for Science in the Public Interest, the Coalition on Smoking OR Health (comprised of the American Cancer Society, the American Heart Association, and the American Lung Association), Ralph Nader, Public Citizen Inc., and the Trauma Foundation. The Advocacy Institute is publisher of the report. All of the sponsoring organizations are nonprofit public-interest groups. Morton Mintz, a free-lance writer, conceivc,d and executed the report independently of the aforementioned organizations, which became sponsors after he had completed it. He began covering tobacco isstm for the Wasiwcgton Post, where he was a staff writer for nearly 30 years, in 1965, and has also written about them. for The Nation, 7Yse New Republic, The Pnvgre=ve, Nteman Report4 Legal7tmer, and The Non-Proj'u ?frrtes. In 1990 he was the only Ame;ican reporter to cover the Seventh World Conference on Tobacco and Health in Perth, Australia. His most recent book isAtAny Cost: Corporate Gre4 Women, and the Dalkon Shield. He is a winner of the Columbia [University] Journalism Award; the Worth Bingha.m, Heywood Broun, Raymond Qapper, and George Polk Memorial Awards, and the Washington-Baltimore Newspaper Guild award for Public Service (twice). He lives in Chevy Chase, Maryland.

n7.26/9a 16:41 '$'202 637 1505 PHILIP MORRIS CO -+-+4 PM NY 25TH-PP 004;017 . TABLE OF CONTENTS Executive Summary (Pp. i-iv) Part I(Introduction): The American Civil Liberties Union has a conflict of interest: At the same time that it takes money from the tobacco industry, it allies itself with the tobacco industry to fight legislation intended to ban or restrict tobacco advertising and promotion-but does not inform its approxinmatefy 300,00d members of either activity. The driving force is First Amendment absolutism, not financial impropriety. (Pp. 1-2) Part II: The ACL.U's fundraising letters do not disclose that it has made a cause of protecting the speech of eorporations_ The author interviewed the ACLU's top officers about this and other key issues. (Pp. 2-3) Part III: Executive Director Ira Glasser reveals that the ACLU has received a half-mtllion dollars in annual grants from Philip Morris 1987 through 1992. In publicly welcoming Mafioso John Gotti to contribute ($10,000 was suggested), Glasser invites the'ciuestion whether anyone (Hitler, Stalin, Pol Pot, Saddam Hussein) would be an unac,ceptable donor. The ACLU doctrine on contributions is concisely defined by former legal director Burt Neuborne: "It's self-destructive to turn away money for constructive projects." In fact, the ACLU has in fact done just that. (Pp. 3-5) Part TV: Glasser discloses that he solicited Philip Morris for grants. In doing so, the ACLU does not and cannot plead poverty: Philip Morris's 1990 grant accounted for less than a half of one percent of that year's revenues (RJR Nabisco also contributed; the amount wasn't divulged). (Pp. S-6) O N W CD !+ ~ W ALJ 1M TH£ ACt.U AND , HE TOBACCO nYOUSrRr W w

07/126- 93 16; 41 '$`202 637 1505 PHILIP MORRIS CO -+4-+ PM N7Y 25TH_PP Z005-,017 Part V: Three foundations turn out to have given $5.8 million to the ACLU in the four years 1987-1990. Glasser and ACLU president Nadine Strosscn defend the nonreporting of revenue sources. (Pp. 6-7) Part VI: Philip Morris spends fortunes to boast of its financial support of social causes and sports and cultural events. Yet it did not respond to queries as to why it doesn't disclose its grants to the ACLU. ACLU leaders vigorously defend the acceptance of tobacco money. Former ACLU official Matthew Myers says the ACLU should do what it urges government to do: be "very public" about how it conducts its business. ACLU former legal director Neuborne says, "Sure, they should disclose" their acceptance of tobacco money. (Pp. 8-10) Part VII: Glasscr: "In a fair contest between medical facts and the industry's self-serving propaganda, the facts will win." But while the facts were allegedly winning, millions were dying of tobacco-induced diseases, and mi'ilions more were becoming addicted. (Pp.10.12) Part VYII: The tobacco industry spends $11 million a day on advertising and promotion and invests more millions in politicians. So why does the ACLU find it necessary to dedicate any resources to fighting for an industry cause? Glasser. Because the government cannot be allowed to choose targets for exceptions to the F'ust Amendment. As an industry ally, the ACLU picks up chits it can call in when it wants industry help on legislation in which it has an interest. Morton Halperin, former head of the ACLU's Washington office, tells the director of Public Citizen's Congress Watch that the ACLU would support a hypothetical bill to legalize the sale of poisoned meat--a matter on which it takes no stand-if the bill contained a provision the ACLU wanted. (Pp. 12-14) Part IX: How the ACLU catne to advocate the tobacco industry's cause. (Pp.14-15) ~~ O N Part X: ACLU spokesmen-principally, 1-Ialperin and Barry Lynn, his former CD subordinate-make extreme statements to Congress, such as, 'The First Amendment simply ~ W W ALUES: THE ACLU AND THE TOBACCO IWAII6TRY &

07/26/93 16:42 $202 637 1505 PHILIP MORRIS CO 44-+ P)1 NY 25TH-PP Q00d.'-047 does not countenance government content control of advertising of lawful products_" But it does, and it has for decades. In addition, the ACLU explicitly approves of consumer-protection laws empowering thc government to control the content of ads for lawful products, including prescription drugs and securities. (Pp. 15-17) Part XI: ACLU spokesmen also make extreme claims to Congress about the protection of commercial speech supposedly afforded by the First Amendment--claims disputed by some constitutional experts and, in some cases, factually incorrect and misleading or farcical. (Pp. 17-20) Part XII: A chronicle of the ACLU's determined and successful battle to defeat a Senate biU to curb tobacco advertising not with direct restrictions on corporate speech, but simply by reducing the. deductability of tobacco advertising to the level of deductability for a business meal. In a little-noted admission, the right-wing Washington Legal Foundation said that it gets about 3 percent of its income from the tobacco industry. (Pp. 20-21) PArt 7fIII: While disclaiming expertise of which products are dangerous, ACLU spokesmen nonetheless express undocumented doubts about the hazards of cigarettes, including addiction, and the effectiveness of tobacco advertising, particularly the advertising targeted at children. The evidence that the industry targets under-18 youngsters is overwhelming. (Pp. 21-24) Part lW: Despite his lack of scientific credentials, Lynn goes overboard in casting doubt on the evidence incriminating secondhand smoke. Yet even Glasser has "no doubt that environmental smoke is a problem." (Pp. 24-27) Part XV: Adopting an industry position whole, Halperin declared at a 1990 Senate hearing ~ "that there is simply no evidence that tobacco advertising increases the level of smoking." w Almost simultaneously this claim was shaken by a report from Norway, the first nation to ~ ALLiF'S: THE ACLU'ABiD THE TOBACCO INPIUSTItY

07/26193 16:43 $202 637 1505 PHILIP MORRIS C0 -+4-+ PH NY 25TIi-PP [@007:0d7 ban such advertising. Two years later, the claim was dealt a still more deadly blow by an official British analysis-little-noted in the United States-•of the effects of tobacco ad bans in Norway, Finland, Canada, and New Zealand. The analysis led the Health Committee of the House of Commons in London to "accept that the burden of proof for the contention that tobacco advertising incrcases tobacco consumption has been met..." (Pp. 27-29) Part XVI: ACLU officials argue, without substantiating evidence, that a ban on tobacco ads ' would put the nation on a"stippery slope" leading to bans' of ads for cars and other producu, and, finally, to the burial of our political freedoms. The argument is ridiculed by two former top officials of the ACLU: Melvin wulf, legal director 1962 to 1977, and Aryeh Neier, executive director 1970 to 1978. (Pp. 30-31) Part XVII: The ACLU is indifferent to corporate, as opposed to government, suppression of speech, including the minimizing of critical reports on smoking by many magazines that take cigarette ads. (P. 31) Part XVII[: Soon after quitting as ACLU legal director, Burt Neuborne testified on Capitol Hill for the Tobacco Institute. But he quickly "wallced away" because he felt "a moral taint." (Pp. 31-33) Part JfYX: The ACLU extends its alliance with the tobacco industry across the Atlantic. (Pp. 33-34) Part XX: Tlu ACLU trivializes the First Amettdment by valuing it equally for corporations and human beings. In doing so the ACLU treads on the constitutional quicksand of a Supreme Court decision that usurped legislative authority. (Pp. 35-M) Part JtX[: The bottom word: disclosure. (P. 36) uWss: TIts AM N+ra nnr roVXco tNovsM

07/26/93 16: 4a %2202 637 1505 PHILIP MORRIS CO 44-+ PM NY 25TH-PP Q008/0d7 EXECUTIVE SUNtMARY In 1986, sixty•six years after its founding as the guardian of the Constitution and the Bill of Rights, the American Civil Liberties Union became an open ally of the tobacco industry in its unceasing war against legislation to ban or restrict advertising and promotion of cigarettes. In the following year, the ACLU secretly began to take substantial sums of money from the industry-most importantly, $500,000 from Philip Morris Ina in the six years 1987-1992. ACLU Executive Director Ira Glasser says he solicited Philip Morris for the money. Poverty is not and could not be the ACLU's defense for taking tobacco money. In 1990, for example, the Philip Morris contribution amounted to less than one-half of one percent of ACLU revenues. (RJR Nabisco also contributed, but Glasser did not specify how much.) f The advocacy of an industry cause and acceptance of industry money have not been disclosed by the ACLU to its approximately 300,000 members, either in Civil Liberties, the ACLU's quarterly newsletter, or in fundraising ietters. This silence was vigorously defended by ACLU leaders--president (chairman) Nadine Strossen, former Washington office director Morton H. Halperin, and Glasser-in an interview. But there's dissension in the ranks: Former legal director Burt Neuborne says of the ACLU's acceptance of tobacco money, "Sure, they should disclose (itr The effect of nondisclosure is to add concealment to what in shorthand may be called advocacy and tnoney. Standing alone, any of the three-advocacy, money, or concealment-could doubtless be defended. A combination of any two would raise ethical questions. The troika is a clear conflict of interest. The conflict doesn't trouble ACLU leaders. At bottom their position is that if it's the ACLU that has the conflict, it's ok. Conflict of interest is only one of numerous issues raised by the alliance: * In taking tobacco money, the ACLU is motivated not by financial impropriety, of which there is no trace, but absolutism. The ACLU's absolute is that the defense of AuaEx THe Aciar Mru ttte roUMo wousrmr „r:

07/26/93 16:41 $'202 637 1505 PHILIP MORRIS CO 4-.-. PM NY 25TH-PP U009%Od7 U corporate speech which promotes massive addiction and death is no vice. The way the ACLU reads the First Amendment is akin to the way National Rifle Association reads the Second Amendment, which is to justify a jihad against each and every government effort to restrict the "right" of anyone to buy guns for any purpose at any time. " Ira Glasser says he would welcome a $10,000 contribution from Mafioso John Gotti. Having done this-in a conversation reported by New York Times columnist Anna ' Quindlen-the ACLU cannot draw a guideline under which any source of money-Hitler, Stalin, Pot Pot, Saddam Hussein-could be so odious as to warrant shunning by a"good" cause. This is because the ACL.U's fund-raising philosophy, as concisely formulated by Burt Neuborne, is that "[1]t's self-destructive to turn away money for constructive projects." (At least once, however, the ACLU did turn away money for a constructive project-because its executive committee, according to former member David Carliner, a Washington lawyer, imputed sexasm to the man who would be honored by the First Amendment award the gift would have funded: Hugh Hefner, founder of Playboy magazine.) * For nearly 40 years, the tobacco industry has executed a strategy for shaking public confidence and trust in the mountains of evidence, including at least 50.000 scientific studies, that incriminate its products in an ever-widening array of diseases, including addiction. A key element of the strategy, acknowledged in a Tobacco Institute internal document, is, "Creating doubt about the health charge without actually denying it." This is essentially what ACLU lawyer and lead lobbyist Barry W. Lynn has done on Capitol Hill in unsubstantiated testimony casting doubt on and scorning the evidence establishing that environmental tobacco smoke causes disease that kills non-smokers. The scientific evidence has also incriminated environmental tobacco smoke (ETS), as has an Australian judge in a court ease of which few Americans are aware. Notably, Ira GlassCr has "no doubt that environmental smoke is a problem." But Barry Lynn has testified ~~ that it has not been shown to be dangerous. C? " In more unsubstantiated congressional testimony, the ACLU has cast doubt on and W disputed evidence that tobi cco-industry advertising and promotion targets children and ~ ~ G? MJdES: THE AGLU NMD THE TOBACCO flND[I87SiY M

07/26/93 16:44 $`202 637 1505 PHILIP MORRIS CU ->-+, P)I NY 25TH-PP Q 010-'047. ® increases smoking overall. Yet the evidence for both propositions is immense, although some of it has gone unreported in the mainstream press. In a 1990 Senate hearing, Morton Halperin went so far as to claim that "there is simply no evidence that tobacco advertising increases the level of smoking." Almost simultaneously, a report from Norway, the first nation to ban tobacco advertising, severely damaged Halperin's claim. Last year, Halperin's claim was all but demolished by an official British government ' analysis of the results of tobacco-advertising bans in countries that now have them, Norway, Canada, Finland, and New Zealand. Importantly, the analysis--iittie noted in the United States--fed the Health Committee of the House of Commons in London to "accept that the burden of proof for the contention that tobacco advertising increases tobacco consumption has been met..." ' The ACLU's extreme statements to Congress include this one by Barry Lynn: "I'he First Amendment simply does not countenance gbvernment content control of advertising of lawful products." But it does, and it has for decades. For example, the Food and Drng Administration must approve the labeling of a prescription drug before it can be sold, and the advertising of the drug must faithfully reflect the labeling. This is prior restraint, and the ACLU accepts it, just as it accepts the "government content control" imposed by the securities, postal-fraud, and other consumer-protection laws. * Again without substantiating evidence, ACLU spokesmen in House hearings have argued that a ban on tobacco advertising and promotion would put the country on a "slippery slope" leading to bans on ads for products such as automobile and butter and finally to the evisceration of the First Amendment. Stz;ldngly, the argument is ridicnled by two former top ACLU officials: Melvin Wult legal director 1962 to 1977, and Aryeh Neier, executive director 1970 to 1978. * The ACLU's fight against the proposed bills to restrain tobacco advertising and promotion-even a bill to reduce its deductability to the level of a business meal-is rooted in a shaky constitutional proposition, a trivialization of the First Amendment. It is that a corporation is a "person" and that in consequence its speech is fully protectcd Yet not a AL[dES: THR AGW AND T'HE ToXAGCO INDUSCRY

07. 2$:- 93 16: =15 $202 637 1505 PHILIP MORRIS GO 444 PM NY 25TH-PP CN11: U17 iv word in the legislativc history of the Fourteenth Amendment shows that the Framers intcndcd to define a paper entity as human flesh and blood. Although the ACLU doesn't say so, the Supreme Court usurped legislative power when, in 1886, it transformed the corporation into a person constitutionally entitled to the equal protection of the laws. • The bottom word is, disclosure. Disclosure is the sunlight that would disinfect the ACh,U's conflict of interest in taking tobacco-industry money while advocating a tobacco-industry cause; and it would fairly test the doctrine that it is self-destructive to turn away money from any source for a constructive cause. AL{.[ES:'rELE AGUJ AND TBE TOMCCO [Nl1USI7tV I