frontlinesmoke in the eye

the cigarette papers by jon weiner


January 1, 1996
Reprinted with permission of the author and The Nation.



When CBS lawyers spiked a 60 Minutes interview with a former tobacco executive who wanted to criticize the industry, a door opened to a story that is only beginning to be told: the way Big Tobacco has silenced critics and manipulated public information about its cancer-causing product. As the 60 Minutes episode faded into a Morley-is-mad-at-Mike story, several crucial aspects of the power of the tobacco corporations to control the news have gone unexamined. Brown & Williamson (B&W), the company CBS lawyers feared, didn't have to threaten, much less sue, the network to censor a story; but the same company has failed to prevent publication, in a variety of media, of information it desperately wanted to keep secret. Thus while Mike and Morley have bowed to their masters, on another front the tobacco companies seem to have met their match--in a professor, a librarian and a whistleblowing temp.The odd thing about the big FedEx box that arrived at Dr. Stanton Glantz's office at the University of California, San Francisco, medical school (U.C.S.F.) was the return address: "Mr. Butts," the Doonesbury character who tries to talk kids into smoking. Glantz is one of the best-known researchers in the fight against tobacco; the box arrived in his office in May 1994. "As soon as I opened it, I knew what it was," he said. "To the extent a professor can, I dropped everything."

The box contained 4,000 pages of documents that B&W later claimed were stolen from its files. Brown & Williamson, the nation's third-largest tobacco company, makes Kool, Pall Mall and Lucky Strike, among other brands; 1993 domestic sales were $2.4 billion, worldwide profit, $385 million. The documents, which made a pile four feet high, represented a smoking gun in the debate over the effects of tobacco on health. They showed that "thirty years ago the tobacco industry knew that nicotine was an addictive substance," Glantz says, "and that it caused cancer. And it showed that they withheld this information from the public." That's significant particularly in view of the Congressional testimony by the C.E.O.s of the seven biggest tobacco companies, all of whom had sworn a month earlier that they didn't believe cigarettes were addictive or caused cancer.

In the months that followed, the B&W documents that Glantz received became a landmark not only in tobacco litigation, medical scholarship and government policy but also in the battle against corporate control of information. The tobacco company filed a lawsuit to force the return of what it regarded as its stolen property. But Glantz had already taken a step that resulted in a decisive First Amendment victory: He and the university library had established a site on the World Wide Web to disseminate the documents. The lawsuit eventually ended up at the California Supreme Court, which O.K.'d the Internet posting.

When I asked Glantz about his strategy for defeating the tobacco company's efforts to prevent dissemination of the documents, he replied, "I wish I could say I had it all figured out. But in fact it was all inadvertent. I didn't think about a lawsuit; my only concern was that my office was too crowded."

The box of important documents was "sitting on the floor of my office," Glantz said, which he described as "the size of a broom closet." People from the media were calling, asking to come and look at the materials. In addition to having no room in his office, he was concerned about protecting the integrity of the documents. "So it occurred to me to stick the box in the library, where we had already established an archive on tobacco policy in California in the special collections department." Putting the Butts box in the university library turned out to be a key step in preventing the tobacco company from blocking public access to the documents.

Word spread among journalists and tobacco litigators that Glantz was sharing the B&W documents--the contents of which had just been the subject of a series of articles in The New York Times by Philip Hilts, who had seen about 10 percent of the material sent to Glantz. (Hilts reported receiving documents from an unnamed Congressman, presumably Henry Waxman of Los Angeles, who had read some of the B&W documents into the Congressional Record after receiving an anonymous shipment. The Washington Post and The Wall Street Journal also obtained copies and printed stories.) As a growing stream of people came to San Francisco to look at the documents in the U.C.S.F. library, the librarians concluded there were too many to accommodate in the special collections department. Special collections departments everywhere operate under strict rules that protect their materials from theft, vandalism and loss; generally, an archivist watches over each user. At U.C.S.F. only one person at a time could work on them, so a waiting list was set up, which frustrated people from the press--"and the librarian wasn't getting any work done assembling the rest of the tobacco archive," Glantz recalled.

Karen Butter, deputy director of the library, came up with a practical solution: Scan the documents electronically and put them on a CD-ROM. Later they decided to put them on the Web as well. That would solve the security problem and eliminate the waiting list--people all over the world could gain access to the documents. That decision--also made for purely practical reasons rather than as part of a defensive legal strategy--transformed the case: Now B&W couldn't simply try to recover its "stolen" property from Stanton Glantz; putting out the documents on the Internet and on a CD-ROM was a form of publication, so B&W had to try to persuade the courts to engage in prior restraint of publication--to ask the courts to ignore the First Amendment guarantee of freedom of the press.

The tobacco company didn't find out that Glantz had the documents until January 1995, when an attorney for plaintiffs suing B&W in Mississippi tried to introduce the material into that case. Instead of using the normal discovery procedures to obtain them, he told the court that discovery was unnecessary because the documents were already in the public domain--at the archives of the U.C.S.F. library.

The head of litigation for B&W in San Francisco was a former federal judge named Barbara Caulfield; she showed up at the U.C.S.F. library in early February with a team of investigators. They announced that they had come to examine documents they believed were their property. "Our position was, any member of the public could see them, including attorneys for B&W," said Karen Butter. After seeing them, Caulfield declared the documents had been stolen from B&W; she demanded that the library return them immediately. "That resolved any questions we had about the authenticity of the materials," Glantz observed. B&W made two other demands: Until the documents were returned, it wanted the library to deny public access to them; and it demanded that the library provide B&W with a list of everyone who had seen them. When the library refused all three demands, B&W filed suit.

It's unusual, to say the least, to find private investigators watching library patrons to see what they are reading--but the tobacco company sent investigators into the library, Butter recalled, "to watch anyone who came in or out of the special collections reading room." That room is visible from the library's lobby through glass walls. "We asked them to leave," Butter recalls, "but they didn't. Then the university counsel asked the B&W legal counsel to get them to leave. They refused." This intimidation had some effect: The library eventually agreed to deny the public access to the documents--temporarily--until the suit was settled. In mid-February both sides agreed to move the documents to the campus police office until the court ruled.

When the court finally heard arguments in May, B&W's legal position was "weak," says University of California counsel Christopher Patti, who argued the case. The claim that the documents were "stolen property" had one big problem: Nothing was missing from the B&W files; the company still had possession of its "property." What U.C.S.F. had were simply copies, which had been leaked, not stolen. B&W was really claiming the right to block dissemination of the information in the documents. As Patti put it, "That raised very serious First Amendment issues."

The university's defense would have been considerably weaker if the documents had remained in Glantz's office. Making them accessible to the public at the library, and then preparing to "publish" them on CD-ROM and the Web site, transformed the case, turning Glantz's dissemination of the tobacco documents into something similar to what The New York Times did with the Pentagon Papers. "That similarity," Patti said, "became a lot clearer in everyone's mind when we were talking about real publication of the documents." Since the Supreme Court's 1973 Pentagon Papers decision, courts have been reluctant to order prior restraint of publication unless it can be shown to endanger directly national security or the lives of citizens.

The university showed impressive courage in defending the suit. Patti explained: "You had information here that was important to the public and the academic community, and a powerful entity arguing against its distribution. The university felt it shouldn't bend to that kind of pressure." At a time when the major corporations that publish books and run TV networks bow to the wishes of the tobacco companies, the importance of the university's action is even more significant.

On June 29 the California Supreme Court rejected the company's move to suppress the documents, and within twenty-four hours the university started putting the papers on-line at the U.C.S.F. library Web site that had been established for that purpose (http://www.library.ucsf.edu/tobacco). B&W documents that came from Congressman Waxman had already been scanned into electronic form, and were posted first; the new documents were posted daily, over a period of six weeks, until 8,000 pages were on-line. The Web site permits viewers to download their own copies of documents, including correspondence on company letterhead and internal memos. The CD-ROM went on sale in late November, and is intended primarily for other libraries and institutions.

Lots of people are interested in the documents: journalists and academics; people involved in current lawsuits focusing on tobacco addiction and disease; students; people trying to pass local antismoking ordinances. Robin Chandler, head of archives and special collections at the U.C.S.F. library, said that the library kept statistics for the first five weeks the Web site was available: More than 52,000 documents were requested by computer users, during which time "the system was logging an average of 4,670 requests for information each day. Inquiries come from as far away as Australia, Japan, the United Kingdom and Germany." One of the most popular items: a confidential letter from Sylvester Stallone promising to use Brown & Williamson cigarettes in five of his films in exchange for half a million dollars.

B&W's big worry now is that the documents on the CD-ROM and Web site will be used in court, first of all in the massive smokers' class-action suit against the tobacco industry, which was cleared for trial in February by Judge Okla Jones 2d of Federal District Court in Louisiana. The judge ruled that the tobacco industry could be sued for punitive damages on the grounds that it knowingly addicted 100 million Americans to cigarettes and concealed the fact that cigarettes were addicting. The State of Mississippi's lawsuit seeking reimbursement from the tobacco companies for state Medicare costs is also pending. The key issues in each are what the tobacco companies knew and when they knew it--and the B&W documents provide a pretty definitive answer.

A B&W spokesman commented after the California court ruling, "This decision invites any person to steal documents and launder them through the U.C.S.F. library, where plaintiffs' lawyers can then argue that the documents are public." That's hard to argue with. Nevertheless, it will be up to the judges in each of the cases to decide whether to admit the documents Glantz made public at the U.C. Web site and on CD-ROM.

Although newspapers published articles about the leaked tobacco papers, the Web site for the B&W documents shows how the Internet has made it possible to convey sensitive materials to the public without the help of the news media. Daniel Ellsberg had to convince The New York Times to publish the Pentagon Papers; today, he could simply post them on a Web site. A. J. Liebling wrote in 1960 that "freedom of the press is guaranteed only to those who own one." Stanton Glantz and the University of California have shown that is no longer as true as it once was.

The Publishing Story

Publishing" the documents on the World Wide Web and on CD-ROM was only the beginning of the fight against corporate control of tobacco information; Glantz and his associates next wrote a book and a series of articles analyzing the documents. Their efforts to publish their studies reveal both the immense power the tobacco companies have to intimidate publishers and the courage of a few in refusing to submit to that power.

The Cigarette Papers, written by Glantz and four associates (Deborah Barnes, Lisa Bero, Peter Hanauer and John Slade), looked like a hot book to Glantz's literary agent, Jane Dystel, who currently represents five Pulitzer Prize winners. Editors to whom she submitted the proposal were initially enthusiastic; several called it "the Pentagon Papers of tobacco." But at press after press, editors were told by legal departments not to publish the book. "Everybody was afraid of being sued," Dystel said, "even though none of them had any contact with Brown & Williamson."

More than two dozen publishers turned the book down. "I just couldn't imagine I was going to have the problems I had," Dystel recalled. "This was explosive information. I really thought that it was important publishing. It's the reason a lot of us are in this business. I've been in the business for twenty-eight years as a publisher, editor and agent. In that time I've dealt with hundreds and hundreds of books. I've never had this experience before."

Perhaps legal considerations weren't the only ones. The book was a serious analysis by medical researchers; it was not written as a popular expose. Paul Golob, the editor who turned it down at Basic Books, told me his reason was that "we didn't think it was going to be viable as a trade book." "That's not what I remember," Dystel commented. "Paul had long talks with Stan and he really was interested. He just couldn't convince his bosses. I remember him saying their legal department didn't want to take a chance."

Other editors gave other reasons. Times Books "seemed like a natural publisher for this," Dystel said, but when I asked publisher Peter Osnos why he turned it down, he told me, "I haven't got any recollection of it at all--we turn down nine of ten books we see." Dominick Anfuso at Simon and Schuster simply didn't return my calls asking why they turned the book down. Arnold Dolin, senior vice president and associate publisher at Dutton/Signet Books, said, "I had no legal concerns. I just didn't see it as a book that would work for us commercially." Marion Maneker, editor at Viking Penguin, also denied that legal concerns played a role in their decision; the book simply "wasn't a strong editorial package," he said. But this was a book whose author would be featured on 60 Minutes, scheduled for an hourlong Peter Jennings Reports on ABC and interviewed by Newsweek for December's "Newsmakers of the Year" feature. Ordinarily trade publishers will do almost anything to sign up authors with that kind of media coverage.

Kirk Jensen, an editor at Oxford University Press, seemed more forthright than many of his peers. He admitted that his house was "reluctant to go to battle with the tobacco industry" after "the marketing people said it was too scholarly"--so "there was little reason to stick our neck out." Jensen added, "I wasn't courageous enough. I couldn't get the support the book deserved."

The most disheartening turndown came from the New Press, which prides itself on publishing books considered risky and controversial. Associate director Diane Wachtell explained that "it was a painful decision for me personally. Editorially we were dying to do this book. But ten attorneys in a row said, `B&W will sue you whether they have grounds or not.' At serious big-league law firms, the consensus was that, although we could probably ultimately show that we have a right to publish, financially we'd be out of business before we had a chance to show anybody anything. If you anger a tobacco company and get into what amounts to a financial war with it--where the issue is who can afford better attorneys for longer--you're going to lose. It's a shame that that's what has to prevail, but I'm not interested in putting the New Press out of business."

Finally one publisher decided to take on the tobacco companies: the University of California Press. Executive editor Naomi Schneider explained that the press believed the California Supreme Court decision permitting publication of the documents on a university Web site provided them with some legal protection, and the willingness of the university counsel's office to defend publication showed that "in the worst-case scenario they would aggressively defend us."

"We've been given a real opportunity," Schneider says. "Publishing this book is a good thing for the world. As a publisher, I care about that. And we're going to receive a lot of attention for a high-profile book." She predicted that "trade publishers will regret their decision."

U.C. Press will publish The Cigarette Papers next April. The book will also be published on the Internet at the U.C.S.F. library tobacco documents Web site. Diane Wachtell says, "I wish U.C. Press the best. I'm delighted someone is publishing it. The public has a right to know this material. I'll be very curious to see whether B&W takes action against U.C. Press."

One other institution was willing to publish Glantz's challenge to corporate control of tobacco information: the American Medical Association. Medical school professors are supposed to publish research articles, so Glantz and his associates turned material from the book manuscript into five articles and submitted all of them to the most prestigious medical journal in the country, the Journal of the American Medical Association (JAMA). "I thought, no way will they take five articles from one research group," he recalled. The journal editors subjected the five submissions to unprecedented peer review, according to Glantz--eight reviewers instead of the usual three--and the editors decided to accept all five articles.

The A.M.A.'s lawyers, Glantz reports, told editor George Lundberg that publishing articles based on the Butts box might provoke serious legal retaliation from B&W. JAMA was willing to take the risk, according to deputy editor Drummond Rennie. "Clearly, whenever the tobacco companies are involved one is extremely wary," he explained. "But with these articles, the public had an enormous right to know, because we're talking about the death of people on a huge scale. When you're a doctor, let alone a scientist, let alone a medical editor, that gives you a whole lot of backbone and it makes you extremely persuasive when it comes to arguments with anyone--including lawyers." The editors presented their decision to publish to the A.M.A.'s board of trustees, and the trustees unanimously endorsed publication of all five articles in its July 19 issue.

As if the articles weren't enough, the issue opened with a fierce editorial--as far as can be ascertained, the first editorial co-written by the A.M.A.'s board of trustees in the more than 100-year history of JAMA. It declared that the tobacco companies have "managed to remain hugely profitable from the sale of a substance long known by scientists and physicians to be lethal," responsible for a million deaths worldwide each year. The tobacco companies "dissemble, distort, and deceive, despite the fact that the industry's own research is consistent with the scientific community's conclusion that continued use of their product will endanger the lives and health of the public."

"If the industry uses political weapons," the editorial concluded, "so shall we," and it listed a number of such weapons. It called on politicians not to accept money from the tobacco industry and called for the public identification of those who do. The A.M.A. board recommended that medical schools and researchers "should refuse any funding from the tobacco industry," since its purpose is "to convince the public that there still is a controversy about whether tobacco has ill effects, to buy respectability, and to silence universities and researchers." It recommended that "federal funding be withdrawn from cancer research organizations that accept tobacco industry support." And the board declared its support for legal action to force the tobacco companies to reimburse Medicare and Medicaid for the excess medical costs stemming from tobacco-related diseases. "We should force the removal of this scourge from our nation," the editorial concluded, and thereby "set an example for the world." In another unusual move, the entire A.M.A. board, including then-president Robert McAfee and president-elect Lonnie Bristow, signed the editorial.

Never before had the A.M.A. taken such a strong stand against such a powerful antagonist; indeed, for decades the association had served as a loyal ally of the tobacco industry. When the Surgeon General's report condemning smoking was published in 1964, the A.M.A. refused to endorse it, saying instead that "more research" was needed. An A.M.A. research program on tobacco received $18 million from the tobacco companies over the next nine years, during which the association kept silent about the dangers of smoking. For the board to recommend that no one should accept tobacco-company funding for research was thus a significant reversal [see Robert Sherrill, "Medicine and the Madness of the Market," January 9/16, 1995].

The five articles JAMA published went well beyond the health effects of smoking by detailing how B&W controlled information. One showed that medical research sponsored by the tobacco company was controlled by lawyers seeking to protect the companies against liability lawsuits. The articles demonstrated that the company hid its own research (showing that smoking causes cancer) from the public and the courts by sending the most damaging material to its legal department, where B&W lawyers claimed the material was protected from disclosure by the attorney-client privilege. When the tobacco industry funded university research, the selection of projects involved company lawyers and executives, in violation of scientific procedures requiring peer review of proposals by scientists. Professors who received grants reported on their research results to the tobacco industry before seeking publication--one letter Glantz published came from L.S.U. professor Henry Rothschild, who wrote in 1979 to a tobacco company attorney enclosing "the paper we would like to submit to the New England Journal of Medicine" and declaring, "I await your comments prior to submission." This of course is completely in violation of scientific procedures.

Defunding Glantz

When JAMA published the five articles on the B&W documents, each of the articles by Glantz and associates carried the same note: "This work was supported in part by grant CA-61021 from the National Cancer Institute." The N.C.I., which is funded by Congress, had awarded Glantz the grant for a three-year project in 1994; thus one year remains to be funded by the institute. The grant is part of an N.C.I. research program in "Tobacco Prevention and Control." The institute had solicited proposals that would "evaluate the effect of advocacy in the development of tobacco control policy." Glantz's proposal had been approved by a peer-review committee of the National Institutes of Health, parent of the N.C.I. Reviewers gave it a score ranking it above 90 percent of the other proposals recommended for funding.

Despite this careful screening, a week after the JAMA issue appeared the Republican-controlled House Appropriations Committee took action to cancel Glantz's funding from the N.C.I. A subcommittee report declared that the grant that funded Glantz's work did "not properly fall within the boundaries of the NCI portfolio," and that therefore no further funding should be provided "for this research grant." The staff director for the House Appropriations Committee is James Dyer, a former Philip Morris lobbyist. This is the only case in the history of the N.C.I. in which a grant has been singled out for defunding by Congress.

The tobacco companies had now broadened the fight over corporate control of information by enlisting Congress in its attempts to silence a leading critic. This marked an unprecedented political intrusion into medical research. Heretofore Congress had encouraged the National Institutes of Health to rely on peer review by scientists to determine which grant proposals deserved funding. Indeed, the same House subcommittee report had earlier declared support for allowing the N.I.H. to use its best scientific judgment: "To enhance NIH's flexibility to allocate funding based on scientific opportunity, the Committee has attempted to minimize the amount of direction provided in the report accompanying the bill." The committee declared that while Congress should rightfully "highlight disease areas of interest," the committee "does not intend to impede NIH's flexibility in decision-making."

The Washington Times, an important institution of the right long associated with the Moonies, had started a public campaign to defund Glantz by publishing an ad in March denouncing the N.C.I. for funding him. The ad declared that "the dismal record of the National Cancer Institute to control cancer is forcing it to desperate measures." The ad was signed "the 130/10 Club, a group of citizens who chip in $10 a month to expose government waste." It gave a P.O. box in Holland, Kentucky, as its address; the newsletter of the American Smokers Alliance, which was established by Philip Morris, later took credit for the ad.

The Times then ran a front-page story in April criticizing the N.C.I. for funding Glantz. Headlined "Agency Probes Tobacco Politics," it quoted the chairman of the subcommittee that oversees the N.C.I.'s appropriation in the house, Representative John Porter, as saying, "This is not clinical or behavioral research and should not be funded by NCI." The Times followed up with an editorial the next month criticizing the N.C.I. for funding Glantz's project.

Then in July the PBS program TechnoPolitics attacked the grant. The show is funded in part by Kraft General Foods, a subsidiary of Philip Morris, and was previously funded by R.J. Reynolds. The next assault on Glantz's research funding appeared in the August National Review in an article titled "Policing PC: How the government is stacking the deck in the debate over smoking."

All of these attacks on Glantz make the same argument: Cancer research should not examine the political activities of the tobacco companies. Donna Shalala, Secretary of Health and Human Services, responded in July, pointing out that the mandate of the N.C.I. is to fund research into the "cause, diagnosis, prevention and treatment of cancer." She argued that "state and local policies are an essential element of tobacco control," and declared that "Dr. Glantz's research, which analyzes state level tobacco control policymaking, is thus within the NCI legislative mandate." Glantz's grant, she wrote, was "designed to answer critical research questions using the most appropriate scientific methods." She pledged, however, that the grant "will not be used to review campaign contributions to federal lawmakers."

"WARNING: Tobacco Interests Using Budget Process to Block Cancer Control Research"--so read the headline on a public service ad Glantz's supporters placed in The New York Times in October. The ad declared that the tobacco companies had "never hesitated to subvert medical science or manipulate the political process for the sake of easy profit"; in attacking Glantz, "the new House majority, intoxicated by its power over America's health research budget, is eager to aid and abet the industry." The ad was signed by twenty-nine leading health advocates, including former Surgeon General C. Everett Koop; Larry Fuller, chairman of the board of the American Cancer Society; Michael Pertschuk, former chairman of the Federal Trade Commission (and a member of The Nation's editorial board); and Joseph Martin, chancellor of the University of California, San Francisco.

The current House appropriations bill for the N.C.I. includes a report that recommends defunding Glantz, while the Senate version does not. After the Senate votes, its version goes to a conference committee, and House members will have a chance to keep their language in the bill that is sent to the President. Even if Glantz is not defunded by Congress, the targeting of a specific grant has already had a chilling effect. Will others who lack Glantz's high public profile and extensive support network be afraid to propose research projects that will earn the displeasure of the tobacco companies--or other powerful corporations, for that matter? Although the tobacco giants may not win this round, they will have made progress toward their larger goal.

The Temp

B&W says its papers were stolen in 1989 by Merrell Williams Jr., a 54-year-old unemployed Ph.D. and former paralegal who once worked for Wyatt, Tarrant & Combs, one of B&W's law firms. One of the heroes of the fight against corporate control of information, Williams has paid a heavy price for his actions. A restraining order issued in Kentucky in September 1993 prohibited him from disclosing to anyone, including his lawyer, any information learned in connection with his employment--including, of course, discussing the contents of the documents. His lawyer, J. Fox DeMoisey, told me, "This is the only case where the court has prevented an attorney and his client from discussing the merits of the case. Jeffrey Dahmer killed and ate people. He got counsel. The lesson I am learning is that you can kill and eat people and we'll let you have counsel, but in Kentucky, by God, if you take sensitive tobacco documents, you can't have counsel. What has Merrell Williams done that deserves this kind of treatment?"

Williams was hired in 1988 and assigned, in B&W's words, to "analyze and classify documents in connection with the defense of smoking and health lawsuits." He spent more than four years reading the tobacco company's files. The more he read, the more he became concerned that he was helping conceal a company conspiracy to defraud the public. At the time he was hired, the company says, he signed a confidentiality agreement; now it claims he violated that, and charges him with fraud.

"But what if he disclosed the fact that there is an ongoing fraud by both the tobacco attorneys and the tobacco companies?" DeMoisey asks. Williams says that in his work for B&W's law firm, he discovered that the company was avoiding legal discovery proceedings by funneling the most damaging material in its files to its legal departments, where company lawyers claimed the material was protected from disclosure by the attorney-client privilege and as attorney work product. That is fraud--and "that's never protected by attorney-client work privilege or work product," DeMoisey says.

Williams had smoked Kools, a B&W product, for almost thirty years; after a night of chest pains in 1993, he underwent heart surgery and had a quintuple bypass. He then brought a personal-injury suit against B&W. "We did have some settlement discussions" with B&W, DeMoisey reports, in which Williams would receive a cash settlement in exchange for his agreement to keep the documents secret. One of the tobacco company's conditions was that DeMoisey "would have to agree never to represent any plaintiff cigarette smoker, ever," he says. That's unethical under the American Bar Association's Model Rules of Professional Conduct, adopted in 1983, which prohibit any lawyer from "offering...an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a controversy between private parties."

DeMoisey is not a prominent tobacco litigator; in fact, he's never represented a plaintiff against the tobacco companies before Merrell Williams. DeMoisey says, "My response was, I would agree except for one situation: my own case. I smoke Marlboros." He told the B&W attorneys, "I'm not going to waive my right to file a claim of action against the makers of Marlboro, but other than that, I will agree to this provision to help Merrell Williams." The company turned him down, telling him the tobacco companies have a policy of never settling any case. Shortly thereafter the documents were shipped to Stanton Glantz, Congressman Waxman, The New York Times and other news media.

B&W continues to pursue Williams in the courts. It is trying to get the Louisville, Kentucky, judge presiding in the case to hold him in criminal contempt for leaking the documents. The penalty is a six-month prison term. "All these documents are now public record everywhere," DeMoisey said. "The only two people in Western civilization as we know it who would like to see these documents but can't are the two counsel for Merrell Williams. It seems a little ludicrous to me. And they want to stick my client in jail for this."

The court eventually saw the logic in DeMoisey's argument. On November 27, Jefferson Circuit Judge Thomas Wine modified the gag order, ruling that Williams may now talk to his lawyers about the documents. But B&W can still get DeMoisey disqualified from representing Williams if the information they talk about falls under the company's attorney-client privilege. That seems to mean they can discuss information they find on the U.C.S.F. Web site.

Conclusion

The University of California has done many bad things recently, from abolishing affirmative action to operating nuclear weapons labs. But in this case the university lived up to its ideals and responsibilities. And that wouldn't have happened if a temp in a law firm hadn't decided to bring to the public documents that showed the fraud being perpetrated by his employer. The courage and commitment of the temp, the professor, the librarian, the university press editor and the university counsel--along with that of the American Medical Association--stand in glaring contrast to the spinelessness of the TV networks, CBS/Westinghouse, ABC/Disney (which had earlier buckled under to tobacco company intimidation) and the timidity of the trade publishers.

If the story of Stan Glantz and the Butts box shows it's possible to stand up to the tobacco companies, the capitulation of ABC, CBS and two dozen book publishers has ominous implications--and not just for smoking and health. Big Tobacco's intimidation tactics provide a model for other corporations that don't want the public to find out what they are doing: military contractors, oil firms, drug makers, nuclear power plants--all the companies that make dangerous or unsafe products or do things that are unethical or illegal. Eventually every corporation in the country could require every employee to agree never to talk to any journalist about anything. Then the "news" at CBS and ABC would consist of Mike and Morley and Peter reading aloud from corporate P.R. handouts.

Meanwhile, universities everywhere are cozying up to corporations, desperate for financial support in the face of cuts in public funding. They too can be intimidated or decide not to take risks. The story of the Butts box also demonstrates the importance of fighting corporate domination of the universities--so that they can continue to serve as places where people tell the truth about the crimes of the powerful.

[The CD-ROM of documents in the U.C.S.F. library is available for $250 plus $3 shipping and handling, plus $21.25 in sales tax for California residents; send checks, made out to "U.C. Regents," to Tobacco Control Archives, Library & Center for Knowledge Management, U.C.S.F., 530 Parnassus Avenue, San Francisco, CA 94143, or call (415) 476-8112 or e-mail tobacco-info@library.ucsf.edu.]


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