NCPA - National Center for Policy Analysis

Judge Seals Lips of Tobacco Companies

February 11, 2000

In a class-action tobacco case under way in a state court in Miami, the presiding judge has placed a gag order on both sides forbidding them to discuss the case. The precise instructions of Dade County Circuit Judge Robert Kaye were "not to discuss this case or have conferences or talk to the media -- the media involves everybody -- about the case during the course of the trial."

That has put tobacco companies in an untenable position. Aside from the obvious challenge to free speech, they want to prepare investors against panicking if they lose and the settlement involves megabucks. Lawyers for Philip Morris Cos. argue that the industry is going to need to communicate "through the media to stockholders, bondholders, lenders, distributors, suppliers, vendors and the public at large." But the judge says that if they do, they risk a contempt of court citation.

Complicating matters is the fact that the suit won't necessarily end with the verdict.

  • In the next couple of weeks, jurors are expected to decide whether to award compensatory damages to three class representatives.
  • If they do, they must next determine whether to award a lump-sum punitive damage for all Florida smokers injured by the companies' actions -- a group perhaps as large as 500,000 people.
  • Moreover, thousands of individual class members will be entitled to seek damages in minitrials that could last years.
  • The entire process would be subject to the gag order, unless the companies win an emergency appeal on the order to be heard later this month in Miami.

In June, the Third District Court of Appeal in Miami -- the same court that Philip Morris will argue before later this month -- quashed a gag order involving a medical malpractice case, citing free speech concerns.

Source: Milo Geyelin, "Tobacco Firms in Florida Grapple with Free-Speech Issue," Wall Street Journal, February 11, 2000.


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