The NAM and the Washington Legal Foundation filed an amicus brief on 3/22/10 urging the Supreme Court to hear an appeal of an adverse ruling against Philip Morris under the Racketeer Influenced and Corrupt Organizations Act (RICO) for speech relating to the sale of "light" cigarettes. The Government used federal fraud statutes to target the speech of industry members made during decades-long public debates over the health and safety of smoking. It did so without any showing that the speaker had fraudulent intent or that the speech was material to consumers, and the appeals court failed to independently review the trial court's finding, eliminating a key safeguard for First Amendment protections.
The NAM and WLF brief highlighted the importance of First Amendment speech protections for the particular modes of speech principally at issue in this case -- newspaper articles, op-eds, congressional testimony, press releases, and television appearances. Speech in these forums about the health and safety effects of cigarettes are matters of public concern, and all parties with a viewpoint should be equally protected by the First Amendment, even if those parties have an economic motive.
Appellate court review is an important safeguard against an unwarranted holding that the challenged speech merits no constitutional protection. The Supreme Court agreed to review this issue in 2003 in the Nike case, but never did. Unfortunately, on 6/28/10, it declined to hear this appeal as well.