PRO-CIGARETTE WORDS
and ADS, ARE ILLEGAL
Because They Aid and Abet Causing Death

Recommended For Reading As Initial Background
Cigarette Ingredients Cigarette Additives Definitions of Terms
Example State Law Tobacco Deaths—Case Law International Law

   

Outline of Subjects Covered Here
1. Basic Pertinent Case Law
2. Cigarette-Caused Deaths Do Occur By Fires
3. Cigarette-Caused Deaths Do Occur From the Toxic Chemicals
4. Advertising Aids and Abets Causing Such Deaths
5. Check Your Area Law For A Ban on Advertising Illegal Activities
6. Falsehoods
7. Cigarette Advertising is Unconstitutional
8. Context of Illegality
9. Conclusion

1. Basic Pertinent Case Law

           The U.S. Supreme Court has held that the U.S. Constitution does not preclude a total ban of cigarette advertising, Capital Broadcasting Co v John Mitchell, U.S. Attorney General, 333 F Supp 582 (D DC, 1971) aff'd 405 US 1000; 92 S Ct 1289; 31 L Ed 2d 472 (1972). The Supreme Court upheld a total ban on cigarette selling, Tennessee's 1897 cigarette ban for health reasons due to the hazard already being known, against tobacco lobby challenge, in the case of Austin v State of Tennessee, 179 US 343; 21 S Ct 132; 45 L Ed 2d 224 (1900).

The Supreme Court has also upheld state authority to do tobacco inspection over tobacco lobby objection, in Turner v State of Maryland, 107 US 38; 2 S Ct 44; 27 L Ed 370 (Md, 1883) (a business practices case, affirming constitutionality of the state's tobacco inspection law, as per tobacco being commonly adulterated.).

And in Felsenheld / Merry World Tobacco v United States, 186 US 126; 22 S Ct 740; 46 L Ed 1085 (1902), it upheld confiscating tobacco for having anything other than tobacco in the packages. Advertising bans are of course even lesser intrusive actions.

           As the cigarette hazard had already received judicial recognition long before 1911, that year the Supreme Court began upholding bans on tobacco advertising, in the cases of

           Judicial recognition of the tobacco hazard in that era already long included

  • tobacco's role as a drug, in Carver v State of Indiana, 69 Ind 61; 35 Am Rep 205 (1879), Mueller v State of Indiana, 76 Ind 310; 40 Am Rep 245 (1881), and State of Missouri v Ohmer, 34 Mo App 115 (1889);
  • the second-hand smoke hazard to nonsmokers, State v Heidenhain, 42 La Ann 483; 7 So 621; 21 Am St Rep 388 (1890); and
  • the fire hazard, in Commonwealth v Thompson, 53 Mass 231 (1847).
  • The above cited Austin case recognized the hazard to smokers themselves.
  • The danger to children was also recognized, as cited by a 1889 Michigan House of Representatives Committee.
Michigan banned cigarettes in 1909. Iowa had already done so in 1897.

Once again, in 1971, it was again judicially recognized that the cigarette hazard is beyond dispute, Larus & Brother Company v Federal Communications Comm, 447 F2d 876, 880 (CA 4, 1971). "Research funded by Defendants themselves provided evidence confirming the public health authorities' warnings that nonsmokers' exposure to cigarette smoke was a health hazard." United States v Philip Morris USA, Inc., 449 F.Supp.2d 1, 708-709 (D.D.C. 2006), aff'd 556 F.3d 1095 (CA DC, 2010), cert den, 130 S. Ct. 3501 (2010). "The district court found that dating back to the 1970s, Defendants' own research and analysis revealed the hazards of secondhand smoke." United States v Philip Morris USA Inc., 556 F.3d 1095, 1126 (CA DC, 2010), cert den, 130 S Ct 3501 (2010).

Fraudulent, false, and deceptive tobacco advertising can be banned, pursuant to a long line of case law, e.g.,
  • In the Matter of R. L. Swain Tobacco Co, Inc, 41 FTC 312 (1945);
  • P Lorillard Co v Federal Trade Commission, 186 F2d 52 (CA 4, 1950);
  • Forster v R J Reynolds Tobacco Co, 437 NW2d 655 (Minn, 1989);
  • Gilboy v American Tobacco Co, 582 So 2d 1263 (La, 1991); and
  • Burton v R J Reynolds Tobacco Co, 884 F Supp 1515 (D Kan, 1995).

For examples of the pusher's tobacco advertising record, see, e.g., The Stanford Tobacco Advertisement Collection entitled "Not a Cough in a Carload: Images from the Tobacco Industry Campaign to Hide the Hazards of Smoking."

In P. Lorillard Co. v. Federal Trade Commission, 186 F.2d 52 (4th Cir. 1950): "The company was ordered to cease and desist 'from representing by any means directly or indirectly,’” that the cigarettes at issue “‘will not harm or irritate the throat’” and “‘will not irritate the throat or mouth of a smoker, or is cool, or is free from bite, burn, or harshness,’” and that their length “will filter out or eliminate the harmful properties in the smoke from such cigarettes’ . . . .” The company admitted its behavior, i.e., “The company does not contend that the falsity of the representations referred to in paragraphs (1), (2) and (4) of the above order was not established by substantial evidence . . . .” At 56, “. . . the Commission found . . . that the advertising was false, misleading and deceptive. The evidence amply supports this finding.” At 57, what the company had done “shows a perversion of the meaning . . . to cause the reader to believe the exact opposite of what was intended by the writer . . . .” At 58,"To tell less than the whole truth is a well known method of deception . . . .” At 58, “In determining whether or not advertising is false or misleading within the meaning of the statute, regard must be had, not to fine spun distinctions and arguments that may be made in excuse, but to the effect which it might reasonably be expected to have . . .” [to kill en masse].

A detailed discussion of authority to abate nuisances such as odors and hazards from toxic substances is in California Reduction Co v Sanitary Reduction Works, 199 US 306 (27 Nov 1905) (case cited for its lengthy listing of local-authority-to-act precedents, not for the specific subject matter). In addition, pursuant to the principles in Union Pac Ry Co v McDonald, 152 US 262, 269-284; 14 S Ct 619, 622-627; 38 L Ed 434, 436-443 (5 March 1894), an attractive nuisance case, companies must protect against and even ban that which is attractive to children and can foreseeably harm them, and if they do nothing, they are liable for all resultant harm, from the failure to have taken such precautions.

Banning cigarette advertising due to its aiding and abetting in the violation of cigarette sales laws has also been upheld. See, e.g.,
  • Cippollone v Liggett Group, Inc, 505 US 504; 112 S Ct 2608; 120 L Ed 2d 407 (1992)
  • Anheuser-Busch v Mayor and City Council, 855 F Supp 811 (D Md, 1994), aff'd 63 F3d 1305 (CA 4, 1995), remanded, 517 US 1206; 116 S Ct 1821; 134 L Ed 2d 927, aff'd 101 F3d 325 (CA 4, 1996)
  • Penn Advertising v Mayor & City Council of Baltimore, 862 F Supp 1401 (D Md, 1994), aff'd 63 F3d 1318 (CA 4, 31 Dec 1995), remanded 518 US 1030; 116 S Ct 2575; 135 L Ed 2d 1090 (1996), aff'd 101 F3d 332 (CA 4, 1996) cert den 117 S Ct 1569 (1997).

           There is also the issue, or duty, of warning nonsmokers of the danger of toxic tobacco smoke (TTS), involuntary smoking, second-hand smoke, Shaw v Brown & Williamson Tobacco Corp, 973 F Supp 539 (D Md, 1997) (citing issues of negligent misrepresentation and failure to warn; and intentional misrepresentation), and Wolpin v Philip Morris, Inc, 974 F Supp 1465; 1997 US Dist LEXIS 12915; 1997 WL 535218 (D SD Fla, 1997).

“[R]esearch has confirmed that ‘tobacco advertising plays an important role in encouraging young people to [smoke].’” Jon D. Hanson & Douglas A. Kysar, "Taking Behavioralism Seriously: Some Evidence of Market Manipulation," 112 Harvard Law Review 1420, 1508 (1999) (quoting John P. Pierce, Lora Lee & Elizabeth A. Gilpin, "Smoking Initiation by Adolescent Girls, 1944 Through 1988: An Association with Targeted Advertising," 271 J Am Med Ass'n 608, 611 [1994]). Pushers work, for example, to infilitrate movies.

"Since the much advertised cigarette is the principal cause of the unnecessary suffering, disability and death brought about by tobacco, and it is the malicious, false and misleading advertising of cigarettes which has been most responsible for the increased use of this drug in recent years . . . it is the effects of cigarette smoking . . . which are referred to . . . ." See Frank L. Wood, M.D., What You Should Know About Tobacco (Wichita, KS: The Wichita Publishing Co, 1944), p 8.

Advertising that entices children to use a product that it is illegal for them to purchase is an unfair advertising practice. Mangini v R J Reynolds Tobacco Co, 793 F Supp 925 (ND Cal, 1992); 21 Cal Rptr 2d 232 (Cal App 1st, 1993) aff'd 7 Cal 4th 1057; 31 Cal Rptr 2d 358; 875 P2d 73 (Cal, 1994) cert den 513 US 1016; 115 S Ct 577; 130 L Ed 2d 493 (1994).

Later, in R. J. Reynolds Tobacco Co v Federal Trade Commission, 14 F Supp 2d 757 (17 July 1998), that company sued the FTC in an unsuccessful effort to get a court order to ban FTC action against "Joe Camel" advertising.

In the State of Washington, see this case: Lindsey v Tacoma-Pierce County Health Dep't, 8 F Supp 2d 1213 (WD Wash, 6 Nov 1997).

The recent case of Greater New York Metro. Food Council, Inc v Giuliani, No 99-7006, 195 F3d 100; 1999 WL 965691 (CA 2, NY, 25 Oct 1999) was favorable to well-written cigarette advertising restrictions.

Two related decisions have recently occurred in federal district court. The first, by Judge William G. Young, upheld location restrictions, Lorillard Tobacco Co, et al v Thomas Reilly, Attorney General of Massachusetts, Civ Action No. 99-11118-WGY, 76 F Supp 2d 124 (D Mass, 2 Dec 1999). Next was Lorillard Tobacco Co, et al v Thomas Reilly, Attorney General of Massachusetts, Civ Action No. 99-11118-WGY (D Mass, 24 Jan 2000).

Example of 1911-1913 Tobacco Advertising of Products Redeemable for Having Purchased Tobacco

Advertising (words) can be banned pursuant to their role in aiding and abetting violation of law. Nothing in freedom of the press allows aiding and abetting violation of laws (example, yelling fire in a crowded theatre, or a stick-up note at a bank!). Indeed the writing itself—the very words—constitutes the crime!! See, e.g.,
  • Schenck v United States, 249 US 47; 39 S Ct 247; 63 L Ed 470 (1919) (noting tendency and effect, natural and probable consequences, of words);
  • Frohwerk v United States, 249 US 204; 39 S Ct 249; 63 L Ed 561 (1919) (just a few words may be enough to cause the effect);
  • Debs v United States, 249 US 211; 39 S Ct 252; 63 L Ed 566 (1919) (words posing a "clear and present danger" of bringing about the illegal acts);
  • Gitlow v New York, 268 US 652; 45 S Ct 625; 69 L Ed 1138 (1925) (re words "inimical to the public welfare," "suppress the threatened danger in its incipiency"); and
  • Whitney v California, 274 US 357; 47 S Ct 641; 71 L Ed 1095 (1927) (re prosecuting user for words "menacing the peace and welfare of the state").
  • Commonwealth v Bowen, 13 Mass 356 (Sep 1816) ("If one counsel another to commit suicide, and the other, by reason of the advice, kill himself, the adviser is guilty of murder, as principal").

Tobacco's role in cancer had medical recognition by that 1920's era. The tendency, effect, natural and probable consequence, of pro-tobacco words is, in Royal Society of Medicine words, a "holocaust," the ultimate evil "inimical to the public welfare" which must be suppressed "in its incipiency" (typically, media words). This is standard criminal law, establishing the case for prosecuting pro-tobacco advertisers, publishers, writers, speakers, as per the long-established case law.

           When writings, books, newspaper ads, commercials, etc., aid and abet causing the death of a third party, the publishers and advertisers are liable in addition, under civil law. The family or estate of the deceased can receive money damages to the extent that the words aided and abetted in causing the death. Nothing in freedom of the press allows aiding and abetting unlawful activity, see Paladin Enterprises, Inc v Rice, 128 F3d 233 (CA 4, 1997) cert den 523 US 1074; 118 S Ct 1515; 140 L Ed 2d 668 (1998).

2. Cigarette-Caused Deaths Do Occur By Fires

           It is illegal to cause death to people via fires resultant from cigarettes. Example: In a death case of two firemen killed due to discarded cigarettes, a court upheld criminal charges as a "toxic substance" [such as tobacco] "is the prototype of forces" or substances "which the ordinary man knows must be used with special caution because of the potential for wide devastation [universal malice]," Commonwealth v Hughes, 468 Pa 502; 364 A2d 306, 311 (1976). In fact, the fire hazard had already been judicially recognized over a century earlier, in 1847, in the case of Commonwealth v Thompson, 53 Mass 231 (1847).

The health and safety of a state's citizens "are primarily, and historically, matters of local concern." Philip Morris Inc v Harshbarger, 122 F 3d 58, 67 (quoting Medtronic v Lohr, US , 116 S Ct 2240, 2245 (1996).

3. Cigarette-Caused Deaths Do Occur From the Toxic Chemicals

           Cigarettes contain toxic chemicals and have a record of adulteration thus causing "wide devastation," not just the "potential" for it.

Early Americans were, unlike European peasants, quite health conscious. This American trait was noticed by the famous writer, Alexis de Tocqueville, who in 1835, wrote, "In America the passion for physical well-being is general [common]." This unique American trait was still being alluded to now 160+ years later, by William A. Check, PhD, The Mind-Body Connection in Dale C. Garrell, MD, The Encyclopedia of Health: Medical Disorders and Their Treatment (New York: Chelsea House Publishers, 1990).

The next year after 1835, in 1836, a blunt health fact was widely circulated to Americans: the fact that doctors deemed it already well-established "that thousands and tens of thousands die of diseases of the lungs generally brought on by tobacco smoking. . . . How is it possible to be otherwise? Tobacco is a poison. A man will die of an infusion of tobacco as of a shot through the head." —Samuel Green, New England Almanack and Farmer's Friend (1836). Americans took heed. Result: Declining U.S. tobacco use, reported by J. B. Neil, 1 The Lancet (#1740) p 23 (3 Jan 1857). Prior to mass advertising, non-smoking was "common" in the U.S.—Prof. John Hinds, The Use of Tobacco (Nashville, Tenn: Cumberland Presbyterian Publishing House, 1882), p. 10.

Later, tobacco use soared. What changed to bring use up? Answer: the murderous pusher intent to inflict harm on tens of millions. How? By media advertising. It is therefore foreseeable that courts will convict all those in the media responsible, pursuant to their role in causing the tobacco holocaust. As tobacco-caused killings have been known since at least 1836, no court can foreseeably say other than this, "the media has no defense!! Guilty, as charged."

The U.S. Department of Health, Education and Welfare, National Institute on Drug Abuse (NIDA), book entitled Research on Smoking Behavior, Research Monograph 17, Publication ADM 78-581, p v (December 1977), said:

"Over 37 million people (one of every six Americans alive today) will die from cigarette smoking years before they otherwise would."

           The Royal College of Physicians of London, Smoking and Health Now (London: Pitman Medical and Scientific Publishing Co, 1971), p 9, declared the smoking-caused death toll a "holocaust" due to the then "annual death toll of some 27,500."

           Re this "wide devastation," it is illegal to cause harm or death to people via toxic chemicals, see e.g., People v Carmichael, 5 Mich 10; 71 Am Dec 769 (1858); People v Stevenson, 416 Mich 383; 331 NW2d 143, 145-146 (1982); and People v Kevorkian, 447 Mich 436, 494-496; 527 NW2d 714, 738-739 (1994), even if death ensures slowly.

           Case law such as State v Fransua, 85 NM 173; 510 P2d 106 (1973), shows that victim consent is not a defense. Regardless, no data is provided to anyone, much less, to children too young, to render informed consent. Cigarettes' toxic emissions result in birth defects and deaths of babies (examples: SIDS, miscarriage, abortion) and nonsmokers via, e.g., lung cancer and heart disease. Those victims do not consent.

           In the American Journal of Public Health, Vol 87, pp 869-870 (May 1997), this web writer recommends using established law and case law such as that above-cited.

           In Are You Missing $omething," 26 Smoke Signals 4 (October 1980), this writer cited cigarette costs to society, refuting the then notion that cigarettes are a cost plus to society, thus helping to set the stage for the subsequent Attorney General and Department of Justice litigation. Deaths pose a cost, for which both the perpetrators and their accessories share responsibility.

4. Advertising Aids and Abets Causing Such Deaths

Pervasive, obtrusive pro-cigarette words have an intended effect. "Written messages are not communicated unless they are read, and reading requires an affirmative act. Broadcast messages, in contrast, are `'in the air.' In an age of omnipresent radio, there scarcely breathes a citizen who does not know some part of a leading cigarette jingle by heart. Similarly, an ordinary habitual television watcher can avoid these commercials only by frequently leaving the room, changing the channel, or doing some other such affirmative act. It is difficult to calculate the subliminal impact of this pervasive propaganda, which may be heard even if not listened to, but it may reasonably be thought greater than the impact of the written word." Banzhaf v FCC, 132 US App DC 14, 32-33; 405 F2d 1082, 1100-1101 (1968) cert den (1969).

The natural and probable consequences of pro-cigarette words such as advertising is death, which "happen so frequently . . . that . . . they may be expected [intended] to happen again." "A person is presumed to intend the natural and probable consequences of his voluntary acts." (Definitions are from Black's Law Dictionary, 6th ed [St. Paul: West Pub Co, 1990], pages 1026 and 1185.)

           The World War II media trials included The Nurnberg Trial, 6 FRD 69, 161-163, wherein was prosecuted Julius Streicher, Hans Fritzsch, and William Joyce, Nazi propagandists convicted and hanged for their pro-death media words. (The Joyce trial is reprinted by J. W. Hall, M.A., B.C.L. (Oxon), Trial of William Joyce (London: William Hodge and Co, Ltd, Notable British Trials Series [1946].)

Note also that "the Hitler Youth adult leadership corps was deemed to have committed crimes against peace in corrupting the young minds of Germany. Many top HJ [Hitler Youth] leaders were put on trial by Allied authorities, with [its leader] Baldur von Schirach sentenced to twenty years in prison." Reference "Hitler Youth," the "Post World War II" section.

Too many in the media censor anti-tobacco data, "corrupt young minds," thereby aiding and abetting the killings. So prosecutions for tobacco deaths must also include aiders and abettors in the media.

           What pro-tobacco media speakers, writers, and tobacco advertisers do is aid and abet tobacco-caused deaths, pursuant to the criteria cited in The Nurnberg Trial, supra, and in Paladin Enterprises, Inc v Rice, 128 F3d 233 (CA 4, 1997) cert den 523 US 1074; 118 S Ct 1515; 140 L Ed 2d 668 (1998). Publishers, advertisers, media writers, and speakers, cannot convincingly argue that their ads, writings, and words, have no impact, when they and their advertisers on the other hand, do the advertising and writing for the very purpose of creating its impact on the mind!! And see the herein-cited case precedents on how courts respond to such sham defenses.

           Even as a mere civil law matter, when writings, books, newspaper ads, commercials, etc., aid and abet the killings, the publishers and advertisers are liable, as nothing in freedom of the press allows aiding and abetting murder and genocide, pursuant to case law such as Paladin Enterprises, Inc v Rice, supra. As long ago as Ware-Kramer Tobacco Co v American Tobacco Co, 180 F 160 (ED NC, 1910), it was established in the tobacco context, that violation of criminal law can result in damage to private citizens.

And litigants can show a pattern of violations, pursuant to case law such as Locker v American Tobacco Co, 194 F 232 (1912), linking to other cases, here, the Attorney General and Department of Justice cases, citing a pattern of tobacco company racketeering. Media writers, advertisers, and speakers are foreseeably to be found aiding and abetting, and accessory to, this long-term pattern of racketeering.

           In a case of death brought about due to a defendant's impact on the deceased's mind (i.e., without physical contact), a court went so far as to state that criminal liability can accrue in such a case. There the deceased

"died from the fright, fear, or nervous shock, and where the [defendant] made no assault or demonstration against the deceased, and neither offered nor threatened any physical force or violence toward the person of the deceased."

The reason that every cause of death, even non-physical, can be prosecuted is that

"The law clearly covers and includes any and all means and mediums by or through which a death is caused by one engaged in an unlawful act." Ex parte Heigho, 18 Idaho 566; 110 P 1029, 1031-1032 (1910).

           As the Nurnberg Trial and Paladin Enterprises, supra, cases show, "aiding and abetting" by words in a death is sufficiently wrongful to accrue civil and/or criminal liability. That is consistent with the criminal law doctrine of Heigho, supra, which is but a step away. As in People v Kevorkian, 447 Mich 436, 494-6; 527 NW2d 714, 738-9 (1994), the death process may start with simple words. This initiates the process of crossing the line into criminal liability as it is unlawful to provide people the means—e.g., a deleterious substance—to injure or kill themselves, even if death is slow, People v Carmichael, 5 Mich 10; 71 Am Dec 769 (1858); People v Stevenson, 416 Mich 383; 331 NW2d 143, 145-6 (1982). Since it is unlawful to do, it is unlawful to aid and abet. In law, it is not

"unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line." Boyce Motor Lines, Inc v United States, 342 US 337, 340; 72 S Ct 329, 331; 96 L Ed 367 (1952).

           Culpable murderous words commonly occurring are these, 'cigarettes are legal.' Perpetrators of these death-causing words invariably omit to say that it is unlawful to use lawful items to kill. Pens and paper are legal, yet one cannot use them to write 'This is a stick-up' for handing to a person in a robbery.

           Knives, poisons, guns, indeed most if not all weapons, are 'legal.' That does not mean they can be used to kill.

           All the wood, the buildings, the chemicals, etc., used at Auschwitz were 'legal,' yet the perpetrators of death via those legal devices were and are prosecuted. All the printing equipment used by Streicher and Hans Fritzsch, all the broadcasting equipment used by William Joyce, was 'legal,' yet both were hanged, and rightly so—as the legality of the THING is NOT the controlling factor, as the deceivers would have you believe. Legal things cannot be used to commit crime; you can't use a "legal" pen and paper for a 'stick-up' note at a bank!!

           When you are told the unqualified words, 'cigarettes are legal,' recognize the foreseeable sadistic "natural and probable consequences" that the perpetrator has in mind for you and all recipients, hearers, and readers: foreseeable premature death, often slow and torturous.

The "natural and probable consequences" of pro-cigarette words include deaths, which "happen so frequently . . . that . . . they may be expected [intended] to happen again." "A person is presumed to intend the natural and probable consequences of his voluntary acts." (Definitions from Black's Law Dictionary, 6th ed (St. Paul: West Pub Co, 1990), pages 1026 and 1185.

This legal doctrine was used, as you see, at the post-World War Nazi prosecutions, e.g., The Nurnberg Trial, 6 FRD 69, 161-163 (1946), to prosecute a writer, Julius Streicher, for his words whose "natural and probable consequences" was death of others.

Some may feel that civil law is the only redress against cigarette advertisers. Not so. CRIMINAL LAW also applies, as The Nurnberg Trial clearly shows. Streicher was not only arrested and prosecuted for his words. He was convicted, condemned to death for those words, and HANGED. That was indeed a most salutary result, but clearly not a sufficient deterrent, as pro-tobacco writing and cigarette advertising continue, as we observe daily.

The Nurnberg Trial, 6 FRD 69 (1946), establishes authorization to prosecute even for governmental lawmaking functions. For example, Hermann Goering was equivalent to "Speaker of the House," i.e., was "president of the Reichstag." In that capacity, he had a role in the adoption of the anti-Jewish Nuremberg Laws. In his own testimony, he admitted to entering the Nuremberg Law on the books. A Germany attorney, Ernst Kaltenbrunner, signed implementing legal documents sending people to extermination camps. Both were found guilty. It is in essence murder to (a) implement pro-death laws, to (b) adopt them in the first place, and to (c) write the attorney memos to enforce them.

Never be bluffed into thinking freedom of speech applies. It does not. A person cannot commit a crime with words, e.g., the words -- "This is a stick-up" -- to rob a bank! The words ARE the crime.

This is equally so with words that rob of life, as well as of money. Do not "subscribe to the oft-repeated contention and argument that the use of the word 'violence' . . . is limited always to physical contact or injury. A blackjack applied to [one person's] skull may in the long run be less serious than . . . misleading signs, false statements and publicity . . . and insidious propaganda. The scalp wound may be healed through the surgeon's art." Esco Operating Corp v Kaplan, 144 Misc 646, 650; 258 NYS 303, 309 (1932).

Pro-tobacco words = "violence," leading to mass deaths unhealable by any surgeon. Wherefore, civil law is NOT the solution to cigarette ads. Sadly, it is no deterrent at all. Civil law is not the solution, but rather, the CRIMINAL law, repetitively enforced, not just on a one-time basis as with Streicher. Repeat, repetitively enforced.

Writers can have no "ignorance defense." The danger from pro-tobacco words was being cited long ago. See Cora F. Stoddard, "The Publishers and Tobacco," 22 Sci Temp Journal 93-94 (1913); and "Tobacco Advertising Gone Mad," 94 J Am Med Ass'n 810 (15 March 1930).

The need to prosecute publishers and writers for their words having impact leading to death was recognized as long ago as during the 1861-1865 Civil War, by President Abraham Lincoln. Lincoln observed that writers and speakers were enticing youth into anti-Union actions including desertion. Lincoln asked:

“Must I shoot a simpleminded soldier who
deserts, while I must not touch a hair of the wily
agitator who [by words] induces him to desert?”

Now, pursuant to the Streicher, Fritzsch, Joyce, and Paladin precedents, we have the answer that Lincoln then sought: Yes, we can indeed punish or even execute ("shoot") culpable writers and speakers for their death-dealing words. We can also apply case law on words constituting violence.

           Julius Streicher had been RETIRED from the publishing business for years (since 1940) when he was arrested, and later convicted (1946). There is NO statute of limitations with respect to murder, and murder is murder regardless of the method by which it was caused, Heigho, supra. Of course, words have continuing effect (as any libel victim can verify), and the continuing impact is another basis for prosecution.

See also the Rwandan cases in 1999-2003.

Sadly, we do not prescute any more, the criminals who by their media or legal writings, aid and abet crimes. See for example, "Did a Government Lawyer "Aid and Abet" Possible War Crimes By Writing a Crucial Memo? The Controversy Surrounding Berkeley Law Professor John Yoo," by Julie Hilden (8 June 2004), showing another Kaltenbrunner-type incident (a government lawyer writing in a way that can have "aided and abetted" abuses or torture in Iraq.

5. Check Your Area Law For A Ban on Advertising Illegal Activities

           Check the law in your area. You may find that advertising of cigarettes is already illegal pursuant to general law. For example in Michigan, pursuant to MCL § 750.38, MSA § 28.227, advertising illegal activities is illegal. That is logical. For example, cocaine is illegal to sell, thus the sellers cannot advertise!! A banned product or activity cannot be advertised. This concept bans cigarette ads in Michigan. Reason: Cigarettes are illegal in Michigan by law, e.g., MCL § 750.27, MSA § 28.216. It bans

"any person within the state" from action that "manufactures, sells or gives to anyone, any cigarette containing any ingredient deleterious to health or foreign to tobacco . . . ."

           The effect is to ban cigarettes with deleterious ingredients or adulteration. Moreover, cigarette use typically violates laws against spraying poison into the air, even in residences, harming or killing people with lung cancer, heart disease, abortion, and SIDS. Cigarette use on-the-job typically violates the job safety toxic chemicals regulation, 29 CFR § 1910.1000 due to cigarettes' illegally high amounts of toxic emissions.

           Advertising aids and abets violating the pertinent laws and regulations by encouraging, procuring, and/or soliciting activities constituting deleterious cigarette manufacture, giveaway, selling, and use. This brings the matter squarely within the case law cited herein. Check your jurisdiction, you may find that you have such law(s) already extant. If the law is being violated, report it.

           Media criminals spread the pro-tobacco words across state lines. When their words come into Michigan, for example, they are aiding and abetting, accessory to, violation of Michigan's law, and obstructing its operation. Words cannot lawfully incite to crime, Gitlow v New York, 268 US 652 (1925), supra (re such words, "suppress the threatened danger in its incipiency").

           Of course, there is also the federal cigarette advertising law, 15 USC § 1333, which requires the "Surgeon General warning." You may report violations to the Federal Trade Commission, for example, prohibited advertising lacking the Surgeon General warning (or too small). To file a complaint against any business or advertiser's cigarette ads (newspapers, side-of-truck, etc.) lacking the Surgeon General warning, you may contact the FTC, 600 Pennsylvania Avenue, N.W., Washington DC 20580, with words to this effect:

Dear FTC:
                   This is a complaint of cigarette advertising without the Surgeon General warning. Please prosecute pursuant to law, e.g., 15 USC § 1333. The name and address of the advertiser is: _________ ________ _________ The ad was in the newspaper/on side-of-truck, or . . . .

Sincerely,

           The FTC lacks full criminal power however, and has limited jurisdiction. Wherefore the standard criminal law, which has far better penalties, is the preferable avenue of securing justice. But filing to FTC can put the offender on notice. And the evidence obtained can be useful in future criminal prosecutions, toward which we are working. Re a holocaust, there is no statute of limitations. Even former advertisers and writers can be prosecuted. Remember, Streicher for example had retired from writing years before he was arrested, tried, and hanged.

6. Falsehoods

"Lying is as natural to tobacco executives as breathing once was to their customers. Now, a blockbuster report from Massachusetts shows how they have been jacking up the nicotine content of their lethal product, to keep people smoking. That comes on the heels of a devastating federal court decision that labels the tobacco companies for what they always have been: shamelessly dishonest racketeers," says the editorial entitled "Drug pushers," in Newsday (1 September 2006).

           Check your jurisdiction for laws against false advertising, false statements, and engaging in a pattern of crime, e.g., racketeering, engaging in a continuing criminal enterprise. In the United States, there is a law, 18 USC § 1001 against making false statements in any matter within federal jurisdiction. There is also a law, 18 USC § 1961, against engaging in a pattern of crime. To deter wrongdoing of this type, the latter law provides injured parties triple the normal amount of damages. (This is the law that the Department of Justice is citing in its 22 September 1999 lawsuit against tobacco companies.)

7. Cigarette Advertising Is Unconstitutional

           Cigarette advertising does indeed raise constitutional issues. The "natural and probable consequences" are to violate people's rights in a voluminous way. They promote TTS, an ultrahazardous activity constituting a universal malice. The words are accessory to injury and death. These effects are no accident. The words contain an element of illegality such as fraud, leading to an increased risk of death.

           This is because of the violation of the right to fresh and pure air, violating both nonsmokers' rights and smokers' rights.

Many aspects, the initial intent, the transferred intent, and the motive, involve premeditation and malice. They violate the nonendangerment duty, applicable with a toxic substance. The death numbers are at the holocaust level. Even one such death is murder. To that, there is no consent, nor informed consent. The words enable unlawful taking of life, constituting a repetitive aggressive violation of the duty of aiding their victim.

           On balancing the equities, where the natural and probable consequence is increased risk of death, the words themselves constitute violence.

           Viewed as a whole, cigarette advertising and pro-cigarette words with any or all of these aspects, violate people's constitutional rights, starting with violating their right to life, doubly protected by the Constitution:

  • its purposes stated in the preamble (e.g., . . . to . . . establish Justice, insure domestic Tranquillity . . . promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity. . . .") and,

  • its Fifth Amendment ("No person shall . . . be deprived of life, liberty, or property, without due process of law. . . .").
All court decisions must abide by, apply and enforce these Constitutional clauses.

Pro-cigarette words are "violence" whose "natural and probable consequences" deprive people of all three. Cigarettes are the only product which, when used as the manufacturer and seller intend, kill. Wherefore courts in cigarette advertising cases must abide by, apply, and enforce these Constitutional provisos so as to forthwith stop the violent words killing at holocaust level.

Example of Language From A Court Decision
Striking Down A Pro-Advertising Policy,
Putting It In Context With Other Contradictions
"A cigarette company is permitted to advertise the desirability of smoking its brand, but a cancer society is not entitled to caution by advertisement that cigarette smoking is injurious to health. A theater may advertise a motion picture that portrays sex and violence, but the Legion for Decency has no right to 987post a message calling for clean films. A lumber company may advertise its wood products, but a conservation group cannot implore citizens to write to the President or Governor about protecting our natural resources. An oil refinery may advertise its products, but a citizens' organization cannot demand enforcement of existing air pollution statutes. An insurance company may announce its available policies, but a senior citizens' club cannot plead for legislation to improve our social security program.
"The district would accept an advertisement from a television station that is commercially inspired, but would refuse a paid nonsolicitation message from a strictly educational television station. Advertisements for travel, foods, clothing, toiletries, automobiles, legal drugs - all these are acceptable, but the American Legion would not have the right to place a paid advertisement reading, `Support Our Boys in Viet Nam. Send Holiday Packages.'" Wirta v Alameda-Contra Costa Transit District, 68 Cal 2d 51, 57-58; 64 Cal Rptr 430; 434 P2d 982, 986-987 (21 Dec 1967).

8. Context of Illegality

Keep in mind the context in which any particular words are written. Is it part of a larger whole, a larger pattern of illegality?

"One cardinal principle must be borne in mind, that any element of illegality essential to a scheme or combination makes the whole illegal." Newton Co v Erickson, 70 Misc 291, 298; 126 NYS 949, 954 (6 Jan 1911).

"Violence . . . is not limited to physical contact or injury, but may include picketing conducted with misleading signs, false statements, publicity, and veiled threats by words and acts." Black's Law Dictionary, 6th ed (St. Paul: West, 1990), p 1570.

"Under principles of international law applied from Nuremberg to Rwanda, propagandists who contribute to war crimes or encourage crimes against humanity can be put in the dock alongside the actual killers," says Robert Parry, Consortium News, 21 August 2006.

Courts do not "subscribe to the oft-repeated contention and argument that the use of the word 'violence' . . . is limited always to physical contact or injury. A blackjack applied to [one person's] skull may in the long run be less serious than . . . misleading signs, false statements and publicity . . . and insidious propaganda. The scalp wound may be healed through the surgeon's art." Esco Operating Corp v Kaplan, 144 Misc 646, 650; 258 NYS 303, 309 (1932).

Take into account the context, just as did the Nuremberg Tribunal. If the context involves illegality, the individual writing itself (ad, legal memo, etc.), can thereby be itself criminal, as "aiding and abetting" a larger criminal plot, conspiracy, policy, or enterprise:
'"The very plot is an act in itself.' Mulcahy v Queen, L R 3 HL 306, 317. But an act which, in itself, is merely a voluntary muscular contraction, derives all its character from the consequences which will follow it under the circumstances in which it was done. When the acts consist of making a combination calculated to cause temporal damage, the power to punish such acts, when done maliciously, cannot be denied because they are to be followed and worked out by conduct which might have been lawful if not preceded by the acts. No conduct has such an absolute privilege as to justify all possible schemes of which it may be a part. The most innocent and constitutionally protected of acts or omissions may be made a step in a criminal plot, and if it is a step in a plot, neither its innocence nor the Constitution is sufficient to prevent the punishment of the plot by law." Aiken v Wisconsin, 195 US 194, 205-206; 25 S Ct 3, 6; 49 L Ed 154, 159 (1904).

An Austrian law bans Holocaust denial, authorizing up to ten years prison for "whoever denies, grossly plays down, approves or tries to excuse the National Socialist genocide or other National Socialist crimes against humanity in a print publication, in broadcast or the media." This law in essence enforces already existing laws against, e.g., fraud. In February 2006, "right-wing British historian David Irving" received "a 3-year prison sentence" for his Holocaust-denial activity, says The Macomb Daily, page 7A (22 Feb 2006).

Similarly should be treated "whoever denies, grossly plays down, approves or tries to excuse the [tobacco] genocide or other [tobacco pusher] crimes against humanity in a print publication, in broadcast or the media."

9. Conclusion

Pro-cigarette media words, writings and cigarette advertising do indeed encourage, procure, aid and abet cigarette sales. Attaining an impact on the mind is the whole point of writing, speaking, and advertising; that's why speakers, writers, publishers, and advertisers do what they do—by their own foreseeable confessions against interest. The "natural and probable consequence" of that is to lead to injury and deaths as above-stated. Wherefore pro-cigarette writings and cigarette advertising are already illegal. Prosecutions for aiding and abetting murder pursuant to state, federal, and international law are foreseeable and much to be desired. Families and estates of the deceased also have a remedy pursuant to civil law, including foreseeably the award of damages from the newspapers, media, advertisers, and publishers thereof.

WHAT THE ADVERTISERS AND WRITERS AID AND ABET:
EXAMPLES OF CIGARETTES' INJURIES AND KILLINGS

Abortion AIDS Alcoholism Alzheimers
Birth Defects  Blindness Crime  Divorce
Drugs Hearing Loss Heart Disease Lung Cancer
Mental Disorders Seat Belt Disuse SIDS Suicide

Courts should be particularly receptive to cigarette advertising bans due to their "law and order" focus, related to cigarettes' role in alcoholism, drug abuse, crime, abortion, fires, and suicide. This argument should be emphasized in any and all cases. As these aspects of cigarettes are not "health" issues, the scam argument that local jurisdictions cannot take action on cigarette advertising for purely "health" reasons is thus overcome. (Courts can uphold bans on cigarette advertising for all the above reasons, even when the legislative body did not cite such reasons, as the existence of these additional reasons is a matter of basic "judicial notice.")

For futher background, see Thomas Whiteside, Selling Death: Cigarette Advertising and Public Health (New York: Liveright, 1971).

For a civil law remedy of damages, it is not necessary to reach the issue of whether "Cigarette Makers Get Away With Murder," as stated by Elizabeth M. Whelan, Sc.D., President, American Council on Science and Health, The Detroit News, p 4B (14 Mar 1993).
If 27,500 deaths is a "holocaust," as the Royal Society says, supra, 37 million is (in contrast to the Nazi 6 million holocaust), a six fold+ holocaust. That is above the World War II "crimes against humanity" level for which prosecutions occurred at The Nurnberg Trial, 6 FRD 69 (1946).
Certainly, therefore, a civil remedy is applicable against those who perpetrate and/or aid and abet this. For further information, TCPG recommends the initial reading list.

Valerie Bemeriki: A Journalist
Indicted for Inciting Genocide

Statement By Professor John Wyke, Director, Beatson
Institute for Cancer Research, Glasgow, Scotland

The Department of Justice Position in Support of Baltimore's Ban
David Vladeck's Testimony Citing Basis to Regulate Cigarette Advertising
Robert Kline Testimony on Constitutionality of Regulating Cigarette Advertising
Larry C. White Calls Regulating Cigarette Advertising Constitutional
Related Site for Michigan Readers

    REFUTING THE
IGNORANCE "DEFENSE"
  • Ignorantia eorum quæ quis scire tenetur non excusat; ignorance of those things which one is bound to know excuses not.
  • Ignorantia juris quod quisque tenetur scire, neminem excusat; ignorance of the [or a] law, which every one is bound to know, excuses no man.
  • Ignorantia legis neminem excusat; ignorance of law excuses no one.
  • Ignorantia juris non excusat; ignorance of the law excuses not.
  • Reason: Ignorare legis est lata culpa; to be ignorant of the law is gross neglect—five Latin sayings to the same effect, it is such a well established concept.
    “The citizens are the authors of the law, and therefore its owners, regardless of who actually drafts the provisions, because the law derives its authority from the consent of the public, expressed through the democratic process,” says State of Georgia v The Harrison Company, 548 F Supp 110, 114 (DND Ga, Atl Div, 1982), citing precedent BOCA v Code Technology, Inc., 628 F2d 730, 734 (CA 1, 1980). A long line of even earlier precedents includes, e.g., Wheaton v Peters, 33 US 591; 8 Peters, 8 L Ed 1055 (1834); Davidson v Wheelock, 27 F 61 (CCD Minn, 1866); and Howell v Miller, 91 F 129 (CA 6, 1898). Note pertinent federal law 17 U.S.C. § 105, and the fact that “The 'law' is owned by the public and cannot be copyrighted.” People are presumed to "know" what they "own."
    See also data on what facts people are required to know.

    • The Twin Duties of Care and Aid
    In law, "one who presumes to act, even though gratuitiously, may thereby become subject to the duty of acting carefully, if he acts at all." Glanzer v Shepard, 233 NY 236, 239; 135 NE 275, 276 (1922).

    "A tortfeasor has a duty to assist his victim. The initial injury creates a duty of aid and the breach of the duty is an independent tort. See Restatement (Second) of Torts, § 322, Comment c (1965)." Taylor v Meirick, 712 F2d 1112, 1117 (CA 7, 1983).

    Notice Laws/Patterns/Practices
    "The proof of the pattern or practice [of willingness to commit racketeering acts, mail fraud, and words endangering others] supports an inference that any particular decision, during the period in which the policy was in force, was made in pursuit of that policy." Teamsters v U.S., 431 US 324, 362; 97 S Ct 1843, 1868; 52 L Ed 2d 396, 431 (1977).

    Violations of criminal law can indeed result in damage to private citizens. Ware-Kramer Tobacco Co v American Tobacco Co, 180 F 160 (ED NC, 1910).

    Litigants can show as part of the evidence in his/her own case, the guilt of others linked to the current defendant, in showing a pattern. Locker v American Tobacco Co, 194 F 232 (1912).

    The DOJ Racketeering Case
    Against Tobacco Companies
    Prior Advice to DOJ
    DoJ Lawsuit
    DoJ Appendix
    DoJ Press Release
    Law Writer Analysis
    Health Group Analysis

    A Sample Handout To Serve On Cigarette Advertisers

    Contacting the FTC To Report Advertising Violations,
    Such As No Surgeon General Warning

    To file a complaint against any business or advertiser's cigarette ads (newspapers, side-of-truck, etc.) unlawfully lacking the Surgeon General warning, you may contact the

    Federal Trade Commission
    600 Pennsylvania Avenue, N.W.
    Washington DC 20580

    with words to this effect:

    Dear FTC:

           This is a complaint of cigarette advertising without the Surgeon General warning. Please prosecute pursuant to law, e.g., 15 USC § 1333. The name and address of the advertiser is: _________ ________ _________ The ad was in the newspaper/on side-of-truck, or . . . .

    Another Foreseeable Media Defense: Denial!
    When perpetrators of genocide are arrested, they may try—as did a number of the accused at The Nurnberg Trial, 6 FRD 69, 161-163 (1946)—to deny they ever said or wrote what they are accused of. At Nuremberg, some defendants, rather than admitting they had written or signed the incriminating documents and papers, denied it. They charged forgery, lying, etc., by the accusers!!!

    So journalists, media writers and speakers, lawyers, publishers, and cigarette advertisers can reasonably be expected likewise to deny their own pro-tobacco writings. Right now, they like to brag that they are pro-tobacco, pro-choice on the killings.

    But once they are facing punishment up to execution for their inciting words, their story suddenly can change -- they never said any such thing!! To such people, mass killing is a big joke, currently. They can, they think, say anything they like, without regard to falsity and the foreseeable effect of large-scale deaths, and get away with it, and never be called to account, never be criminally prosecuted. But once confronted, they suddenly 'never said that'!!!!

    Concern on Adults Setting Right Example

    An Anti-Tobacco Advertising
    Editorial
    John H. Kellogg, M.D., "The Insatiable Tobacco Cyclops," Good Health: The Battle Creek Journal of Health and Hygiene, Vol. LXIV, # 6 (June 1929).

    State laws against cigarette advertising should be upheld notwithstanding alleged Congressional pre-emption, pursuant to the principles of Colorado Anti-Discrimination Commission v Continental Airlines, 372 US 714 (1963) This case concerned a state ban on segregation; the defendant alleged that since states can't have laws commanding segregation, they also can't have laws banning it! The claim was that such laws conflicted with Congress' authority! The Supreme Court said no, states can indeed ban one but not the other.

    Likewise, while states cannot require cigarette advertising, as doing so would aid and abet genocide, states can ban it, like any other crime or act aiding and abetting unlawful death.

    A Dutch View: "Tobacco Advertising Is A Criminal Act"

    British Cigarette Advertising Ban Law Challenged
    Tobacco companies worldwide desire and "intend" to cause the "natural and probable consequences" of tobacco advertising. Great Britain attempted to ban cigarette advertising. Tobacco companies there also responded by suing. News on the May 2000 status of the litigation can be found in the article by legal correspondent Clare Dyer, "Tobacco firms fight ban on advertisements," 320 British Med J (#7247) 1427 (27 May 2000).

    The Reverse Tobacco Advertising Site: 'Badvertising'

    The Nurnberg Trial: Details
    “Iran Urges Judiciary to Prosecute Media" (21 August 2006) ("Since 2000, Iran's conservative judiciary has closed more than 100 newspapers, most accused of 'false reporting' and 'spreading lies.'”)
    Germany v Parliament and Council (Case C-380/03, 12 December 2006) upholding banning most forms of cigarette advertising (Background Article)

    Prosecute Murderous Media:
    The Life You Save May Be Your Own

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