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A federal judge Tuesday tossed out a tobacco industry lawsuit against California that claimed a tax-funded anti-smoking campaign was poisoning the jury pool. Senior U.S. District Judge Lawrence Karlton dismissed all the claims raised by the R.J. Reynolds and Lorillard tobacco companies. Their suit, filed in the Eastern District in April, alleged that the state’s anti-tobacco campaign violated their First Amendment free speech rights, as well as their due process and fair trial rights. The anti-tobacco ads are put out by the Department of Health Services pursuant to 1989′s Proposition 99, which levied a 25-cent tax on cigarette packs. Attorney General Bill Lockyer’s office, which is defending Health Services, had moved to dismiss the case. Attorneys for the tobacco companies had asked for an injunction to stop the ads. Tobacco companies have taken huge hits in California the past few years, including a $3 billion verdict in 2001 and a $28 billion verdict last year. Both awards, from Los Angeles juries, were later reduced. Among the challenged ads is a TV spot accusing the industry of targeting children. “We have to sell cigarettes to your kids,” explains the voice-over. “We need half a million new smokers a year just to stay in business. So we advertise near schools, at candy counters. We lower our prices. We have to. It’s nothing personal. You understand.” In his opinion, Karlton spent mere paragraphs on the jury-tampering claims. He rejected the tobacco company’s claim under the Seventh Amendment because the defendants are state officials. And he rejected their 14th Amendment claims because they flow from the Seventh. Instead, he offered the plaintiffs an alternative to their federal suit. “If the plaintiffs truly believe that the challenged advertisements are both provably false and disparaging to their business reputations, they are free to seek relief against the State of California or its officials in a defamation action under state law,” Karlton wrote. By contrast, Karlton spent about 50 pages of his 56-page opinion on the tobacco companies’ First Amendment claims. The companies argued that using the tax money to pay for ads vilifying the tobacco industry made the ads a kind of compelled speech. But Karlton didn’t buy that argument. “The government’s speech is necessarily paid for by citizens, some of whom — like plaintiffs here — will disagree with its message,” Karlton wrote. “The High Court has consistently taught that such disagreement is simply the cost of living in a democracy and provides no basis under the First Amendment to silence the government or to excuse objecting citizens from having to share the costs of its speech.” Although his opinion was very detailed, Deputy Attorney General Karen Leaf does not think Karlton broke any new ground. Karlton just thinks that the compelled-speech cases cited by the tobacco companies don’t apply, Leaf said. “The government has wide latitude to speak out, and the recourse that citizens have if they don’t like that is through political [action],” such as voting someone out of office, Leaf said. M. Kevin Underhill, out of Shook, Hardy & Bacon’s San Francisco office, leads Lorillard’s legal team. R.J. Reynolds has Todd Thompson of Howard, Rice, Nemerovski, Canady, Falk & Rabkin, also in San Francisco. Neither returned calls seeking comment, but a spokesman for R.J. Reynolds told the Associated Press the company plans to appeal to the Ninth Circuit U.S. Court of Appeals. The case is R.J. Reynolds Tobacco Co. v. Bonta, 03-659.

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