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Friday, September 26, 1997

Media, tobacco industry ask judge not to impose gag order

By MICHAEL HOLMES / Associated Press Writer

AUSTIN (AP) -- The federal judge presiding over Texas' $14 billion lawsuit against the tobacco industry was urged again Thursday not to impose a sweeping gag order that could silence lawyers and others involved in the upcoming trial.

"Fundamentally, such an order would significantly impede the ability of the citizens of Texas to observe the actions of their government in this case," argued lawyers for Dow Jones & Co., publisher of The Wall Street Journal.

The Dallas Morning News on Wednesday filed arguments against the proposed gag order and attorney Paul Watler said he expected to file more on Friday on behalf of The New York Times and the Los Angeles Times.

In addition, attorneys for both the tobacco industry and the state are objecting to the order.

The Texas case is scheduled to go to trial in Texarkana on Oct. 6. It would be the largest tobacco lawsuit to reach the courtroom so far.

Texas is suing eight tobacco companies and three trade groups seeking to recover money the state says has been spent on Medicaid for treating tobacco-related illnesses. The industry denies any wrongdoing.

After weeks of sharp public exchanges between Attorney General Dan Morales and tobacco company lawyers, U.S. District Judge David Folsom this week proposed a gag order that would prohibit both sides from discussing the trial with the public and news media.

The restriction would apply not only in the Texas case, but it would also keep industry officials from commenting on other states' tobacco lawsuits and a proposed national settlement of all those cases.

The judge has scheduled a Tuesday hearing on the proposed order, which came after the tobacco companies asked Folsom to impose sanctions on Morales for comments he made against cigarette makers at a news conference last week.

In written arguments filed in Texarkana, Dow Jones lawyer David Donaldson said the proposed gag order would violate constitutional free speech protections.

He also said more people than just those in Texas are watching the case since the tobacco industry and numerous state attorneys general in June announced a plan to settle dozens of anti-tobacco lawsuits.

In that deal, companies would pay $368 billion over 25 years, curb their advertising and pay fines of up to $2 billion if teen smoking didn't drop 30 percent in five years. In return, they would gain legal protections and limits on government control of nicotine. Congress is considering the deal.

Donaldson said a gag order would restrict the ability of "the citizens of all states to monitor the enormous lobbying and legislative efforts surrounding the multibillion-dollar global settlement with the tobacco industry."

The Morning News also argues that the proposed order is too broad, and challenges it as an unconstitutional use of federal authority over a state.

"In suppressing all public disclosure of information concerning the formation of important public policy at the heart of a vibrant, ongoing and pressing national debate, the gag order will constitute an unwarranted federal judicial encroachment upon state legislation and interests," the Morning News argues. "Indeed, because it will restrain the speech of countless elected officials of the State of Texas during the opening weeks of campaigning for state offices, it will end democratic dialogue in a dangerous and unprecedented fashion."

In their written arguments, the tobacco companies Thursday said silencing them "would have an extraordinarily prejudicial effect on the national resolution."

If they couldn't discuss the issues, the companies said, "the anti-tobacco forces would have free reign to communicate with the public while the tobacco industry would effectively be barred from presenting its position."

The industry also argued that there are adequate rules to keep pretrial publicity from prejudicing jurors who will hear the Texas case.

Earlier this week, the attorney general's office also urged the judge not to impose a gag order. "This case involves questions of immense public interest, not only in Texas, but nationwide," Morales wrote.