AG, tobacco industry find bond

Both sides oppose Texarkana federal judge's gag order in lawsuit

By CLAY ROBISON
Copyright 1997 Houston Chronicle Austin Bureau

AUSTIN Although the tobacco industry and Attorney General Dan Morales
don't agree on much, both oppose a gag order that would bar them from
discussing the state's antitobacco lawsuit with the news media.

Tobacco defendants, in a brief filed Thursday, said an order drafted by
U.S. District Judge David Folsom of Texarkana would unfairly prevent them
from responding to a barrage of antismoking publicity throughout the country.

Morales called the proposed gag order an illegal "prior restraint on
speech" in a brief submitted Wednesday.

Citing the "sensitive nature" of the case, Folsom proposed that both sides
be prohibited from commenting to news reporters not only on Texas' lawsuit
against the tobacco companies but also on other states' tobacco suits and a
proposed national settlement.

Folsom plans to submit written questions to potential jurors in Texarkana
on Monday and resume jury selection on Oct. 6. The trial, in which Texas is
seeking as much as $14 billion for healthcare costs associated with
smoking, could take several months.

"The draft order does not recognize that there are numerous antitobacco
advocates, whose interests are aligned with the state of Texas, who could
not be bound and would be free to comment to the media. By the terms of the
draft order, the tobacco industry would be barred from responding," tobacco
lawyers argued.

"The state therefore would receive all the benefits of speaking to the
media, while the tobacco industry would be ordered to sit idly by."

The defendants said that situation would produce onesided media coverage,
"thus increasing the threat of improper influence on the jury, rather than
reducing it."

They urged the judge instead to enforce the state's rules of professional
conduct for lawyers, which prohibit attorneys from making prejudicial
statements about a pending case outside the courtroom.

In a separate motion filed earlier this week, cigarette makers contended
Morales has violated that restriction. They complained about public
comments the attorney general made against tobacco companies last week.

In an Austin news conference, Morales accused the industry of targeting
children as "replacement smokers" for people who die from tobaccorelated
illnesses.

"It is common for lawyers who defend criminals to attempt to blame the
victim of the crime," Morales said in a related written statement
distributed to reporters.

"The tobacco industry is trying the same tactic. They blame the state for
collecting taxes on cigarettes and blame smokers for choosing to smoke."

Although Folsom's draft gag order would allow both sides to discuss the
proposed national settlement of tobacco lawsuits with members of Congress,
tobacco lawyers said it would remove the industry's "First Amendment right
to speak to the American people about litigation developments."

"Ultimately, the disposition of the national resolution (settlement) will
turn on whether the American people acting through their elected
representatives believe it should be approved," the industry argued.

Some media organizations, including the Houston Chronicle, the Dallas
Morning News and Dow Jones & Co. Inc., which publishes the Wall Street
Journal, also have filed briefs opposing the gag order. The New York Times
and the Los Angeles Times also are expected to fight it.

Folsom has scheduled a hearing on the issue for Tuesday.