Audrey Silk [Founder, New York City Citizens Lobbying Against Smoker Harassment]: "The DC Circuit Court of Appeals affirmation of most of District Court Judge Gladys Kessler's ruling in the case of US v. Philip Morris USA Inc., et. al. [PDF file] upholds ramifications that extend beyond the borders of the defendant's (Big Tobacco) and plaintiff's (US government) interests. NYC Citizens Lobbying Against Smoker Harassment (C.L.A.S.H.) is an organization dedicated to advancing, promoting and protecting the interests of adults who choose to smoke cigarettes. This judgement directly affects our interests in a tangible, immediate, and profoundly negative way.

It's our basic contention that smokers and their rights have merely been tossed around like poker chips in a series of contentious legal transactions between two third parties: the anti-tobacco crusaders and the tobacco manufacturers. Whatever "crimes" tobacco manufacturers are accused of (whether rightly or wrongly) were not, in any case, committed by us, yet the legal "remedies" have always included judgments causing us to pay the price in one form or another. Clearly, this pertains to the case now at hand.

As consumers of this product we disagree that "light," "ultra light," or "mild" has anything to do with being a "health descriptor" and object to the remedy to deny us information about the product we buy. Those terms actually describe taste and degrees of harshness. This would be the equivalent of barring coffee consumers from being able to discern by the packaging whether the blend they are buying is "smooth (mild)," "rich (medium)" or "bold (dark)" (reference Maxwell House Coffee) to suit their preference.

The increased social penalty smokers will pay comes in the form of the remedy that requires tobacco manufacturers to issue public statements to correct past messages about their product – in particular regarding the "dangers of secondhand smoke." Cigarettes don't smoke themselves. People smoke them. Messages on so-called secondhand smoke vilify smokers more than they do the tobacco companies. The message is transformed from "smoking kills" to "smokers kill."

One might be tempted to argue that the denigration of smokers as a means to convey the message not to smoke conveys that message alone. However, evidence exists that these kind of messages, already promoted by anti-smoker campaigners, provoke hate speech and calls for aggressive behavior toward smokers — and that their existence sanctions it in fact.

Of extreme importance in this matter, evidence also exists, contrary to Judge Kessler's findings, that claims of health risks from exposure to cigarette smoke remain scientifically controversial to this day. For instance, Judge Kessler has been accused of a miscarriage of justice in this area by Dr. James E. Enstrom whose 39-year-long study on secondhand smoke – published in the British Medical Journal in 2003 – found no relationship between lung cancer and coronary heart disease and exposure to secondhand smoke. According to Dr. Enstrom, "The judge repeated in her opinion a number of misleading and inaccurate statements about my study" made by unobjective witnesses who have engaged in a smear campaign against him and his study since its release. He protested that "at no time was I ever given an opportunity to challenge or refute the statements made about me and my research" and concludes it was an "inappropriate inclusion of this legitimate research."

Judge Kessler's affirmed conclusion that danger from secondhand smoke has been proven is erroneous. There is something so fundamentally wrong and pernicious about compelling speech with which the speaker – in good faith and with existing debate to substantiate it – does not agree, that it baffles the mind that it could survive a First Amendment challenge. It's made all the more incredulous when the Appeals Court finds, "Consequently, the [district] court must confine the statements to 'purely factual and uncontroversial information'," regarding the to-be-determined content of the corrective messages. There is nothing purely factual and controversial free about the court-mandated statement. And the only danger that's clear – that this act achieves – is to smokers.

It's quite a kick in the teeth when one remedy the appellate court did reject pertains to retailers that would have had to display the corrective messages on their counters. The court found:

Section 1964(a) explicitly cautions that in crafting an injunctive remedy the court must 'mak[e] due provision for the rights of innocent persons.' 18 USC § 1964(a). We believe that the district court exceeded its authority by failing to consider the rights of retailers and crafting an injunction that works a potentially serious detriment to innocent persons not parties to or otherwise heard in the district court proceedings.

In a letter to Judge Kessler during those proceedings, we argued that our interests were not represented. We contended that members of C.L.A.S.H. (and, in fact, all American consumers of tobacco) would suffer direct, negative and punitive consequences as innocent persons caught between the warring parties. While our letter was reportedly entered into the record there is no record of the court considering the contents. We ask, where was OUR "due provision?"

Our only consolation is the rejection of monetary remedies. If those remedies were actually imposed, it is we, not the tobacco companies, who would actually pay…through higher cigarette prices. The Master Settlement Agreement is a monument to that."