The State's proposition is simple: the Defendants cannot have it both ways. They cannot maintain the affirmative defenses of the State's failure to mitigate its damages and of unclean hands, and seek discovery from the State, as they have, concerning, inter alia, smoking cessation programs and efforts to prevent or curb the sale of tobacco to minors, and at the same time, keep their lobbying and other activities designed to obstruct the State's efforts secret.

No authority supports what is, in essence, the Defendants' position that they can exercise First Amendment constitutional rights to achieve allegedly unlawful or impermissible ends without being subject to discovery of those activities. Their constitutional rights do not extinguish the right of the public to know who is influencing public officials, for what purpose, the means used to do so, and the results achieved.

Established authorities discussed in the State's initial memorandum and this reply memorandum support fully the proposition that the Defendants must make a choice: either drop the affirmative defenses in question, or disclose their activities relevant to the State's efforts to mitigate its damages.

The Court should grant Plaintiff's Motion to Compel Documents to Respond to Plaintiff's First Set of Interrogatories to the Defendants on General Issues because the Plaintiff's interrogatories are relevant to the issues raised by the claims and defenses herein and the Defendants are not entitled to any claim of privilege to such discovery by the plaintiffs. The State clearly has no quarrel with the Defendants' assertions that the rights to free speech and to petition government extend to corporations and to natural persons under both the Mississippi and United States Constitutions. The Defendants expend much effort declaring in conclusory fashion that the State cannot use their "first amendment activities" against them; that the State has no compelling interest in discovery concerning activities which cause the death of thousands of Mississippians every year and which involve the unlawful targeting of Mississippi's young people by those who would addict them to tobacco; that the State has cited no authority in support of its Motion; and that the State's Discovery requests are beyond the scope of relevant discovery. By their arguments, the Defendants urge the Court to ignore, as they do, the Complaint, the Defendants' Answers and Affirmative Defenses, and the compelling arguments and authorities cited by the State in its Motion -- all in an attempt to convert this discovery dispute into a matter of great Constitutional urgency concerning matters which are not truly at issue. The Defendants seek to distract the Court from the narrow areas of inquiry appropriate under Miss. R. Civ. P. 26 and necessary to a resolution of the issues presented. They repeat various phrases relating to various aspects of sound First Amendment doctrine as though they were shibboleths -- entitling the Defendants to relief by their mere recitation.

The State's discovery does not impact the Defendants' First Amendment associational rights. See NAACP v. Alabama, 357 U.S. 449, 78 S. Ct. 1163, 2 L.Ed.2d 1488 (1958) and its progeny. The State is not asking for so-called "membership lists" or otherwise seeking to have the Defendants disclose their private affiliations in any groups that enable the Defendants to enjoy their political freedoms such that those freedoms might or could be "chilled." It must be remembered that the tobacco industry in general, and most of these Defendants in particular, have an extensive and complex history of litigation in the various state and federal courts and before and against various agencies such as the Food and Drug Administration and the Environmental Protection Agency. Thus it is doubtful that such sophisticated litigants as the Defendants could be "chilled" by divulging the matters related to public lobbying activities sought herein.

The Defendants cite the Noerr-Pennington line of cases for the proposition that they enjoy what amounts to an absolute privilege to lobby Mississippi government officials in a secret and clandestine manner that is immune from discovery, but even that line of cases has exceptions that the parties are entitled to develop through the process of discovery. Britt v. Superior Court, 574 P.2d 766 (Cal. 1978) was cited by the Defendants for the propositions that "compelled disclosure will often deter… constitutionally protected activities" and the "threat to first amendment rights may be more severe in a discovery context." These are thoughts true enough in the abstract and particularly applicable to facts in Britt, but they are not applicable here. The plaintiffs in Britt sought "wholesale" discovery of defendants' private associational affiliations and activities. That the California Supreme Court prohibited such is not authority to shield the Defendants' lobbying of public officials in Mississippi in the context of the claims and defenses at issue herein. More significantly, Britt clearly and unequivocally states "Of course, as with all other First Amendment rights, the right of associational privacy is not absolute, and … under some circumstances disclosure may permissibly be compelled." Britt, 574 P.2d at 773 (citations omitted).

Of more compelling precedental value to note the absence of "absolute" First Amendment rights is Roberts v. United States Jaycees, 468 U.S. 609, 623, 104 S.Ct. 3244, 3252, 82 L.Ed.2d 462 (1984): "The right to associate for expressive purposes is not … absolute."

Similarly, McDonald v. Smith, 472 U.S. 479, 484-85, 105 S.Ct. 2787, 2790-91, 86 L.Ed.2d 384 (1985), makes it clear that the Petition Clause of the First Amendment does not entitle the Defendants to any absolute immunity from discovery in this case:

Nor do the Court's decisions interpreting the Petition Clause in contexts other than defamation indicate that the right to petition is absolute. For example, filing a complaint in court is a form of petitioning activity; but "baseless litigation is not immunized by the First Amendment right to petition." Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 743, 103 S.Ct. 2161, 2170, 76 L.Ed.2d 277 (1983); accord, California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 513, 92 S.Ct. 609, 613, 30 L.Ed.2d 642 (1972). Similarly, petitions to the President that contain intentional and reckless falsehoods "do not enjoy constitutional protection," Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964), and may … be reached by the law of libel.

To accept petitioner's claim of absolute immunity would elevate the Petition Clause to special First Amendment status. The Petition Clause, however, was inspired by the same ideals of liberty and democracy that gave us the freedoms to speak, publish and assemble… These First Amendment rights are inseparable… and there is no sound basis for granting greater constitutional protection to statements made in a petition to the President than other First Amendment Expressions.

Were the law otherwise, Mississippi's Lobbying Law Reform Act of 1994, Miss. Code Ann. (1992) (Supp. 1995) §§ 5-8-1 to 5-8-23, and its predecessors would have long ago been declared unconstitutional for "chilling" such an immunity related to petitioning.

P. & B. Marina v. Logrande, 136 F.R.D. 50 (E.D. N.Y. 1991) contains an excellent discussion of these authorities and notes that discoverability in cases wherein a First Amendment interest is present requires the discovering party to assert a compelling interest of its own (citing Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)), and notes that the Court must ask three questions concerning the request:

1) are the documents relevant, In re Petroleum Products Antitrust Litigation, 680 F.2d 5, 7 (2d Cir. 1982) (per curiam);

2) are the documents sought critical to the complainants' claims, Baker v. F. & F. Investment, 470 F.2d 778, 783-85 (2d Cir. 1972), cert. denied, 411 U.S. 966, 93 S.Ct. 2147, 36 L.Ed.2d 686 (1973) ("highly material and relevant, necessary or critical to the maintenance of the claim"). Accord Black Panther Party v. Smith, supra, 661 F.2d [1254, 1265 (D.C.Cir.1981), vacated mem. sub nom., Moore v. Black Panther Party] ("is crucial to the party's case"); Int'l Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. Nat'l Right to Work Legal Defense and Education Foundation, Inc., 590 F.2d 1139, 1152-53 (D.C.Cir.1978) (goes to the "heart of the claims"); and,

3) are the documents obtainable from any other source, United States v. Burke, 700 F.2d 70, 76-77 (2d Cir.), cert. denied, 464 U.S. 816, 104 S.Ct. 72, 78 L.Ed.2d 85 (1983), on remand, 715 F.Supp. 445 (E.D.N.Y.), aff'd, 891 F.2d 277 (2d Cir. 1989).

By its Motion, the State has demonstrated that it has a compelling interest in this litigation which is so significant to the public health; it has demonstrated that the discovery requested is relevant to the claims and defenses presented; that the requested materials are critical to both the State's claims and the Defendants' answers and affirmative defenses; and the State believes that it cannot obtain the requested discovery from any other source.

WHEREFORE, premises considered, the State respectfully requests the Court to enter an Order compelling the Defendants to respond properly and meaningfully to the State's First Set of Interrogatories to the Defendants on General Issues, and for such other and further relief to which the State justly may be entitled.

Respectfully submitted,

MIKE MOORE, ATTORNEY GENERAL ex rel STATE OF MISSISSIPPI, PLAINTIFF

By: Richard F. Scruggs

The Mississippi Bar #6582