As the current settlement negotiations between the US's two largest tobacco companies and the federal government suggest, the tobacco industry's position is becoming increasingly indefensible.
Yet some commentators are still asserting that the industry should be able to maintain its immunity to liability claims by individuals. The states may be able to sue successfully for their tobacco-related Medicare costs, this argument goes. But individuals should remain unsuccessful in the courts because it has long been known that smoking is bad for one's health, and people are responsible for their own choices. This reasoning lets the tobacco companies too easily off the moral and legal hook.
I'll concede that individual smokers must bear responsibility for their own choices. (Let's disregard for this discussion the Liggett Group's admission that the industry targeted minors, people whom we regard as less than fully responsible for their choices, in order to lure them into nicotine addiction.) But the logical fallacy is to leap from the idea that the smoker is responsible to the conclusion that therefore the industry is free of responsibility.
A Shakespearean lesson
Responsibility is not an all-or-nothing thing. The hit man is certainly responsible for the murder he commits, but so is the guy who hired him. Rioters can be prosecuted for their mayhem, but "incitement to riot" is also - rightly - considered a crime.
And when it comes to the use of deception and manipulation to seduce others into making wrong choices, we in the audience of Shakespeare's "Othello" think Othello, while also blaming himself for his unjust killing of the fair Desdemona, is justified when he runs his sword through the deceitful Iago.
As is evident in the Liggett documents, tobacco companies are in the position of Iago. For decades, they worked to create false confidence in the minds of smokers.
It is only partly true that everyone "knew" what they needed to know about tobacco to make responsible choices. As with responsibility, so also is "knowing" a matter of degree. True, there were scientific studies and then warning labels on cigarette packs. But there were also doubts - deliberately and deceptively planted. And these doubts had effects on what people "knew" and thus on the decisions they made. If there were no such effects, then what was the point of the industry spending so many millions to spread their false assurances?
That whole campaign of deliberate disinformation noted in the Liggett settlement - about tobacco's addictive nature and its health effects - would have been a foolish waste of money. And whatever else the tobacco defenders may be, they are not fools when it comes to the spending and making of their money.
The tobacco industry's deception, shown so clearly in the Liggett agreement, had effects, and these effects hurt the people deceived. We as a society cannot afford to say that those who perpetrated such destructive deception have no moral or legal responsibility to those injured.
OK, you may say, so they are responsible. But if the smokers and the tobacco companies are both responsible, how do we handle the awards in suits in a situation as ambiguous as this? Do we just split the damages 50-50, or 25-75, or vice versa? Wouldn't any appointment be arbitrary?
Good questions - and I have a proposed answer.
What is needed is that we make an assessment: By what proportion would the sale of cigarettes in America have been reduced if the tobacco industry had owned up to the deceit Liggett now reveals about the health-related effects of its products? Not an entirely easy question to answer, perhaps, but an approximate judgment can be made.
After all, as industry documents now reveal, the tobacco companies contemplated taking the honest course and rejected it because of their calculations of how much business it would cost. Perhaps we can find these figures and use them.
The price of deception
If we find such an estimate, we can solve the problem of apportionment. The portion of cigarette consumption that results from industry deception could be used as an index. It would show how much of the damage done by cigarettes can be laid at the door of the deceivers - rather than at the door of those who were influenced by the lies when they chose to smoke.
That percentage, then, could become a key to assessing damages (other than punitive) for which tobacco companies should be held liable to an individual smoker. If total damages to an individual can be documented, and deception is estimated to have boosted sales by 10 percent, the companies' responsibility would be one-tenth in that case.
In a morally sound society, people must pay the consequences of their own bad decisions. But that includes not only those who foolishly make self-destructive choices. It also includes those who selfishly - for their own profit - manipulate other people to do such foolish and self-destructive things.
* Andrew Bard Schmookler is the author of "Living Posthumously: Confronting the Loss of Vital Powers" (Henry Holt &Co.).