Authors: Richard Kluger
Thus, Geller was primed when a letter was referred to him in the first few days of 1967 from a twenty-five-year-old New York City resident named John F. Banzhaf III, a Columbia law graduate who had lately finished clerking for a federal appellate judge on the District of Columbia Circuit and was about to join a New York firm specializing in patent law. After majoring in electrical engineering at MIT, Banzhaf had posted a strong record at Columbia as an argumentative student who, when assigned to write a law review note on whether copyright protection could be extended to the emerging field of computer programming, decided not just to theorize on the issue but to invent a program and try to usher it through the U.S. Patent Office; his success in this process won him a front-page notice in
The New York Times
, an appearance before a congressional committee exploring the subject, and a yen for publicity that would animate his ensuing career. At his Bronx home on Thanksgiving Day of 1966, Banzhaf was struck by the cigarette commercials on the pro football telecast that his family was watching: the cowboys and other figures seemed to glamorize the habit, which both his parents practiced but he himself did not. “If you had asked me to list the top twenty things I was concerned about or wanted to change then, smoking would not have been on it,” Banzhaf recalled. But he was aware of the FCC’s “fairness doctrine,” requiring broadcasters to allow free time to state opposing views on matters of public controversy dealt with on the air. While the doctrine was almost always invoked in connection with the programming sector, Banzhaf did not see why it shouldn’t apply with equal force to commercials, which consumed nearly one-fourth of the broadcast day.
As a charged-up youngster with technical training eager to see if he could put his new legal learning to practical application, Banzhaf wrote to the FCC for a pamphlet explaining how the fairness doctrine worked and then fired off a letter in December to WCBS-TV in New York, the station that had carried the football telecast with the offending cigarette commercials. Banzhaf argued that sponsored messages were equally covered by the FCC rule and that the station ought therefore to provide free airtime roughly in proportion to that spent “on your station promoting the virtues and values of smoking.”
The station’s letter in response a month later stated that since May the CBS network’s evening news show anchored by Walter Cronkite had carried six reports on the smoking issue and that since September the network’s New York outlet had run six segments by its science editor on the local news presentation, so it was plainly unnecessary to provide free airtime to antismoking adherents. This answer cut no ice with Banzhaf, who, in complaining now to the FCC, noted that by its own admission the TV station gave both sides of the subject on its news reports while commercials, of course, did not—and in view of the heavy volume of the latter, the station’s news coverage did not “begin to offset the effects of paid advertisements, prepared by highly skilled experts … .”
When Banzhaf’s request for free airtime to present the antismoking case arrived, a majority of the FCC members were “already there,” as general counsel Geller put it, convinced that a medium regulated in the public interest ought not to be facilitating the sale of life-threatening products. True, the commission could have acted on its own without the goad of an unknown young attorney, “but when his letter came in, it struck a responsive chord, and I thought why not use it.”
Geller drew up a draft ruling ordering WCBS-TV and all other stations to meet Banzhaf’s petition and brought it to commission chairman Rosel Hyde. The rule, Geller knew, would be a bombshell and immediately provoke a “slippery slope” rebuttal: If you do this with cigarettes, don’t you have to make a similar provision for a lot of other products capable of harming consumers? But Geller argued that cigarettes, unlike any other legal product, posed a peril to the health of millions when used normally and in the way intended by their manufacturers. Television and radio, moreover, were manifestly different from print media; broadcast messages were “in the air” and absorbed subliminally or even subconsciously by those tuned in, and what with most homes in that era possessing a single television set that was often the focus of family attention, TV was a pervasive and uniquely mind-shaping, not to say brainwashing, medium. Congress, of course, could have outlawed cigarettes, Geller conceded, but its not having done so on pragmatic grounds did not affect the FCC’s statutory power to impose the fairness doctrine on tobacco products. Hyde and all his colleagues agreed.
Early in June 1967, WCBS-TV received a three-page letter from the FCC stressing in a preliminary ruling that “our holding is limited to this product,” the normal use of which was so hazardous that “a station which presents such advertisements has the duty of informing its audience of the other side of this controversial issue” and must provide “a significant amount of time for the other viewpoint.” While outraged broadcasters and tobacco industry lawyers scrambled to protest, Banzhaf was told by his new employer, a law firm located in the same building that headquartered Philip Morris, for which it handled matters concerning patent law, that it might be a good idea if he turned the FCC matter over to others interested in public-health issues. Banzhaf approached the Interagency Council on Smoking and Health for help, but it failed to agree on any coordinated action, in large part because its most powerful constituent members, the big health voluntaries, felt that their continued existence depended on annual fund-raising drives that were publicized by public-service announcements carried without charge by TV and radio stations. If the health organizations sided against the cigarette industry, they feared that their fund-garnering free ads would be halted by the aggrieved station owners.
As the plump briefs from the broadcasting and tobacco companies opposing the FCC ruling accumulated over the summer, Banzhaf grew anxious that his temporary victory would be overturned unless the objections to it were parried in effective lawyerly fashion—and he saw his role as central in this effort. At the FCC, where a loud squawk had been anticipated from the industries directly affected, the staff felt fully equipped to defend its position if, as seemed likely, litigation ensued. Of Banzhaf himself, Geller recalled, “We never gave him a further thought—he was somebody we were using,” and so the youthful lawyer was never called in.
Banzhaf, a bulky six-footer well endowed with self-esteem, was. not to be denied. One Washington antismoking activist who dealt with him in later years once remarked of Banzhaf, “He is the sort of person who, upon arising in the morning and seeing the sun shining, assumes there must be a connection between the two events.” Convinced that the FCC needed significant outside support to sustain its ruling but fearful that he did not have the skills, time, or money to go up against the big law firms attacking the commission’s application of the fairness doctrine to cigarette ads, Banzhaf kept after the Interagency Council. He was granted an audience by Emerson Foote, who found the young man “too brash” and advised him afterward that the council could be of no useful assistance to him. The other agencies Banzhaf approached were likewise uncooperative. “They were all very sympathetic, but they felt themselves dependent on the good will of the broadcasters,” Banzhaf recounted. Alone, then, and at dire risk to his continuing employment by a firm with tobacco industry
billings, the young lawyer filed his own brief with the FCC to parry the broadcasters’ and cigarette makers’ objections to the new ruling he had triggered.
Leaving his law office late one Friday evening early in September, Banzhaf picked up an early edition of the next morning’s
Times
and read that the FCC had upheld its preliminary ruling on cigarette ads and prescribed one public-service announcement on the perils of smoking to run in prime time for every four cigarette ads carried on the air. Since the ruling in no way prevented broadcasters from carrying cigarette ads and required no warnings during or adjacent to such commercials—and mandated no particular language for the antismoking announcements—the FCC said its action ran afoul of neither the First Amendment nor the 1965 labeling law from Congress, which had proscribed any other form of required warning. Congress, the commission said in rejecting industry arguments to the contrary, had surely not meant to foreclose broadcasting “as an effective means of informing the public of the potential hazards of smoking.”
Suspecting that broadcasting and tobacco companies would promptly appeal the FCC ruling, and in a Southern jurisdiction likely to be hospitable to their case, Banzhaf returned at once to his office and spent the rest of the night there, drawing up a notice of his own appeal to foil the industry effort. Trying to concoct a plausible ground for appealing so that he would have legal standing, he argued that the FCC had failed to mandate equal or adequate free airtime to present the antismoking announcements, and then took the first available plane to Washington the next morning, a Saturday, and filed his notice in person with a judge from that tribunal, among the most liberal of the appeals courts—an irregular but permissible procedure. When the industry lawyers filed their own notice of appeal in Richmond on Monday morning, they learned they had lost the race to the courthouse to the vexing Banzhaf. They moved to have his appeal set aside on the ground that he was not truly an aggrieved party and, in shopping for a favorable venue to file, had acted extralegally. In his first courtroom appearance, Banzhaf by himself opposed the industry motion, facing a phalanx of highly paid corporate lawyers—and won.
More than ever now, Banzhaf believed that the fate of the FCC ruling hung on the effort he could mount against the industry’s appeal, which was in effect joined with his own case for hearing by the circuit court. Emboldened by his success to date, he crashed the first World Conference on Tobacco and Health held in New York under the Interagency Council’s sponsorship and persuaded keynote speaker Senator Robert F. Kennedy, a new recruit in the antismoking crusade, to insert a few sentences in his address urging the health voluntaries to help prevent the FCC ruling from being set aside.
The key to Banzhaf’s hopes was the American Cancer Society, the largest and best-funded member of the loose confederation ranged against the tobacco
industry. Accounts vary, but several in the society recall that Banzhaf approached the ACS with a request for about $50,000 to represent its interests in the appeal he was bringing. But the society’s executive director, Lane Adams, viewed litigation as an improper activity for the ACS: “We were a medical and research institution, and I felt we should stick to our knitting.” Adams also feared that filing an
amicus
brief in behalf of the FCC position might imperil the cancer society’s tax-exempt status, though it was lobbying rather than litigation that was forbidden to such organizations. More to the point, Banzhaf’s was not the sort of personality likely to endear itself to the ACS, a huge, consensual organization not about to hand over its banner to a brash young man, however bright and well intentioned, for storming the barricades. Nor did the society’s elders believe that Banzhaf’s efforts were necessary after Clifton Read, a veteran ACS executive, canvassed the ACS legal advisors. “The report we got back was that Geller of the FCC was one of the brightest guys in Washington,” Read remembered, “and we didn’t have to go into this.” Banzhaf retained a different memory of the ACS’s standoffishness: “They didn’t like being controversial … didn’t want to step on any toes. It was the bureaucratic instinct.” Precisely and perhaps understandably, but it was not like Banzhaf as a lone-wolf operator to abide by the basic institutional imperative against offending. “He had the capacity,” remarked another antismoking activist, “to say by a sneer that everyone else in the room is a sellout.”
Whatever Banzhaf’s limitations, his effort to place the FCC ruling before a friendly court seemed justified when Judge David Bazelon of the District of Columbia Circuit ruled late in 1968 that Congress may have thought that the cautionary label it had mandated on each cigarette pack “was adequate
warning
. It surely did not think the warnings were themselves adequate
information.”
To accept the industry’s argument that the 1965 statute had preempted the FCC initiative, Bazelon wrote, his court would have had to conclude that Congress “legislated to curtail the potential flow of information lest the public learn too much about the hazards of smoking for the good of the tobacco industry and the economy.” Regarding the applicability of the fairness doctrine, the judge added:
[W]here, as here, one party to a debate has a financial clout and a compelling economic interest in the presentation of one side unmatched by its opponent, and where the public stake in the argument is no less than life itself, we think the purpose of rugged debate is served, not hindered, by an attempt to redress the balance.
III
WHEN
the FCC ruling went into effect, America was suddenly confronting prime-time images that sent the anxiety level of smokers—and surely that of the tobacco moguls—spiking. The American Cancer Society, with abundant free airtime assured for unfurling its banner, now willingly took the lead in the effort by public-health agencies to decry the perils of smoking via television and radio. ACS publicist Irving Rimer received offers of free help from Madison Avenue in creating the antismoking commercials, provided the cancer society picked up the direct production costs. This top talent crafted a number of haunting messages that underscored how ineffectual, by comparison, the warning labels were on the pack.
Among the simpler efforts was a picture of a pensive fellow smoking while the voice-over asked, “Have you ever wondered what happens when you smoke a cigarette?” There was a pause while the smoker cogitated, and the background voice continued, “We have,” as the picture faded and the screen was filled with the words: “American Cancer Society”. Another instantly affecting message, by New York advertising guru Tony Schwartz, showed two youngsters dressing up in adult clothes beside an old attic trunk with the voice-over, “Children love to imitate their parents. … Do you smoke cigarettes?” A more elaborate effort, aimed at Marlboro’s prized metaphor, showed a saloon-ful of smoking, unshaven villains in ten-gallon hats eyeing a wholesome, smoke-free fellow at the bar. Suddenly, another foul dude barged through the swinging doors, smoking butt adangle from his lip, and proclaimed, “We figured [cough] you’d [cough] be here,” but before he and his accomplices could draw, they all fell into an uncontrollable fit of coughing, allowing the stalwart nonsmoker to push by them easily. The barroom faded, replaced by the single word “Cancer,” and the voice-over intoned, “Cigarettes—they’re killers.”