What is it about Big Tobacco that makes all us so crazy? Why is this vice different from all other vices? Is it simply the blackness of the hearts (and lungs?) of the fat cats at the cigarette companies? Or the tobacco lobby's brazen domination of Congress, and even, as it would now seem, the president (who's reportedly {{stiffing#2:http://www.washingtonpost.com/wp-dyn/articles/A60155-2001Apr24.html}} the federal tobacco-litigation team to the tune of $55 million)? Is it the decades of fraud and deception? The needless illness and death? Why do we find the nice folks at Philip Morris so easy to hate, while McDonald's gets off scot-free?

Well, jump back Hamburglar, because Clarence Thomas has set his sights on you. And there's nowhere to run, Grimace. Because this time it's personal.

Oral argument today in {{LorillardTobacco v. Reilly#2:http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&case=/data2/circs/1st/001107.html}}, stands mainly for the proposition that in tobacco cases, perception is everything. The facts are virtually undisputed. The question turns mostly on how you cast Big Tobacco. Is it the misunderstood victim of a vengeful campaign to dismantle a venerable American institution? Or a mighty Hydra, pouring billions of dollars into addicting our children? Whose side are you on anyway, Marlboro Man?

Even the nine justices betray their own biases about smoking today, as they question industry and government lawyers about the constitutionality of Massachusetts' draconian advertising laws. Justice Ginsburg announces to Jeffrey Sutton—attorney for Lorillard, Brown & Williamson, R.J. Reynolds, and Philip Morris: "Tobacco is not like any other commodity. It's highly addictive. It's especially dangerous to children. … This is a drug most people will get hooked on." Justice Scalia, on the other hand, wonders why tobacco should be treated any differently than porn. Is tobacco different than other dangerous substances? There's the rub.

Former Massachusetts Attorney General Scott Harshbarger also seems to be of the Big-Tobacco-as-Darth-Vader school of legislating. In 1998, after signing off on the huge 46-state settlement with the tobacco companies, Harshbarger enacted in his own state the same advertising restrictions he'd been unable to shoehorn into the national agreement. The Massachusetts law bars retail and convenience stores from displaying outdoor cigarette ads within 1,000 feet of schools, parks, or playgrounds and requires that cigarette, cigar, and smokeless tobacco ads in stores be posted five feet off the ground so that children and dwarves will not see them.

The tobacco companies sued, alleging that the Federal Cigarette Labeling and Advertising Act (FCLAA) of 1965 pre-empts state regulation on cigarette ads and that the Massachusetts law violates their First Amendment free-speech rights. The tobacco companies lost on both claims in the district court and again in the 1^st Circuit.

Now if you're thinking, "Hmm ... pre-emption doctrine ... where have I heard that before," the answer may be in {{last year's pre-emption case#52653:iMsg=13}}, {{Natsios v. National Foreign Trade Council#2:http://caselaw.findlaw.com/scripts/getcase.pl?navby=search&case=/uscircs/1st/982304.html}} involving, well, Massachusetts, and its attempt to enact its own foreign policy toward Burma. What is up with Massachusetts? Tougher foreign policy, stricter advertising regulations … are they building their own space program too?

Although many of the amicus briefs in Lorillard come from advertising and free-speech groups hoping the court will do away with the long-standing distinction between vigorously protected speech and less-protected "commercial" speech, no one but Sutton really gets to talk about the speech claims today, except to say, "If I might use my remaining 12 seconds to address the First Amendment issue. …" So, it looks like the court's golden opportunity to gut the goony four-part commercial speech test from {{Central Hudson v. Public Service#2:http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=447&page=557}} is lost. Instead, undaunted by yesterday's exercise in statutory construction, the court manages to devote the better part of an hour to interpreting the words "based on" in the FCLAA.

Did Congress mean to pre-empt all state regulation of cigarette ads? Or did they mean to regulate merely the warning label on cigarette labels? You be the justice:

FCLAA 5(b) provides that: "No requirement or prohibition based on smoking and health shall be imposed under state law with respect to the advertising or promotion of any cigarettes."