Big Tobacco and the Free Will Defense
“The defendant’s cigarettes may have been a factor [in causing cancer], but the plaintiff knew of the health risks and exercised free will in choosing to smoke and declining to quit.”The data presented in this paper show that, as evidence mounted that smoking causes cancer, tobacco companies stopped using the “no causality” defense (that there’s no causal connection between smoking and cancer) and shifted to the “free will” defense:
“We found a decrease in the use of the ‘no causality’ argument over time. As can be seen in table 7, this argument was used in 89% of the cases before 1997, 65% of cases during the period 1997–2002, and 25% in 2003. Correspondingly, there was an increase over time in the use of the ‘‘other risk factors’’ argument (from 11% during the first period, to 33% and 50% in the next two periods, respectively) and the ‘‘free will’’ argument (56%, 71%, and 100% in the first, second, and third periods, respectively).”It’s interesting that as the causal story got filled in about the connection between smoking and cancer, tobacco companies increasingly relied upon juries’ intuitions about free will to defend against liability claims. There are two sets of intuitions that might come to bear, related to two different understandings of what’s meant by free will.
On a compatibilist understanding of free will (compatible with determinism), tobacco companies would say that no one was forcing smokers to smoke; they were smoking voluntarily on their own recognizance. Their will was free in that their behavior was unconstrained by any external compulsion. They knew the health risks of smoking, but their desire to smoke won out, perhaps against their better judgment. So smokers alone are responsible for continuing to smoke.
But this last claim about being solely responsible is a non-sequitur. On a deterministic, causal understanding of the desire to smoke, the addictive qualities of nicotine obviously play a big role, and tobacco companies knew full well they were marketing a very addictive product. So the causal story clearly shows that tobacco companies share responsibility for the inability of smokers to quit, and therefore for the high rates of cancer among smokers. So a compatibilist free will defense doesn’t get tobacco companies off the hook.
On an incompatibilist, contra-causal understanding of free will, tobacco companies might be appealing to people’s intuitions that no matter how addictive or pleasurable cigarettes are, a smoker could quit, if only he chose to. Everyone, ultimately, has a power of choice that transcends causal influences, that decides which influences to give in to, and which to rise above. If jurors have this picture of human agency in mind, then indeed they might conclude that tobacco companies bear no responsibility for the health costs of smoking.
This points to the importance of debunking the idea of contra-causal freedom, since left intact, it effectively insulates the purveyors of addictive products from taking any responsibility for the harmful consequences of addiction. If you’re a tobacco company executive, you’re probably smiling and saying: ain’t supernatural free will a wonderful thing? But as naturalism about human agency takes hold, it will become more difficult to hide behind the free will defense.