PROF. JOHN BANZHAF'S BACKGROUND IN
EXCERPT FROM MOTION SEEKING LEAVE
TO FILE A BRIEF AMICUS CURIAE
I. MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE
John F. Banzhaf III, Executive
Director of Action on Smoking and Health (ASH) respectfully files this
motion for leave to file a brief amicus curiae, together with the
attached Brief Amicus Curiae, all in the strongest possible support for
the proposed settlement.
This motion for leave to file a
brief amicus curiae will first provide the court with basic
biographical information about the Movant, especially with regard to
many other public interest areas of law in which he has been active and
served without compensation. It will then provide more detail
about his 30 years of experience and contribution to the war on smoking
generally, and then to the novel aspect which he and his organization
originated: the battle to protect the rights of nonsmokers, especially
A. BASIC BIOGRAPHICAL BACKGROUND — NOT RELATED TO SMOKING
John F. Banzhaf III received his
B.S.E.E. degree from the Massachusetts Institute of Technology (M.I.T.)
in 1962. He has two U.S. patents, and has authored almost a dozen
technical papers. He received his Juris Doctor degree magna cum
laude from Columbia Law School in 1965 where he was an editor of the
Columbia Law Review.
While still at the law school he
became the first person to demonstrate the viability of using copyright
law to protect computer programs by successfully registering two
copyrights on computer programs he wrote. This in turn also led
to a prize-winning law review article, see Banzhaf, Copyright
Protection for Computer Programs, 64 Colum. L. Rev. 1274 (1964).
Thereafter he successfully asked Congress to amend the copyright law to
deal expressly with data processing, and published one of the first
articles on the legal problems created by computers. Banzhaf,
When a Computer Needs a Lawyer, 71 Dick. L. Rev. 240 (1967).
Also while still in law school,
Prof. Banzhaf developed a new mathematical methodology -- now generally
known as the "Banzhaf index" -- to measure voting power under systems
of weighted voting, and then persuaded New York State's highest court
to adopt it as a requirement for approving so-called weighted voting
reapportionment plans, Iannucci v. Board of Supervisors, 229 N.E. 2d
195 (1967). See generally, Banzhaf, Weighted Voting Doesn't Work:
A Mathematical Analysis, 19 Rutgers L. Rev. 317 (1965).
Subsequently this technique of mathematical analysis was extended, and
applied to the Electoral College (for electing the president),
multi-member districting, and other voting systems. See Banzhaf, 3.312
Votes, A Mathematical Analysis of the Electoral College, 13
Villanova L. Rev. 303 (1968); Banzhaf, Multi-Member Electoral Districts
-- Do They Violate the "One Man, One Vote" Principle?, 75 Yale L. J.
1309 (1966); Banzhaf, One Man, ? Votes: Mathematical Analysis of Voting
Power and Effective Representation, 36 Geo. W. L. Rev. 808
(1968). In the intervening years Prof. Banzhaf has also used his
background and abilities to assist in the analysis of other legal
problems, including discrimination.
In short, Prof. Banzhaf's
educational background and experience provides him with special
insights into problems of proof involving epidemiological matters;
e.g., the problems of causation in situations involving
secondhand tobacco smoke,
For more than 25 years Banzhaf
has served as a Professor of Law at George Washington University,
teaching courses in torts (including product liability), administrative
law, law and the disabled (a category he opened up to sensitive
nonsmokers), and public interest law. Some of his major
accomplishments in this latter area include:
■ Established legal "standing" for individuals and
organizations to challenge harmful environmental actions which affect
many or all individuals, and expanded the reach of the National
Environmental Policy Act (NEPA) to reach governmental actions only
indirectly affecting the environment. United States v. Students
Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973).
■ Brought legal actions to persuade the Federal
Trade Commission to adopt the new remedy of "corrective advertising,"
under which a manufacturer found guilty of deceptive advertising may be
required to confess his deception to the public in future ads, and to
persuade the agency to provide funding for public interest
participation. See Campbell Soup Co., 77 F.T.C. 664 (1970);
Firestone Tire & Rubber Co., 81 F.T.C. 398 (1971).
■ Helped obtain a Special Prosecutor (now called
"Independent Counsel") to investigate former president Richard Nixon
and Attorney General Edwin Meese, and almost obtained one to
investigate "Debategate," Banzhaf v. Smith, 588 F. Supp. 1489 &
1498, rev'd on other grounds, 737 F.2d 1167 (DC Cir. 1984).
■ Initiated the unprecedented law suit in which
citizens, over the objection of the state, successfully sued former
Governor and former Vice President Spiro Agnew to recover the money he
unlawfully received in bribes. Agnew v. State of Maryland, 446 A.2d 425
For many years Prof. Banzhaf has
been listed in "Who's Who," "Who's Who in American Law," and other
biographical publications, and he has lectured and/or been quoted on a
wide variety of legal topics both in the United States and around the
In short, he has been an active
participant in many different areas of public interest law, and his
abilities have been widely recognized.
B. GENERAL BACKGROUND RELATED TO SMOKING
Just after graduating from law
school, John Banzhaf filed a petition with the Federal Communications
Commission (FCC) regarding smoking. As a result, the agency ruled
that all radio and TV stations broadcasting cigarette commercials must
devote a significant amount of time -- free of charge -- to so-called
anti-smoking messages. The ruling made it possible, for the first time,
for such anti-smoking messages to be broadcast on radio and TV, and
resulted in an estimated $200 million dollars worth of broadcast time
for them. He then successfully defended that decision, Banzhaf v.
FCC, 405 F.2d 1082 (D.C. Cir. 1968).
The ruling in turn led several
years later to a total ban on all cigarette commercials, causing
Reader's Digest to profile him as "The Man Behind the Ban on Cigarette
Commercials." When the constitutionality of that law was
challenged, he was asked by the Court to serve as amicus curiae, and in
this capacity was successful in defending the legislation, see Capital
Broadcasting Co. v. Mitchell, 333 F. Supp. 582 (DC 1971), aff'd 405
U.S. 1000 (1972).
In 1967 Prof. Banzhaf founded a
non-profit tax-exempt scientific and educational organization known as
Action on Smoking and Health (ASH). The purpose of ASH -- one
which was unique at the time -- was to use the tremendous but largely
untapped power of legal action against a major social problem:
smoking. As a result, for more than 30 years, ASH under Prof.
Banzhaf has served as the legal-action arm of the antismoking movement:
bringing, assisting in, and encouraging legal actions directed against
the many problems of smoking.
Below is a partial list of some
of the major victories he and ASH have achieved in the war on smoking
generally -- NOTE that this section does NOT include many successful
actions aimed at secondhand tobacco smoke and nonsmokers' rights:
■ 1968: ASH files a complaint with the FTC charging
the Tobacco Institute with ghost writing and deceptively promoting
pro-smoking articles in True and
National Enquirer. FTC upholds complaint, and urges a ban on cigarette
■ 1972: ASH files a petition with the Department of
Justice charging that television ads for "Winchester," a so-called
"little cigar," violates the ban on cigarette advertising. The ads are
eventually discontinued in February 1973.
■ 1974: ASH legal action forces the long-delayed
release of HEW's report on smoking and health.
■ 1975: An ASH petition sparks an investigation by
the National Institutes of Health into the dangers of carbon monoxide
in cigarette smoke.
■ 1975: The FTC, in response to ASH's petition, sues
the six major cigarette manufacturers concerning their billboard ads.
■ 1972 ASH assists a worker to obtain the first
injunction ever issued against smoking in a workplace, Shimp v. New
Jersey Bell Telephone Company, 368 A.2d 408 (1976);
■ 1976: Responding to an ASH petition, the FTC
announces the beginning of a probe into the tobacco industry. The probe
eventually results in the release of secret tobacco industry surveys.
■ 1977: An ASH petition results in strong warnings
about the dangers of smoking while taking birth control pills.
■ 1981: An ASH-inspired lawsuit brought by the FTC
against the six major cigarette manufacturers was settled with the
companies agreeing to increase the size of warning notices on cigarette
■ 1983: ASH petitions the Federal Aviation
Administration (FAA) to require smoke detectors in airplane lavatories.
The rule is eventually adopted in 1985.
■ 1984: ASH helps persuade the National Association
of Insurance Commissioners (NAIC) to call for higher health insurance
premiums for smokers, a move which eventually results in this change by
■ 1989: ASH helps to defeat a "smokers' rights" bill
in Maryland, a bill seen as the first step in a new tobacco industry
strategy to give smokers the right
to sue on the basis of alleged discrimination.
■ 1989: ASH assists Congressman Tom Luken in
documenting how tobacco companies pay producers to feature cigarettes
and smoking in movies.
■ 1994: ASH used legal action to force the U.S. Park
Service to discontinue permitting cigarette promotions in U.S. parks,
see ASH v. Lujan, Civ. Aer. No. 91-0357 JGP (D.D.C. 1991).
Of more recent interest, the Food
and Drug Administration based its decision to regulate cigarettes
primarily upon a new legal principle established in Action on Smoking
and Health v. Harris, 655 F.2d 236 (D.C. Cir. 1980). Moreover,
the tobacco industry's unsuccessful complaint against the FDA in court
charges that ASH's "threats," "pressure," and "a carefully orchestrated
public relations campaign" were behind the agency's action.
Prof. Banzhaf has lectured and
been widely quoted on topics related to smoking. Several months
ago he presented -- at the special request of the 10th World Conference
on Tobacco OR Health in Beijing -- a paper on the topic of litigation
against the tobacco industry. He also presented four other papers
-- a conference record.
Professor Banzhaf was selected to
serve on the so-called Koop-Kessler Committee on Tobacco Policy and
Public Health, and fully participated in their proceedings. He
was especially active on the subcommittee concerned with Environmental
Tobacco Smoke, and helped to fashion the Committee's position on that
issue. In short, for more than 30 years, Prof. Banzhaf and
ASH have been active and successful in the war on smoking, and are thus
very familiar with many of the problems relating to that fight.
C. INVOLVEMENT WITH THE PROBLEMS OF SECONDHAND SMOKE
In 1969 Prof. Banzhaf began what
has now become known as the nonsmokers' rights movement -- especially
as it pertains to airlines -- by petitioning the Civil Aeronautics
Board (CAB) to provide separate no-smoking sections on aircraft.
These efforts and other public pressures persuaded the major airlines
to provide such sections even before the ASH-inspired CAB rule
requiring them went into effect.
Very shortly thereafter ASH
followed up this initial success by obtaining nonsmokers' rights laws
in the states of Arizona and South Dakota. Since that time Prof.
Banzhaf and ASH have continued to lead the fight to protect the rights
of nonsmokers -- especially in airplanes -- as the following list of
principal successes indicates:
■ 1971: Responding to a request from ASH, United
Airlines becomes the first carrier to institute smoking and no-smoking
■ 1971: ASH publishes Tobacco and the Nonsmoker:
Hazards of Smoke in the Air, the first major report on the hazards of
ambient tobacco smoke. The first such report by HEW is issued by the
Surgeon General in January 1972.
■ 1971: Secretary Elliott Richardson of the HEW
accepts ASH's proposals to adopt the first restrictions on smoking in
■ 1972: The US Supreme Court agrees with ASH's brief
and affirms that the law banning cigarette commercials is
■ 1972: Led by ASH Trustee Betty Carnes, Arizona
becomes the first state to pass a comprehensive law protecting
■ 1972: ASH's John Banzhaf defends the Interstate
Commerce Commission's (ICC) rule restricting smoking on buses before
the US District Court. The rule is upheld in January 1974.
■ 1975: An ASH petition sparks an investigation by
the National Institutes of Health into the dangers of carbon monoxide
in cigarette smoke.
■ 1975: ASH reports to the Third World Conference on
Smoking and Health that major antismoking organizations permit smoking
in their own offices and meetings. The body condemns the practice.
■ 1976: With help from ASH, Donna Shimp, an office
worker allergic to smoke, gets an injunction prohibiting smoking in her
■ 1976: Allegheny Airlines agrees to pay an $8,000
penalty and changes its no-smoking policy to settle complaints filed by
ASH with the CAB.
■ 1976: The ICC responds to an ASH petition by
strengthening its rules restricting smoking on trains by banning
smoking entirely in dining cars and designated no-smoking cars.
■ 1977: An ASH request results in a ban on smoking
aboard mobile lounges at Dulles International Airport.
■ 1978: ASH attorneys successfully assist in the
defense of a Dade County, Florida no-smoking statute. The court says
■ 1979: Responding to a petition by ASH, the CAB
requires special segregation for pipe and cigar smokers on planes.
Shortly thereafter, many airlines ban pipe and cigar smoking entirely.
■ 1979: ASH negotiates settlement whereby TWA and
Eastern Airlines are forced to pay large fines and provide more
protection for nonsmokers. ASH complaints at the CAB yield additional
settlements with three more airlines, bringing total fines to over
■ 1980: Both TWA and Pan Am adopt new seating
configurations to provide substantially increased protection for
nonsmoking passengers, an action
triggered by complaints filed by ASH
■ 1981: ASH asks major air carriers to protect
nonsmoking passengers from exposure to tobacco smoke while in airports.
All the major carriers, except Eastern, eventually comply.
■ 1981: The Merit Systems Promotions Board of
the Civil Service and the Dept. of Labor rule, in a proceeding in which
ASH provided legal assistance, that employers must make reasonable
accommodations to persons sensitive to tobacco smoke, see Pletten v.
Department of the Army, U.S. Merit Systems Protection Board Nos. CH0
7528010099, CHO 1520 2901 (1981).
■ 1981: ASH takes the CAB to court to challenge the
new rules which reduce the protection provided for nonsmoking
■ 1983: The US Court of Appeals unanimously rules in
ASH's favor and orders the CAB to reinstate three previously effective
anti-smoking regulations it rescinded in 1981, see ASH v. CAB,
699 F.2d 1209 (D.C. Cir. 1983);
■ 1985: ASH assists the Indian Health Service in
creating a nationwide smokefree environment in their facilities.
■ 1985: ASH holds First World Conference on
Nonsmokers' Rights in Washington, DC.
■ 1986: ASH attorneys assist Florida in successfully
constitutionality of the Florida Clean Indoor Air Act.
■ 1987: ASH joins the American Public Health
Association and the Public Citizen Health Research Group in asking the
Occupational Safety and Health
Administration (OSHA) to ban smoking in common workplaces.
■ 1988: ASH helps defeat a law suit against the
Metropolitan Transit Authority (MTA) in New York for eliminating all
■ 1989: ASH plays a major role in persuading
Congress to ban smoking on domestic airline flights. The ban goes into
effect in 1990.
■ 1990: The ICC, in response to an ASH petition,
votes unanimously to ban smoking on all regular and special routes of
■ 1991: ASH Freedom of Information Act request
forces EPA to release the technical compendium to its ETS report, a
document which includes an estimate that ETS kills more than 50,000
Americans each year.
■ 1992: ASH attorneys provide new information and
documents to the National Institute for Occupational Safety and Health
(NIOSH). In its finalized report NIOSH concluded that ETS meets the
criteria of OSHA for classification as a potential occupational
■ 1993: As a direct result of ASH pressure, several
fast-food restaurant chains either experiment with or completely ban
smoking in their outlets.
■ 1994: As the result of a rule-making proceeding
initiated by ASH, and a law suit against the agency also filed by ASH,
OSHA formally proposes a rule to ban smoking in the workplace.
ASH was also instrumental in obtaining adoption of such a rule in
In short, Prof. Banzhaf and ASH
have been the major leaders in all aspects of the nonsmokers' movement
for more than 25 years, and have worked to develop many of the major
legal theories to protect the rights on nonsmokers. Prof. Banzhaf
has frequently been asked to testify, make speeches, appear in
broadcast news features, and debate on the issue of nonsmokers' rights.