Tobacco companies are relying heavily on the First Amendment in challenging the government’s prosecution of cigarette makers under the federal racketeering statute.

Several big tobacco companies filed briefs at the Supreme Court on Feb. 19, seeking reversal of an appeals court ruling that upheld a finding of guilt under the RICO law (Racketeeering Influenced and Corrupt Organizations Act). The finding was based on a “multi-faceted, sophisticated scheme to defraud” the public about the dangers of smoking.

The companies assert that the First Amendment protects statements made to congressional committees and in press releases that the government pointed to in its prosecution. The district court and the U.S. Court of Appeals for the D.C. Circuit ruled that because the statements were examples of fraudulent commercial speech, they were not protected by the First Amendment.