President Bush’s Justice Department is pursuing a $280 billion racketeering case against the tobacco industry that seems set to go to court later this year. A lot of people probably thought the tobacco industry’s litigation troubles had been settled for good a few years ago in settlements with all 50 states. The tobacco companies agreed to pay out $246 billion in that round.But it turns out,according to a dispatch from Washington yesterday by the Associated Press, that the legal system in this country has gone so far off the rails that an industry can pay $246 billion in damages for marketing a legal product — and then still, a few years later, face more litigation, initiated by the federal government, seeking $280 billion.

The AP reports that it is costing the federal government tens of millions of dollars a year to pursue the case. It reports, “the government argues cigarette makers still make public statements that are out of step with prevailing medical views, including denying the dangers of secondhand smoke.” And it reports that the government wants the judge, Gladys Kessler of U.S. District Court in Washington, D.C., “to impose new restrictions, including banning vending machines and forbidding marketing terms such as ‘light’ and ‘low tar,’ labels that government lawyers say give smokers false impressions.”

In a sense, this case brought by the federal government is even more dangerous than that brought by private trial lawyers in class-action lawsuits. The trial lawyers are for the most part just out for money. But the Justice Department here is trying to get a federal judge to impose restrictions that go beyond the laws that Congress is willing to impose. Call it regulation by litigation. And if it succeeds, well, Marlboro Lights may ride off into the sunset.

The idea, moreover, that it constitutes racketeering to make public statements that are out of step with prevailing medical views flies in the face of the First Amendment guarantees of freedom of speech, not to mention scientific innovation. Louis Pasteur was out of step with prevailing medical views, as was Jonas Salk. If the government had earlier attempted and successfully imposed this sort of court-ordered uniformity on medicine-related speech, we’d still be treating illnesses by getting bled by leeches administered by barbers.

If Congress desires to outlaw tobacco, it should go ahead and do so. We doubt there’s the political support for such a move. But for the federal government to keep the industry alive and then treat it as a target for this sort of litigation makes no sense.

Mr. Bush claims to be serious about job creation and economic growth. On September 4, 2003, in Kansas City, Mo., he outlined a “six point plan for the economy.” One of those points was, “We ought to take action on a lawsuit culture that affects the workers in every business, not just the docs. Industry estimates show that litigation is a $200 billion a year burden on the U.S. economy. Obviously when big money goes to trial lawyers, it doesn’t go to workers. So I proposed, and the House has approved, and it’s stuck in the Senate, an idea to help relieve the cost of lawsuits. And that is class action reform. We ought to make it easier to move class action and mass tort lawsuits into the federal courts, so that trial lawyers won’t be able to shop around our country to find a favorable court. And as we are reforming class action, it also makes sense to make sure that when a verdict is handed down, that the money actually goes to the people who have been harmed.”

The president talks a good game about tort reform. He makes it sound like he really understands the way this kind of costly litigation has a detrimental effect on jobs. But if he really wants to do something about it, the place to start is telling his attorney general to shut down this racket.