Is There a Constitutional Right to Smoke in the Park?

Last week a federal appeals court rejected a constitutional challenge to an outdoor smoking ban in Clayton, Missouri, ruling that inhaling tobacco combustion products in public parks does not qualify as a "fundamental right." I tend to agree, although I am sympathetic to smokers facing unjustified restrictions on their freedom (the subject of my first book).

Arthur Gallagher, a Clayton resident who "regularly uses the City’s parks and 'ecstatically enjoys smoking tobacco products while doing so,'" argued that the ban violates the 14th Amendment because it is not "narrowly tailored to serve a compelling state interest," as required for restrictions on fundamental rights under substantive due process analysis. The U.S. Court of Appeals for the 8th Circuit concluded that "Gallagher has failed adequately to demonstrate how the Ordinance would so threaten liberty or justice as to trigger strict scrutiny under the Due Process Clause of the Fourteenth Amendment." Although the Supreme Court has recognized a right to "bodily integrity" and a right to engage in certain "personal activities and decisions," the 8th Circuit said, "the alleged right to smoke in public is not so deeply rooted in the Nation's history and tradition, and it is not implicit in the concept of ordered liberty."

The court also did not buy Gallagher's alternative argument that the ordinance should be subject to "intermediate scrutiny" because “smokers are a quasi-suspect class due to discrimination and second class categorization." That left "rational basis" review, a standard so deferential that it virtually guarantees a challenged law will be upheld. Gallagher argued that the risk to bystanders from secondhand smoke in the open air is negligible and therefore cannot be considered a rational basis for Clayton's ordinance, which applies to "any property or premises owned or leased for use by the City of Clayton, including buildings, grounds, parks, [and] playgrounds." The city's Board of Alderman justified the ban on outdoor smoking by citing, among other things, Surgeon General Richard Carmona's 2006 declaration that “there is no risk-free level of exposure to secondhand smoke"—which, as I pointed out at the time, is a more akin to a religious belief than a scientific statement. But that does not matter, according to the 8th Circuit, because the city's aldermen did not need any evidence to support their belief that outdoor tobacco smoke poses a hazard:

Although the Board could have engaged in "rational speculation unsupported by evidence or empirical data" that outdoor secondhand smoke exposure harms health, the Board went further and relied on reports that "could...reasonably be conceived to be true." We need not determine whether outdoor secondhand smoke exposure  actually causes  harm. Because the  City reasonably could believe this to be true, the Ordinance survives rational basis review.

That gives you a sense of how demanding the "rational basis" test is.

I agree with Gallagher that the city's ordinance goes too far, especially given the dearth of evidence that his smoking in the park would endanger anyone's health. But I find government-imposed restrictions on smoking in privately owned indoor spaces such as bars and restaurants much more troubling than rules against smoking in publicly owned outdoor spaces. In the former case, the government is telling people how to use their own property, while in the latter case it is managing public property on behalf of taxpayers, who include smokers as well as nonsmokers. In this case the city did not balance the interests of those two groups very well (or at all, really), but that does not mean the Constitution requires it to try again.

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  • Ptah-Hotep||

    The city's Board of Alderman justified the ban on outdoor smoking by citing, among other things, Surgeon General Richard Carmona's 2006 declaration that “there is no risk-free level of exposure to secondhand smoke"

    They could just as easily banned anyone from going into the park with that rational.

  • Zeb||

    Indeed, there is no risk free visit to the park. You might get hit by a car on the way. You might twist your ankle. Someon e might come in d start shooting people. A meteor could fall on you.

    As a matter of fact, there is no risk free anything. So they should just ban living.

  • sarcasmic||

    Someon e might come in d start shooting people.

    Nu-uh! Teh park is a gun free zone! See the sign? That means that someone intent on murder will see the sign and say "Aw shucks! I can't risk violating a gun-free zone to commit murder! Damn it! Better go shoot up a police station."

  • ||

    "I'm a friend of Sarah Connor. I heard she's here. May I see her please?"

  • Brett L||

    And yet never in recorded history has a person died on their first exposure to second-hand smoke.

  • Jack-it||

    No mention of Twinkies in the article.
    I understand, but Hostess announced last night is liquidating because of union demands.
    Stoner nation is not an insignificant part of your readersship.
    Why hasn't there been an article posted already to explain the devasting ramifications to stoners? Especially in light of two states legalizing buds. IS THERE a connection?
    I think so, but I will leave to more insightful wordsmiths to explain it.

  • Belgian||

    What manner of moron is this?

  • Tonio||

    Not moron; idiot!

  • Randian||

    I'm not your retard, imbecile!

  • JD the elder||

    So you're only allowed to exercise fundamental rights in the park? Are those the only ones that are protected? I notice that the Supreme Court has recognized the right to procreation as a fundamental right, so I guess you're allowed to do that in the park...

  • nicole just can't even!||

    I'm getting my next abortion in a public park! Thanks for the idea.

  • Tonio||

    Young Lady! You come here this instant and clean off my monitor. Yes, right now, Missy.

  • ¿Ex Nihilo?||

    The Constitution is a dead letter. Has been for a long time.

  • Delroy||

    Alt text suggestion:

    Hipster douche, or as I like to call them: dipsters.

  • Ayn Random Variation||

    There should be a constitutional right to thrash hipster douches. I assume this pic was taken in Brooklyn?

  • R C Dean||

    the alleged right to smoke in public is not so deeply rooted in the Nation’s history and tradition,

    Oh, really? It was entirely unquestioned for about the first 200 years, and all.

    and it is not implicit in the concept of ordered liberty

    What is not implicit about doing what you want as long as it doesn't interfere with other people's rights?

  • Belgian||

    ordered liberty

    That's one of those modifiers that completely changes the meaning of the original word to whatever the speaker wants it to mean at the time. Like "social justice" or "positive rights."

  • Sevo||

    "and it is not implicit in the concept of ordered liberty"

    Neither is having a hot dog at the ball park.
    These guys don't seem to understand rights are not granted by some petty politician.

  • sarcasmic||

    But smoking interferes with the right to breathe smoke-free air.

    That and didn't you know that one whiff of tobacco can cause heart attack or stroke? Just one whiff. There was a consensus and stuff. Can't argue with consensus.

  • Shit-Eating Aardvark||

    Plus millions of people smoke and yet no one has made the connection between that and global warming.

  • R C Dean||

    But smoking interferes with the right to breathe smoke-free air.

    I know, I know, that's the comeback.

    Which leads me to ask: is the alleged right to breathe smoke-free air rooted in the Nation’s history and tradition/ Is it implicit in the concept of ordered liberty?

  • sarcasmic||

    Dude, it's a matter of public health.

    If you oppose anything that is for public health, then you want people to be unhealthy.

    Why do you want people to be unhealthy?

  • R C Dean||

    Why, because I hate people, that's why. Whiny, grabby little bitches, most of them, as far as I can tell. Why should I care if they are healthy or not?

  • sarcasmic||

    Why should I care if they are healthy or not?

    Because not doing so makes you a bad person.
    Now that you have been identified as a bad person, and since ideas are to be judged by the source instead of on merit, everything you say will now be ignored.

  • MJGreen||

    Because the City reasonably could believe this to be true, the Ordinance survives rational basis review.

    So... is this basically saying, "The City thought it was acting constitutionally, and so they did not violate constitutional protections"?

  • deified||

    "democratic right to be wrong"

    The majority is going to make mistakes sometimes. Some will be outlandish.

    But when do unelected judges (a minority!) have a right to overrule them?

    That's the question at hand.

    Those unelected judges are scared shitless that if they overrule too many democratically-enacted laws that there jobs could be eliminated.

    Bottom line: whatever the majority wants, goes.

    I don't like it but that's how it is.

  • np||

    We need not determine whether outdoor secondhand smoke exposure actually causes harm. Because the City reasonably could believe this to be true, the Ordinance survives rational basis review.

    In other words, the rationale for being rational is it's true because I say so.

  • sarcasmic||

    It's the "fuck you, that's why" clause of governance.

  • Shit-Eating Aardvark||

    Just prettied up a bit.

  • nicole just can't even!||

    Rational basis review is probably one of the worst things about our government.

  • sarcasmic||

    Judges are supposed to, well, judge.
    Instead they give everything a nice rubber stamp.

  • nicole just can't even!||

    Thank you, FDR!

  • deified||

    I heard you'll be performing abortions in the public park?

    So, yeah, as a male, I had a fetus implanted into my butt.

    If you could just whack me on my bottom with a sledgehammer that would be superb. See you at 3!

  • Adam330||

    She should have argued that by passing this law, the city has altered the political process and now she has to spend all kinds of money to get it overturned, so it violates equal protection. Worked in the 6th Circuit.

  • Fatty Bolger||

    Wonder how long it will be before somebody tries to use the 6th Circuit's own ruling to knock down a law the court favors. They'll probably just say "that's different" and ignore their own precedent.

  • free2booze||

    This should only be an issue in public parks, right? In the case of private parks, it should be up to the property owner to decide whether or not smoking should be permitted. Based on the owners decision, people can decide for themselves if they want to visit that park.

    It seems to me that problems like this only arise because we have to much public space, and not enough private space.

  • Ayn Random Variation||

    Haha, private parks? Like when the owners of that private park Zuccotti Park were able to determine what could be done there?

    Signs Signs everywhere there's signs..

  • R C Dean||

    You don't give up your right to breathe smoke-free air just because you're on someone else's property, do you?

    I thought not. That right, of course, has already been shown to trump other rights, so this is a no-brainer.

  • Ayn Random Variation||

  • free2booze||

    Looking at the picture, it that a road in the background? Good thing the exhaust from all of those cars have no effect on the air quality in the park.

  • Ayn Random Variation||

    If you're not familiar with NYC, a "park" is basically any patch of land between 2 streets where you can squeeze in a bench. Grass and/or trees are not required.
    In some instances, there are parks in between the dividers of the same street.
    So your comment really does convey the irony/stupidity of these no-smoking-in-parks laws.

  • Invisible Finger||

    Once all the smokers are placed in the camps, they'll come for the drivers next. As usual there will be exceptions made.

  • Bingo||

    In related news of the war on smokers, Arizona State has decided to become tobacco-free, meaning no smoking outside now. It's for the students' own good, you see?

    Look at how fucking ridiculous the map of the prohibited area is (pdf warning).

  • Bingo||

    Seriously, I'm fucking raging.


    can I use tobacco in my own vehicle within the tobacco-free zones?

    No, a vehicle parked in an ASU lot or on a street within the borders of the ASU campus is still within the boundaries of the tobacco-free zone, and must be moved off-campus if you want to use tobacco products within the vehicle.
  • sarcasmic||

    Maybe it's time to quit. Something like 75% of the cost of tobacco products is taxes. Fuck them. Stop paying the taxes. Buy something else.

  • Bingo||

    No, fuck you. I grab a cigarette a few times a month, I'm barely a smoker. Shit like this pisses me off. They banned chewing tobacco for fucks sake. It's not about saving people from second-hand smoke, this is 100% about controlling behavior.

  • sarcasmic||

    Google the serenity prayer. Even if you're an atheist (like myself) it's still some wise words.

  • Bingo||

    God, grant me the serenity to accept the things I cannot change,
    The courage to change the things I can,
    And the wisdom to know the difference.


    What sort of pussy shit is this? No I'm not going to grab my ankles and accept it when stupid rules impact my life.

    Do you even libertarian?

  • sarcasmic||

    There is nothing productive about worrying over things that are out of your control.

  • free2booze||

    How the hell do they enforce the ban on chewing tobacco?

  • Pagan Priestess||

    I'm growing my own. Tricky but not illegal (yet).

  • nicole just can't even!||

    sarc, if you quit, they win. You're a libertarian; are you trying to tell us you're not a rebel at heart?

    Just make sure to buy all your tobacco products in the lowest-tax jurisdiction within reasonable distance or, you know, through other means.

    Of course, I'd leave ASU in a second if I were a student there.

  • Bingo||

    I'd leave ASU in a second even if they didn't put in the smoking ban, but the sunk cost fallacy unfortunately is not a fallacy in the academic world.

  • sarcasmic||

    I quit for a variety of reasons. One of which was that I try to avoid taxes whenever possible. Another was that I got tired of, every morning, doubling over and coughing until I puked. The latter probably outweighed the former.

  • Brett L||

    They have made their law, now let them enforce it.

  • Trespassers W||

    Here's a suggestion: ignore the law and keep an eye out for the police.

  • Trespassers W||

    I mean, hypothetically speaking. I wouldn't want to incite anyone to disobey the law, if that's illegal.

  • ||

    Cops hell, I had a busy-body blue nose old woman call the cops on me because as she was driving by in the parking lot at the post office she saw me smoking in my car. She screeched to a stop, grabber her cell and glared at me the whole time she 'ratted me out'.

    What I was doing was not illegal and the cops told her to go fuck herself, as did I. But you see my point.

  • ||

    My wife wanted to quit smoking, so she got an e-ciggarette. No smoke, no tar, just water vapor. She started smoking it at work. Some co-workers saw her using it and wanted to try it themselves. After a couple of months a dozen people had switched to e-ciggarettes. That was 2 years ago and all but two of those have quit entirely.

    In the mean time the smoke banners struck. No more tobacco smoking on the grounds of the hospital...anywhere. Then the smoke banners showed their true colors. After several people were observed smoking e-ciggarettes those were banned also. It doesnt matter that they are harmless or that they help people quit. Smoke banning isnt about health, it is about punishment and control.

    Fucking sadistic puritans.

  • R C Dean||

    After several people were observed smoking e-ciggarettes those were banned also.

    Our HR nannies tried to do this at our hospital. They have failed so far, due to their inability to answer penetrating questions like "Why?"

  • sarcasmic||

    They don't give authority's standard "Fuck you, that's why" response? I'm shocked.

  • R C Dean||

    No, not to me, they don't. Can't imagine why having the chief legal officer of the system asking you "Why?" doesn't evoke a "Fuck you", but there you go, apparently it doesn't.

  • ¿Ex Nihilo?||

    chief legal officer

    People react differently to you when you have "Chief" in your title.

  • Ayn Random Variation||

    Ever since direct deposit and on line job posting became the norm, HR has become just a bunch of lawyer types protecting the bosses and firm from lawsuits.
    And since we like to sue everybody, eventually there will be a class action suit vs e-cig manufacturers.
    So that's the why. It's coming up with a viable lie to tell the employees that is the hold-up.
    I would just blame some video.

  • Scarcity||

    Nah, the FDA will ban them first. It's a race!

  • Lord Humungus||

    I'm an on-off-on smoker. I can buy a pack, light a few ciggies up (preferably with a beer) and enjoy myself.

    I can then crush the pack, throw it out, and not even think about smoking for a few weeks. But once you add alcohol, it's my tobacco trigger.

  • Lord Humungus||

    well, larger quantities of alcohol - not just one beer.

  • Russell||

    The judge who ruled: "the alleged right to smoke in public is not so deeply rooted in the Nation's history and tradition must be daft or suffering from nicotine deprivation.

    In 1776 , General George Washington wrote to the Continental Congress: "If you cannot send Money, send Tobacco"

  • Pagan Priestess||

    Well in many parts of colonial America, tobacco WAS money, so there's that.

  • joebanana||

    So, okay, where in the constitution does it grant the power to restrict ones legal activities in a public place? How about a ban on fat people eating in public? Or people openly urinating in public restrooms? Or cops killing unarmed citizens? How about banning stupid legislators?

  • James Anderson Merritt||

    A few years ago, my County Supervisors voted to ban not just smoking, but ALL tobacco consumption within County Parks. I wrote in objection to my Supervisor prior to the vote. I said that the 2nd-hand smoke argument against outdoor smoking was flimsy, especially as people in parks could generally move out of the way (or the smoker could show courtesy and move, as well), unlike the situation of waiting in lines for restaurants, movies, etc., which motivated my city's ban on smoking outdoors in such lines. Beyond that, "smokeless tobacco" doesn't cause 2nd-hand smoke problems at all, so I wondered why such products were included in the proposed County Parks ban. I advised the Supervisor to err on the side of personal freedom. He politely wrote me back, proposing that we "agree to disagree" on this matter. He said that his support for the proposal -- which passed soon thereafter -- was primarily based on the impact on public health costs caused by tobacco of all kinds. In California, a large proportion of such costs apparently fall on the Counties.

    (continued in reply msg)

  • James Anderson Merritt||

    (continued from above msg)

    At bottom, then, it seemed as if the issue of using tobacco in parks were a budgetary one for my Supervisor. I toyed for a while with the idea of replying to him that, if the County weren't taking financial responsibility for promoting public health, he might not feel the need to control people's voluntary behavior in order to balance the County budget. But in the end, I suspected that my continued objections would lead to naught; I had better things to do with my time than tilt at this particular windmill, however fundamental to liberty I felt the underlying principle might be. Since then, I have voted against this particular Supervisor at every opportunity and urged others to do the same, but he remains in office.

    More recently, the Supervisors enacted a ban on using plastic bags for purchases at supermarkets and other stores; to obtain even the traditional paper bags, one must pay a $0.10 fee per bag, and of course there are signs everywhere, in the unincorporated areas of the County, reminding everyone to bring their own "reusable" bags. Some stores profit from selling such bags, as well. Of course, "our boy" was in the vanguard of support for that proposal, too.

    (continued next msg)

  • James Anderson Merritt||

    (continued from above msg)

    Like our current governor and myself, this Supervisor was born in California. I am beginning to rethink my long-held belief that immigrants from north and east have been primarily responsible for the deterioration of California during my lifetime. Even if I am not wrong about this, it is dismayingly clear that there have been more native sons and daughters leading the charge than I used to think. Why? Are they stupid, or just consumed by lust for (usually petty) power and control? Is it better to rule others in the developing hell that California is now than merely rule oneself in the comparative heaven that the State used to be?

    PS: Death to the posting length limit

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