Free Speech

First Amendment Doesn't Protect a Right to Smoke

Just in case you had any doubts about that.

|The Volokh Conspiracy |

So holds Good v. Dep't of Housing & Urban Dev., rejecting a challenge to a no-smoking policy in a HUD-funded housing.

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  1. Of course, if the smoking is to produce smoke signals then it’s all up in the air.

    1. OK, that’s a good one.

  2. If not to express adherence to The Marlboro Man ideology without words, then there’s no other defense.

  3. Actually, that’s really nothing new.

    In my more than forty years as founder and then as Executive Director and Chief Counsel of Action on Smoking and Health (ASH), smoker advocates challenged policies restricting and then banning smoking we first obtained on airplanes on a wide variety of different constitutional grounds, but they always lost.

    Courts both here and abroad have held that smoking can be banned in prisons, in medical institutions where the patients are not physically able to go outside to have a smoke, on airplanes where passengers – for long periods of time – likewise cannot step outside and smoke, despite the freedom to travel protected by the constitution.

    Court have held that smoking can even be banned in private apartments and condos if even small amounts of smoke drift into nearby apartments, and in private homes to protect children residing or even just visiting there. Indeed, some parents have even lost custody of their children for smoking in their presence in private dwellings.

    Courts have also held that employers – including governmental bodies – are free to refuse to hire smokers, especially since a court found, in a case in which I participated, that a single smoking employee can cost his employer (and, indirectly, his co-workers) some $12,000.00 a year in extra costs.

    There is no constitutional or other legal right to smoke. Simply because many people do it and derive pleasure and satisfaction from do it doesn’t mean that there is a legal or other right to do it.

    If that’s all it took to create a right, there might have to be masturbation and no-masturbation sections in restaurants and workplaces.

    To view my discussion of this analogy on Comedy Central with Jon Stewart and Stephen Colbert, see:
    Klassic Kolbert – Civil Lights https://on.cc.com/2QbKmBR

    1. “If that’s all it took to create a right, there might have to be masturbation and no-masturbation sections in restaurants and workplaces.”

      Effing hilarious…

  4. “Here, Mr. Good fails to explain how smoking indoors in public housing units constitutes expressive conduct. ”

    Or, not in this context. One can imagine better arguments, like if it was part of a movie or demonstration & done in another location.

  5. Pretty sure I saw the right right there next to buggery and baby-killing — perhaps you should check again?

  6. Just ban them and let the ‘Black Market’ fulfill the desires of people instead. Lose the revenue and add costs to Gov’t. instead. Smoking saves Billions in Social Security payments too. So, add those costs back in too. The Government will go broke trying to be moralistic. Oh wait, our corruptocrats in Washington have us broke. $1.4 Trillion Budget? Show your math please.

  7. The new Federal ‘Budget’ comes out to spending $4294.48 per person. A true paragon of efficiency! This during good economic times. Are we really baking in the Stimulus of 2009 EVERY year since? Where’s the money going?

  8. When I first saw this case, I wondered, “Why don’t people make an ADA argument?” [Smokers are drug addicts, after all.] So, I was glad that the plaintiff did make this argument and the court did address it.

    “In any event, both smoking and `nicotine addi[c]tion’ are readily remediable, either by quitting smoking outright through an act of willpower (albeit easier for some than others), or by the use of such items as nicotine patches or nicotine chewing gum.”) (“If the smokers’ nicotine addiction is thus remediable, neither such addiction nor smoking itself qualifies as a disability within the coverage of the ADA, under well-settled Supreme Court precedent.”).”

    This I found unpersuasive. There are lots of deaf people whose hearing loss is of a type and degree that hearing aids can restore them to the “normal” range. (ie, make them non-disabled while using those hearing aids) But I have never seen a case where a deaf person’s disability was challenged under the theory, “Hey, if you started wearing hearing aids, the ADA (Unruh Act, here in California, etc) would no longer protect you.”

    So, I am not sure if I agree with this court’s reasoning. Maybe it’s based on, “Nicotine patches are relatively inexpensive, while hearing aids are thousands of dollars. Anyone who can afford cigarettes can afford the patch.” But that court certainly did not articulate such a distinction.

    As someone who lives in an apartment–and someone who has to leave my balcony and shut all the windows on that side of my unit when the wind shifts and blows in cigarette smoke from my neighbors–I love the result. But I do have sympathy and empathy for these poor pathetic drug addicts (ie, smokers), and I imagine it would sort of suck to have to leave one’s unit, walk outside, walk 26+ feet away from the building, just to satisfy their drug addiction cravings.

  9. Professor, is there a First Amendment problem where a man gets 16 years in prison for burning a pride flag? He also stole the flag.

    https://thehill.com/homenews/state-watch/475333-iowa-man-sentenced-to-16-years-for-hate-crime-after-setting-pride-flag

    1. I don’t think so. Also, didn’t the long sentence stems in large part from his being a repeat felon?

      1. I should add that it’s only the theft and burning of private property that makes any punishment permissible, I think (and the targeting of the church for the theft and burning because of the church’s association with gays and lesbians that justifies the hate crime sentence enhancement, see Wisconsin v. Mitchell (1993)). If he were prosecuted just for burning his own rainbow flag, that would be unconstitutional (unless there were a generally applied statute banning public burning because of fire risk).

        1. (unless there were a generally applied statute banning public burning because of fire risk).

          So the govt could just ban this form of symbolic protest wholesale so long as it was applied neutrally to all flags/ideologies?

        2. Thanks. I assume repeat felon status justifies a long sentence for theft, not sure about 16 years though. You can point to much worse crimes getting less, but those may be outliers.

          Overall, the Des Moines Register report gives a very strong impression that this punishment was given at least in part based on expressive conduct with a disapproved viewpoint. “Iowa man sentenced to 16 years for setting LGBTQ flag on fire.” Even Wisconsin v Mitchell surely involves added punishment based on a viewpoint of the defendant (albeit, a heinous viewpoint of racism and racial violence). If we accept that criminal sentences can be increased based on the motivating viewpoint behind otherwise criminal conduct in some circumstances, surely there must be some limiting principles on that. The Court’s conclusion that “The prospect of a citizen suppressing his bigoted beliefs for fear that evidence of those beliefs will be introduced against him at trial . . . is too speculative” doesn’t strike me as very persuasive at all, but I am sure it was more plausible in 1993 than it is now. Maybe that’s in large part because the range of things that get labeled “bigoted” has changed quite a bit in that time.

          I’m not sure what the limiting principles would be, but it seems the relevant elements are (1) the severity of the crime (is it violent? or some vague federal computer crime, paper crime, or process crime?), (2) the magnitude of the increase in punishment, and (3) the nature of the viewpoint in question. Is there a compelling justification for the government to disapprove and punish this viewpoint, in the context of motivation for crimes? As the Court put it, “bias-inspired conduct . . . is thought to inflict greater individual and societal harm. For example, according to the State and its amici, bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest.”

  10. First Amendment Doesn’t Protect a Right to Smoke

    The US federal government is supposed to be one of enumerated powers. What part of the US Constitution gives the federal government the power to regulate smoking?

    One really has to wonder about how legal experts like Volokh go through their professional lives. Did they start out that way before they entered law school? Was all the sense driven out of them in law school? Do they know what nonsense they are writing but do it anyway because it serves their interest?

    1. 1. As gormadoc notes below, the federal government generally has the power to make sure that its subsidies are used in ways it likes and not in ways it doesn’t (subject to the constraints of the Bill of Rights). And we’re talking here about conditions on federal housing subsidies.

      2. Most legal experts, like most lawyers, mostly talk about how our legal system actually understands the law. Perhaps, properly interpreted, the federal government oughtn’t have the power to do this or that; but if the courts have generally concluded that it does have that power, we usually avoid continuing to tilt at that particular windmill.

      That’s not always so: Some legal experts spend some part of their time talking about how the law should be changed in light of text and history, even if it seems extremely unlikely that such changes will happen. But most of us spend either all or most of our time taking the precedents for granted, and figuring out what can be done in light of those precedents.

      1. Some legal experts spend some part of their time talking about how the law should be changed in light of text and history, even if it seems extremely unlikely that such changes will happen. But most of us spend either all or most of our time taking the precedents for granted, and figuring out what can be done in light of those precedents.

        That’s the difference between epistemic rationality & instrumental rationality.

        1. Ouch, I screwed up the closing blockquote tag. Sorry about that.

  11. The USFG has the power to choose how it uses its funds so long as the use doesn’t violate the Constitution. HUD couldn’t require bans on “political speech” but they can easily ban unprotected practices that have negative effects on policy implemention, like smoking, which has negative effects on value and housing quality. We’re not talking about a federal smoking ban in restaurants.

    And it should be obvious that the 1A doesn’t protect smoking in most circumstances; it isn’t often expressive or a religious practice. You’re welcome to argue that the decision was wrong, but you’d have to be pretty stupid to believe it. The 10A claim was better, but still stupid: states and cities have more ability to regulate smoking and they are partners in the HUD program.

  12. There goes my “just blowing smoke” defense, I guess.

    1. If a Rasta lived in HUD housing, would he or she have the right to smoke weed in their apartment as part of religious observance, which is protected? How about burning insence, which produces many of the same toxins as tobacco smoke, but also can be used for religious purposes?

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