GASP Education Center

Tourism Not Hurt by Smoke-Free Laws
Court Finds There is No Right to Smoke
No Right to Smoke - U.S. Court - 2006

A federal judge has tossed out a lawsuit challenging the smoking bans New York City and State enacted last year.

Indeed, he rejected every single argument seeking to establish that there is some constitutional right to smoke.

Specifically, he rejected arguments that the laws interfere with a smoker\'s right to "speak� by smoking; that they unduly burden any rights to association, travel, etc.; arguments that smokers are unfairly discriminated against, etc.

Finally he held there was ample basis for the laws. Excerpts appear below:


The Court ... finds that the Smoking Bans do not infringe upon any recognized First Amendment right regardless of the manner in which the perceived right is framed.

Nothing in the Constitution engrafts upon First Amendment protections any other collateral social interaction, whether eating, drinking, dancing, gambling, fighting, or smoking - the list may be endless. While in some circles and events these social enhancements, by custom or practice, may be associated with and perhaps even augment the enjoyment of protected endeavors, it does not follow that they are indispensable conditions to the exercise of particular constitutional rights.

In fact, First Amendment jurisprudence unequivocally rejects [the] constitutional ... hypothesis.


As the Supreme Court has stated, "we cannot accept the view that an apparently limitless variety of conduct can be labeled \'speech\' whenever the person engaging in the conduct intends thereby to express an idea."

There is nothing to suggest that the Smoking Bans are aimed at the suppression of any expressive conduct. Nor are they aimed at the person as a smoker by reason of his social habit of choice or addiction, as the case may be. Rather, the Smoking Bans are aimed at the act of smoking itself, and only when carried out in certain public places where the state and city legislatures have deemed it to adversely affect other people.

In short, the right of free speech, like the rights of assembly and association, is not inherently accompanied by the unrestricted ability to smoke everywhere.


Because the Court is not persuaded that the Smoking Bans impact smokers\' right to travel in any material way, the Court rejects [Plaintiff\'s] right to travel claim.


[Plaintiff] argues that the enactment of the Smoking Bans "casts smokers as social lepers by, in effect, classifying smokers as second class citizens." ... [A] governmental action that does not implicate a fundamental right or a protected class survives an equal protection challenge if the government articulates some rational basis.


[Plaintiff] argues that the Smoking Bans violate the Privileges and Immunities Clause of the Fourteenth Amendment by impairing the right of smokers to enter into implied contracts with willing bar and restaurant owners to smoke in their establishments.

The Court is not persuaded that there is an implied binding and enforceable agreement to smoke between a bar or restaurant owner and a smoker when the smoker enters an establishment, anymore than there is a binding agreement between these parties committing the smoker to purchase alcohol or food. The Court finds that this claim is wholly without merit


This argument has no merit.

RATIONAL BASIS (Reasons For Bans)

Frieden discussed the justification for considering more restrictive smoking regulations:

Every day, the Health Department registers the deaths of 25 New Yorkers who were killed by tobacco. About one out of every 10 people who die from tobacco die because of other people\'s smoke.

The evidence that secondhand smoke kills is clear and consistent. The evidence comes from studies of the chemicals in second-hand smoke, from animal studies, and from studies analyzing the health of hundreds of thousands of people. There is no scientific doubt about the matter.

Secondhand smoke is an occupational hazard whether you are a waiter or a secretary, a bartender or a banker. African-Americans, Latinos and Latinas, and those with low incomes are twice as likely to have to breathe second-hand smoke on the job.

Owners don\'t have the right to expose workers to the hazardous chemicals in second-hand smoke. The fundamental principle of worker safety is that workers should not have to choose between their health and their jobs. [Emphasis added]