Smoking Bans – Are They Going Too Far?

Are smoking bans going too far? Are your constitutional rights being violated? The Wall Street Journal Law Blog’s Appeals Court Rejects Challenge to outdoor Smoking Ban written by Joe Palazzolo reported on a 2011 case filed in Clayton, MO by Arhtur Gallagher.  Mr. Gallagher has been an avid outdoor smoker for many years and felt that his constitutional rights were being violated by the outdoor smoking ban in city parks that had been imposed by Clayton.

On Thursday, the St. Louis-based U.S. Court of Appeals for the Eighth Circuit failed to recognize a right to smoke and held that Clayton had a rational basis to restrict smoking in parks — namely, to preserve and protect the health, safety and welfare of the public. In an opinion issued by Chief Judge William Riley of the Eighth Circuit, the judge cited a report issued by the U.S. Surgeon General which stated: “there is no risk-free level of exposure to secondhand smoke”.  Clayton had relied on this and other studies when passing the outdoor public smoking ban in city parks.

While Mr. Gallagher had argued that the ordinance unfairly targeted smokers, he failed to address other sources of air pollution, such as smoke from barbeques or exhaust from nearby vehicles. He also argued that no member of the public could be harmed by secondhand smoke outdoors, because it dissipates in the air.

As you are wrestling with the constitutional fairness of the recent Eight Circuit Court decision, it’s important to weigh the potential impact that secondary smoke could have on other children and adults who are in the park.  We thought that the YouTube video below will help you evaluate these risks.