Federal court tosses out N.Y. smoking-ban lawsuit

freedomforum.org ^ | 04.10.04 | By The Associated Press

[freepatriot32]

NEW YORK — A federal judge has snuffed out a lawsuit seeking to overturn city and state bans on smoking in bars and restaurants, saying the challenge on constitutional grounds was so weak it was "akin to trying to scale Mount Everest with a ball of string."

U.S. District Judge Victor Marrero concluded in a ruling released yesterday that New York state and city legislators were being rational when they used police powers over the health and welfare of the public to enact smoking bans.

Marrero rejected all the constitutional challenges brought by an organization calling itself NYC CLASH — Citizens Lobbying Against Smoker Harassment.

A message left with a lawyer for the group was not immediately returned.

The group argued that the bans violated constitutional rights to freedom of speech, association and assembly, travel and equal protection.

The judge, though, said even with the bans, "smokers remain free to associate and assemble as they please, to smoke or not, whether it be in a bar, a restaurant, a city street or any other place where it is permissible to do so."

He said "mere conduct such as smoking is not generally considered speech" and is not protected by the First Amendment.

He rejected attempts to describe smoking as a form of expression, saying it was not like court cases brought to protect the right to burn a flag or to wear an armband to protest a war.

In their arguments, lawyers for CLASH had argued that smoking was a form of political speech, an act of rebellion against government.

Marrero said he was "not persuaded by the general proposition that a smoker's prevailing motivation for smoking a cigarette, whether it is done in a bar, restaurant or on a city street, is to convey a message with some profound expressive content to those around him."

By contrast, he said, the flag-burner "is driven predominantly by his or her desire to make a statement, to voice an opposition and take a stand on a cause."

The judge said the government is granted greater leeway to restrict expressive conduct than the written or spoken word.

"There is nothing to suggest that the smoking bans are aimed at the suppression of any expressive conduct," Marrero said. "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."

The judge also rejected the group's claim that the laws are discriminatory because they demean and stigmatize smokers.

"The act of smoking is entirely unrelated to any condition of human being. It is simply not on the same elemental plateau as a person's sexual orientation in defining, in existential terms, who the individual is," he wrote.

[freepatriot32]

"The act of smoking is entirely unrelated to any condition of human being. It is simply not on the same elemental plateau as a person's sexual orientation in defining, in existential terms, who the individual is," he wrote.

what in the hell hs this fool been smoking is what i would ldike to know

[swarthyguy]

The fix is in. Bloomberg's prolly leaning on him.

[An.American.Expatriate]

What kind of pansy a** lawyers did these guys hire??? First Amendment rights??, Assembly etc...

This waste of time and money should have never even been considered. The judge was right to throw it out.

I am certain there are better arguments for contesting an outright ban on smoking than reverting to wild interpretation of the Bill of Rights.

[annyokie]

ping!

[BenLurkin]

IMO: we have too many judges who just don't get the whole "liberty" thing.

[motzman]

The judge, though, said even with the bans, "smokers remain free to associate and assemble as they please, to smoke or not, whether it be in a bar, a restaurant, a city street or any other place where it is permissible to do so."

Oh, I'm free to smoke in a bar as long as it's permissable. That makes sense.

[freepatriot32]

ping

[1Old Pro]

I wish a reputable organization would bring some serious suits.

[Protagoras]

Oh, I'm free to smoke in a bar as long as it's permissable. That makes sense.

You can do anything they say you can do, what's the problem? It's called freedom,,,,sort of.

[international american]

"Oh, I'm free to smoke in a bar as long as it's permissable. That makes sense."

The whole suit is about freedom...this judge is on drugs!

[sneakers]

I still don't understand how the government can tell a bar or restaurant owner that they cannot permit smoking in their own PRIVATELY OWNED establishment. Am I missing something here?

[monkeywrench]

Marrero, a 1964 graduate of NYU who was an undersecretary of the Department of Housing and Urban Development under President Carter and U.N. ambassador under President Clinton, fondly recalled his time as program director of New York's Model Cities urban development project in the South Bronx.

"My work in the city was sort of front-line work, dealing firsthand with the problems of the poor community," he said. "Seeing the programs that we implemented, using the monies that were given for the South Bronx, was just fulfilling."

Before being appointed in 1999 by Clinton as a federal judge to the Southern District of New York, Morerro specialized in environmental law, real estate law and land-use law.

[timm22]

I still don't understand how the government can tell a bar or restaurant owner that they cannot permit smoking in their own PRIVATELY OWNED establishment. Am I missing something here?

Most people are under the misguided notion that because a bar or restaurant is open to the public, the public has a right to dictate the uses of that property. Thus we have anti-discrimination laws, smoking bans, etc.

[monkeywrench]

Oops! Got that from here, http://www.nyunews.com/news/campus/6947.html

[Conspiracy Guy]

He's probably smoking that ball of string.

[Centurion2000]

He said "mere conduct such as smoking is not generally considered speech" and is not protected by the First Amendment.

So you can burn a flag but not a cigarette.

We're screwed by black robed tyrants.

[randog]

I still don't understand how the government can tell a bar or restaurant owner that they cannot permit smoking in their own PRIVATELY OWNED establishment. Am I missing something here?

No, but I think the attorneys for the plaintiffs missed your point entirely. Private property rights seem to be an alien concept in the Northeast.

[Dave Burns]

I think we should start selling American flag cigarettes.When asked why your smoking one could just say that they are Flag burning. And its a lot less toxic than burning a polyester flag.

[Conspiracy Guy]

Then we could claim free speech. Good idea. Sell it to a cigarette company.

[Mears]

Smoking is my religion----some religions kill chickens,mine destroys a cigarette,

What's the difference?