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.

[cinFLA]

Am I missing something here?

Yes. The bar/restaurant obtains its license to operate from ...

[cinFLA]

Another win for the states-rights side.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

[Modernman]

Yes. The bar/restaurant obtains its license to operate from ...

You'll shortly get set upon by a pack of libertarians who believe that, despite a century of jurisprudence to the contrary, government has no power to regulate what goes on on privately owned property, even if that property is used to operate a business that is open to the public. For them, even a health department that tries to keep rat droppings out of restaurant food is an abuse of government power.

I wonder why smoking bans engender such passion from certain FReepers.

[CSM]

You beat me to it. The funny thing is that the laws they were fighting specifically make it so that it is not permisssable to smoke. Therefore, a smoker is not free to smoke or not. This judge can't possibly have made such a ludicrous claim! Of course, his support of flag burning and homosexuality made it clear what side of freedom he stands for!

[motzman]

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

Some other things I'm free to do, as long as it's permissable:

Drive 150MPH down the NJ Turnpike while pointing a crossbow at cops with an apple on my head

Lie under oath repeatedly

Poop in the sink of a ladies' public restroom

Get into movies free by walking in backwards

Print my own money and scam Nigerians with it

Negotiate peace terms with N. Vietnam in France during wartime (if JF'nK can do it, so can I!)

Drag an ATM down the street with a pick-up truck until it leaks money, then shout "Finders Keepers!"

Light my neighbor's hair on fire, then pee on his head to put out the flames

Use tire chains on my motorcycle in July

Put my elbow in my ear and yell "See, told you so!"

Eat plastic decorative fruit and say "Tastes like Chicken"


This is fun!! I love America!

[CSM]

Do you support a state's right to decide legality of substances? Don't bother to answer, I know your stance already. I just think it is very funny you pull out the state's rights argument in support of elimination of private property, yet you fight it on the WOsD threads!

[CSM]

"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."

Can anyone think of a more fascist statement? The use of police over health of its citizens is Fascism, plain and simple. It is nice to see some anti smoker just come out and admit it!

[cinFLA]

Huh?

[cinFLA]

yet you fight it on the WOsD threads!

I never.

[INSENSITIVE GUY]

The constitution makes NO ALLOWANCE to protect public health!It says to PROMOTE the general welfare and PROMOTE is the operative word.PROMOTE means to inform and/or encourage and that is as far as you are allowed to take it.IT DOES NOT MEAN TO FORCE OR BAN!

[microgood]

"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.

Translation. I am God and do not like smoking, but its OK to be a homo.

[microgood]

Can anyone think of a more fascist statement? The use of police over health of its citizens is Fascism, plain and simple. It is nice to see some anti smoker just come out and admit it!

Thiry more years of this crap and this country won't be worth defending. We will let our enemies have it as long as they promise to kill everyone currently involved in our governments.

[satire]

Not expressive of anything human? Then how would the judge - or anyone - explain the existence of this website, or the hundreds like it:
http://smokingsides.com/docs/glamor.html

[A Jovial Cad]

You're correct, it was pretty silly ground upon which to base the lawsuit. They should have gone upon the grounds of private property rights based in the "takings" clause of the Fifth amendment, IMHO. Or something, anything, more tangible than equating smoking with "free speech." This lawsuit was just asking to get dismissed upon such frivilous grounds.

[xrp]

I wonder why smoking bans engender such passion from certain FReepers.

Do you live in a bubble of purified air?

[supercat]

So you can burn a flag but not a cigarette.

Someone should start selling flag fags.

[Publius6961]

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.

Well... just another confirmation that in today's America anybody can become a judge.
Of course it's appropriate to challenge state and city legislators when the claim over health and welfare is manufactured and contrived to effect a desired result. Validating fraud is a strange way to argue "reason".

[Just another Joe]

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.

Let's say what he really means.
It's coming, you KNOW it's coming.

[Modernman]

I wonder why smoking bans engender such passion from certain FReepers.

Do you live in a bubble of purified air?

See what I mean?

[xrp]

It appears you failed to answer my question in your quest for the destruction of freedom and liberty. Why don't you move to Germany or France where they like telling businesses how to run?