No Right to Smoke, Even Outdoors – Rules US Court of Appeals

Nov. 9, 2012 - PRLog -- WASHINGTON, D.C. (November 9, 2012):  There's no right to smoke, even in the great outdoors, according to a ruling by the U.S. Court of Appeals for the Eighth Circuit Thursday, and there's no right to smoke anywhere, even in one's own home, says public interest law professor John Banzhaf. http://banzhaf.net/smokingoutdoors.pdf

         Banzhaf started the nonsmokers' rights movement by getting smoking restricted and then banned on airlines and ultimately in many other public places, and has been a major factor in obtaining bans on smoking in private residences.

        Smoker Arthur Gallagher had challenged a ban on smoking in city parks in Clayton, MO, arguing that he had a legal right to smoke.  But the nation's second highest court rejected that argument, holding that smoking could be completely banned, even outdoors, and even in the absence of any proof that it caused physical or medical harm or risk to nearby nonsmokers.

        Actually, there are studies, including one at the University of Maryland, which substantiate the serious risks posed by smoking outdoors, says Banzhaf.

        Moreover, the U.S. Surgeon General and others have warned that there is no safe level of exposure to secondhand tobacco smoke, and that even minute amounts can cause cancer in nonsmokers, or raise their risk of a heart attack to that of a smoke.

        But such smoking bans are nothing new, says Banzhaf, who helped persuade the city of Calabasas, CA, to start a new trend by banning smoking virtually everywhere outdoors – including on sidewalks and even private parking lots –  and restrict smoking to a few so-called "smoker outposts," including some near trash dumps. There are hundreds of other bans on outdoor smoking in many other areas.

        Actually, the law has gone much further, notes Banzhaf, pointing out that he has helped obtain hundreds of court orders, in the great majority of states, to ban smoking even in private homes. He also helped persuade about a dozen states to ban smoking in private homes when foster children are present.

        More recently, he helped develop legal theories under which courts are increasingly siding with nonsmoking tenants and residents, and banning smoking in adjoining dwellings when it drifts or recirculates into a nonsmoker's residence.  Banzhaf notes that, in addition to many legal precedents in the U.S., it has also been held that banning smoking in a dwelling, even one which a person cannot leave, is not a violation of the E.U. Convention on Human Rights.  Many universities also ban smoking in dormitories, even if students are required to live there.

        Several courts have also held that both private businesses and governmental units may not only charge employees who smoke more for their health insurance, but can actually follow the lead of W.H.O. and refuse to hire smokers entirely.  "There is no legal or moral right to smoke," says Banzhaf, even in one's own home.

        "If a man's home is his castle, he can still be prohibited from smoking in it if the secondhand smoke affects neighbors or even his own children.”

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf