Push to Ban Smoking Goes Too Far

[This was published June 9, 2007 in the Springfield, IL State Journal-Register]

Both the Springfield, IL anti-smoking ordinance and the Smoke Free Illinois Act have a well-intentioned public purpose - to safeguard public health. But when the Springfield City Council and the Illinois General Assembly included private clubs in their prohibitions, they overreached.

Our fundamental law, the United States Constitution, enumerates many of our individual rights that government is obligated to protect, such as the freedom of speech and the right to a fair trial, but there are also individual rights which, although not specifically mentioned in the Constitution, have been judged to be constitutionally protected by the ultimate interpreter of the Constitution - the United States Supreme Court.

In 1964, the court held that although freedom of association is not expressly mentioned in the Constitution, it is a peripheral First Amendment right because "its existence is necessary in making the express guarantees fully meaningful." And delivering the opinion of the court in a 1965 case Justice William Douglas wrote, " ... the First Amendment has a penumbra where privacy is protected from governmental intrusion."

Of course, this does not mean that all private behavior is constitutionally protected any more than it means that all speech is protected - a person does not have a constitutional right to yell "Fire!" in a crowded theater. But it does mean that the government must have a well-defined interest that passes a standard of strict scrutiny when regulating constitutionally protected private behavior like the freedom of association.

Both city and state actions demonstrate that their lawmakers are completely oblivious to the difference between "public" and "private."

Smoke Free Illinois "prohibits smoking in public places, places of employment, and governmental vehicles ..." In order to make their intentions clear, legislators often include definitions of key words within the text of the law itself. In the Smoke Free Illinois Act a "public place" is defined as "that portion of any building or vehicle used by and open to the public ..." And to further enlighten their constituents, legislators have provided an "includes, but not limited" list of no less than 50 examples of public places ranging from libraries, museums and concert halls to retail stores, restaurants and bars.

The Springfield City Council provided the same kind of "public place" examples in its anti-smoking ordinance. Unfortunately, there is one entry in both lists, which according to the law writers' own definitions does not belong - private clubs. Illinois legislators define "private club" to mean, "a not-for-profit association ... used exclusively for club purposes at all times" while, at the same time, they declare that "public places" are places "used by and open to the public."

Whether or not a private club chooses to open its doors to the public is the choice of its members. That choice is what makes it private.

The Springfield daily paper, the State Journal-Register, recently editorialized that private clubs may not opt out of fire safety codes, but neither can private homes. Does this make them public places as well?

Suppose a bunch of guys belong to a duck-hunting club located on several acres of property on which a clubhouse rests, which can be found only if you know where to look.

After a long, cold day sitting in a blind, these guys like to gather in front of a warm fire, down a few beers and smoke cigars. How is public health being harmed, and where does the government interest lie in making this an illegal activity?

Enforcement of such laws on private club members will not make the public safer and will likely require the same kind of approach federal "revenuers" employed when they hunted "moonshiners" during Prohibition. The results would probably be similar as well - few arrests, and a decrease in respect for the rule of law.