In early February, the New York City Council (36-12) approved, and Mayor Bloomberg signed, a ban on smoking in the city’s parks, beaches, pedestrian malls and plazas. Effective as of May 23rd, the city’s Department of Parks and Recreation can now impose $50 fines on rule breakers. Given what we know about the health value of parks, addressing the issue of smoking bans in parks is salient. What restrictions may a city or municipality place on park users in order to achieve some health or environmental value?
As residents of New York know, administrative code already bans smoking in bars, the subway, retail stores, and several other indoor and outdoor locations. But the most recent amendment, as codified in New York City Administrative Code § 17-503(c)(3), expands the scope of the ban to “any park or other property under the jurisdiction of the department of parks and recreation.” Exceptions to this ban extend to sidewalks immediately adjoining parks and public places, pedestrian routes through any park strip, median or mall adjacent to traffic, parking lots, and theatrical productions.
Two common lines of reasoning characterize the smoking ban debate. Arguments against bans on smoking in public parks often reference the overreach of government into the lives of private citizens, whereby the governmental entity unreasonably infringes upon an individual’s right to undertake a particular behavior. Arguments for bans invoke the government’s role to promote public goods, such as health, and to ensure non-smokers are free of a harmful nuisance. The following overview addresses the legal and policy issues implicating both sides of the argument.
Examples of Outdoor Bans
The New York ordinance is not new; towns and cities across the country have enacted outdoor smoking bans. There are 1,313 states, commonwealths, territories, cities, and counties with a law that restricts smoking in public outdoor places such as parks and beaches. Levels of stringency vary from town to town, but the rationale underlying the bans are generally the same – there are environmental and health issues so important as to justify prohibiting individuals from lighting up in a public outdoor area.
An ordinance in Bellaire, Texas, a suburb of Houston, forbids smoking within the city’s public parks, in part to prevent children from exposure to smoke. The ban, however, does not prohibit smoking on the public streets or sidewalks. Santa Monica, California, passed an ordinance restricting smoking on its public beaches to address the environmental issue of cigarette butts littering the beaches and water. In fact, the ordinance comprehensively prohibits smoking in a variety of outdoor places: public parks, public beaches, anywhere on city pier except in designated areas, outdoor service areas, or within two feet of any entrance, exit or window of a public building. Both cities may impose fines on violators of the ban.
In 2006, the city of Calabasas, a small community northwest of Los Angeles, enacted one of the toughest anti-smoking ordinances in the nation. It characterized its anti-smoking efforts as an attempt to limit exposure to secondhand smoke (SHS), as opposed to an outright ban on the act of smoking itself. The ordinance prohibits smoking in all public places where an individual may be exposed to secondhand smoke, including parks, sidewalks, outdoor cafés, bus stops, and athletic fields. Fines for violation are imposed up to $500 with a misdemeanor criminal classification.
The New York ordinance allows for some smoking outlets if you are at a public park. Like Bellaire park users, visitors to New York parks are still able to light up on sidewalks bordering the outside of the park.
A Right to Smoke?
A ban on smoking in a public park raises an interesting question: are there particular rights that ensure that adults may freely undertake a legal act using a legal substance or item in a taxpayer-funded public space that may have a marginal detrimental health impact on other people using that space? Think of drinking a bottle of wine with your special lady friend as you lounge about on a picnic blanket (or grasping onto a flask of whiskey for dear life as you curl up underneath a bench to shield yourself from the brutal chill of a relentless winter wind). What about lighting fireworks? Yelling into an oversized bullhorn to warn of an impending apocalypse? Swinging a metal bat to smash a tightly wound baseball?
A court will invalidate law that, either on its face or in its application, violates a constitutional right. The Constitution does not explicitly reference a right to smoke, so any claim to a right to smoke will fall under the auspices of another constitutional right. Here are just a few examples of avenues that right to smoke advocates have pursued to challenge smoking bans.
Fourteenth Amendment. The equal protection clause of the Fourteenth Amendment guarantees that a state government will not treat similar groups of people differently without good reason. However, there are classes of people based on race, alienage, national origin and gender that receive greater protection against discriminatory government acts than do other classes – say, women under 5’2” or bald men. Courts review a law that applies to a protected class under a strict or intermediate level of scrutiny. Strict scrutiny requires a state or local law to be necessary to achieve a compelling government interest.
The Supreme Court has rejected the notion that a classification is suspect when the scope of the class is based on voluntary action. Since smoking is a discretionary act, it does not merit greater scrutiny for equal protection purposes. A smoking ban will be constitutionally valid if there is a reasonably conceivable set of facts that provides a rational basis for the classification, such as the promotion of public health.
First Amendment. Conduct alone, such as smoking, is not generally considered speech and thus not afforded First Amendment protections. Smoking bans not targeted at suppressing speech content, and not favoring a particular group, are deemed “content-neutral.” For content-neutral regulations to be valid, they need only be substantially related to an important governmental interest. For example, the federal court in NYC C.L.A.S.H., Inc. v. City of New York upheld the smoking ban in restaurants and bars, finding that smoking in such venues is not a sufficiently expressive conduct to merit First Amendment protection and that the ban was a valid, content-neutral regulation with an important health interest.
In the 2005 case, Roark & Hardee LP v. City of Austin, a federal district court held that an Austin ordinance prohibiting smoking in enclosed public places did not violate bar owners’ First Amendment right to be free from compelled speech. The city “compelled” bar owners to take “necessary steps” to stop patrons from smoking in order to protect the city’s population from the effects of SHS. Since the ordinance regulated conduct and not actual speech, and the owners were free to express views on the ordinance, the city was within its bounds to regulate smoking.
As long as a smoking ban is rationally related to a legitimate government goal, the Constitution will not stand in the way of its passage. Smoking bans have been uniformly upheld against a variety of challenges to their validity. Courts embrace such legislation because of the time-honored acknowledgement that protecting the public’s health is one of the most essential functions of government.
When smoking bans are challenged on constitutional grounds, legislators must justify the ban by demonstrating a legitimate government interest. A frequent argument is that public health concerns justify infringements on smoking. But the effect of public outdoor exposure to SHS is not conclusive. On the one hand, proximity to smoking, even outdoors, may lead to SHS exposure. A recent Stanford University study indicates that tobacco smoke within three feet of a smoker outside is comparable to inside levels. But, as Michael Siegel stated in a New York Times Op-Ed, there is no evidence demonstrating outdoor exposure causes substantial health damage.
Legislators may also cite “annoyance costs” related to smoking, such as cost of cleaning up cigarette butts. Right to clean air advocates often compare smoking to nuisances regulated by the state, such as noisome factories. There is also an argument for treating smoking like sex—as a legal activity relegated to the private sphere.
Attitudes towards smoking bans vary depending on locale. Since 2000, the American Academy of Pediatrics has conducted a nationwide survey asking participants if and where in outdoor parks smoking should be allowed. The latest results, from a 2008 survey of nearly 1,500 people, showed that roughly 20 percent of respondents thought smoking should be banned outright in parks, 39 percent thought it should be permitted, and 42 thought it should be banned in some areas of parks. This differs slightly from the 2000 survey, in which support for some form of restriction was roughly 60 percent (although, at that time, 40 percent supported an outright ban). The same survey also addressed support of smoking bans in Mississippi. It indicated that over 50 percent of Mississippians do not believe smoking should be banned in parks.
Attitudes do differ. A 2006 survey showed that 70 percent of over 1,500 randomly selected Minnesota respondents favored tobacco-free park policies in parks. Supporting rationale for such policies included reducing litter (71%) and reducing youth opportunities to smoke (65%). Prior to the New York’s outdoor ban, the Coalition for a Smoke-Free City commissioned a 2009 Zogby poll that surveyed 1,002 residents and showed that 65 percent supported a smoking ban in parks and beaches.
Smoking and Public Parks
Cities and municipalities must weigh the benefits of placing restrictions on potentially harmful behavior to help cultivate healthy outdoor environments against the rights of residents in a public venue. For example, part of the context for the New York park smoking ban was a 2009 New York City Department of Health and Mental Hygiene study showing that a greater proportion of New York adults, despite lower levels of smoking, are exposed to secondhand smoke than are adults nationally. While there are rights issues involved with smoking bans, such restrictions generally fall within the ambit of legitimate governmental action. And, ideally, enactments to restrict smoking in a park will be borne out of people’s support for the restriction in a publicly funded venue.
The question then is whether the government action achieves its objective. If New York is attempting to improve air quality for park users, pushing smokers to the sidewalks outside parks may not accomplish that goal. It seems that where a park is quite small, such an outlet renders the ban moot because smoke can still get up into park users’ faces. And whether a park is large or small, or one smokes inside or outside the bounds of the park, the impact on the overall ambient air quality of the park would presumably be the same. However, as we learn more about the impact of secondhand smoke on individuals in an outdoor area, it may be the case that the ban, in its current state, is justified.
 See Am. Nonsmokers’ Rights Found., Overview List – How Many Smokefree Laws? (2011), available at http://www.no-smoke.org/pdf/mediaordlist.pdf.
 See Michele L. Tyler, Note, Blowing Smoke: Do Smokers Have a Right? Limiting the Privacy Rights of Cigarette Smokers, 86 Geo. L.J. 783, 805-06 (1998).
 Bellair Mun. Code § 22-28(a)(b) (2010).
 George P. Smith, II, Cigarette Smoking as a Public Health Hazard: Crafting Common Law and Legislative Strategies for Abatement, 11 Mich. St. J. Med. & Law 251, 268 (2007).
 Santa Monica Mun. Code § 4.44.020 (2006).
 Jordan Raphael, The Calabasas Smoking Ban: Local Ordinance Points the Way for the Future of Environmental Tobacco Smoke Regulation, 10 Minn. J.L. Sci. & Tech. 413, 417 (2007).
 Calabasas Mun. Code §§ 8.12.030–.040 (2006), available at http://www.bpcnet. com/codes/calabasas.
 See Samantha K. Graff, Tobacco Control Legal Consortium, There is No Constitutional Right to Smoke: 2008 (2008). Courts have explicitly refused to recognize a fundamental right to smoke. See, e.g., Coal. for Equal Rights, Inc. v. Owens, 458 F. Supp. 2d 1251, 1263 (D. Colo. 2006) (holding that there is no fundamental right for bar owners to allow smoking in their establishments); Fagan v. Axelrod, 550 N.Y.S.2d 552, 559 (Sup. Ct. 1990) (“There is no more a fundamental right to smoke cigarettes than there is to shoot-up or snort heroin or cocaine or run a red-light.”); Craig v. Buncombe County Bd. of Educ., 343 S.E.2d 222, 223 (N.C. Ct. App. 1986) (“The right to smoke in public places is not a protected right …”).
 There are several other avenues not addressed here (e.g., procedural due process, freedom of association).
 NYC C.L.A.S.H., Inc. v. City of New York, 315 F. Supp. 2d 461, 482 (S.D.N.Y. 2004).
 Id. at 481. Thus, people are subjected to a variety of restraints “in order to secure the general comfort, health, and prosperity of the state.”
 NYC C.L.A.S.H., Inc. v. City of New York, 315 F. Supp. 2d 461, 479 (S.D.N.Y. 2004).
 Id. at 480.
 Roark & Hardee LP v. City of Austin, 394 F. Supp. 2d 911, 918 (W.D. Tex. 2005) (“[I]t is clear that there is no constitutional right to smoke in a public place.”).
 Graff, supra note 10, at 5.
 See, e.g., City of Tucson v. Grezaffi, 23 P.3d 675 (Ariz. Ct. App. 2001) (Fifth Amendment taking, prohibition on special legislation, freedom of association, equal protection, government’s ability to regulate health matters); Lexington Fayette County Food & Beverage Ass’n v. Lexington-Fayette Urban County Gov’t, 131 S.W.3d 745 (Ky. 2004) (impermissible government interference with business, vagueness).
 See Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905) (“According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.”).
 Tyler, supra note 2, at 806-07.
 Id. For a more in-depth analysis of nuisance and smoking, see Smith, supra note 4, at 268-73.
 Am. Acad. of Pediatrics, 2008 National Social Climate Survey of Tobacco Control, available at http://socialclimate.childhealthdata.org/DataQuery/SurveyAreas.aspx.
 Elizabeth G. Klein et al., Minnesota Tobacco-Free Park Policies: Attitudes of the General Public and Park Officials, 9 Nicotine & Tobacco Research S49 (2007). Current policies banning or limiting tobacco use on park and recreation grounds exist in at least 70 communities around Minnesota.
 The higher prevalence of secondhand smoke exposure across racial and socioeconomic strata in New York compared to the national level suggested that exposure in dense, urban settings may be elevated.