8th Circuit upholds Mo. city’s outdoor-smoking ban

Friday, November 16, 2012

A Clayton, Mo., ordinance banning outdoor smoking does not violate the First Amendment, a federal appeals court has ruled.

In August 2010, the city passed an ordinance barring smoking in many public outdoor areas, including parks and playgrounds. The ordinance, which took effect Jan. 1, 2011, has some exceptions for certain alleys and streets, but it gives the city manager discretion to ban smoking in these areas during “community events, fairs, festivals, neighborhood events and similar public gatherings.”

Arthur Gallagher, who enjoyed smoking in Clayton parks, sued the city and city officials in March 2011, contending the anti-smoking ordinance was unconstitutional for several reasons, including on First Amendment grounds.

Gallagher asserted the law violated the First Amendment because it gave the city manager unfettered discretion to decide whether to allow smoking during community events and festivals. According to Gallagher, the First Amendment comes into play when government officials get to selectively choose when to issue permits and licenses or to enforce ordinances.

A federal district judge rejected Gallagher’s claims in December 2011. He then appealed to the 8th U.S. Circuit Court of Appeals, which upheld the lower court’s ruling in its Nov. 8 opinion in Gallagher v. City of Clayton.

In rejecting Gallagher’s claim, a three-judge panel of the 8th Circuit found that “the First Amendment is implicated only when the regulated conduct is inherently expressive.” The act of smoking is conduct, not speech, the panel said.

“Consequently, the City Manager’s discretion to suspend the smoking exception for fairs and festivals does not plausibly implicate the First Amendment,” the court said.

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