Court: no free-association right to smoke in private club

Wednesday, July 6, 2011

Members of a private club do not have a First Amendment free-association right to smoke in their club, the Alaska Supreme Court has ruled.

The state’s high court ruled that a city smoking ban regulates conduct, not any protected form of association.

In October 2001 the city and borough of Juneau passed its first ordinance limiting smoking in certain public places to combat second-hand smoke. Through the years the city has amended its ordinance several times, including in 2008 when it extended the ban on private clubs that sell alcohol or food.

The Fraternal Order of Eagles, Juneau-Douglas Aerie 4200 and several of its members sued in state court in July 2008, contending that the amended ordinance violated their First Amendment free-association rights. The plaintiffs also alleged that the law violated their right to privacy under the Alaska Constitution.

In 2009, an Alaska Superior Court dismissed the plaintiffs’ claims and upheld the anti-smoking law. On July 1, the Alaska Supreme Court affirmed in Fraternal Order of Eagles, Juneau-Douglas Aerie 4200 v. City and Borough of Juneau.

The court noted that freedom of association encompasses two types of associations: intimate and expressive. Intimate association refers to individuals’ entering into close, intimate human relationships. Expressive association refers to individuals’ associating together to engage in First Amendment-protected activities. Intimate-association claims are grounded in either the First Amendment or the Constitution’s due-process clause.

The Alaska high court recognized that the First Amendment does protect individuals’ rights to enter into close, personal relationships.

The plaintiffs argued that the members had close relationships with other members and that the ordinance prohibiting them from smoking in the club amounted to the government “telling members to ‘go elsewhere.’” They also noted that 85% of the club members were smokers.

The government countered that the ordinance did not infringe on the relationships between members but only limited certain conduct at the club.

Siding with the city, the high court wrote: “The ordinance does not regulate the membership of Aerie 4200 or who may associate with whom; it only regulates the conduct of members in certain places.” The court said that “the First Amendment protects the ability to choose one’s intimate associates freely, not the ability to engage in any conduct in any place so long as one is interacting with his or her intimate associates.”

The court said several other courts across the country had rejected similar free-speech challenges to anti-smoking laws. It also rejected the state constitutional right-to-privacy claim.

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