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Push to Ban Smoking Goes Too Far

[This was published June 9, 2007 in thetext of the law itself. In the Smoke Free
Springfield,  IL  State  Journal-Register]Illinois Act a "public place" is defined as
"that portion of any building or vehicle used
Both the Springfield, IL anti-smokingby and open to the public ..." And to further
ordinance and the Smoke Free Illinois Actenlighten their constituents, legislators
have a well-intentioned public purpose - tohave provided an "includes, but not limited"
safeguard public health. But when thelist of no less than 50 examples of public
Springfield City Council and the Illinoisplaces ranging from libraries, museums and
General Assembly included private clubs inconcert halls to retail stores, restaurants
their  prohibitions,  they  overreached.and  bars.
Our fundamental law, the United StatesThe Springfield City Council provided the
Constitution, enumerates many of oursame kind of "public place" examples in its
individual rights that government isanti-smoking ordinance. Unfortunately, there
obligated to protect, such as the freedom ofis one entry in both lists, which according
speech and the right to a fair trial, butto the law writers' own definitions does not
there are also individual rights which,belong - private clubs. Illinois legislators
although not specifically mentioned in thedefine "private club" to mean, "a
Constitution, have been judged to benot-for-profit association ... used
constitutionally protected by the ultimateexclusively for club purposes at all times"
interpreter of the Constitution - the Unitedwhile, at the same time, they declare that
States  Supreme  Court."public places" are places "used by and open
to  the  public."
In 1964, the court held that although freedom
of association is not expressly mentioned inWhether or not a private club chooses to open
the Constitution, it is a peripheral Firstits doors to the public is the choice of its
Amendment right because "its existence ismembers. That choice is what makes it
necessary in making the express guaranteesprivate.
fully meaningful." And delivering the opinion
of the court in a 1965 case Justice WilliamThe Springfield daily paper, the State
Douglas wrote, " ... the First Amendment hasJournal-Register, recently editorialized that
a penumbra where privacy is protected fromprivate clubs may not opt out of fire safety
governmental  intrusion."codes, but neither can private homes. Does
this  make  them  public  places  as  well?
Of course, this does not mean that all
private behavior is constitutionallySuppose a bunch of guys belong to a
protected any more than it means that allduck-hunting club located on several acres of
speech is protected - a person does not haveproperty on which a clubhouse rests, which
a constitutional right to yell "Fire!" in acan  be found only if you know where to look.
crowded theater. But it does mean that the
government must have a well-defined interestAfter a long, cold day sitting in a blind,
that passes a standard of strict scrutinythese guys like to gather in front of a warm
when regulating constitutionally protectedfire, down a few beers and smoke cigars. How
private behavior like the freedom ofis public health being harmed, and where does
association.the government interest lie in making this an
illegal  activity?
Both city and state actions demonstrate that
their lawmakers are completely oblivious toEnforcement of such laws on private club
the difference between "public" andmembers will not make the public safer and
"private."will likely require the same kind of approach
federal "revenuers" employed when they hunted
Smoke Free Illinois "prohibits smoking in"moonshiners" during Prohibition. The results
public places, places of employment, andwould probably be similar as well - few
governmental vehicles ..." In order to makearrests, and a decrease in respect for the
their intentions clear, legislators oftenrule of law.
include definitions of key words within the



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