Push to Ban Smoking Goes Too Far

[This was published June 9, 2007 in the Springfield, ILinclude definitions of key words within the text of the
State Journal-Register]law itself. In the Smoke Free Illinois Act a "public place"
Both the Springfield, IL anti-smoking ordinance and theis defined as "that portion of any building or vehicle
Smoke Free Illinois Act have a well-intentioned publicused by and open to the public ..." And to further
purpose - to safeguard public health. But when theenlighten their constituents, legislators have provided an
Springfield City Council and the Illinois General"includes, but not limited" list of no less than 50
Assembly included private clubs in their prohibitions,examples of public places ranging from libraries,
they overreached.museums and concert halls to retail stores, restaurants
Our fundamental law, the United States Constitution,and bars.
enumerates many of our individual rights thatThe Springfield City Council provided the same kind of
government is obligated to protect, such as the"public place" examples in its anti-smoking ordinance.
freedom of speech and the right to a fair trial, butUnfortunately, there is one entry in both lists, which
there are also individual rights which, although notaccording to the law writers' own definitions does not
specifically mentioned in the Constitution, have beenbelong - private clubs. Illinois legislators define "private
judged to be constitutionally protected by the ultimateclub" to mean, "a not-for-profit association ... used
interpreter of the Constitution - the United Statesexclusively for club purposes at all times" while, at the
Supreme Court.same time, they declare that "public places" are places
In 1964, the court held that although freedom of"used by and open to the public."
association is not expressly mentioned in theWhether or not a private club chooses to open its
Constitution, it is a peripheral First Amendment rightdoors to the public is the choice of its members. That
because "its existence is necessary in making thechoice is what makes it private.
express guarantees fully meaningful." And deliveringThe Springfield daily paper, the State Journal-Register,
the opinion of the court in a 1965 case Justice Williamrecently editorialized that private clubs may not opt out
Douglas wrote, " ... the First Amendment has aof fire safety codes, but neither can private homes.
penumbra where privacy is protected fromDoes this make them public places as well?
governmental intrusion."Suppose a bunch of guys belong to a duck-hunting
Of course, this does not mean that all private behaviorclub located on several acres of property on which a
is constitutionally protected any more than it meansclubhouse rests, which can be found only if you know
that all speech is protected - a person does not havewhere to look.
a constitutional right to yell "Fire!" in a crowded theater.After a long, cold day sitting in a blind, these guys like
But it does mean that the government must have ato gather in front of a warm fire, down a few beers
well-defined interest that passes a standard of strictand smoke cigars. How is public health being harmed,
scrutiny when regulating constitutionally protectedand where does the government interest lie in making
private behavior like the freedom of association.this an illegal activity?
Both city and state actions demonstrate that theirEnforcement of such laws on private club members
lawmakers are completely oblivious to the differencewill not make the public safer and will likely require the
between "public" and "private."same kind of approach federal "revenuers" employed
Smoke Free Illinois "prohibits smoking in public places,when they hunted "moonshiners" during Prohibition. The
places of employment, and governmental vehicles ..." Inresults would probably be similar as well - few arrests,
order to make their intentions clear, legislators oftenand a decrease in respect for the rule of law.