2011/01/30: Marshall Keith’s argument that ADA doesn’t apply to private businesses and rebuttal from Billy Williams, GASP of TX

The blog 2011/01/25: Press releases from Rep. Oxford and MoGASP about Ms. Judd’s ADA complaint attracted a few comments, among them being one from Marshall P. Keith on 2011/01/30 at 2:15 pm taking issue with the notion that the ADA applied to private businesses. Mr. Keith’s comment, as it relates to his argument, is reproduced below, together with the referenced Supreme Court case which I’ve added for completeness.

Mr. Billy Williams, Executive Director of GASP of Texas, who is very knowledgeable on relevant case law, was good enough to provide the rebuttal which follows it below.


…. In this case I agree that the government has every right to restrict smoking as it is truly public property, my objection is using the ADA to achieve that goal. The “protected class” angle has long been used to strip property owners of their rights and this is just another cheap attempt to expand the scope of that philosophy. There is SCOTUS precedent showing that just because the public is invited in they do not lose private property status and to give the “protected class” more rights then the owner goes against every principle our country was founded on. The 14th amendment calls for equal protection from government
intrusion not equal access to private property!

Marshall P. Keith

407 U.S. 551
Lloyd Corp., Ltd. v. Tanner


No. 71-492 Argued: April 18, 1972 — Decided: June 22, 1972

Respondents sought to distribute handbills in the interior mall area of petitioner’s large privately owned shopping center. Petitioner had a strict no-handbilling rule. Petitioner’s security guards requested respondents under threat of arrest to stop the handbilling, suggesting that they could resume their activities on the public streets and sidewalks adjacent to but outside the center, which respondents did. Respondents, claiming that petitioner’s action violated their First Amendment rights, thereafter brought this action for injunctive and declaratory relief. The District Court, stressing that the center is “open to the general public” and “the functional equivalent of a public business district,” and relying on Marsh v. Alabama, 326 U.S. 501, andAmalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308, held that petitioner’s policy of prohibiting handbilling within the mall violated respondents’ First Amendment rights. The Court of Appeals affirmed.

Held: There has been no dedication of petitioner’s privately owned and operated shopping center to public use so as to entitle respondents to exercise First Amendment rights therein that are unrelated to the center’s operations, and petitioner’s property did not lose its private character and its right to protection under the Fourteenth Amendment merely because the public is generally invited to use it for the purpose of doing business with petitioner’s tenants. The facts in this case are significantly different from those in Marsh, supra, which involved a company town with “all the attributes” of a municipality, and Logan Valley, supra, which involved labor picketing designed to convey a message to patrons of a particular store, so located in the center of a large private enclave as to preclude other reasonable access to store patrons. Under the circumstances present in this case, where the handbilling was unrelated to any activity within the center and where respondents had adequate alternative means of communication, the courts below erred in holding those decisions controlling. Pp. 556-570.

446 F.2d 545, reversed and remanded. [p552]

POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, and REHNQUIST, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which DOUGLAS, BRENNAN, and STEWART, JJ., joined, post, p. 570.

Here’s Mr. Williams’ response:


Marshall Keith cites a case where it is acknowledged that a shopping mall was privately owned and that the owner could restrict passing out hand bills. Also, it involved free speech not access.

Whereas, the ADA and the Civil Rights Act recognize that privately owned property that is open to the public is “commercial” property and access to the property cannot be restricted on the basis of disability, race, ethnic origin, sex or religion. Simply put, once the owner opens his “private property” to the public, he cannot discriminate against a protected class in providing service.

Marshall Keith cites “facts” that are inapplicable in an attempt to prove a point that the Supreme Court has time and time again upheld.

Billy Williams
Executive Director
GASP of Texas

13 responses to “2011/01/30: Marshall Keith’s argument that ADA doesn’t apply to private businesses and rebuttal from Billy Williams, GASP of TX

  1. My response would be far to lengthy to post here.

    Marshall P. Keith

    mogasp reply, posted on your blog which trashes the ADA: The arguments above would be laughable if they were meant in jest, but they’re not. The Americans with Disabilities Act is intended to provide those individuals covered by the law with a more level playing field, not somehow elevate them over the rest of us. Nothing more than that. And there are no sinister motivations. Let’s hope you aren’t someday afflicted by such a disability and have to try and live with it. Even with the ADA it’s not an easy situation, and there are still plenty of obstacles for the physically disabled because the ADA is not implemented and enforced universally. E.g. curb cuts are not provided wherever needed or, to economize, a single angled one will be provided at a given location instead of the two needed.
    For those with severe breathing disabilities it’s harder because their disability is not evident, and they can more easily be written off or ignored.

  2. The road to hell is paved with good intentions. We live in the real world and there is no such thing as a level playing field. Using the ADA does indeed elevate the rights of the “protected class” over that of the property owner. It denies the owner the right to use a legal product on their own property or to allow their guests to do the same. Where is the level playing field for the smoker or the property owner? The whole level “playing field” argument is yet another progressive term for theft of private property through regulation.

    Marshall P Keith

    mogasp reply: Instead of throwing aphorisms around I challenge you to act like someone with a physical disability. Rent or borrow a wheelchair and use it to get around for a week and then report back on how “elevated” you feel.

  3. The question in regards to controlling private property by calling it public to utilize public health for determing a threat to public health is to far reaching. Surely we could attack many private property owners with bans by shuch an excuse.
    Auto racing endangers employees as well as the attending public as death and injury has happened at these events not even mentioning the carcenogeons being put into the air. We could ban sovereign games as we know sovereign games has turned into riots that have injured the public.
    However the biggest danger is this overly broad term of public health that could be used by any governing body to prohibit the lawful gathering of citizens in protest of government, gatherings such as a rock concert even a American Cancer Society run for life charity event.
    The Pandora’s box can be opened but it is hard to close.

    mogasp reply: What connection is there between auto racing, a spectator sport with known risks, and wanting bars to be smoke-free so for the health and welfare of employees and the public? The first is a sport while the second is a place people just go to drink and socialize and smoking is incidental. I cannot fathom your argument.

  4. Don’t know if you’ve ever read the DeWeese Report on “Sustainable Development”, but here is an excerpt:
    And one of the most destructive tools they use to force it on us is something called the “precautionary principle.” That means any activities that might threaten human health or the environment should be stopped, even if no clear cause and effect relationship has been established – and even if the potential threat’s largely theoretical. That makes it easy for any activist group to issue warnings by news release or questionable report and
    have those warnings quickly turned into public policy, just in case. Many are now finding non- elected regional governments and governing councils enforcing policy and regulations. Most decisions are now being made behind the scenes in non- elected “sustainability councils” armed with truckloads of federal regulations, guidelines, and grant money.
    In other words, Socialism

    (mogasp character count=918)

  5. Ah, yet restrictions on smokers using a legal product can be restricted? Since when are non-smokers a protected class on privately owned property? Yet twenty-nine states and the District of Columbia have laws in effect elevating smokers to a protected class. Has that stopped the anti-smoking cartel from firing or not hiring smokers? No. Is the anti-smoking cartel even acknowledging that the U.S. Constitution offers protections for privately owned property? No. Do the sheeple that the anti-smoking cartel has hoodwinked care ? I Can’t wait for the backlash? Yes!

    mogasp comment: Ah, yes, the “legal product” argument. No restrictions apply. Which means when using another legal product – a pencil, for example – I can poke your eye out with impunity!

  6. mogasp comment:” Ah, yes, the “legal product” argument. No restrictions apply. Which means when using another legal product – a pencil, for example – I can poke your eye out with impunity!”

    Come on mogasp, we’ve been down that road. That would be illegal even in your own home.

    mogasp reply: Yes, because it’s assault. And so is secondhand smoke an assault on those who are smoke-sensitive, especially those with breathing problems which it causes or exacerbates. It’s just taken a long time for the public to recognize and accept it.

  7. mogasp reply . . . . The first is a sport while the second is a place people just go to drink and socialize and smoking is incidental. I cannot fathom your argument.

    That is part of the problem, you consider smoking incidental and to the smoker it is as much a part of the social experience. When it comes to worker health and safety OSHA is the regulating body and they found the scientific evidence lacking. Most jobs have risks much higher then the weak statistical association of ETS. Also you fail to acknowledge that a fellow ban activist opened the Rbar with much fanfare only to close and reopen as a smoking establishment.

    Marshall P. Keith

    mogasp comment: You wrote: “to the smoker it is as much a part of the social experience.” Have you heard of “nicotine addiction?” As for restaurants and bars, it’s an iffy business for many. Just check out how many reopen under new ownership.

  8. Mogasp, in the case of assaults & pencils you are the one whose “arguments… would be laughable if they were meant in jest,”

    There have never been bars known to welcome customers poking eyes out with pencils but many welcomed smoking.

    However many restaurants & parks have roses and other flowers affecting those “with breathing problems which it causes or exacerbates.” Would you truly want laws banning roses & other allergen producing flowers. If you had TRUE sensitivities to such things you might very well support such a law; and I believe you would be wrong in that.

    In terms of sun sensitivity and patio dining, certainly customers can choose indoor dining, but the basic premise of many bans is “protecting the worker” where it is assumed that the ONLY job that worker can find is in smoking bar. The same can obviously be said about patio dining facilities: by allowing them, the number of safer interior dining workplaces decreases for those wishing to avoid malignant melanoma.

    – MJM

    mogasp reply: You missed the point entirely with my pencil (“legal product”) analogy and I won’t prolong the debate. But on the subject of SHS just stick to the facts as we know them. The most reliable medical sources are even supported these days by our friends at Philip Morris, who defer to them. It’s statement on SHS kicks off: Public health officials have concluded that secondhand smoke from cigarettes causes disease, including lung cancer and heart disease, in non-smoking adults …

  9. mogasp: If someone has a breathing problem, there are plenty of places they can go without forcing EVERYONE in the world to cater to him. Neither the public nor a property owner is responsible for someone’s breathing problems. My eyes were literally watering driving in Chicago, should I force them to ban their highways? Certainly a public place, those highways. Or should I just stay off those roads if it bothers me? Now there’s an idea, PERSONAL RESPONSIBLITY!

  10. Mogasp, your sources at Philip Morris (who I would recommend avoiding as a source due to their history and the likelihood that any current statements they make will be more concerned with legal liability than with scientific accuracy) were talking about ETS and disease. The discussion we were having here was whether it was appropriate to use the powers of the ADA to cover individuals with rare and extreme sensitivities — a very different discussion.

    mogasp reply: Years ago I came across data that ~5% of Missouri residents were asthmatics, for 70%-80% of whom the chief trigger was secondhand smoke exposure. That translates into over 150,000 individuals in this state.
    This September 2008 study “Clearing the air: Reduction in asthma-related emergency department visits after implementation of a smoke-free law” reinforces the importance of SHS as a trigger for asthma attacks.

  11. Mogasp, I think the data is at best inconsistent in that regard. If you examine


    mogasp: The graph referenced above shows asthma increasing from 5.8 to 35.8 per 10,000 from 1970 – 1997, a six-fold increase. Over that period the smoking rate decreases from 40% to 24% (less than half). That doesn’t mean that smoking is protective of asthma, as the text accompanying this graph on this web page concludes. Such an inference is simplistic.

    you’ll see more of what I believe to be the case out there, and if you visit the web pages of asthma organizations I believe you’ll find that in their summaries of asthma triggers that tobacco smoke generally ranks rather low, and in at least some cases isn’t even mentioned among their list of the top half-dozen or so.

    As for the journal article you cited, I believe it is suspect for several reasons. In particular, if you check Table 1 at


    you’ll find a *WILD* and completely unexplained leap in cases between 2001 and 2002, with the authors evidently simply deciding, to leave those numbers out of their final analysis without explanation.

    btw… if Ellen Hahn’s funding came from RJR and her findings were in the opposite direction: would you be as quick to believe them then?

    – MJM

    mogasp response: As noted, I haven’t been able to find my original ref. to asthma attack triggers. As for study reliability, I’m certainly very suspicious of any that are underwritten by the tobacco industry, and with good reason. On the other hand, after reading Dr. Mike Siegel’s criticism of some tobacco control work I no longer automatically assume it to be reliable either.

  12. mogasp I applaud you for your honesty.

    You and I can disagree, on specifics, I feel sorry for the handicapped including those with asthma. I can understand policy on truly public property, that is legitimate regulation. Where we disagree is private property. A business is free to cater to whatever clientele they want to. I do not push for every business to have a smoking section. That would be just as unfair to the business owner. The constitution calls for equal protection under the law. Not a level playing field, not equal access. Truly public property that argument can be made!

    Marshall P Keith

  13. Mogasp, it’s sad to say, but I think that actually today you may find MORE corruption of various kinds in research funded by Tobacco Control than that funded by Big Tobacco.

    Why do I say that? Two reasons:

    1) BT researchers know that their work is going to held under a microscope and sliced to ribbons for the slightest defect or hint of bias. TC researchers are largely immune to that sort of scrutiny except by folks like me (and, lately, people like Siegel, Whelan, Sullum, Snowdon, FORCES, F2C et al)

    2) BT researchers have one main motivation: Money. They research for a living, they enjoy it, and PM/RJR pays them well for it. TC researchers do it for both money AND for idealism. That idealism both blinds them to inadvertant bias AND pushes them toward actual fraud “for the greater good.” It also insulates their work from substantial criticism by the mainstream medical research community. I believe the combo of those two motivations produces more bad work from TC than from BT today.

    – MJM

    mogasp response: I’d like to get a reaction from Dr. Siegel to your statement above. The ends certainly don’t justify the means if that results in poor science, but I don’t have sufficient evidence to know if you’re correct or not.

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