2011/03/08 P-D Editorial: “Smoking ban in Clayton parks is challenged — with humor”

Yesterday’s St. Louis Post-Dispatched featured an editorial and editorial cartoon, both targeting Clayton’s smoke-free outdoor air ordinance and the recently announced lawsuit challenging it.

Most of the editorial was somewhat light-hearted in its view of the whole thing, and on balance was supportive of the city’s position that this was for the benefit of Clayton citizens and visitors, as well as children in the park.

The editorial cartoon, on the other hand, picked up on one of the arguments by the plaintiff’s attorney – that with all the nearby vehicle exhausts polluting the air, wasn’t it a bit absurd to focus on tobacco smoke pollution from a solitary cigarette?

R. J. Matson editorial cartoon, St. Louis Post-Dispatch 2011-3-8

Not if you’re highly tobacco smoke-sensitive it’s not. And anything you can do to reduce other sources of air pollution is a good idea too.

Smoking ban in Clayton parks is challenged — with humor

By The Editorial Board | Posted: Monday, March 7, 2011 9:00 pm | Comments (10 as of March 9, 2011 @ 5:07 pm)

Arthur Gallagher, plaintiff in a lawsuit against Clayton over the right to smoke in city parks. (Photo courtesy KMOV Channel 4)

Although a federal judge may very well do so, we cannot quite dismiss as unworthy of discussion the smoking-related lawsuit filed last week against Clayton by attorneys W. Bevis Schock and Hugh A. Eastwood on behalf of Clayton resident Arthur Gallagher.
         Clayton was among the area’s first smoke-free communities. Not long after its muscular indoor public smoking ban took effect last July, St. Louis County and several other municipalities followed suit. As Clayton goes, it appears, so goes the region when it comes to controlling smoking. So a legal challenge to Clayton’s smoking restrictions merits at least some scrutiny.
         Mr. Gallagher’s lawsuit takes on a newer Clayton ordinance that extends smoking prohibitions to outdoor areas of city-owned or city-leased property, including parks, playgrounds, athletic fields, parking lots and the grounds outside such city facilities as City Hall and the Center of Clayton fitness complex.
The suit, filed after Mr. Schock advertised for plaintiffs, claims that the ordinance violates the constitutional rights of Mr. Gallagher, who “ecstatically enjoys” smoking in city parks.

         It is not easy to take this suit seriously:
         • In an apparent attempt at mockery, the lawsuit opens with lyrics from a song from “Duck Soup,” the classic 1933 Marx brothers movie.
         • The suit claims that “smoking is a fundamental right,” then immediately concedes that every court that has considered such a claim has ruled that it’s not.
         • The suit asserts that smokers are persecuted and members of a legally protected class, even though federal law grants no such status to smokers. For legal authority, the complaint footnotes a slogan used by the “Dirt Cheap Chicken,” the marketing mascot of an area cigarette retailer.
         If we weed out the considerable silliness, the suit revolves around the effects of secondhand smoke in outdoor settings. Clayton prohibited outdoor smoking on city property, the complaint claims, to protect non-smokers from secondhand smoke. But it says few studies have been done in outdoor settings, and those found widely varying results depending on wind direction and speed, temperature, humidity, sunlight and traffic patterns.
         And, in fact, although there is overwhelming evidence that secondhand smoke in enclosed spaces damages the health of non-smokers, evidence of the impact in outdoor settings is sketchy at best.

         So does Clayton – and the nearly 500 other American communities with similar laws – simply care more about people who are annoyed by fleeting outdoor exposure to tobacco smoke than those who are annoyed by not being able to smoke outdoors on city property?
         Legally, it might not matter. U.S. Supreme Court decisions have granted wide latitude to legislative bodies to enact laws without being second-guessed by courts.
         But Clayton Mayor Linda Goldstein told us that in recommending the outdoor ordinance, the citizen-directed Parks and Recreation Commission also wanted to ensure healthy adult role-modeling for children who play in city parks and playgrounds.
         She added that the ordinance also reinforces Clayton’s broader identity as a community that values health and healthy activity.
         We think the opening lines of Mr. Gallagher’s complaint might have been more accurate had Mr. Schock quoted a different Marx brothers movie. As Groucho Marx sang in the 1932 film “Horse Feathers”:
         Your proposition may be good,
         But let’s have one thing understood:
         Whatever it is –
         I’m against it!

EDITOR’S NOTE: The original text of this editorial incorrectly cited the movie “Animal Crackers” as the source of the above quotation.

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