2011/03/11 MoGASP Point-by-point rebuttal of attorney Schock’s TV claims in support of Clayton lawsuit

For those interested, below (highlighted in blue) is what Bevis Schock, attorney for plaintiff Arthur Gallagher, said during his press conference on 2011/03/05, as reported on KSDK-TV Channel 5, interspersed with rebuttals by MoGASP president, Martin Pion, prepared and distributed to the media on Wednesday, March 9, 2011:

Attorney Bevis Schock announcing the lawsuit to the media near Shaw Park (Photo taken from KSDK Channel 5)

1) “There is no rational basis for any kind of health risk from outdoor smoking. It’s basically ridiculous. First of all, the dose is the poison: nobody can get enough smoke to get hurt from an outdoor cigarette.”

Martin Pion, MoGASP president, rebutting attorney's statement

Rebuttal: Highly smoke-sensitive asthmatics, like Vivian Dietemann, and others like Don Young, can be harmed by even small tobacco smoke exposures. In Ms. Dietemann’s case they can lead to a serious or even fatal asthma attack. Additionally, when smoking is allowed in the park there isn’t the likelihood of just one smoker being present but of several so that a nonsmoker can find him or herself always downwind from a smoker.

 2) “Second of all, of course, we have barbecue pits, the baseball fields over in Shaw Park here are right next to an intersection of Forest Park Expressway and I-70 (sic) with all kinds of smog. To ban smoking is an improper infringement on liberty.”

Rebuttal: Outdoor smoking is a public nuisance, akin to other such nuisances caused by outdoor air pollution, and can be easily addressed by local ordinance, as in this case. While it would be beneficial for public health if all outdoor air pollution could be eliminated, the fact that it can’t doesn’t mean it shouldn’t be addressed wherever possible.

 3) “Also, under the law, certain things are so important in American culture and history that they become a fundamental right, and we think smoking is in that class, along with the rights of privacy and travel: things like that.”

Rebuttal: Smoking is not a fundamental right, especially when it puts the health and welfare of others at risk. Cigarettes and other tobacco products are similar to other legal products like pencils, except that they happen to be the leading cause of death and disease in this country. It isn’t legal for someone using a pencil to poke your eye out. Likewise it defies logic that a smoker should be allowed to threaten your health and welfare by polluting the air you breathe.

4) “So the government has to be very careful when it stops it.”

Rebuttal: One of government’s primary duties is protecting the health and welfare of its citizens. When it makes public places and workplaces, both indoors and out smoke-free, it is fulfilling that duty. There is case law to support this.

Billy Williams, Executive Director of GASP of Texas, has studied the case law as it pertains to secondhand smoke. He has advised MoGASP as follows in this case:

“Numerous federal courts have held that smoking is not a fundamental right and that the question of a smoking ban requires only a rational basis standard of scrutiny. Webber v. Crabtree, 158 F.3d 460, 461 (9th Cir. 1998); Brashear v. Simms, 138 F.Supp.2d 693, 694 (D.Md. 2001).
Also, the U.S. Supreme Court has held that: “Courts should normally defer to the reasonable medical judgments of public health officials.” Olmstead v. L.C. by Zimring, 527 U.S. 581, 602, 119 S.Ct. 2176, 2188 (1999).”

5) Attorney Beavis Schock concluded: “What I think is interesting in this case is that the majority of people favor a smoking ban. That’s true. The voters were in favor of it. So we ask, how far can the government go to stop the minority from engaging in the pleasures of liberty; to enjoy a nice cigarette? How far can the majority control the minority?
 That’s a very important question as to how we conduct ourselves as a nation.”

I agree with Mr. Schock that protecting the public from secondhand smoke exposure is a very important question that many support but the suggestion that this is somehow a tyranny of the majority is absurd. In fact, until recently there’s been a lack of leadership by government to act to protect the public from secondhand tobacco smoke pollution.

It was originally Ballwin which took the lead on this issue locally, being the first metro St. Louis city to enact comprehensive smoke-free air legislation in 2005, thanks to former Alderman Charles Gatton’s leadership. Mayor Linda Goldstein of Clayton took a critical step last year in following that example. Brentwood, Creve Coeur, Kirkwood, and Lake St. Louis have also adopted strong smoke-free air laws, often thanks to citizen involvement. Finally, St. Louis City and County, thanks to Alderwoman Lyda Krewson and former County Councilwoman Barbara Fraser, adopted ground-breaking measures with good laws going into effect just this year, but with exemptions which need to be removed. That followed a public county vote on Prop N which was approved by a 2-to-1 majority.

Clayton’s most recent progressive legislation, extending smoke-free air to its public parks and similar outdoor spaces it controls, is important and in line with Missouri GASP’s goals of promoting smoke-free air for adults and smoke-free lives for children. To paraphrase the last of our three goals:

Smoking (like sex) should only be done in private between consenting adults.

2 responses to “2011/03/11 MoGASP Point-by-point rebuttal of attorney Schock’s TV claims in support of Clayton lawsuit

  1. MoGASP, let’s take outdoor health risk. The attorney is talking of risk in terms of general health (CHD, LC etc) while you’re talking about individual allergic/asthmatic reactions. Some people are sensitive in that way to roses, some to cats or dogs, some to perfumes, some to grass or pollen, BBQ/tobacco smoke.

    No one would dare suggest that parks ban all roses, weeds, grass, or BBQs so they could be better enjoyed as wide open health-safe spaces by sensitive individuals. And few would suggest a ban on leashed dogs or cats as long as owners cleaned up after them. So why should cigarettes be treated differently except for the fact that a campaign has whipped up baseless fears about the “dangers” of exposure to outdoor wisps of smoke? Given the psychogenic basis of many asthma reactions, I’d actually guess that more have died from emotions at the thought of outdoor smoke exposure due to antismoking movement fears than have ever died because of exposure to outdoor smoke itself.
    – MJM

    mogasp comment: The attorney did mention that the dose makes the poison, something which is being used repeatedly to try and undermine concern over SHS exposure. The original idea goes back to Paracelsus (1567) and there is an interesting article about its validity today by Nancy Trautmann, Ph.D., Cornell University: “The Dose Makes the Poison—Or Does It?
    It’s perfectly valid to focus attention on very smoke sensitive individuals who are too often ignored, and is not invalidated by the issues you raise, which are separate and distinct.

  2. If smoking should only be done in private, between consenting adults, then why not move smoking back indoors? -where owners, workers, and smokers can smoke in private without bothering a possible smoke/asthmatic in Clayton parks?

    Btw, any smoke/asthmatic also cannot be exposed to barbeque smoke, since the components of the two are indistinguishable. So that needs to be banned too. A-N-D what about alcohol consumption in Clayton parks? Alcoholics often get out of hand and bother many other people.

    mogasp response: Our goal is permitting smoking between consenting adults IN PRIVATE HOMES, and only as long as it doesn’t expose others and put them at risk.

    I haven’t heard complaints from asthmatics about barbeque smoke but you’re right, it could be a problem for some. However, when we were out at Shaw Park we were right next to the barbeques and not a single one was in use. But if the park had been open to smokers, it’s far more likely that there would have been some smokers around. Sometimes it’s a question of degree and focusing on the most important public health issues. Secondhand smoke is one of them.

    Finally, if an alcoholic behaved as you describe, that isn’t acceptable public behavior either.

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