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FMG Law Blog Line

Do You Have a Constitutional Right to Smoke on Public Property?

Posted on: November 9th, 2012

By: Sun Choy

According to the United States Court of Appeals for the Eighth Circuit, there is no constitutional right to smoke on public property.  In Gallagher v. City of Clayton, Missouri, the court rejected plaintiff’s request to declare smoking “a new fundamental right ‘because of tobacco’s ancient traditions in American history’” as well as his other constitutional challenges.  Last month, DeKalb County, Georgia passed a similar ban on smoking in public parks.  Are we seeing a national trend?  If so, will there be more constitutional challenges?  Given the Eighth Circuit’s decision, future plaintiffs who also “ecstatically enjoy[] smoking tobacco products” while on public property will be hard pressed to survive a motion to dismiss.

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