Argument: Right to Freedom of Association

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Grişciuc, Simion v. Republic of Moldova [Moldova] [April 08, 2019]

On April 8, 2019, the Constitutional Court upheld the Tobacco Control Law’s provision banning tobacco sales from commercial establishments that are smaller than 20 m^2 (i.e., kiosks) and are located within 200 meters of educational and healthcare facilities. This provision was adopted in May 2015 and came into force on September 17, 2015, but the Moldovan Parliament passed an amendment delaying the effective date to January 1, 2019 for commercial establishments that were in existence before July 1, 2016.

A Member of Parliament filed a complaint alleging that the provision violated several articles of the Constitution, including equal protection, freedom of commerce and entrepreneurial activity, and protection of fair competition, among others.

In upholding the measure, the court concluded that the policy serves a legitimate aim – limiting access by minors and protecting the health of minors and patients – and there were no less restrictive alternative measures that would be as effective in achieving the objectives. The court also cited the four-year delay in implementation given to existing commercial establishments, concluding that this time period provided sufficient time to adapt to the new sales restrictions. The decision is final and cannot be appealed.

Vancouver v. Abdiannia [Canada] [August 11, 2014]

City officials sanctioned two hookah bars for violating provisions of an ordinance that prohibit the smoking of hookah in indoor public places.   The defendants claimed that the tobacco-free herbal shisha should not be prohibited under the ordinance. Furthermore, they claimed that the herbal shisha was heated, not ignited, so does not fit under the definition of smoking.  The court ruled that the city had reasonable grounds to prohibit smoking of any substance, that the definition of smoking was neither too broad nor too vague, and that herbal shisha does get "burned" within the ordinary meaning of the word. The court also ruled that the hookah owners and their patrons were unable to show that hookah smoking was religious or that operating a hookah cafe for profit was a function of spiritual faith. Even if they had, the ordinance does not prevent them from smoking hookah in their homes. The court found that no fundamental rights were violated, and upheld the sanctions against the hookah cafes.

Goodpaster et al. v. City of Indianapolis [United States] [November 25, 2013]

In 2012 the City of Indianapolis and Marion County expanded a local smoking ordinance to include bars and taverns. A number of bar owners sued, seeking a preliminary and a permanent injunction to prohibit the ordinance from taking effect. The bar owners claimed that the ordinance violated their rights to due process, freedom of association, and equal protection and constituted a taking under the federal and state Constitutions. The appeals court affirmed an earlier ruling upholding the local smoking ordinance. The court found that all of the bar owners claims failed. In particular, the court found that the government could have had a rational reason for adopting the law and for continuing to exclude cigar and hookah bars from the ordinance.

Goodpaster et al. v. City of Indianapolis [United States] [March 06, 2013]

In 2012 the City of Indianapolis and Marion County expanded a local smoking ordinance to include bars and taverns. A number of bar owners sued, seeking a preliminary and a permanent injunction to prohibit the ordinance from taking effect. The bar owners claimed that the ordinance violated their rights to due process, freedom of association, and equal protection and constituted a taking under the federal and state Constitutions. The court found that all of the bar owners’ claims failed. The court ruled that the ordinance did not violate due process or equal protection because the city had at least three rational reasons for adopting the ordinance: (1) to protect the health and safety of the general public; (2) to abate the nuisance effects of secondhand smoke; and (3) to positively impact the city’s economy by decreasing healthcare costs and increasing tourism. Additionally, the court found that the ordinance did not violate the freedom of association because it regulates conduct (i.e., smoking) not who is allowed to enter the bars. Finally, the ordinance did not constitute an unconstitutional taking because even though the bars have lost business they have not lost all economically beneficial use of their property. As a result, the court denied both the preliminary and permanent injunctions.

VFW Post v. City of Evansville [United States] [February 15, 2013]

The City of Evansville enacted a smoke-free ordinance banning smoking in workplaces and other public places within the city limits with the exception of riverboat casinos.  Several private fraternal organizations and tavern owners challenged the law as a violation of the Indiana Constitution.  The plaintiffs claimed the ordinance violated the Privileges and Immunities clause by allowing the exception for the riverboat casinos and infringed their Right to Speak.  Giving broad deference to the legislature of the city, the Court of Appeal affirmed the trial court’s dismissal of the case.  The court said the private clubs were not similarly situated as the casino and the prohibition on smoking was incidental to their freedoms to speak and assemble.

Fraternal Order of Eagles, et al. v. City and Borough of Juneau [United States] [July 01, 2011]

The City and Borough of Juneau adopted a law banning smoking in public areas, finding it necessary for the protection of the public health. Seven years later, the city amended that law to include a prohibition on smoking in "private clubs," defined as establishments that offered food or alcoholic beverages for sale. One such establishment operated by the Fraternal Order of Eagles and several of its members brought an action against the city after the organization began experiencing a decline in membership. The plaintiffs argued that the amendment to the law was unconstitutional on its face and that it violated their rights to freedom of association under the First Amendment of the United States Constitution, as well as their rights to privacy under the first article of the Alaska Constitution. A superior court found in favor of the city. On appeal, the Supreme Court of Alaska affirmed that decision, finding that the smoking ban did not violate the appellants' First Amendment rights because it only regulated the conduct of the organization's members and did not limit their liberty to associate. The Supreme Court also found that the ban did not violate the Alaska state right to privacy because the ban bore a substantial relationship to the government's interest in protecting the public health.

Desert Oasis Company v. Republic of France [France] [June 10, 2009]

A hookah bar and a hookah association brought suit attempting to invalidate a 2008 administrative decision not to repeal decrees containing certain smoke free measures.  The bar and association claimed that promulgation of the smoke free measures constituted an abuse of power by the government. The court disagreed, holding that the smoke free measures were in place to protect the general public as well as employees of public establishments and that creating legislation that protects public health is well within the State's power.

Mme B. v. Republic of France (Decree n° 300467) [France] [March 19, 2007]

Several private individuals and organizations challenged amendments to the Public Health Code. The amendments restricted smoking in public places to enclosed smoking rooms, except for educational facilities where smoking was entirely prohibited.  The court rejected arguments that the legislation, in prohibiting the plaintiff from smoking in the educational facility where she worked, amounted to a violation of the plaintiff's right to peaceful enjoyment of her property. Additionally, the court rejected arguments that the ban infringed smokers' rights to freedom of assembly and association, that the ban infringed upon smokers' liberty and dignity, and that the total prohibition of smoking and smoking rooms in educational facilities violated the principle of equality, finding rather that the bans were proportionate to the aim of protecting public health, were clear and concise, and did not disproportionately affect other private or public interests.

M.Y. v. the Republic of France [France] [March 19, 2007]

This judgment is the decision of France’s highest administrative court concerning various challenges to the smoke free decree adopted by the French Government.  Noting the possibility to install designated smoking rooms, under strict conditions (although this action in educational institutions),  M.Y., a teacher, claimed the decree discriminated between workers with respect to the smoking in the workplace and violated worker human rights.  Other pro-tobacco organizations also challenged the decree, alleging, among other things, that only the legislative branch can regulate smoke free places; that the conditions that must be met to install smoking rooms are so strict that they in effect prohibit smoking throughout public places; and that the smoking ban infringes on citizen’s human rights, the “right to smoke,” and the right of freedom of assembly.  The court rejected all claims.

NYC C.L.A.S.H., Inc. v. City of New York, et al. [United States] [April 21, 2004]

An association of smoking proponents challenged the constitutionality of tobacco control regulations in New York City that prohibit smoking in most indoor public places, including bars and restaurants. The Court found that the plaintiff had standing to bring the issue before the Court and that the issue was justiciable.  The Court, however, granted the defendants' motion for summary judgment and disposed of the matter, finding that the regulations do not violate smokers' rights to association, assembly, speech, travel, equal protection, contract, or due process. The Court further held that the bans are not arbitrary but were rationally enacted based on scientific evidence to address legitimate state interests.  (The attached copy of the court's decision was obtained from Action on Smoking and Health (ASH) (