The Cigarette by Sarah Milov

Author:Sarah Milov
Language: eng
Format: epub
Publisher: Harvard University Press

Legal Ambiguities

Shimp was heralded as a victory for nonsmokers everywhere, but subsequent attempts to find a legal right to smoke-free air met with less success.27 As Donna Shimp waited for an injunction in New Jersey, a group of nonsmokers in Louisiana brought a class-action suit against the state agency that oversaw the Superdome stadium. The plaintiffs alleged that the haze resulting from the unrestricted smoking at Superdome events violated their “right of self-preservation; to be let alone; to be free from injury; and to be free from exposure to and the involuntary inhalation and consumption of hazardous smoke, gases, fumes and particulates.” These rights, they contended, were protected by the fifth, ninth, and fourteenth amendments—the constitutional amendments from which environmental lawyers tried, and failed, to extract a right to a clean environment.28 In Gasper v. Louisiana Stadium and Exposition District, the Fifth Circuit Court of Appeals found no constitutional basis for “injecting the courts and their injunctive powers into this tobacco-smoke controversy.”29

The following year, a group of employees at the Social Security Administration’s sprawling Baltimore campus also tested the theory of a constitutional right to smoke-free air. That is to say, they sued the federal government. A group of employees that called themselves FENSR (Federal Employees for Non-Smokers’ Rights) solicited the assistance of ASH, which submitted an amicus brief on the employees’ behalf.30 Citing the Superdome decision, the judge for the U.S. District Court for the District of Columbia found that the plaintiffs’ claims, “though worthy of consideration in another forum, should not be elevated to a constitutional level.”31 Mindful of its reputation as the legal arm of the nonsmokers’ movement, ASH distanced itself from the constitutional strategy employed by the government workers. ASH noted in its newsletter that its amicus brief had been filed in order to preserve the principle that OSHA may provide a basis for lawsuits brought under different circumstances.32 The quest for a constitutional right to smoke-free air seemed to be at a dead end.33

Even Shimp’s value as a direct precedent for establishing a common-law rather than a constitutional right appeared to be limited. In 1980, Paul Smith, a technician at a Western Electric office outside of St. Louis, sued his employer for failing to provide a safe working environment. Paul Smith and Donna Shimp were connected by more than the telecommunications supply chain. They faced many of the same challenges at their worksites, fighting against the indifference of management and the resentment of their coworkers. In 1975, Smith began complaining that his smoke-filled worksite caused physical problems: nausea, lightheadedness, sore throat, and difficulty concentrating. Despite lateral moves within the company, Smith continued to find other office environments equally smoky. After being told to refrain from any further submissions to the company’s anonymous complaint system, Smith was presented with two options for keeping his job: wear a respirator helmet, or apply for a job in the smoke-free computer room and take a pay cut of $500 per month. Smith chose to wear the respirator, which he described as “torture,” and which made talking on the phone difficult.

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