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Public tobacco use not a protected right

Justine Boggs / Lantern photographer

Ohio State can legally enforce a tobacco ban since smoking and chewing tobacco in public is not a protected inalienable right, according to experts.
Freedom of speech, press and assembly are considered to be “fundamental” rights and are “strictly scrutinized” by the government, but smoking in public does not fall under that category, said John Herbert, a Central Ohio-based lawyer with Blaugrund & Herbert Inc., in an email.
Tobacco use can be regulated because it ranges from the dangers of second-hand smoke to littering, Herbert said.
“This is just a health and sanitary regulation, and it is probably within (the Board of Trustees’) authority to do that,” he said.
Last week a proposed tobacco ban was approved by the OSU Board of Trustees and is set to go into effect Aug. 1.
The Ohio Board of Regents, which oversees public colleges and universities, encouraged all universities in the state to move toward a smoke-free policy last summer.
As early as 1987 the OSU campus had a restriction on smoking in buildings, and in 2006 the ban extended to outside the Wexner Medical Center.
OSU President E. Gordon Gee said the change is part of a goal to make OSU the healthiest campus in the country, and the ban will make OSU join 766 tobacco-free campuses across the United States.
Nick Worner, an American Civil Liberties Union spokesman, said bans on smoking and tobacco use are a complicated issue since a lot of people feel the right to do what they want in public.
“So the purpose of the argument is you have to separate out,’Do I have a right to smoke?’ From ‘Do I have a right to smoke in public?'” Worner said.
Worner said smokeless tobacco can be controlled the same way chewing gum can be regulated. If the university deems tobacco to be unsightly it can ban the substance.
“Remember when we were in school and they banned chewing gum? You’re not allowed to chew your gum in class because you put it under the desk and it is going to make a mess,” he said. “It is kind of the same logic.”
Nakeisha Salmons, a second-year in criminology, said she doesn’t know how the university plans on enforcing the tobacco ban and instead thinks there should be a compromise.
“I personally think they should just make designated areas,” she said. “That way people know they can avoid those areas if they don’t like smoke.”
The Ohio Revised Code states “The Board of Trustees of the Ohio State University shall have general supervision of all lands, buildings and other property belonging to the university, and the control of all expenses therefor.”
University spokeswoman Liz Cook said in an email how OSU plans to enforce the ban “will be considered by a broadly represented committee that will develop an implementation plan.”
Herbert said someone could try suing the university over the ban, but it wouldn’t get far.
“Anybody with 300 bucks can sue anybody for anything,” he said. “Is it very likely to go very far if they do? No. It is the thing that would be dismissed on motion rather quickly.”

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