Our Opinion: Court should strike HUD's public housing smoking ban

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The Statue of Liberty holds her torch aloft, but it's the blindfolded, scale-hoisting Lady Justice who will soon be asked, "Got a light?"

Steamed smokers sued the U.S. Department of Housing and Urban Development this week over its nationwide ban on smoking in public housing facilities, arguing that the policy is unconstitutional on its face.

NYC CLASH, or New York City Citizens Lobbying Against Smoker Harassment, organized the suit filed in U.S. District Court for the District of Columbia. 

"This lawsuit is about defending the right to be left alone to engage in a legal activity in the privacy of one's own home," CLASH founder Audrey Silk said in a news release issued by the group's attorney, Edward Paltzik.

We made the same point last December when the Wilson Housing Authority announced its tobacco-free housing policy effective Jan. 1. Local officials were complying with a HUD mandate when they implemented the smoking ban, but they went a step further by forbidding smokeless tobacco products, e-cigarettes and electronic nicotine delivery systems, a restriction HUD does not require.

Cigarette smoke stains walls and carries secondhand exposure risks, but dipping, chewing and vaping affects no one besides the individual user. Even if housing officials had residents' health in mind, Wilson's add-on ban is a fundamentally flawed experiment in nanny-state social engineering. 

Much more than the freedom to light up in the living room is at stake. Heavyweight constitutional principles are in play, and even those of us who hate cigarettes and tobacco products have a privacy interest in the smokers' case.

The prohibition on smoking, CLASH claims in its lawsuit, violates the Fourth Amendment right to be free from unreasonable searches, the 10th Amendment's ban on commandeering state and local officials to enforce federal policy and provisions of the Fifth and 14th amendments protecting personal liberty. 

Anyone who believes a person's home is his or her castle and is averse to bureaucrats busting down the door has no alternative than to side with the smokers.

"The lawsuit notes that the Fourth Amendment applies to public housing and argues that enforcing the smoking ban will require warrantless, nonconsensual searches to detect violations," Jacob Sullum writes in a piece for Reason, a libertarian public policy magazine.

We fail to see how HUD's ham-fisted rule was able to accrue sufficient political capital in the first place. As the Times' January editorial notes, the smoking ban should offend conservatives for its intrusion into the home and perturb progressives for its discriminatory effect on low-income residents. 

Poor people are being threatened with the loss of their homes unless they quit a legal, if harmful, personal habit. Is bullying public housing residents by intimidation, fear and fines consistent with liberal values? It shouldn't be.

Silk blames the policy on "public health zealots" who are "frustrated by the holdouts who've refused to submit to their current coercive measures."

Big-government advocates may believe in using taxes, laws and regulations to nudge citizens in the right direction, but when does a nudge become a cruel two-handed shove? 

We'd like to see tobacco users quit voluntarily. Cigarettes, chew and snuff cause disease and death. They're a nasty habit that's hard to break. But free American adults must be able to decide for themselves, and those living in poverty who rely on housing benefits shouldn't suffer discrimination.

Can government play a role in reducing tobacco use? Certainly. In May, the state-run QuitlineNC program offered free nicotine patches, gum and lozenges to state residents who signed up for phone or online support coaching. That's a positive example of public investment in smoking cessation.

Reasonable people on all sides of the political spectrum understand that improving public health calls for more carrot and a lot less stick.

"...The government doesn't have the right to reach into our homes and dictate our personal behaviors and habits," Silk says. We hope the judges agree.