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NYC C.L.A.S.H., INC., Plaintiff, - against - CITY OF NEW YORK, THOMAS R. FRIEDEN, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE CITY OF NEW YORK DEPARTMENT OF HEALTH AND MENTAL HYGIENE, ELLIOT SPITZER, IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE STATE OF NEW YORK, and ANTONIA C. NOVELLO, IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF HEALTH, Defendants.

03 Civ. 5463 (VM)

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


 
April 7, 2004, Decided  
April 8, 2004, Filed

DISPOSITION:  [*1]  Motion of defendants City of New York and Thomas R. Frieden (the "Municipal Defendants") pursuant to Federal Rule of Civil Procedure 12 (b)(6) to dismiss the amended complaint of plaintiff NYC C.L.A.S.H., Inc. ("CLASH") in its entirety converted into a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 GRANTED; Motions of defendants Eliot Spitzer and Antonia C. Novello (the "State Defendants") for summary judgment on all the claims in CLASH'S amended complaint GRANTED; Cross-Motion of CLASH for summary judgment DENIED.

CORE TERMS: smoking, smoker, smoke, First Amendment, summary judgment, restaurant, rational basis, establishment, scientific, message, indoor, classification, expressive, harmful, assembly, discovery, regulation, cigarette, enacting, non-smokers, tobacco, patron, intermediate, reply, Local Law, municipal, heightened, exposure, outdoor, flag

COUNSEL: For The City of New York, Defendant: Ave Maria Brennan, LEAD ATTORNEY, Paul A. Crotty, Corp. Counsel of the City of New York, New York, NY.
 
For Antonia C. Novello, Defendant: John P. Gasior, LEAD ATTORNEY, Eliot Spitzer, Attorney General of the State of New York, New York, NY.
 
For NYC C.L.A.S.H., Inc., Plaintiff: Kevin T. Mulhearn, LEAD ATTORNEY, Kevin T. Mulhearn, P.C., Orangeburg, NY.

JUDGES: VICTOR MARRERO, United States District Judge.

OPINIONBY: VICTOR MARRERO

OPINION: DECISION AND ORDER
 
VICTOR MARRERO, United States District Judge.

Plaintiff NYC [*2]  C.L.A.S.H., Inc. ("CLASH") brings this action to challenge the constitutionality of the smoking restrictions contained in the recently-amended New York State Clean Indoor Air Act and the New York City Smoke Free Air Act. Although CLASH challenges the recent amendments to these statutory provisions that prohibit smoking in most indoor places, it focuses its challenge on the prohibition of smoking in bars and food service establishments. The defendants in this action include the City of New York, and Thomas R. Frieden ("Frieden"), in his official capacity as the Commissioner of the New York City Department of Health and Mental Hygiene (collectively, the "Municipal Defendants"). Also named as defendants are Eliot Spitzer, in his official capacity as the Attorney General of the State of New York, and Antonia C. Novello, in her official capacity as Commissioner of the New York State Department of Health (collectively, the "State Defendants" and, together with the Municipal Defendants, "Defendants").

CLASH seeks a declaratory judgment that amendments to the New York State and New York City laws (the "Smoking Bans") prohibiting smoking in practically all indoor privately-owned premises that [*3]  are open to the public are invalid as violations of the federal constitutional provisions ensuring freedom of association, assembly, and speech; the right to travel; equal protection; and the right to enter into contracts. CLASH further asserts that the New York State Smoking Ban is unconstitutionally vague. As remedies, CLASH seeks injunctive relief against enforcement of these provisions. Pending before the Court are Defendants' motions to dismiss CLASH's amended complaint pursuant to Federal Rule of Civil Procedure 12 (b)(6) for failure to state a cause of action upon which relief can be granted. In the alternative, the State Defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56. CLASH opposes Defendants' motions and cross-moves for summary judgment. For the reasons discussed below, the Court sua sponte converts the Municipal Defendants' motion to dismiss into a motion for summary judgment, grants Defendants' motions for summary judgment, and denies CLASH's cross-motion for summary judgment.

I. INTRODUCTION n1

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n1 The factual recitation below is derived primarily from the following documents: Amended Complaint, dated Sept. 4, 2003, NYC C.L.A.S.H., Inc. v. City of New York, No. 03 Civ. 5463 (S.D.N.Y.) ("Amd. Compl."); Plaintiff's Memorandum of Law in Support of its Cross-motion for Summary Judgment - and in opposition to the respective motions of the Municipal and State Defendants to dismiss the Amended Complaint, dated Jan. 15, 2004 ("Pl. Mem."); Affidavit of Kevin T. Mulhearn in Support of Plaintiff's Cross-motion for Summary Judgment, dated Jan. 16, 2004 (with attached exhibits) ("Mulhearn Aff."); Affidavit of Audrey Silk, dated Jan. 15, 2004 ("Silk Aff."); Plaintiff's Reply Memorandum of Law in Support of its Cross-motion for Summary Judgment - and in opposition to the respective motions of the Municipal and State Defendants to dismiss the Amended Complaint, dated Feb. 27, 2004 ("Pl. Reply"); Affidavit of Linda Stewart, dated Feb. 26, 2004 ("Stewart Aff."); Affidavit of Roger Allen Jenkins, dated Feb. 20, 2004 ("Jenkins Aff."); Memorandum of Law in Support of State Defendants' Motion to Dismiss the Amended Complaint, dated Nov. 21, 2003 ("St. Mem."); Affidavit of John P. Gasior in Support of State Defendants' Motion to Dismiss the Complaint, dated Nov. 21, 2003 (with attached exhibits) ("Grasior Aff."); Affidavit of Assembly Member Alexander B. Grannis, dated Nov. 14, 2003 (with attached exhibits) ("Grannis Aff."); Affidavit of Ursula Bauer, M.P.H., Ph.D., dated Nov. 14, 2003 (with attached exhibits) ("Bauer Aff."); Reply Memorandum of Law in Support of State Defendants' Motion to Dismiss the Complaint and in Opposition to Plaintiff's Cross-motion for Summary Judgment, dated Feb. 13, 2004 ("St. Reply"); Municipal Defendants' Memorandum of Law in Support of Motion to Dismiss the Amended Complaint, dated Nov. 20, 2003 ("Mun. Mem."); Declaration in Support of Municipal Defendants' Motion to Dismiss, dated Nov. 20, 2003 ("Mun. Decl."); Memorandum of Law of Municipal Defendants in Opposition to Plaintiff's Cross-motion for Summary Judgment and in Further Support of their Motion to Dismiss, dated Feb. 6, 2004("Mun. Opp."). Except where specifically referenced, no further citation to these sources will be made.
 

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A. THE 2003 AMENDMENTS TO THE CLEAN INDOOR AIR ACT

On March 26, 2003, New York State Governor George Pataki signed into law Chapter 13 of the Laws of 2003 ("Chapter 13"), which amended certain provisions of the Clean Indoor Air Act ("CIAA"). The Chapter 13 amendments prohibit smoking in virtually all indoor places in New York State where people work or socialize. See 2003 N.Y. Senate Bill No. S. 3292; 2003 N.Y. Assembly Bill No. A.7136, codified at N.Y. Pub. Health Law §§ 1399-n et seq. As will be discussed in greater detail below, Chapter 13 was passed in response to mounting scientific evidence that links exposure to the airborne smoke that is a by-product of smoking, commonly referred to today as "secondhand smoke" or environmental tobacco smoke ("ETS"), n2 to serious health risks to non-smokers.

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n2 ETS is comprised of the smoke emitted by the burning end of a lighted cigarette, known as sidestream smoke, and the smoke exhaled by the smoker, known as mainstream smoke. See The Health Consequences of Smoking, A Report of The Surgeon General, United States Department of Health and Human Services (1986) at 7. As used herein, "ETS exposure" means the exposure to ETS by a non-smoking person in proximity to a person who is smoking.
 

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The version of the CIAA in effect prior to the enactment of Chapter 13 placed numerous restrictions on where a person could smoke. Among these restrictions was an outright ban on smoking in any portion of the indoor area of many common types of establishments open to the public, including auditoriums; elevators; public means of mass transportation and the ticketing/boarding areas thereof; supermarkets; swimming pools; youth centers; and child care facilities, among others. See id. (identifying the amendments to the Clean Indoor Air Act). The prior version of the CIAA permitted smoking in the indoor area of many other types of establishments only if the owner designated a separate smoking section. Among the facilities that were permitted to maintain separate indoor smoking sections were food service establishments; all public and private colleges and universities; hospitals; public buildings; theaters; museums; libraries; and retail stores. See id. Smoking was specifically permitted in bars under the prior version of the CIAA.

With the enactment, of Chapter 13, New York State substantially expanded its restrictions on smoking to include a outright ban in almost every indoor [*6]  area in the state, including, for the first time, places of employment not open to the public, such as private offices. n3 See N.Y. Pub. Health Law §§ 1399-n and 1399-o (Consol. 2003). Most relevant for the purposes of the present action, Chapter 13 also amended the CIAA to impose of an outright prohibition on smoking in all areas of bars, including outdoor seating areas. See id. §§ 1399-o (2) and 1399(n)(1). Chapter 13 also strengthened the CIAA's restrictions on smoking in food service establishments by prohibiting smoking in any indoor area of such an establishment and permitting smoking in an outdoor area only under certain conditions. See id. §§ 1399-o and 1399-q(6).

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n3 The CIAA, as amended, specifically excludes certain locations from the smoking ban, including private homes and residences; private automobiles; hotel/motel rooms; retail tobacco businesses; and, subject to certain restrictions, membership associations. See N.Y Pub. Health Law § 1399-q (Consol. 2003).
 

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B. THE 2002 AMENDMENTS TO THE SMOKE FREE AIR ACT

On December 18, 2002, the New York City Council enacted Local Law 47 of 2002 ("Local Law 47"), which, like its State counterpart, amended the existing smoking restrictions contained in the New York City Smoke-Free Air Act ("SFAA"). See 2002 N.Y.C. Local Law 47, Council Int. No. 256-A, codified at N.Y.C. Admin. Code §§ 17-501 et seq. Local Law 47 was also passed in recognition of the scientific evidence linking ETS exposure to adverse health effects.

Under the version of the SFAA in effect prior to the enactment of Local Law 47, smoking was prohibited in many indoor places open to the public, including mass transportation; retail stores; restaurants with an indoor seating capacity of more than 35 patrons; business establishments; libraries; museums; and theaters. n4 See id. (identifying the amendments to the Smoke Free Air Act).

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n4 Smoking in portions of some of these establishments was permitted under specific conditions. See 2002 N.Y.C. Local Law 47, Council Int. No. 256-A.
 

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Local Law 47 repealed all existing smoking provisions then in effect and enacted a more rigorous set of smoking restrictions that, like Chapter 13, prohibit smoking in virtually all indoor locations in New York City where people work or socialize. See N.Y.C. Admin. Code § 17-503. Local Law 47, like Chapter 13, also instituted an outright smoking ban in all indoor portions of restaurants, regardless of seating capacity, and in all areas of bars, subject to very narrow exceptions. n5 See id. §§ 17-503(a)(5) and (a)(20).

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n5 Some of these exceptions have been preempted by the enactment of Chapter 13.
 

 

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CLASH n6 asserts four counts in its amended complaint. n7 The first count alleges that Chapter 13 is unduly vague in violation of the Due Process Clause of the Fourteenth Amendment of the United States Constitution. The second count alleges that the Smoking Bans promulgated under Chapter 13 and Local Law 47 violate certain protections under the First and Fourteenth Amendments,  [*9]  namely, freedom of association and assembly, freedom of speech, and freedom of travel. The third count alleges that the Smoking Bans violate the Equal Protection Clause of the Fourteenth Amendment. Finally, the fourth count alleges that the Smoking Bans violate the Privileges and Immunities Clause of the Fourteenth Amendment by unduly interfering with the right of a smoker to form a contract with the owner of a bar or restaurant.

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n6 CLASH is an acronym for "Citizens Lobbying Against Smoker Harassment." (Silk Aff. at Ex. A.)
n7 CLASH amended its initial complaint only to remove certain parties as named defendants.
 

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Pending before this Court are the parties' motions for dismissal and/or summary judgment described above.

II. DISCUSSION
 
A. STANDING

As a threshold matter, the Court first must determine whether CLASH has standing to bring this action. Generally, in order to satisfy the standing requirement under Article III of the United States Constitution, a plaintiff must demonstrate [*10]  that: (1) he or she has suffered an injury in fact; (2) the injury is traceable to alleged actions of the defendant; and (3) the injury will be redressed by a favorable decision. See Nike, Inc. v. Kasky, 539 U.S. 654, 123 S. Ct. 2554, 2560, 156 L. Ed. 2d 580 (2003) (citation omitted). In a case such as this, where the only plaintiff is an organizational entity that purports to represent a class of people alleged to be aggrieved, the organization must establish that it has standing to bring suit either in its own right or on behalf of its members. See Warth v. Seldin, 422 U.S. 490, 511, 45 L. Ed. 2d 343 (1975).

The State Defendants challenge CLASH's standing on the grounds that CLASH cannot meet the tripartite test for organizational standing discussed by the United States Supreme Court in Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 53 L. Ed. 2d 383 (1977). Under Hunt, an organization can establish standing on behalf of its members if: (1) its members would otherwise have standing to bring the suit individually; (2) the interests the organization seeks to protect by means of the suit are germane to the [*11]  organization's purpose; and (3) neither the claim asserted nor the relief requested requires the participation of the individual members. See id. at 342.

The State Defendants argue that CLASH cannot meet the first requirement under Hunt because no individual aggrieved member of CLASH is identified. (See St. Mem. at 10.) There is, however, no absolute requirement that individual members be identified in order to confer organizational standing. See, e.g., NAACP v. Button, 371 U.S. 415, 428, 9 L. Ed. 2d 405 (1963) (finding that the NAACP had standing both in its own right, and to assert the rights of its members although none was named as plaintiff). In a case such as this one, involving a facial challenge to a statute on First Amendment grounds, the prudential limitations of organizational standing are generally relaxed in light of the societal interests that are implicated. See Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 956-57, 81 L. Ed. 2d 786 (1984) ("Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial [*12]  prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression."); Lerman v. Board of Elections in the City of New York, 232 F.3d 135, 143-45 (2d Cir. 2000) (discussing that a facial challenge to a statute on First Amendment grounds is governed by the overbreadth doctrine where prudential standing concerns are relaxed). The requirement that individual members must be able to bring suit on their own behalf is intended to ensure that the organization, through its members, has satisfied the general standing requirements of injury in fact, traceability, and redressability. See Warth, 422 U.S. at 511 ("The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit.") (citation omitted). In this case, the Court finds that CLASH, as an organization dedicated to advancing and promoting the interests of smokers who individually would have standing to challenge the Smoking Bans in their own [*13]  right, has met the first prong of Hunt without the need to identify any individual member.

The State Defendants also argue that CLASH has not met the second prong in Hunt on the grounds that the relief sought is not germane to CLASH's purpose. In support of this argument, the State Defendants point to CLASH's certificate of incorporation under the New York Business Corporation Law (the "NYBCL"). The certificate states that its purpose is to engage in public relations and any other lawful activity. The State Defendants argue that the amended complaint fails to establish how this stated corporate purpose establishes standing for the relief sought. (See St. Mem. at 10-11.)

The Court does not agree. The amended complaint alleges that CLASH is an organization "formed and organized for the purpose of protecting the rights of smokers,..." (Amd. Compl. at P 7.) Thus, CLASH's self-proclaimed purpose is to promote the interests of smokers and defend smoker's rights. (See Silk Aff. at Ex. A.) There is no requirement under the NYBCL that a corporation must be specific in setting forth its purpose in its certificate of incorporation. See N.Y. Bus. Corp. Law § 201(a) [*14]  (Consol. 2003) (stating that a corporation may exist for any lawful purpose). Indeed, it is not uncommon for corporations to claim a very broad and generic purpose in their incorporating certificates as a means of preserving the ability to broaden into other types of business ventures without the need to amend the certificate. Accordingly, the Court finds that CLASH's purpose is germane to the interests it seeks to protect, and thus, has met the second prong of Hunt.

Finally, the State Defendants argue that the participation of individual members of CLASH in this action is necessary because the amended complaint asserts only constitutional claims. This fact, however, only reinforces the finding that participation of individual CLASH members is not required. See Warth, 422 U.S. at 515 ("If in a proper case, the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured."). Because the amended complaint seeks only prospective relief and no money damages, the Court discerns no basis upon which the participation [*15]  of individual CLASH members is required. n8 See United Food and Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 546, 134 L. Ed. 2d 758 (1996).

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n8 While CLASH invokes jurisdiction under 28 U.S.C. § 1343, which provides the basis for the Court's jurisdiction over an action for a civil rights violation brought under 42 U.S.C. § 1983, CLASH also invokes jurisdiction under the federal question statute, 28 U.S.C. § 1331. (See Amd. Compl. at P 2.) See Albany Welfare Rights Org. v. Wyman, 493 F.2d 1319, 1321 (2d Cir. 1974) ("[A] complaint by an association alleging that its members will be harmed by threatened conduct suffices to give the association standing under the general federal question statute, 28 U.S.C. § 1331, ...."). Because CLASH seeks declaratory relief, the Court will construe the amended complaint as an action brought under the Declaratory Judgment Act, 28 U.S.C. § 2201.
 

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Accordingly, the Court finds that CLASH has sufficiently demonstrated that it has associational standing to bring this action.
 
B. JUSTICIABILITY

The State Defendants argue that the Court should decline to review CLASH's constitutional challenges to Chapter 13 because CLASH alleges that the statute was "steamrollered into law" and thus, consideration of its claims would ensnare considerations of social policy choices. According to the State Defendants, CLASH's claims constitute a "political question" that the judiciary should avoid deciding under separation of powers principles. (See St. Reply at 3-4.)

The State Defendants' argument is without merit. At the outset, the Court notes that federal law explicitly vests this Court with original jurisdiction over this action because CLASH's claims, as alleged, "arise under the constitution ...." 28 U.S.C. § 1331. Moreover, while it is true that a federal court should refrain from injecting itself into the political wranglings that sometimes accompany the legislative process, it does not follow that the public policy choices of a legislative body are necessarily beyond judicial concern and scrutiny when [*17]  such choices are codified. In considering legislative policy choices, the Court's purpose is not to pass upon the wisdom of the enactments, but rather, to determine whether the actions taken infringe upon a constitutionally protected right, and if so, whether, under the appropriate standard of review, the intrusion is justified.

It is precisely in a case such as this one, where a plaintiff alleges that governmental action violates federal constitutional rights, that a federal court has jurisdiction to assess the plaintiff's claim. Were this not the case, judicial review of the constitutionality of legislative acts would often be foreclosed -- an outcome that runs counter to our system of checks and balances among the three branches of government. This role of a federal court has long been recognized. See Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 334-40, 4 L. Ed. 97 (1816). In performing its function for the purposes of the present motion, the Court need not concern itself with whatever collateral political questions may be raised by the enactments of the Smoking Bans. Any such political questions are rightfully left to be answered by New York State and New [*18]  York City elected officials directly to their constituencies.

Accordingly, the Court rejects the State Defendants' contention that this Court should refrain from considering CLASH's constitutional challenges to Chapter 13 raised herein on the grounds that they raise political questions.
 
C. TREATMENT OF THE PARTIES' MOTIONS

As an initial procedural matter, the Court must determine the appropriate treatment of the parties' competing motions. Both the State Defendants and the Municipal Defendants have moved to dismiss CLASH's amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for the failure to state a claim upon which relief can be granted. The State Defendants have moved in the alternative for summary judgment under Rule 56. CLASH has cross-moved for summary judgment. The Court can thus proceed either under Rule 12(b)(6) and limit itself to consideration of only the amended complaint, exhibits attached thereto, and other documents upon which CLASH relies, see Chambers v. Time Warner, Inc. 282 F.3d 147, 152-53 (2d Cir. 2002), or sua sponte convert the Municipal Defendants' motion to dismiss into [*19]  a motion for summary judgment and consider all the motions and supporting affidavits under Rule 56.

The Court finds the latter approach preferable in this case, particularly in view of CLASH's own cross-motion for summary judgment, because it will permit consideration of the entire record that the parties have submitted in support of their respective positions. The Court will address the procedural ramifications of this approach in subsection G below.
 
D. STANDARD FOR SUMMARY JUDGMENT

The Court may grant summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The Court must first look to the substantive law of the action to determine which facts are material; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202 (1986). [*20]  Even if the parties dispute material facts, summary judgment will be granted unless the dispute is "genuine," i.e., "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Id. at 249.

Throughout this inquiry, the Court must view the evidence in the light most favorable to the non-moving party and must draw all inferences in favor of that party. See Hanson v. McCaw Cellular Communications, Inc., 77 F.3d 663, 667 (2d Cir. 1996).

Although in a traditional summary judgment context, the Court must determine whether there are genuine issues of material fact for the factfinder to determine, all of CLASH's claims constitute facial constitutional challenges, and thus, raise only legal issues. See Myers v. County of Orange, 157 F.3d 66, 75 n.3 (2d Cir. 1998) ("The issue of whether ... [a municipal] policy has a rational basis and therefore does not violate the Equal Protection Clause, ... , is a legal issue for the court and not a factual issue for jury determination."); Nutritional Health Alliance v. Shalala, 144 F.3d 220, 227 (2d Cir. 1998) (stating that the plaintiff's [*21]  facial First Amendment challenge "involves a purely legal question"); United States v. Murphy, 979 F.2d 287, 289 (2d Cir. 1992) ("The constitutionality of a statute is a legal question subject to de novo review.") (citation omitted). Thus, the Court can rule as a matter of law on all of CLASH's constitutional claims.
 
E. CONSTITUTIONAL CHALLENGES

Having established that CLASH has met the standing requirement, and the appropriate procedural framework upon which to proceed, the Court turns to the merits of CLASH's substantive constitutional challenges to the Smoking Bans.

The first step in assessing the various constitutional bases upon which CLASH seeks to invalidate the Smoking Bans is to establish the appropriate standard of review. CLASH argues fervently that the Court must apply a heightened level of scrutiny to the Smoking Bans because they infringe upon the guarantees of the First and Fourteenth Amendments to the United States Constitution. The Court will determine the appropriate standard of scrutiny in light of the particular constitutional provisions invoked and the nature of rights alleged to be affected.

1. First Amendment Claims

CLASH [*22]  argues that the Smoking Bans impinge upon its members' First Amendment rights. Specifically, CLASH asserts the Smoking Bans interfere with the freedoms of association, assembly, and speech. (See Amd. Compl. at PP 53-59.) To consider CLASH's contention that the Smoking Bans require a heightened level of review, the Court must necessarily, determine whether the Smoking Bans encroach upon any First Amendment protections.

a. Association and Assembly

The United States Supreme Court has explained that the right to associate protected by the First Amendment is implicated in two general instances. First, government intrusion into a person's choice to "enter into and maintain certain intimate human relationships" may violate the right of freedom of association. Roberts v. United States Jaycees, 468 U.S. 609, 617-19, 82 L. Ed. 2d 462 (1984) (citing cases). Second, the right to associate freely is implicated when governmental action interferes with an organization engaged in activities protected by the First Amendment, such as speech, assembly, redress of grievances, and the exercise of religion. See id. at 618. Thus, in order for CLASH to succeed in [*23]  its challenge to the Smoking Bans on the basis of freedom of association, it must demonstrate that the Smoking Bans infringe one of these two general spheres of activities.

CLASH does not suggest that the gathering of individuals in bars and restaurants to engage in social or even business activities while smoking is the type of "intimate" relationships that the Supreme Court contemplated in Roberts, nor does CLASH allege that the Smoking Bans unduly interfere with any right of intimacy by smokers in these places. n9 Cf. City of Dallas v. Stanglin, 490 U.S. 19, 24, 104 L. Ed. 2d 18 (1989) ("It is clear beyond cavil that dance-hall patrons, who may number 1,000 on any given night, are not engaged in ... 'intimate human relationships' ...."). Thus, if CLASH's challenge to the Smoking Bans on associational grounds can suceed, it must be grounded in an alleged interference with smokers' ability to assemble and associate with other persons while exercising their First Amendment rights. A fair reading of CLASH's allegations and arguments supports this interpretation of CLASH's theory.

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n9 While such chance encounters may ultimately lead to a more intimate long-term relationship, there is no suggestion that a smoker's inability to smoke interferes with the process in any way. Indeed, for some individuals, it may enhance the possibility of such an outcome.
 

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CLASH argues that the Smoking Bans "interfere with ... [CLASH members'] rights ... to associate with other smokers in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends" because for smokers, "smoking is so inherent in the act of socializing and conversing, in relaxing, and in enjoying the comforts of public life, that to bar the act of smoking in all privately owned places that are open to the public deprives smokers of a necessary venue for conducting their private social lives." (Pl. Mem. at 10.) While conceding that the Smoking Bans do not "technically" interfere with the ability to associate and assemble, CLASH posits that because of the Smoking Bans, these rights are "so substantially burdened, so utterly abridged and so encumbered with humiliation as to virtually be voided." (Pl. Reply at 7.) On this basis, CLASH argues that the Court should employ a strict scrutiny standard in this case.

At the outset, the Court notes that CLASH is not entirely clear in identifying the fundamental right that the Smoking Bans allegedly affect. Is it the "right to smoke" as such? n10 The right to assemble, associate, and speak? Or a right to [*25]  smoke during the course of assembling, associating, and speaking? The Court need not resolve this quandary because it finds that the Smoking Bans do not infringe upon any recognized First Amendment right regardless of the manner in which the perceived right is framed.

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n10 CLASH concedes that it does not allege that there is fundamental right to smoke, per se, (see Pl. Reply at 5), although it does allege a "right to smoke" in its amended complaint. (See Amd. Compl. at P 54.)
 

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A critical flaw inherent in CLASH's First Amendment arguments is the premise that association, speech, and general social interaction cannot occur or cannot be experienced to the fullest without smoking, or, conversely, that unless smokers are allowed to light up on these occasions and at these places, their protected right is somehow fundamentally diminished. Implicit in this premise is that smoking enhances the quality of the social experience and elevates the enjoyment of smokers' First Amendment rights; in other words, that [*26]  only by being allowed to smoke can smokers contribute fully and enjoy to the maximum the experience of association, assembly, and speech in public places such as bars and restaurants. CLASH's allegation that the Smoking Bans "curtail" certain activities for smokers, in essence suggests that smokers cannot fully engage in conversation and other activities in bars and restaurants unless they are permitted to smoke, or that only by being permitted to smoke in these places can they fully exercise their constitutional rights of association and speech.

Without summarily dismissing all possibility that smoking may contain some scintilla of associational value for some people, there is nothing to say that smoking is a prerequisite to the full exercise of association and speech under the First Amendment. See Boy Scouts of Am. v. Dale, 530 U.S. 640, 648 (2000) ("To come within ... [the] ambit [of the right of freedom of association], a group must engage in some form of expression, whether it be public or private."). At best, smoking, where permitted, is but a single component of the entire realm of associational interactions that a bar or restaurant patron could experience.  [*27]  Other aspects include dining, drinking, conversing, viewing or listening to entertainment, and meeting other people. While the Smoking Bans restrict where a person may smoke, it is a far cry to allege that such restrictions unduly interfere with smokers' right to associate freely with whomever they choose in the pursuit of any protected First Amendment activity. See Fighting Finest, Inc. v. Bratton, 95 F.3d 224, 228 (2d Cir. 1996) (stating that "to be cognizable, the interference with associational rights must be 'direct and substantial' or 'significant'") (quoting Lyng v. International Union, United Auto., Aerospace and Agric. Implement Workers of Am., 485 U.S. 360, 366-67 & n.5, 99 L. Ed. 2d 380 (1988)). Furthermore, CLASH's focus on bars and restaurants ignores the numerous other public places where smokers associate and engage in speech that were already covered by a smoking prohibition long before the enactment of the Smoking Bans.

The First Amendment guarantees the fundamental freedoms it enumerates, but not necessarily every purpose or form that exercise of the specific rights may take. Nothing in the Constitution engrafts upon First Amendment [*28]  protections any other collateral social interaction, whether eating, drinking, dancing, gambling, fighting, or smoking -- the list may be endless. While in some circles and events these social enhancements, by custom or practice, may be associated with and perhaps even augment the enjoyment of protected endeavors, it does not follow that they are indispensable conditions to the exercise of particular constitutional rights. The effect of CLASH's "association PLUS" theory would be to embellish the First Amendment with extra-constitutional protection for any ancillary practice adherents may seek to entwine around fundamental freedoms, as a consequence of which the government's power to regulate socially or physically harmful activities may be unduly curtailed.

In fact, First Amendment jurisprudence unequivocally rejects CLASH's constitutional enhancement hypothesis. Freedom of association does not extend to gatherings for the purpose of inciting imminent violence or overthrow of government by unlawful means. See Brandenburg v. Ohio, 395 U.S. 444, 447, 23 L. Ed. 2d 430 (1969). Likewise, freedom of speech does not protect child pornography. See New York v. Ferber, 458 U.S. 747, 764-65, 73 L. Ed. 2d 1113 (1982). [*29]  Freedom of religion does not exempt polygamy or compliance with child labor and immunization laws. See Cleveland v. United States, 329 U.S. 14, 19-20, 91 L. Ed. 12 (1946); Prince v. Massachusetts, 321 U.S. 158, 166-67, 88 L. Ed. 645 (1944). Nor does freedom of the press protect the prior restraint of the publication of the number and location of military troops during wartime. See Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716, 75 L. Ed. 1357 (1931). These principles clearly establish that purported ornamentations of First Amendment freedoms warrant no constitutional protection when such activities are not essential to the enjoyment of a particular right, or may otherwise be harmful to public health, safety, order, or general welfare.

On this point, the Court finds the Supreme Court's decision in City of Dallas v. Stanglin, 490 U.S. 19, 104 L. Ed. 2d 18 (1989), to be highly persuasive, if not controlling. In Stanglin, a city ordinance that restricted admission to certain dance halls to persons between the ages of 14 and 18 was challenged on the grounds that it violated the right of persons in that age group [*30]  to freely associate with persons in other age groups. See id. at 22. The city's proffered reason for the ordinance was to protect teenagers from the possible corrupting effects of older persons. See id. at 21. Applying a rational basis standard of review, the Supreme Court held that the ordinance did not violate any right of association protected by the First Amendment. See id. at 28. In so holding, the Supreme Court stated that the Constitution does not recognize a "generalized right of 'social association,'" although it noted that the right does extend to "groups organized to engage in speech that does not pertain directly to politics[,]" such as social, legal, and economic pursuits. Id. at 25.

It bears noting that although the ordinance at issue in Stanglin posed a direct interference with social interaction, the Supreme Court upheld its validity against a challenge under the right of free association because the group of teenagers affected were not gathering as members of an organized association or for a common purpose protected by the First Amendment. See id. at 24-25. In contrast,  [*31]  the Smoking Bans pose no such direct interference on the social interaction of smokers, who, like the teenagers in Stanglin, also do not regularly gather in bars and/or restaurants as an organization of smokers or in pursuit of a common goal or lawful purpose that itself would be protected under the First Amendment. Thus, under the analysis discussed in Stanglin, the Smoking Bans would certainly not implicate the right of free association.

Relying on the Second Circuit's decision in Fighting Finest, Inc. v. Bratton, 95 F.3d 224 (2d Cir. 1996), CLASH seeks to distinguish the instant case from Stanglin by arguing that the Smoking Bans impinge upon smokers' association rights in bars and restaurants not only with respect to recreational endeavors, but to business, political, and social endeavors as well. (See Pl. Reply at 6.) Whatever generalized non-recreational endeavors are alleged, however, the fact remains, that the Smoking Bans do not materially affect any rights protected under the First Amendment. As Defendants correctly point out, under the Smoking Bans, smokers remain free to associate and assemble as they please, to smoke or not, whether it [*32]  be in a bar, a restaurant, a city street, or any other place where it is otherwise permissible to do so.

Moreover, the decision in Fighting Finest serves only to reinforce the Court's finding that the Smoking Bans do not implicate a smoker's right of free association and assembly under the First Amendment. The Second Circuit in Fighting Finest found that although the plaintiffs, a boxing team comprised of police officers, enjoyed some constitutionally-protected rights of association, the police commissioner's decision not to permit the team to use the bulletin boards in police precincts was not a material infringement on the organization's ability to freely associate under the First Amendment. See Fighting Finest, 95 F.3d at 228 ("The First Amendment does not compel government to facilitate the ease with which an individual may exercise associational rights.") (citation omitted).

For this same reasons, CLASH's reliance on Coates v. Cincinnati, 402 U.S. 611, 29 L. Ed. 2d 214 (1971), is also misplaced. CLASH cites Coates in support of its contention that the Smoking Bans are unconstitutional under the First and Fourteenth Amendments because [*33]  they inhibit association on the mere basis that the group's actions may be annoying. (See Pl. Reply at 6.) In Coates, the Supreme Court struck down an ordinance that made it illegal for three or more persons to assemble on a public sidewalk and "annoy" people. See id. at 615. No such actual restriction on assembly and association is at issue in this case. While it is true that governmental action need not directly interfere with a person's ability to associate in order to violate First Amendment associational rights, see Lyng, 485 U.S. at 367 n.5, the Court finds that the Smoking Bans present no material impediment to a smoker's ability to freely associate and assemble under the First Amendment. Moreover, as will be discussed in greater detail below, the justification for the Smoking Bans reaches far beyond an attempt to restrict merely "annoying" behavior.

Accordingly, the Court concludes that the Smoking Bans do not implicate First Amendment protections with regard to assembly and association and thus, would not merit a heightened level of scrutiny for these claims.

b. Speech

Turning more particularly to CLASH's free speech claim,  [*34]  it is well settled that governmental action that establishes content-based restrictions on the First Amendment right of free speech is presumptively invalid under a strict scrutiny standard of review. See United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 817, 146 L. Ed. 2d 865 (2000). On the other hand, content-neutral restrictions on speech are subject to an intermediate level of scrutiny. See Bartnicki v. Vopper, 532 U.S. 514, 545, 149 L. Ed. 2d 787 (2001). As with CLASH's freedom of association and assembly claims, the determination of the appropriate level of scrutiny to be employed for CLASH's free speech claim will turn on both an examination of the governmental action and a determination as to whether smoking in a bar or restaurant can be a form of protected speech under the First Amendment.

The Court begins by noting that mere conduct, such as smoking, is not generally considered speech, and thus, is not in itself protected under the First Amendment. It is, however, possible for certain conduct to be sufficiently imbued with elements of expression so as to merit constitutional protection. See Virginia v. Black, 538 U.S. 343, 123 S. Ct. 1536, 1547, 155 L. Ed. 2d 535 (2003); [*35]  Church of the Am. Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 205 (2d Cir. 2004); see also Arcara v. Cloud Books, Inc., 478 U.S. 697, 708, 92 L. Ed. 2d 568 (1986) (stating that the First Amendment is not implicated when "government is regulating neither speech nor an incidental, nonexpressive effect of speech") (O'Conner, J., concurring).

Thus, conduct that has been found to be sufficiently expressive to merit First Amendment protection has included marching in a parade, see Hurley v. Irish-American Gay. Lesbian & Bisexual Group of Boston, 515 U.S. 557, 132 L. Ed. 2d 487 (1995), burning the United States flag, see United States v. Eichman, 496 U.S. 310, 110 L. Ed. 2d 287 (1990); marching in uniforms bearing the swastika, see National Socialist Party of Am. v. Skokie, 432 U.S. 43, 53 L. Ed. 2d 96 (1977); defacing and displaying the United States flag upside down and with a peace symbol affixed thereto, see Spence v. Washington, 418 U.S. 405, 41 L. Ed. 2d 842 (1974); wearing a jacket with an expletive regarding the military draft, see Cohen v. California, 403 U.S. 15, 29 L. Ed. 2d 284 (1971); [*36]  wearing an armband to protest a war, see Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 21 L. Ed. 2d 731 (1969); and saluting or refusing to salute the flag, see West Va. Bd. of Educ. v. Barnette, 319 U.S. 624, 87 L. Ed. 1628 (1943).

The relevant inquiry thus becomes whether, and to what extent, smoking in a public indoor establishment, such as a bar or restaurant, constitutes expressive speech that can be protected under the First Amendment. To this end, the Court must first inquire "whether an intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it." Texas v. Johnson, 491 U.S. 397, 404, 105 L. Ed. 2d 342 (1989) (citing Spence, 418 U.S. at 410-11). The Court is mindful that the Supreme Court in Hurley relaxed the requirement articulated in Spence that the message be particularized. See Hurley, 515 U.S. at 569. This caveat, however, does not dispense with the requirement that some articulable message must still exist and otherwise "speak" to someone. See Kerik, 356 F.3d at 205 n.6 [*37]  ("We have interpreted Hurley to leave intact the Supreme Court's test for expressive conduct.").

On this issue, CLASH submits a series of "position papers" written by Linda Stewart ("Stewart"). (See Mulhearn Aff. at Exs. V-X.) Stewart is proffered as a New York City resident, CLASH member, and as a "noted professional writer and journalist." (Id. at P 26.) Stewart's position papers purport to establish that smokers identify themselves, in part, by the act of smoking. Specifically, she asserts that for a smoker, "smoking is indeed part of the person's life and certainly his social life and crucially, more than that, a part of his identity." (Id. at Ex. V.) (emphasis in original). Thus, according to Stewart, the Smoking Bans "so abridge ... [smokers'] enjoyment of socializing in public as to render both enjoyment and socializing impossible." (Id.)

With regard to speech, Stewart submits another position paper that cites numerous writers and journalists to suggest that smoking is a form of political speech, an act of "rebellion against a State and a state of a [sic] affairs for which smokers feel a righteous rage of revulsion." (Id. at Ex. X.) ("Like samizdat,  [*38]  it says we abhor a repressive state, and feel compelled to convey the message."). Stewart likens smoking to flag burning or a statement of racial pride. (See id.)

If First Amendment jurisprudence has taught anything, it is that the line between mere conduct and expressive speech is not always clear. Not surprisingly, courts have at times struggled at the fringes of these issues. Nevertheless, the Court is guided by the notion that an almost limitless amount of what a person does everyday can be dubbed to be directly or indirectly expressive, either of one's individuality and creativity, such as the places where a person chooses to socialize, what a person hangs on her walls at home or at her office, or conduct that is expressive of one's support for or opposition to some ideology or cause. Similarly, choices of fashion or even the types of pets or cars that a person chooses to obtain can transmit clear messages about individuality and material values. n11 In this vein, the Court proceeds with caution in considering CLASH's invitation to recognize protectable First Amendment expression in the act of smoking. As the Supreme Court has stated, "we cannot accept the view that an apparently [*39]  limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." United States v. O' Brien, 391 U.S. 367, 376 (1968); Zalewska v. County of Sullivan, 316 F.3d 314, 319 (2d Cir. 2003). As the Supreme Court has aptly explained:
It is possible to find some kernel of expression in almost every activity a person undertakes--for example, walking down the street or meeting one's friends at a shopping mall--but such a kernel is not sufficient to bring the activity within the protection of the First Amendment.

 
Stanglin, 490 U.S. at 25. Thus, it is the Court's task to draw the line in this case and determine whether a person's choice to smoke in a bar or restaurant rises to the level of protected expressive speech under the First Amendment.

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n11 For example, a depiction of James Dean, clad in a leather jacket and leaning against his sports car with a cigarette in hand conjured up, for many old enough to remember, an image of a youthful renegade. In the 1960's and 1970's, tobacco advertisers often would portray smoking as socially acceptable, chic, and as a sign of success. Virginia Slims, for example, often reminded women that smoking was a symbol of sexual appeal, social independence, and success by telling them: "You've Come A Long Way, Baby."
 

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While it is conceivable that, as CLASH suggests, some smokers may light up for the explicit purpose of sending some express or subliminal message, for example, as a rebuke of the Smoking Bans themselves, the Court is not persuaded by the general proposition that a smoker's prevailing motivation for smoking a cigarette, whether it is done in a bar, restaurant, or on a city street, is to convey a message with some profound expressive content to those around him. For, in smoking, like many other commonplace acts, the non-expressive purpose subsumes whatever expressive message may be inferred. Courts that have found protectable expression in conduct have done so because the expressive component was the primary, if not the sole, purpose of the act. Thus, a person who burns the American flag at a political rally, for instance, does so not because of some pyromaniacal urge or to provide warmth while protesting. Rather, the flag burner is driven predominantly by his or her desire to make a statement, to voice an opposition and take a stand on a cause concerning which the flag in flames manifests the relevant sentiments of the actor. Otherwise, the arsonist who coincidentally chooses an American [*41]  flag to douse in gasoline in order to set a building on fire may rightfully claim that his conduct qualifies for constitutional protection as an expressive act.

The Court recognizes that the image of a burning flag is at an extreme when compared to a smoker in a bar. There is no requirement that a protectable message be as poignant as the burning of the American flag. This example, however, serves to illustrate the point. While Stewart's position paper may give scant credence to the notion that some smokers, under some prearranged conditions, may seek to express a message when they smoke, the Court finds that the opinion of a single CLASH member is unpersuasive to suggest that in every instance the act of smoking in a bar or restaurant is ordinarily so inextricably intermeshed with a message that it always merits First Amendment protection.

Even assuming that smokers generally do intend some message of government defiance or some expression of individuality when they light up a cigarette in a bar or restaurant, the Court wonders whether "the message would be understood by those who reviewed it" to be what CLASH says it is. n12 Johnson, 491 U.S. at 404. In Zalewska v. County of Sullivan, 316 F.3d 314 (2d Cir. 2003), [*42]  the Second Circuit rejected a female county employee's free speech challenge to the county's dress code that did not permit her to wear a skirt while working. The Zalewska Court found that the wearing of a skirt, by itself, was a "vague and unfocused message" that would likely not be understood by those viewing her, and thus, merited little, if any, First Amendment protection. Id. at 319-20. Certainly if opposition to the Smoking Bans is the message, then its receipt would be better assured if conveyed in a more appreciable context, such as inside City Hall, Gracie Mansion, or the State Capitol, where it would be so understood and possibly protected. See id. at 320 ("Essential to deciding whether an activity carries a perceptible message entitled to protection is an examination of the context in which the activity was conducted.") (citing Johnson, 491 U.S. at 405).

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n12 Stewart also suggests that by the act of smoking together, smokers speak to each other. (See Mulhearn Aff. at Ex. X.) ("And it says to another smoker, 'Relax, I'm your friend.'"). Whether smokers share some clandestine language not readily available to non-smokers, however, does not propel the act of smoking within the zone of First Amendment protection.
 

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And even assuming that smoking bears some element of detectable expression that would implicate the First Amendment, the government is granted greater leeway to restrict expressive conduct than to restrict the written or spoken word, although it cannot "proscribe particular conduct because it has expressive elements." Johnson 491 U.S. at 406 (emphasis in original).

There is nothing to suggest that the Smoking Bans are aimed at the suppression of any expressive conduct. Nor are they aimed at the person as a smoker by reason of his social habit of choice or addiction, as the case may be. Rather, the Smoking Bans are aimed at the act of smoking itself, and only when carried out in certain public places where the state and city legislatures have deemed it to adversely affect other people. n13 In short, the right of free speech, like the rights of assembly and association, is not inherently accompanied by the unrestricted ability to smoke everywhere.

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n13 The Smoking Bans also do not attempt to intrude in such places that would be considered to be within a person's sphere of privacy, such as in a private residence, automobile, hotel room, or private social event, and thus, do not ruffle the implied right of privacy in the "penumbras" of the Bill of Rights. Griswold v. Connecticut, 381 U.S. 479, 484-85, 14 L. Ed. 2d 510 (1965).
 

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Even further indulging the notion that smoking in a bar or restaurant embodies some shred of expressive conduct protected under the First Amendment, and that the Smoking Bans impose some burden on such expression, the Court finds that the Smoking Bans would pass muster under an intermediate level of scrutiny. The Supreme Court has defined content-neutral restrictions as "those that are justified without reference to the content of the regulated speech." Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 89 L. Ed. 2d 29 (1986) (internal quotations and citations omitted) (emphasis in original). A content-neutral restriction is one that "does not contravene the fundamental principle that underlies [the] concern about 'content-based' speech regulations: that 'government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views.'" Id. at 48-49. (citation omitted).

Because the Smoking Bans are neither specifically targeted at the suppression of the content of any alleged speech nor permit the use of a forum by one group of speakers over another, they [*45]  would be properly classified as "content-neutral" regulations under this definition. Such regulations are upheld under an intermediate level of scrutiny if they are substantially related to an important governmental interest. See Ward v. Rock Against Racism, 491 U.S. 781, 798-99, 105 L. Ed. 2d 661 (1989).

The Court finds that under the more demanding intermediate level of scrutiny, the Smoking Bans would survive CLASH's First Amendment challenge because they are content-neutral, reasonable time, place, and manner restrictions that are substantially related to the important governmental interest of protecting individuals from the harmful effects of ETS. Moreover, the Smoking Bans do not prohibit smoking in such places as city streets, private homes, automobiles, and hotel rooms, and thus, they leave open alternative avenues of expression. See Thomas v. Chicago Park Dist., 534 U.S. 316, 323 n.3, 151 L. Ed. 2d 783 (2002).

Having carefully considered the evidence in the record in a light most favorable to CLASH and after giving CLASH the benefit of all reasonable inferences, the Court is not persuaded that the act of smoking in a bar or restaurant, as [*46]  proscribed by the Smoking Bans, is sufficiently expressive conduct that would merit protection under the First Amendment. Accordingly, the Court find no basis under CLASH's free speech claim to employ a heightened level of scrutiny.

2. Right To Travel

CLASH alleges that the Smoking Bans are an unconstitutional infringement on the right to travel as guaranteed under the Fourteenth Amendment. (See Amd. Compl. at P 60.) Aside from this conclusory allegation, however, CLASH fails to articulate elsewhere in the amended complaint or in any of its memoranda to the Court, just how this right is implicated. The Court is thus left to consider this claim on the basis of CLASH's general assertion in its amended complaint.

The right to travel "is a part of the 'liberty' of which the citizen cannot be deprived without due process of law." United States v. Laub, 385 U.S. 475, 481, 17 L. Ed. 2d 526 (1967) (citations omitted). As such, it is deemed a fundamental right that is "closely related to [the] rights of free speech and association." <