Russ Wishtart Interview: Suing NYC to Stop the Vaping Ban

For many of you who follow the goings on of the vaping community, you may know Russ Wishtart as the rabble rouser behind the Click, Bang! radio show on the Vapers Place Network.  If you aren’t so entrenched in the e-cigarette subculture, you likely know Russ as the guy who decided to sue New York City to stop their recently passed e-cigarette ban.

I had the opportunity to lob a few questions at Russ about the recent action, what prompted it, and what it might mean for vapers across the country.  Here’s what he had to say.

SKVW: Before we get into the particulars of the lawsuit, can you tell us about your background and how you became involved in vaping activism?

RW: I have been involved in activism on various issues since 1996, though I started out on the wrong side of things.

I entered college as a fervent socialist and started hanging around with like-minded people in those kinds of circles and activism groups. The more time I spent with these people the more I realized that their goals were very different than mine. I wanted to help people, but they seemed more interested in controlling behavior and speech. They didn’t seem to like people at all.

I was shocked by the fact that a small minority could control what speech was allowed on campus, and how the money spent by the student population (taxes a.k.a. “activity fees”) was distributed. It was clear that the student population as a whole had no interest in these extreme left-wing programs, yet there seemed to be no way around it – they controlled the press, the student government, and most importantly, the budget. They were ruthless.

I started reading books on Austrian economics and Objectivist philosophy. By 1998 I was a card-carrying member of the Libertarian party and I was elected to public office (I won the election by exactly one vote). I voted “no” on just about anything that expanded the size of government spending, or anything that took away individual liberties.

Fast forward a dozen years and I started using electronic cigarettes as an alternative to tobacco. After my initial amazement with the technology and the community, I learned that some people were trying to limit use, options, and in some cases the sale of e-cigs.

It turns out the anti-ecig people were the same anti-people people that I ran into in college. Instead of focusing on banning the sale of meat on campus, prohibiting “hate speech”, and raising taxes for things nobody wanted, they were focusing on (some) nicotine products.

They traded in their tie-dye shirts and Birkenstock sandals for shiny shoes and suits, but I recognized the arguments and the philosophy – it was the same sort of thing all over again from exactly the same people. It disgusted me much more this time around because what they were doing was objectively against public health, and they were making lots of money by advancing this agenda.

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[Tweet “I don’t think NYC has the guts to arrest vapers. We will find out soon enough. -Russ W.”]

SKVW: You are working with the smoker’s rights group CLASH in this effort.Are there any other vaper’s groups in the NYC area involved with this

RW: Yes, but not in any kind of centralized fashion – this a grassroots effort.

Initially, NYC C.L.A.S.H. and I did not directly approach anyone at all to get involved. We did our interview, and it got a lot of attention. Individuals and businesses from all over the country heard about the lawsuit and came to us offering to help in various ways. The response was immediate.

I suppose if I had to pick out a specific group, the NY Vapers group on facebook has been a extremely helpful but we have been contacted by people via twitter, reddit, as well as by email from NYC C.L.A.S.H. members and Click, Bang! listeners from around the world to help with this fight.

I think people understand that using the Judicial branch of our government to check the power of corrupt legislators can be a strategy used in the future just about anywhere, so there is a great deal of interest in seeing this lawsuit succeed.

SKVW: How did the partnership between vapers and CLASH come about? Who approached whom with this idea to take the ban to court.

RW: The partnership between vapers and NYC C.L.A.S.H. came about in a totally organic manner. Simply put, many of the members of NYC C.L.A.S.H. who were smokers became vapers, and the advocacy work followed in suit.

Audrey Silk, founder of NYC C.L.A.S.H., contacted me to see if I wanted to help out in spreading awareness about the lawsuit to the vaping community as well as being a co-plaintiff. I enthusiastically accepted her offer.

SKVW: What would you say to those having reservations about e-cigarette activists working so closely with smoking activists? Are there worries about the well-entrenched stigma against smoking would vicariously cause harm to vaping causes?

RW: Right now I would say nothing at all. Before I could say anything to them, I’d have to actually hear what their objections are.

I have yet to hear a anyone seriously express reservations about this lawsuit being filed in part by a smokers’ (and vapers’) rights group. If there are people who really do hold this opinion, it does not seem like they take it very seriously because they are not being vocal about it.

I don’t take comments very seriously when they are not backed by action.

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If anyone did have any serious reservations about the way NYC C.L.A.S.H. and I are going about this, they could and would file their own lawsuit that suits their fancy. That has not happened, though if it did I would certainly applaud that effort.

NYC C.L.A.S.H. and I do not have a monopoly on suing cities that pass illegal vape bans. If you think you have a better way, go for it. Do it. I mean you. You do it.

What’s stopping you? Not me.

SKVW: It’s my understanding that this legal action isn’t targeting the reasoning behind the decision to ban e-cigarettes, but rather the way this ban was tacked on to an existing law. Can you elaborate?

RW: In NYC, there are many rules on the procedure by which a law can be passed. One of those rules is called the “One Subject” rule. The rule simply states that a law can only be about one subject.

NYC SkylineFor example, if you have a law about milk, you can’t put in rules about gasoline into the milk law because milk and gasoline are two different subjects. You can make a law about milk, and you can make another law about gasoline, but you cannot make a single law about both milk and gasoline. You need to make two separate laws, each one covering a separate subject.

Any thinking person knows that an e-cig is not the same thing as a tobacco cigarette. Even the most anti-vaping person would concede that they are two different things, two different products, and therefore two different subjects.

Fortunately, common sense is in line with the law here. NYC defines e-cigarettes as smokeless vapor products – something different than tobacco cigarettes. They are, legally speaking, different subjects.

This brings us back to our case for the lawsuit. People may not know that NYC did not write up a new law to ban vaping in public indoor and outdoor spaces. Rather, they amended an old law – the Smoke Free Air Act (SFAA).

The SFAA was about one thing, one subject – smoke in the air produced by smoking cigarettes. Last year NYC amended this old law and added a new subject: electronic cigarettes.

According to the law, this is illegal. You cannot add a new and different subject to a law that is about a different subject. You have to make a new law about that new subject.

This “One Subject” rule is very simple, and therefore our argument should be an open and shut case. We are extremely confident that a Judge will strike down the vaping ban provided that he or she can read.

SKVW: While I can see a victory in the courts having a great impact on morale among e-cigarette users nationwide, what practical results can
vapers outside of NYC expect a victory to bring.

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RW: Victory would bring legal precedent for more lawsuits all over the country to overturn vaping bans that were also passed in this illegal and cowardly manner.

A win would send a clear message to legislative bodies around the nation that if you hide behind a smoking law to pass a vaping ban, it will get struck down in court.

If they want to ban vaping, they have to try to pass that law on it’s own. I think many governments will find that it is much harder to pass a vaping ban when you can’t hide behind old smoking laws. Fortunately, the one subject rule is not unique to New York.

I would hope that people will read their local constitutions and charters, hire a lawyer, and cite our anticipated victory as legal precedent in their respective lawsuits.

SKVW: You and CLASH have indicated appeals are highly likely from either side depending on the judgement in the initial lawsuit. That sounds like this will be stuck in the courts for a long time. What’s a realistic timeline for an outcome?

RW: Hopefully less than a year.

SKVW: Are there any plans to file for a preliminary injunction to keep the city from enacting the new rules prior to this lawsuit being resolved by the courts?

Not to my knowledge. I will be taking another route.

central parkNYC can begin enforcing the vaping ban at the end of April. My plan is to organize mass civil disobedience protests where people purposefully break the law by vaping in restricted areas, including outdoor areas covered in the law such as parks and beaches.

This NYC vaping ban actually makes it illegal to vape in 15% of all outdoor areas in NYC, so it won’t be hard to find places to vape illegally. Hopefully we will have nice weather this spring.

I don’t think NYC has the guts to arrest vapers. We will find out soon enough. I think it will be completely demoralizing for the employees of NYC who are tasked with enforcing a law that they will quickly see is completely immoral, unjust, and stupid.

SKVW: What is the best way for people to help this cause if they desire?

RW: If you have the means to contribute to the legal fund, please do so here. Please also ask your favorite vendors and B&M locations to contribute.

SKVW: Is there anything else you would like to add?

RW: Fuck Bloomberg.

I guess I can’t add much to that.  I’d love to hear what you, dear reader, thinks about all this in the comments below.

Steve K

Hello and welcome to Steve K