Ban Smoking Bans

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Ban Smoking Bans

by Ari Armstrong, January 30, 2006

The issue is straightforward. As an extension of their right to life, people have rights in their property and rights to enter into voluntary associations. When somebody purchases a bar, restaurant, or other establishment, it's that person's property (while control of rented property is determined by the rental agreement). He or she has the right to set policies for the establishment. And customers and workers have the right to do businesses there on the terms offered -- or not.

I hate cigarette smoke. Other things equal, I will always choose a no-smoking establishment over one that allows smoking. However, I oppose smoking bans because they violate property rights. (It is ironic that, at the same time legislators are falling all over themselves to limit the abuse of property rights involving eminent domain, they are also seeking to violate property rights through smoking bans. They might as well post a "No Principles" sign on the capitol door.)

Predictably, The Denver Post supported the ban. Surprisingly, the Rocky Mountain News did, too, even though the News is more likely to support property rights on other issues. Neither paper makes a convincing case.

The News (January 26) explains, "House Bill 1175, by Rep. Mike May, R-Parker, would outlaw smoking in most enclosed indoor spaces that are not situated on private personal property. People could continue to smoke in homes, automobiles, limousines for hire, tobacco shops and cigar bars, outdoor areas at private businesses, enclosed smoking areas at airports, and 25 percent of hotel rooms. The bill would also set a 15-foot perimeter outside business doors where smoking would be prohibited."

25-percent quotas? 15-foot perimeters? Pages of new text added to the already-incomprehensible statutes? If fascism means state control of nominally private property, then smoking bans are the petty fascism of the Nanny Statists.

The News's distinction between "private personal property" -- such as homes and cars -- and all other private property is specious. There's no reason why some plots of private property should be more equally protected than others.

The News's first argument (if it can be considered such -- it's so pathetic an argument that I have to wonder whether this is one of those editorials imposed from On High and written to order) is that the bill "would replace a mishmash of county and municipal ordinances with a comprehensive set of rules." In other words, because some cities and counties violate property rights, therefore, the state should consistently violate property rights. QED.

The bill "would also minimize Coloradans' exposure to environmental tobacco smoke, which mounting evidence suggests is not just a nuisance but also a health risk."

You mean that breathing smoke into your lungs doesn't promote health? Thank God we have mounting scientific evidence to enlighten us about this! Of course, breathing second-hand smoke occasionally is quite a different thing than chain smoking.

Mounting evidence also demonstrates that the following pose a health risk: driving cars for recreational purposes, having unprotected sex, skiing, drinking several alcoholic beverages in an evening, eating too much sugar or fat or salt, reading crappy journalism about health, watching too much television, lounging in the sun, and sitting around too much. Perhaps I've simply missed the News's moralizing against these activities and calls for more state control.

Ah, but smokers pollute the air of non-smokers. Yes, but the pollution is localized and easily avoided. You are free to choose whether to enter an establishment that allows smoking. If you don't want the smoke, do business somewhere else. As fewer people choose not to smoke, more establishments will ban smoking to meet market demand. "But isn't the result the same?" No, it isn't. It matters whether an establishment bans smoking because of the voluntary choice of the owner or the coercive force of the state. Even if smoking drops to nearly zero, the hold-outs should be free to solicit establishments that cater to their choices.

If the argument is that the state may control private property to prevent negative third-party effects on people who choose to be there, then this "justifies" pervasive statist control. By the same logic, the state should ban all smoking whenever a non-smoker is present, even in a home or car. The state should ban "irresponsible" sex (as defined by the state) among consenting adults. The state should ban frivolous driving, because that contributes to dangerous roads. The state should forcibly limit alcohol consumption. The state should establish minimum distances between skiers. The state should force the Rocky Mountain News to state-certify all their reporters who write about issues of personal health or safety and then submit all related articles for state "inspection."

But it's worse than that. In the case of second-hand smoke in private businesses, the "third" party consciously chooses to be in the situation. So the smoking ban is not fundamentally about third-party harms; it is about "protecting" people from their own choices. Once a system is widespread that forcibly "protects" people from their own stupidity (as defined by technocrats), practically any state control can be "justified," and we no longer live in a free society.

The smoking ban is also about entitlement. The idea is that some people -- the enlightened class -- should be able to force businesses to make their policies "better." The correct policy is that people have the right to do business according to mutually-agreed terms. The smoking ban allows some people to unilaterally force business terms, backed up by the armed agents of the state. Again, once this principle is widespread, anything goes.

The Post (January 23) notes, "Public opinion polls suggest that most Coloradans favor a statewide ban on smoking tobacco in bars, restaurants and other public places."

Even if that's the case, so what? We do not live in a society of majority rule; we (properly) live in a society of individual rights. What is going to be the Post's argument when "public opinion polls suggest that most Coloradans favor" censorship of the press? The Post's social-subjectivism is as ludicrous as it is perverse.

The Post argues, "Legislators will hear the concerns of proprietors who worry that their businesses will dry up if customers can't light up. However, studies have demonstrated that establishments in states like New York and Massachusetts, which have smoking bans, have flourished as long as all bars and restaurants are held to the same standard."

Again, so what? Property rights are not about "studies" that purport to "demonstrate" that some particular violation of property rights might not adversely impact revenues. Liberty is not about the number of dollars exchanged.

The Post argues that, without a ban, "employees... now have to work in caustic environments." Nonsense. Employees don't "have to" do anything. They are free to seek a job in a smoke-free environment. (Of course, the Post does not consider the absurdity of "protecting" employees who smoke from the "danger" of second-hand smoke.) All sorts of jobs are risky (including journalism, depending on the location), and how those risks are handled should be left up the free negotiations of employers and employees. (Of course, employees have the right to sue for negligence, but they also have the right to accept known job risks.) As fewer people smoke, more establishments will voluntarily cater to their non-smoking customers. And, if employees prefer a non-smoking environment, they'll force up wages in smoking establishments. It is a matter of individual rights to be able to accept a job with known risks for a negotiated rate of pay.

The Post points out, "...Gov. Bill Owens has hinted that he would sign the legislation." But that's no surprise. When's the last time you've heard any politician, or any editorial writer, endorse individual rights, and mean it?


For further reading, see Second-Hand Socialism and Smoking Bans Stunt Liberty. Of course, a major problem is that the enemies of liberty try again every year, while the defenders of property rights must ward off the hostile legislation every year; it's much easier to pass a ban than to repeal one.

The Colorado Freedom Report--www.FreeColorado.com