Smoking Ban: Reply to William Autrey
by Ari Armstrong, April 17, 2007
In an April 16 Speakout for the Rocky Mountain News, William Autrey of Boulder replies to an earlier Speakout of mine about the smoking ban. While Autrey accuses me of making a "pretty pathetic" argument against the ban, he ignores the substance of my argument even as he offers a weak rebuttal.
Autrey's first claim is misleading. He writes that I "had 21 column inches" to argue against the smoking ban, yet my argument was brief. However, the main point of my Speakout was not to argue against the smoking ban: it was to demonstrate that a news story about the smoking ban was biased. Thus, it is not till the second-to-last paragraph that I offer a summary of the main argument against the smoking ban. Obviously, if the main point of my Speakout had been to argue against the smoking ban, I would have spent more words doing that.
As a side note, while the total space for my Speakout was 21 column inches in the print version of the paper, my actual text fit in fewer than 15 column inches. While Autrey complains that he writes "[w]ithout the luxury of 21 column inches," my Speakout runs 543 words in length, not counting the headline or author line, while Autrey's runs 457 words in length. And it's hardly the fault of me or the Rocky Mountain News that Autrey didn't use more words. Autrey's Speakout "has not been edited," the Rocky notes. And the Rocky's web page states, "Speakouts dealing with local issues are given preference, and should be between 500-650 words." While the Rocky did run my Speakout in the printed edition, the Rocky has also editorialized in favor of the ban and published a news story that favored the ban.
More importantly, I have spent many more than 543 words arguing against the smoking ban, though of course there was no direct way for Autrey to have realized this based only on my Speakout. Here are some additional articles:
Nevertheless, even my two-sentence summary of the main argument against the smoking ban is sufficient to undermine all of Autrey's arguments. To review, in my Speakout I write, "The owners of private establishments have every right to set smoking policy there, and patrons and employees are free to come or leave as they wish. The smoking ban is an assault on private property rights, and property rights are a centerpiece of a free society."
Autrey numbers his four arguments. Here is his first: "Property rights do not give owners the right to dispose of hazardous materials in the public commons..." However, the area inside of a privately owned business is not "the public commons." Smoking in a private establishment impacts only those who choose to enter that establishment.
Second, Autrey argues, "Proprietors might own their property, but when they hang an 'open for business' sign, their rights are not absolute. Their desire to sell to and profit from the public opens them to the rules of 'public accommodation' for which they forfeit certain property rights in exchange for doing business. The right to sell comes with a responsibility for the health of your customers while on your property."
There is a grain of truth to Autrey's claims. When a property owner allows others to access his property on established terms, then the owner is essentially issuing an open-ended invitation to contract on those terms. For example, let's say that a bar owner voluntarily chooses to place a "no smoking" sign on his door. If somebody comes in and buys a drink, the bar owner would be in violation of the agreement to then light up a cigarette. In addition, the established terms of entry include the taking of reasonable steps to protect the safety of customers against unexpected harms. For example, if I walk into a grocery store where the employees have greased the floor to get a laugh out of watching customers fall down, I can rightly sue. Similarly, if a grocery store builds a shelf poorly such that it collapses on a customer, again the customer can sue.
But none of this has anything to do with the smoking ban. Autrey wrongly concludes that the contractual nature of a business relationship demonstrates that "rights are not absolute." Contracting is a right. If owners of an establishment openly allows smoking, then they are not violating the rights of their customers or employees. Again, people can choose to be there or not. The risks are completely known and completely avoidable.
Consenting adults have a right to decide whether to enter into risky activities. For example, people die skiing every year. People get injured playing football and practicing karate. Many thousands of people die every year in car crashes. Medicines can generate harmful side-effects. But these are known risks. Ski resorts do not have an obligation to make skiing perfectly safe, which is impossible. Karate studios do not have an obligation to assure than no student ever gets hurt. Car dealers do not have an obligation to make sure than no car they sell becomes involved in a wreck. Sellers of medicine do not have to make sure than no medicine ever produces side-effects. Businesses have the right to offer services that include risks. And customers have the right to purchase such services. Just as you have the right to walk into a karate studio and spar, thereby risking broken bones and brain injuries, so you have the right to walk into a bar that allows smoking, thereby risking lung damage. You also have the right to avoid doing those things.
Third, Autrey writes, "Armstrong's simplistic assertion that 'patrons and employees are free to come and leave as they wish' belies the fact that for many bars and restaurants smoking is a sales tool..." I don't know whether any establishments allow smoking in order to generate "parched throats." The claim seems fantastical, and it does not square with my own experience. However, it is beside the point. Customers who do not wish to get parched throats because of smoke remain "free to come and leave as they wish." My claim is not "simplistic:" it is a statement of a basic fact. Also, the smoking ban does not apply merely to bars and restaurants that sell drinks, and it does apply to bars and restaurants with elaborate smoke-limiting technology.
Autrey's fourth argument is similar to his first two: "Yes, 'property rights are a centerpiece of a free society', but why does your right to inhale carcinogenic material include disposing of it in the air I breathe?" Autrey writes as though somebody is dragging him, kicking and screaming, into an establishment that allows smoking. In fact, nobody is forcing Autrey to go into any such establishment. His claim completely ignores the basic facts of the matter.
While Autrey claims to agree with me regarding property rights, in fact he wishes to violate property rights, including the rights of business owners and their willing customers to associate on terms that they find agreeable. If you don't like a particular establishment, for whatever reason, then don't go there. It's called freedom.