I don't smoke. Not only do I not smoke, but my mother died because she smoked and I had to watch her struggle with 22% total lung capacity and later a lung transplant. If anyone should be anti-smoking, it should be me, right? And I am anti-smoking in the sense that I don't smoke and I don't think others should either. I wish every smoker would quit. But I frankly think that we have gone enirely overboard with our anti-smoking hysteria in terms of government intervention, and a large part of that is due to the nonsense we hear constantly about the dangers of second hand smoke.
In New York and California, it is illegal to allow smoking in any bar, restaurant or business. Washington DC has passed a similar measure. They justify these laws by reference to the dangers of second hand smoke, by couching them in terms of protecting the poor workers from the pernicious effects of second hand smoke. So along comes a study by the city of St. Louis to measure just how much second hand smoke a person is exposed to in a restaurant that has a smoking section. They measured the amount of nicotine in the air in these restaurants and published the results.
The OSHA standards say that the maximum safe level for nicotine exposure is 500 micrograms per cubic meter. The measurements taken by the St. Louis Park Environmental Health Department in 19 restaurants that had smoking sections had a full range of between <1 (too low to detect) to a maximum 32.5 (and that one establishment was the only one above 7.5 micrograms, the other 18 were all below that). The absolute worst establishment, the one that was nearly 5 times worse than all the others, was still 85% below the safe exposure limits.
It's time to end this charade and end this government intrusion into property rights based on hysterically overblown health risks. If I own a bar or restaurant, I should get to choose whether it's smoking or non-smoking based upon what I think my customers want. I should advertise right out front whether it is a smoking establishment or not. And customers could then choose whether they want to go in or not. Freedom of choice for everyone and no one gets exposed to smoke unless they choose to. I already have parents; I don't need the government to act like one.
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Exposure to the nicotine in smoke may be low, but what about the other contents of the smoke?
So far as I know, none of the smoking bans have been justified solely because of the nicotine content of the smoke.
http://monographs.iarc.fr/htdocs/monographs/vol83/02-involuntary.html
What Jeff said. It's not about the nicotine, it's the thousands of carcinogens. I'm an ex-smoker, but I'm not really an evangelical one. I don't object to or even mind other people smoking around me. But a) I'm a lot more careless with my health than I should be (my trigger for giving up was cost rather than health) and b) a lot of people really do mind.
My ideal position would be allowing smoking in bars but not restaurants or businesses, but to be honest it's hard to justify even bars. It's not just whether the customers object or are harmed - they're free to go elsewhere. But people have to work, and they have a right not be harmed while working. It's not as if they're getting compensated for the health risks they're taking, either.
Well Ed, one the reason's I enjoy your blog most is that it's clear no one has you in their pocket! You call it as you see it.
I've just got to say I see it differently. I'm so allergic to smoke that if I'm in a place where people have smoked recently, it causes no end of misery. Red, watery eyes, coughing and sneezing, etc. And too often I find that I'm not able to avoid these places. It's hardly realistic for me to tell friends or people I'm with, at the doorstep to the public place, "no, I can't go in there because their's smoke." What's even worse is places that say they're smoke free, but you can tell that at times they allow smoking (just not now when you're there). My reaction in these places is the same.
And then you have the expense that tax payers are picking up in dealing with smokers... I know, this is a whole different issue, but the bottom line, I'm glad to see that smoking is becoming a few socially frowned upon activity.
Let people smoke all they want in their houses. But I'm glad that it's getting easier for me to avoid it now in public places.
Jeff B wrote:
Nicotine is the only one that can be accurately measured in a non-sterile environment, so it is indicative of the kind of concentrations that one finds in a place where smoking is allowed. Formaldehyde, for instance, is generated in the atmosphere through regular chemical activity, and is present in carpeting and other products, so if you take a measure of that, you have no way of knowing how much of that is the result of cigarette smoke. But bear in mind that nicotine is the dominant by-product of smoking. Other chemicals appear in lesser quantities, so the concentrations will be even lower. It's the concentrations that matter, not their mere presence.
Ocellated wrote:
As I said, I think smoking establishments should be clearly marked so you can avoid the problem. And I don't mean this to sound rude at all, as I am sympathetic to your health problems, but the law does not exist to make sure that no one ever runs into anything they don't like or that might be bad for them. Lots of people have allergies to peanuts that are potentially fatal, for example, but we don't ban peanuts (and yes, in many cases people are exposed to peanuts without knowing it, because they're in a sauce for example. And in one case, a guy died from being kissed by someone who had eaten peanuts!). My mother was allergic to perfume, as are many people, but we can't ban people from wearing perfume to protect them. There is a limit to what government can require, and that limit is where it infringes on our liberties.
For someone highly allergic to smoke, what difference would it make whether it's a bar or a person's private home? You might also go into someone's home that smokes, or even the home of someone who has allowed others to smoke, and have the same problem. Should the government also ban smoking in their own home? If not, what is the difference between that and in their business?
I understand that many people hate smoke and that they have every right to avoid it. What they don't have a right to do, in my view, is coerce others into changing their behavior when they have the option of avoiding it without such coercion. The solution is the one which allows individuals to avoid it if they want to without denying others their rights.
When our state (the other Washington) rushed to ban smoking indoors, I pointed out that better ventilation would take care of most of the problems--and that market forces were already leading most restaurants to become smoke-free voluntarily. Alas, I-901 passed in a landslide.
Ed, you're ignoring the labour rights angle to this. People have a choice as to which bar they go to. Most people have a very limited choice, if any at all, as to where they work.
"But bear in mind that nicotine is the dominant by-product of smoking. Other chemicals appear in lesser quantities, so the concentrations will be even lower."
Nicotine is also one of the safer components of tobacco smoke. Extremely addictive, yes, but it acts as a mild stimulant and as far as we know doesn't cause cancer (it hinders the body's resistance to cancer, however).
Jim Anderson wrote:
I think the second part is really true. As a smaller portion of our population smokes (and the numbers have been going down for a long time), more and more establishments went to non-smoking. And I have no problem with that at all, as long as it's the business owner deciding that and not the government. The number of restaurants who allow smoking would go down on its own, but for those that want to cater specifically to smokers, they should have that right. Just make it explicit in their advertising and signage that it's a smoking establishment and those who want to avoid it are free to do so.
Ginger Yellow wrote:
I disagree. And at least in this country, I know it's not true in the restaurant business. Virtually every restaurant is hiring all the time here because they can never keep good people around. And again, smoking restaurants are a small minority at this point even where it is allowed, most restaurants are non-smoking as it is. So the odds of someone being truly stuck at a place that allows smoking against their will and being completely unable to find another job are slim, certainly not enough to justify the violation of liberty. Lastly, the small concentrations also mitigate against this harm. So many studies have now shown that the concentrations at which the harmful chemicals in cigarettes are found in smoking establishments is far too small to affect someone's health, so even if it was true that people would be stuck there against their will, the risk to their health is far lower than you think.
Bear in mind also that every job has similar risks to one degree or another. A carpet layer is exposed to all sorts of chemicals used in carpets all day long. In those same restaurants, the workers are exposed to the fumes from fryers in the kitchen, chemical pesticides used in the carpet and throughout the establishment, and who knows what else. We can't make everyone safe all the time without all living in bubbles. We breathe in an untold number of chemicals every time we take a breath, and we swallow them with every drink of water. It can't be avoided, which is why you have safe levels established. When you've got concentrations that are orders of magnitude below those safe levels, it cannot possibly justify a ban on the basis of a claimed health risk.
"And again, smoking restaurants are a small minority at this point even where it is allowed, most restaurants are non-smoking as it is. So the odds of someone being truly stuck at a place that allows smoking against their will and being completely unable to find another job are slim, certainly not enough to justify the violation of liberty. "
Maybe in the States, I'm not sure. In Britain the government is also trying to introduce a ban in pubs and restaurants (it's already illegal in most workplaces), although Blair seems to be trying to sabotage it. In Britain I'd say 80%-90% of restaurants and 99.5% of pubs are smoking. The people I know who work as barstaff (I don't know any waiters, so I can't address restaurants here) are desperate to get as many shifts as they can - the last thing they want or can afford to do is change to another pub and spend six months building up a relationship with the manager again.
And preventing someone from smoking is no more a violation of the smoker's liberty than imposing smoke on a non-smoker is a violation of the non-smoker's liberty - ie they both are. Someone has to lose here either way, and it makes sense if it's the person causing (and indeed suffering) the health risk. I absolutely am not in favour of a total ban, but there's absolutely nothing wrong with discouraging smoking. Even if it didn't have direct public health benefits, it would be good policy to ban it in enclosed public places.
"So many studies have now shown that the concentrations at which the harmful chemicals in cigarettes are found in smoking establishments is far too small to affect someone's health, so even if it was true that people would be stuck there against their will, the risk to their health is far lower than you think."
If you've got the links, I'd like to see them. Especially if they address the combinatory effects of the carcinogens. I agree that passive smoking in general is overhyped as a health risk. Even under the most adverse conditions, living with a regular smoker for most of your life, your chance of getting lung cancer goes up by "only" 25%-50%. Of course, there are plenty of other diseases that increase in risk too, but compared to direct smoking the risks are very small. However, working in a bar is an extremely adverse condition - not one but possibly hundreds of people smoking, and often terrible ventilation. And there's no need to expose anyone to even a relatively minor health risk without good reason.
"ear in mind also that every job has similar risks to one degree or another. A carpet layer is exposed to all sorts of chemicals used in carpets all day long. In those same restaurants, the workers are exposed to the fumes from fryers in the kitchen, chemical pesticides used in the carpet and throughout the establishment, and who knows what else. We can't make everyone safe all the time without all living in bubbles. We breathe in an untold number of chemicals every time we take a breath, and we swallow them with every drink of water. It can't be avoided, which is why you have safe levels established. When you've got concentrations that are orders of magnitude below those safe levels, it cannot possibly justify a ban on the basis of a claimed health risk."
Generally speaking, employers must (and certainly always should) protect their workers from foreseeable health risks. A carpet layer should wear a face mask, for example. If you can show me a solid study showing that people who work in smoky workplaces are no more likely to suffer lung cancer than people who don't, then I might agree with you.
"And then you have the expense that tax payers are picking up in dealing with smokers"
First, this shows one of the dangers of government being so involved health care; what should be individual choices become concerns of "society". Second, this specific claim doesn't apply; studies have shown that smokers actually save taxpayers money by dying earlier.
Having worked in restaurants and bars for over 10 years before returning to college, I can tell you that most of us aren't "desperate for shifts". Most of either work full time or worked other jobs. Others were students. It's crappy work at low pay, with absolutely no benefits, sick leave and server minimun wage is $2.33 in my state.
i bet if you asked restauraunt workers if they'd rather have a smoking ban or a living wage they'd pick the latter every time.
And a lot of us smoked.
In fact, at the last place I worked all 6 employees smoked. The reasonable protections my employer gave us was spending $10,000 on a new venitilation system that was made obsolete by a smoking ban barely 3 years later. That ventilation was put in to meet guidelines in the first place! Literally hundreds of bars all over town scrambled to meet the guidelines, shelled out thousands (millions altogether, I'm sure) only to be told a few years later "Woops. I guess we changed our minds".
Leni is right. In the US, we have strict laws on workplace safety and bars and restaurants are certainly not poorly ventilated. They have to put in expensive equipment to insure adequate circulation, which is exactly why the concentrations are so low. It's also why a lot of bars and restaurants decide on their own not to allow smoking. Good air exchange equipment plus clear advertising to insure people know ahead of time what their choices are plus most establishments being non-smoking based solely on market conditions = no justification for such laws. But I swear, some people will not be happy until smoking is banned outright even in one's own home. In Scotland, they have proposed rules on that based on the alleged risk to government employees who may stop by the house.
Gee, Ed, I thought that your liberty stopped at the end of my nose. You talk of restaurant measurements as if they were indicative of bars.
There's absolutely no reason whatsoever that we need to allow people to smoke indoors in public places. If your liberty stops at the end of my nose, I shouldn't have to smell cigarette smoke where I work.
I'm (again) a former smoker. I've discovered that to remain nonsmoking, I have to be like an alcoholic. I can't be around smoke. But prior to the law, I never found a bar with a no smoking policy.
Jim Anderson points to the proverbial fine line here. If the anti-smoking regulations were imposed by fiat, say through a supervisors or commissioners edict, then i could fully accept Ed's point that such regulations are intrusive. When voters however, a large cross-section of the population, agree to limit smoking to specific environments that seems to me to be qualitatively different. It behooved the tobacco makers, bar and casino owners, and others who had their own economic interests at stake to make every reasonable (and i am sure deceipt filled as well) effort to "inform" the public on the "apparent" safety of second-hand smoke.
ruidh wrote:
I don't think that applies here, and let me explain why. I don't think you have a right to go into someone else's business and be free of things that bother you. I think you have a right to go in or not go in, based upon what goes on there. Just like a person offended by a strip club doesn't have to go into one, a person who doesn't like to be around smoke doesn't have to go into a place that allows smoking. I think the problem can be resolved simply by allowing everyone the free choice of where to go.
And that includes employees. People make choices on where to work based on all sorts of factors, including the working conditions. I used to run a bunch of pizza places, but the flour in the air wreaked havoc on my sinuses. I don't work in that business anymore (not entirely for that reason, but it's part of it). If someone doesn't want to work around smoke, don't apply at a place that allows smoking. And if a business can't find enough employees willing to work where there is smoking allowed, they'll have to change the rules. But let these things be sorted out by people making free choices on what they want or don't want, not by government coercion.
spyder wrote:
This is irrelevant to me, just as it is irrelevant whether anti-gay laws are passed by a legislature or by a referendum. A law either violates liberty or it does not; if it does, it makes no difference how democratically it was passed.
Actually, it's not. link (warning, PDF)
I'm with Ginger Yellow and Ocellated on this one. Here in the UK, particularly in Central London, finding a smoke free restaurant is quite difficult, and I've never seen a smoke free pub. The health angle is not a big deal for me, but I find smoke extremely unpleasant, enough that it keeps me out of restaurants that I would otherwise patronise.
I probably feel more strongly about this than most, but the rest of the non-smoking majority in the UK (and even many smokers, when not actually smoking) would probably prefer to be in a smoke-free environment than not.
Sure, the liberty of the smoker is encroached upon, but my liberty to dine where I want to is encroached upon also. Perhaps Ed would consider this a less concrete liberty, but it is a liberty all the same, no less so than the liberty of a disabled person to have access to public places.
Reluctant Cannibal wrote:
This isn't a right at all, concrete or otherwise. You don't have a right to eat at my house if I don't want you to. Why should my business be any different? There are also private clubs where only members get to dine and you don't have the right to eat there unless you're a member of the club. At the very least, this should be allowed. Smokers should at least be allowed to form private clubs for their own membership.
Ed, would you (or wouldn't you) make any kind of generalization about active vs. passive liberties of the kind Reluctant Cannibal (and someone else; I'm too lazy to scroll back up and find it) mention?
The fact that you offer so much clarity about these kinds of issues is one of the reasons I love this blog, and generally I'm inclined to be with you a way that I think of as vaguely (i.e. ill-definedly) libertarian. As a gay person, I'm particularly reluctant to make some kind of blanket statement myself about how situations should be handled in which one person's "action" offends another person (the passive party). If someone is offended by two guys holding hands in the park, too bad for the offended one, is my opinion.
I know that isn't quite parallel to smoking vs being exposed to unpleasant smoke (it gives me a headache.....), but here's another example: I live across from a little lake. The quiet of a summer morning is often ruined these days by the whine of jet skis. In a dispute about whether jet skis should be banned (all or maybe some of the time), would you come down on the side of liberty of jet ski owners to do as they please? I am the passive party, of course, but sort of as Cannibal asks: what about my "liberty" ("right"?) to have quiet summer mornings?
If some kind of conflict resolution or negotiation or compromise doesn't solve the problem, why should jet skiers (as the active party, like smokers) have any more right to have the world the way they want it (noisy) than I do to have the world the way I want it (quiet)??
Again like you, I mistrust majority rule (tons and tons and tons!) but jet skiing and smoking have more tangible effects on the people nearby than holding hands in the park does, so I kind of want to come down on the side of giving the passive party at least equal standing in the dispute. It's a little like freedom of religion also (for me) implying freedom *from* religion. In many ways, our system seems to enormously privilege religion (any kind) over lack of it.......as you, unless I'm misunderstanding, seem to be privileging freedom to perform certain actions over freedom from the results or side effects of those actions.
But I'm getting into murky and dangerous waters, given that I'm not well-educated in these areas (law, government, conflict work), or a debater. I'm not writing to challenge -- just to hear how you would/will sort these issues out.
Here's more on the exaggerated dangers of second hand smoke. A British study using air monitors strapped to non-smokers in high second hand smoke areas in cities throughout Europe found that the average non-smoker breathes in the equivalent of about 6 cigarettes per year, or about 1000 times less than a smoker and far, far lower than health agency estimates.
An Oak Ridge National Labs study that tracked bartenders and wait staff from smoking establishments using monitors as they work. It found:
A World Health Organization study found that "results indicate no association between childhood exposure to ETS and lung cancer risk. We did find weak evidence of a dose-response relationship between risk of lung cancer and exposure to spousal and workplace ETS. There was no detectable risk after cessation of exposure."
My major irritation about WA banning smoking in all bars is that I just moved into Vancouver - I don't smoke in my home because I have a child. I did like to stop in at the pub up the street (I could walk there) and have a couple drinks and most importlantly (I can drink cheaper at home) I could smoke. There were no people in the place - including employees - who didn't smoke. I have stopped in since the ban took effect - no one goes there any more. They have seen a 75% drop in business and I have lost the only place I could go that was close to my house and smoke indoors. And I often see the bartender outside by the trash bins smoking a ciggarette when I drive by on my way home.
A lot of bars in Vancouver are in real trouble as a result of this ban. The non-smokers already have bars and clubs to go to - the ones that allowed smoking have all lost their business to Portland bars across the river.
If you want to avoid business's that allow smoking, then by all means go to one of the majority of business's that don't allow it. If you would like to work in a smoke free environment the same is true. The vast majority of people who work in smoker friendly environments smoke.
I also tend to think that the increase cost of health care could and should be born by higher taxes on ciggarettes. Don't take that money and use it elsewhere - use it for health care. I imagine in large part the sloaping off of the smoking rate is due to increased cost - keep jacking it up and use the increase to care for us morons who like to smoke, now excuse me while I step outside. . .
Ed,
It's not just about "OSHA" standards for cigarette smoking, although that's certainly a factor. Spend a few weeks in an allergy/immunology clinic and you'll see people with a spectrum of "reactive airway disease" whose symptoms are exacerbated by exposures to cigarette smoking. The laws that are in place are, at least in part, based on the idea that someone's desire to smoke shouldn't usurp someone else's desire to breathe. (And keep in mind that the pains from reactive airway disease, exacerbated by smoking, last longer than just an unpleasant dinner in a smoky lounge; people can be hospitalized for this kind of thing.)
Now, it is the case that the existence of a disease entity made worse by should not be grounds, in and of itself, to outlaw . There are people without repair enzymes for UV light and so they must refrain from being outside during the day, but we don't outlaw the sun's warmth because of it. It simply happens to be the case, and I agree with the decision, that government has an interest in reducing smoking in public places.
I share the idea that government powers should probably be restricted in general, under the simple proposition that it is best to police yourself and not give the government cause to step in. In this case, though, I think the checks on smoking in public are justified from a public health standpoint.
BCH
First, let me say that I really believe in the government staying out of personal decisions. I support gay marriage. I support the legalization of drugs. I defend the right of smokers to smoke. AND I support public smoking bans. This is because I do distinguish between public and private behavior. One reason is because both my husband and my daughter are severely allergic to cigarette smoke. The thing is there are many behaviors that are allowed in private, but not in public. For example, I can have "intimate relations" with my husband of 30 years anywhere in our home. I can not have them in the middle of the local mall. I can drink wine until I pass out at home; if I get in a car then I'm in trouble. If I want to set off a stink bomb in my house, no one will report me; if I do it in a bar, I will be in big trouble. To me there is a great distinction between public behavior and private behavior. The government has the right to limit what we do in public, not what we do in private.
A bar or restaurant is a private establishment. It has an owner. The owner owns it, not the people visiting it.
Bars and restaurants are private establishments that are open to the public only insofar as members of the public follow the owner's rules. In some places you have to have a coat and tie. Many places require a shirt and shoes.
A private owner should be able to bar entry to any member of the public who smokes, or permit it, as he or she desires. The key rights here are not those of smokers or non-smokers, but of the OWNERS OF ESTABLISHMENTS!!!! These rights have been taken from the OWNERS in CA and NY for the benefit of non-smokers, and at the expense of OWNERS and smokers.
Non-smokers can choose not to attend (or work at!!!) those places that allow smoking. But now in New York and California, thinks to the tyranny of the majority, there are no places where smokers can go to eat and drink and smoke, except their own homes. Before, non-smokers at least had options. Now, smoker have none.
I would beg those of you who think this is a good thing to reconsider. Is tyranny of the majority only a bad thing when it threatens something you hold dear, but perfectly fine when it accomplishes a goal you desire?
Burt Humburg wrote:
But businesses are not public places, they're private places. And people can choose whether or not to go in them. The people who own them can also choose what goes on inside of them. The fact that many people prefer not to eat where there is smoke doesn't mean that every single restaurant in the nation should cater to their desires. You can achieve the same effect - allowing people to avoid second hand smoke if they choose to - with the plan that I propose. Those who are bothered by smoking can make a free choice and easily avoid smoke while still allowing others to make a free choice not to. But smoking bans as in California and New York destroy the free choices of both groups. They also put a lot of people out of work and out of business.
LindaH wrote:
But again, private businesses are not "public places". And in many private businesses, what would not be allowed in what is truly "public" - that is, in the open air in full view of everyone - is allowed to go on. For example, you can't strip your clothes off in a public park, but you can in a strip club. And because it's advertised and marked as a strip club, those who don't want to see it are able to choose not to go there and the people who do want to see it are able to choose the opposite. There are even private sex clubs around where you can, in fact, have intimate relations with your husband, or someone else, in what is "public" by the definition you're offering.
It seems to me that in a free society, the policy which achieves the goal with a minimum decrease in liberty is the preferable policy, always. If the goal here is to insure that people are not exposed to secondhand smoke if they don't want to be, then the solution is simple - allow each business owner to decide for themselves whether their business allows smoking or doesn't and require them to mark clearly on the outside of the building and in their advertising which choice they make. That way everyone is allowed the liberty to choose which they prefer.
But this requires that those who want to avoid smokers take some responsibility for their own actions and choices. But instead, many demand that they never have to make a choice and that the choices of others should be restricted so they don't have to take that responsibility. It's really no different from those who demand that all strip clubs be shut down, or that all adult bookstores be shut down, despite the fact that they have to choose to go in there in order to be exposed to what offends them. The law does not exist in order to make sure that some people will never ever run into anything that bothers them no matter where they go. The goal of allowing people to avoid secondhand smoke is achievable without the violation of liberty; that is clearly the preferable policy.
Ed -- I can somewhat buy the idea that a restaurant is a private place. (Only somewhat, but I don't have time to sort out what I think the gray areas are.)
But your phrase "minimum decrease in liberty" still seems to privilege activity over passivity: we talk about liberty to *do* something, but usually not liberty to be free from something.
I'm still waiting for your take on the jet ski noise on the lake across the road. The lake is not a private place. Do you think someone's "liberty" to make noise trumps my "liberty" to be free of noise in the public space we share??
(The quotes are not meant to be scare quotes but to highlight the fact that the words I'm using are a little fuzzy around the edges -- the question of whether you can talk about liberty in relation to passive things being a case in point.)
P.S. Further illustrating the preponderance of gray areas -- I live here. I was here before jet skis were invented. From my point of view, jet skis are invading my quiet space and ruining my early morning sleep.
I'm not necessarily saying that from a public policy perspective jet skis should be banned just because I wish they would be banned, but I am definitely saying that in the public spaces we share, the liberty to *do* something shouldn't be automatic just because what's in conflict with it is the wish to be *free* of something -- which is harder to define in terms of "liberty" -- which in turn is why your phrase "minimum decrease in liberty" doesn't, in my opinion, do much to address the really hard questions.
If 2 people or groups are in direct conflict over how the world should be -- how the public space we all share should be treated or used -- what's the problem-solving mechanism? "Minimum decrease in liberty" ducks the hard gray area issues, so what I'm asking you to do is say something about how to handle the gray areas where the question of where the line should be drawn isn't really clear. Do we vote? Compromise? Always privilege liberty to *do* over liberty to be free of the side effects of other people's *doing" ?? Or what?
Ed said:
The goal might be broader than that -- the goal is perhaps to guarrantee access to certain services to people that otherwise might not be able to (healthfully) access them. Leaving aside whether or not secondhand smoke really is a health risk, and assuming for the sake of argument that it is only a risk for some not-insignificant class of people, then I don't think you can say with certainty that the market will, of its own accord, guarrantee such access. It certainly does not do so in Great Britain, where businesses are free to allow or disallow smoking, and non-smoking establishments are few to non-existant.
In Great Britain, therefore, people who can't, or don't want to, expose themselves to secondhand smoke have a restricted liberty -- they can choose to expose themselves to something they don't want to, and go out to a restaurant, or they can choose to stay home, but, in many locales, they cannot choose the non-smoking restaurant, because it does not exist.
Now, I don't argue that being able to go out to a smoke free restaurant is an inalienable right. How can it be? The government would then be in the position of having to guarantee the existence of non-smoking restaurants, even in an area where no restaurants, full stop, exist. However, I'm not sure I agree 100% with the argument against laws regulating 'smoke-free-establishments'. The core of the argument is that restaurants are completely private institutions, and as such, it is not really the government's business to restrict how they operate. Just as the government can't tell me who I can invite over to dinner, or whether my guests can smoke, and so forth, the government can't tell the restaurant owner the same thing.
Of course, this leads to the (more extreme, IMHO) libertarian view that 'no blacks at the lunch counter' policies are perfectly legitimate. The government, of course, can't tell me who I can invite over to dinner. If I don't like a particular race of people, I'm free not to befriend them or allow them into my home. And by extension, the restaurant owner could do the same. But I recoil from that extension, as have the courts. I think there are legitimate grounds for viewing a business as different from a private individual, and certainly think the consequences for not doing so can be extreme (significant swathes of society denied services or employment due to prejudice).
It is this distinction -- between the private individual and the business entity -- that has allowed legislation that has enabled many Americans to access services that they were previously denied. Market forces alone never created widespread access to movie theaters, restaurants, shops, and other businesses for disabled Americans (and still haven't in much of Europe). While we may oppose in principle the idea that some private business owner should be forced to build a ramp, or widen a bathroom stall, for the benefit of some unknown future patron he is willing to do without, there is nevertheless no arguing that the overall liberty of Americans to 'pursue happiness' was increased by the restriction on liberty placed on those Americans who choose to be business owners. There are many who think those restrictions on liberty are unjust, regardless of the consequences, but I'm not sure I agree.
JanieM wrote:
It seems that way because it is that way. The liberty to do something means having the authority to control one's own actions; the liberty to be free from something means having the authority to control someone else's actions. These clearly are not the same thing and one obviously trumps the other. This goes back, for me, to Robert Bork's argument concerning morals legislation, which is that there is no reason to indulge one person's right to do something with another's right to prevent them from doing it (he argues that these are merely two "desires" to be "indulged"). But one asserts control of another person's behavior and the other does not.
In the case of your jet ski example, it is perhaps not as gray as you might think because the lake itself is not private property. You own property on the lake, and therefore own access to the lake, but you do not own the lake itself. The lake is, for all practical purposes, public property (with public access, presumably). So in that case, there is a much stronger case to be made for legitimate regulation of its uses. It's also out in the open air, where anyone can see and hear what goes on, as opposed to a restaurant or bar that is behind a closed door so that you have to choose to go in there.
JY wrote:
That simply isn't the case in the US, where most restaurants are non-smoking regardless of the law. Even if that was not the case, there are better ways to go about encouraging the establishment of non-smoking enterprises without prohibiting business owners from catering to smokers if they choose to. You could use tax incentives, for instance, for non-smoking restaurants to encourage more restaurants to go that way.
But there is a big distinction here between a policy that prevents people from making the choice to go into a business (such as saying no blacks cn go into a business) and a policy that allows people to choose one business over another based upon their own preferences (such as a restaurant that advertises itself as a smoking establishment and therefore gives people the choice of whether to go in or not). I think one can make a case that if all or the vast majority of businesses in an area were to be smoking establishments and therefore in effect depriving non-smokers of anywhere to go out to eat, that there is a need to fix that. But again, that is not the case in this country and even if it was, there are less coercive means of achieving that goal without then depriving a huge portion of the population of their rights as well.
Ed said:
I definitely agree with that. My central point is that if we accept any such regulation, then we are denying the definition of restaurants and other such businesses as purely private (since we would abhor such intrusion into the most definitely private realm of our own homes.)
Ed said:
Why does one obviously trump the other? It clearly does not. Your liberty to swing your arm does not trump my liberty to not get punched in the face. My liberty to be free of something (assaults on my person) trumps your liberty to act (to swing your arm). Likewise, my liberty to the quiet enjoyment of my property may trump my neighbor's liberty to test his Marshall stack at three AM. The problem with Bork's reasoning was that he defined harm so broadly that it would include merely the knowledge that somewhere, somehow, something is going on as that I find distasteful as a 'harm'. But in general, the freedom to not be harmed is no less vital than the freedom to action, depending on what's considered a 'harm'. Deciding what is 'harm' is the crucial sticking point in figuring out where my liberties interfere with yours. (Or, more accurately, deciding what harms 'trump' which liberties is what is crucial, because it is clear that we do explicitly allow activity that does do harm. No one can reasonably argue that emotional distress is not a harm. But my liberty to speak trumps your liberty to be free of emotional distress, at least in the US. Not so much in Europe).
As an aside, any desire to be 'free' of something can (probably) be reformulated as a desire to 'do' something, anyway. "I want to be 'free' of jet-ski noise" equals "I want to relax is my home and enjoy the sounds of nature, the gentle lapping of the water on the shore, blah blah blah". The actions of the jet-skiers deprive me of that freedom. Likewise, my desire for peace and quiet at 3 am can be reformulated as the freedom to get some sleep at 3 AM, and my neighbor's expirements with his amplifiers definitely deprive me of that freedom.
BTW, I have the sneaking suspicion that my characterization of Bork's reasoning is a close paraphrase of something you have written. Apologies for the probable plagiarism.
JY wrote:
But if you have to make a choice to come within range of my arm swinging, particularly on my own property, then this is certainly not the case. If you jump out in front of my car, it's absurd to claim that your "right" to stand there trumps my right to drive there. When person A has it entirely within their power to avoid the harm caused by Person B's behavior and chooses not to, with whom does the responsibility lie?
This is particularly true, by the way, if I put up a sign that says "Man swinging arms on his own property and allowing others to do the same; do not enter if you find armswinging unpleasant or dangerous." We see this in all sorts of settings. Strip clubs are clearly marked as strip clubs so that anyone who is offended by such places will not go in. If they do go in, they certainly cannot legitimately say, "Hey, your right to strip ends when I am forced to watch it" - because they're not forced to watch it. What is the difference between that and allowing a restaurant or bar to put up a sign that says, "This is a smoking establishment. If you do not like being exposed to smoke, or if it is harmful to your healthy, stay out. If you do not want to work around smoke, do not apply for a job here"? It is the same principle at work in both cases. And I think it is absurd and authoritarian for those who are offended by smoke to insist that every single place of business be made over to indulge their desires, as opposed to wanting at least a portion of such places to cater to them. The market will insure that there are some of both; government coercion can only insure that one side has all of the power and the other side has none.
JY -- Thank you so much for doing my work for me! You said something like what I would have wanted to say -- with much more clarity than I could have mustered.
Ed -- I'm sorry to keep partially changing the subject from smoking to noise; if I had my own blog I'd start a new thread, but this is your blog, so I can't. Anyhow, it's the "liberty" idea I'm trying to understand better, and smoking and noise both shed light on that subject for me.
JY mentioned that part of what gets hard is to define harm. I agree. I feel as strongly as anyone (more strongly than a lot of people!) that what I do in the privacy of my own home is my own business and no one else's, and you would have to go a long way to convince me that it harms you and is therefore any of your business (though if I beat my kids, that's your business, at least insofar as you are part of the collective/community in which I live).
But the lake across the road from me is a public space. (I don't own property on the lake, by the way; I don't own any property at all -- I rent. I happen to live across from a town-owned public beach in a relatively quiet rural place).
What anyone does in a restaurant is, in terms of my concerns, an intermediate issue and is being well argued by the rest of you, so I'm leaving it alone.
But -- framing the jet ski problem in terms of "minimum reduction of liberty" and of one person controlling another person's behavior is an unhelpful red herring, in my opinion. I would propose framing it, instead, in terms of the use of a shared public resource. The jet ski operator wants to use it one way, I want to use it another. Our uses are flat-out incompatible. I can't have quiet while she makes noise; she can't run the jet ski while I have quiet. We are both citizens and, directly or otherwise, taxpayers. (This dynamic goes for a lot of other fights over activities one might undertake in the woods around where I live, by the way. "Sportsmen" want the right to run motor vehicles through the woods unhindered -- except, of course, they don't want me to run motor vehicles in the woods during hunting season, and scare away the deer. In fact, there's a law in Maine that makes it a crime to interfere with a hunter; I don't know if it's ever been applied to a 4-wheeler operator. And speaking of Maine, I know we're wildly insignificant compared to NY and CA, but you can put us on the list of states that have banned smoking in all restaurants and bars.)
If you want to talk about people controlling other people, then how about this: by operating the jet ski, the skier is controlling my ability to enjoy a shared public resource in exactly the same way that by banning skiing I would be controlling her ability to enjoy a shared public resource. The fact that one of us is indulging in a "behavior" rather than passively enjoying a resource is an irrelevant distinction in this case.
In this sense, I feel that we're in a different realm even from the difficult one of defining "harm." You might say that jet ski noise doesn't "harm" me -- but it certainly "affects" me. I suppose someone could argue that depriving me of some kind of equal right to enjoy the resource in the way I see fit is a kind of harm, as far as that goes. But in any case, in deciding how to use a shared resource, I think that it is more accurate to say that our proposed uses each affect the other party more or less equally, and go from there toward trying to solve the problem somehow.
Further -- I have perhaps more reason to be terrified of the tyranny of the majority than most people, because I am in the majority in terms of almost no parameters that matter in the public space. (Okay, I'm female.....) But I still find it hard, not easy, to say that none of these issues should be decided by majority rule. The example of loud music at 3 a.m. is a good one for this. If the neighborhood consists of 100 households where no one wants to play loud music at 3 a.m., it would seem that there's no problem. If the neighborhood consists of 100 night owl households all wanting to blast their speakers at 3 a.m., again there would seem to be no problem. But what if it's 99 to 1? And does it matter in which direction? If we have 99 loud night owls, maybe the 1 should move to a different neighborhood, though that's not a minor burden. If we have 1 loud night owl.....should the 99 get to "control" the night owls "behavior" by banning loud music at 3 a.m., or forcing him to move in order to listen to loud music? Or do we have to maximize "liberty" by not banning behaviors that aren't tantamount to a punch in the nose? (Though you've managed to define even a punch in the nose on your own property as possibly okay........ :) ) And hardest of all, what if it's 50-50? I really find it hard to imagine in what way a question like this (which is already oversimplified from the kind of thing that comes up in real life) has a simple solution.
Thanks for engaging........I do love this blog.
Janie-
The problem is that noise and smoking just aren't analogous problems. Noise cannot be restricted within property lines in the open air, but smoking inside of a building, which is the subject of this discussion, is. In a different situation with different circumstances, different solutions may well apply, and there will always be difficult areas at the edge where different principles butt up against each other. But I would maintain that even where you decide that liberty must bow to a different concern based upon some notion of harm, the best solution is still going to be the one that impedes liberty the least while accomplishing the goal. I don't know what that might be in regard to noise on a public lake, but I do know that it has little bearing on the question of what to do about smoking in a private business.
"But again, private businesses are not "public places". And in many private businesses, what would not be allowed in what is truly "public" - that is, in the open air in full view of everyone - is allowed to go on."
Here is where you confuse me Ed. Businesses are not completely private entities. They must be chartered by the government created through incorporation. As such, they owners choose to go into business, and abide by the legal decisions imposed upon them by the state under which they have agreed to conduct their business according to the papers of incorporation. So in saying businesses are private and not public isn't clear for me. IF the citizens of a chartering constituency wish to agree, through a demonstration of an act of will of the people, to impose sets of rules and regulations on the businesses, the owner has the right, the liberty, to choose to stay in business, get out of business, or move to a new constituency. It seems, and i hope you can clarify all this for me or correct my error in though, that as i read your comments i get the impression the liberty and rights of a business owner take some degree of precedence over those of the individual and/or their collective action as a government of the people.????
Am i correct that the right to own and operate a business would be based on the Ninth Amendment??
spyder wrote:
I don't think the fact that the government requires registration to own a business means that the government then gets to dictate whatever rules it wants to dictate to the person who owns it. There must be some limits on it, don't there? In order to buy a home in this country, you also have some government regulations to meet - zoning laws, property taxes levied, and so forth. But that doesn't make it a "public place" in the same sense that a public park is, and that certainly does not mean that the government has carte blanche to make any decisions for the owner of either the home or the business that it feels like making.
Are there no limits to what the government can do or require? Your reasoning doesn't seem to allow any limits at all as long as the regulations reflect the "will of the people". But isn't that the source of so much oppressive legislation? In Alabama, the "will of the people" is that you cannot sell adult toys in that state. Is that a legitimate law? I would argue no. The government has no authority to impose such a restriction, and neither the fact that businesses are chartered nor the fact that it represents the "will of the people" is sufficent to justify such a law. The burden of proof is always on the government - meaning the majority - to justify its restriction of individual rights.
You're combining "individual rights" and "collection action as a government of the people" as though they were the same thing, but they are in fact opposite things. The government, whether "of the people" or otherwise, has authorities and not rights. And that authority may only justly be exercised to protect individual rights, not to squash them. It is certainly true that sometimes there is a clash of rights, but that is not the case here. There is no "right" to have every single building one might go into sanitized for their convenience, any more than one may demand that since they are offended by nudity that no bar every have nudity and therefore strip clubs should be banned.
To me, this is like asking upon what basis one would assert a right to breathe or a right to wear blue clothing. The question is not upon what one bases a right, but on what basis the government asserts a given authority to deny that right. Rights preexist government; governments are instituted to protect rights. The natural rights philosophy upon which our entire system is based includes the right to own property and engage in commerce, and government may justly violate those rights only in order to protect people from being harmed against their will or from having their rights violated against their will. But people have to choose to go into a restaurant where people smoke, just as they have to choose to go into a bar where people are stripping. They can just as freely choose not to go there and eliminate any harm they might otherwise be caused.
The smoking debate is interesting because it's a battle between measurable harm, personal offense and property rights. The measurable harm has been in debate since the campaign against ETS started. The side saying second hand smoke is dangerous is consistently lacking in evidence, when measured by an objective eye. Personal offense is usually a bad reason to legislate, especially when dealing with private property. As an allergy sufferer I can tell you freshly mown grass, cats, and perfume cause me severe allergic reactions. I avoid those situations or take medication when the situations are unavoidable. The last issue is property rights.
If smoking is so harmful, and it is to the smokers, then ban tobacco. There is no quantifiable evidence that second hand smoke is harmful. It is offensive to some people, but perfume is offensive to those of us that are allergic to it. One of the major issues that hangs over this is measurable harm. In private establishments that serve the public (bars and restaurants) the government has a supervisory role in making sure the public is not harmed. The public has no right to not be offended -- I can serve you bad food, have incredibly tacky interior design, or spray perfume all over the place -- as long as it does not endanger your health.
As the linked study shows, there is no measurable harm. For those that want to cite previous ETS studies, I'm more than happy to discuss them.
It is really interesting that the longest thread I have seen here in a long time (ever) is on this subject.
JanieM - I would tend to think you should lobby your local municipality to enact an ordinance banning certain decibal levels before a certain time. Although if your municipality gets a lot of tourist dollars it isn't likely to happen. An outright ban on jetskis isn't likely but a lot of places have ordinances about noise levels after and before certain hours. . .
Thanks Ed for you patience with my confusion. Part of what bothers me is the apparent conflict between the rights of people and their relationship with the Commerce Clause (Article 1 Section 8 Clause 3).
"The natural rights philosophy upon which our entire system is based includes the right to own property and engage in commerce, and government may justly violate those rights only in order to protect people from being harmed against their will or from having their rights violated against their will."
Your patient explanation still leaves me to ponder whether businesses themselves have "rights" or if those are representational ones of the owner(s) [and as i have admitted before i simply don't accept philosophically that humans have the right to own property and generate profit, but that isn't relevant here] . But this really is only tangential to the smoking ban; and you have been quite convincing in your argument regarding 'smoking bans.'