Freeman

ARTICLE

Coping with Smoking

APRIL 01, 1989 by TIBOR R. MACHAN

Various legislative bodies are enacting laws forbidding business proprietors from permitting smoking on their private property—in offices, cinemas, aircraft, stores, and other places. Such policies are touted as a means to combat a harmful habit and to foster public health. But there are serious problems with this approach to the problems of smoking.

Owners of private establishments are being prevented mostly by city ordinances from deciding who will be permitted to smoke on their premises. But such government-mandated prohibitions ignore the rights of those who don’t mind smoking as well as those who wish to live in a tolerant society. Since smokers now are in the minority, some believe this is the time to descend on them in full force. Their critics are willing to ignore individual fights to freedom of association and private property.

Of course, the issue often is presented in a way that makes it appear that smokers are the ones who violate individual rights. They are said to be assaulting the rest of us with their smoking. But is this really the case? And are the laws really designed to protect the rights of individuals against the intrusions of smokers?

No doubt, smokers can be annoying. Their smoke even may be harmful to those around them. One need not dispute these contentions still to be concerned with their rights.

In most cases, anti-smoking ordinances aren’t limited to public places such as municipalcourts. If the government confined itself to protecting the fights of nonsmokers in bona fide public areas, there would be nothing wrong with the current trend in legislation.

Instead of such a limited approach, however, government has embarked upon the full regimentation of people’s choices concerning smoking. The government, under the leadership of public health officials, has decided to bully smokers, regardless of whether they violate anyone’s fights or merely indulge with the consent of others. This is where government-mandated smoking bans have reached a dangerous phase.

There are many risks that people suffer willingly. And in a society that respects individual rights this has to be accepted. Boxers, football players, nurses, doctors, and many other people expose themselves to risks of harm that come from others’ behavior. What is central, however, is that when this exposure is voluntary, in a free society it may not be interfered with. The sovereignty of persons may not be sacrificed even for the sake of their physical health.

Respecting Individual Rights

individuals’ property rights are supposed to be protected by the Fifth Amendment. Not unless property is taken for public use—for the sake of a legitimate state activity—is it properly subject to government seizure. By treating the offices, work spaces, and lobbies of private Ca-ms as if they were public property, a grave injustice is done to the owners.

When private property comes under government control, practices may be prohibited simply because those who engage in them are in the minority or waver from preferred government policy. Members of minority groups can easily lose their sphere of autonomy.

There is no need, however, to resort to government intervention to manage the public problems engendered by smoking. There are many cases of annoying and even harmful practices that can be isolated and kept from intruding on others. And they do not involve violating anyone’s right to freedom of association and private property.

The smoking issue can be handled quite simply. In my house, shop, or factory, I should be the one who decides whether there will be smoking. This is what it means to respect my individual rights. Just as I may print anything I want on my printing press, or allow anyone to say whatever he or she wants in my lecture hall, so I should be free to decide whether people may smoke in my facilities.

Those displeased by my decision need not come to my facilities to work, play, or whatever. If the concern is great and the opportunity to work in a given place is highly valued, negotiations or contract talks can ensue in behalf of separating smokers from nonsmokers. In many cases all that’s needed is to bring the problem to light. Maybe the firm’s insurance costs will be high where there is smoking, or maybe a change in policy will come about because customers and workers are gradually leaving.

In some cases it may go so far as to involve tort litigation. Exposing employees to serious dangers that are not part of the job description and of which they were not warned may be actionable. But what the company does initially at least must be its decision. And the onus of proof in these cases must be on those who claim to have suffered unjustified harm. Government legislation and regulation often subvert this carefully conceived process, just because some people are impatient with how others run their own lives and properties.

Consider the somewhat analogous case of freedom of religion. If I own and run a private school, I decide whether students may pray. In state schools, of course, the state decides. And a sound system of government won’t get on the side of either the prayers or the non-prayers. Similarly, the state should say nothing about the ultimate benefits or harms of smoking. This is no different from the well-respected view that the state shouldn’t get on the side of a particular religion or even a scientific theory.

It is important to note that for many people, smoking is not categorically, universally bad. For some people it may be O.K. to smoke, just as it could be O.K. to have a couple of drinks or to run five miles a day. For others, smoking is clearly harmful to their health. In either case, health may not be the highest good for many people. All things considered, even those whose health suffers may wish to smoke. In a free society, people are free to do what is wrong, so long as they don’t violate the rights of others.

But, some will cry out, here’s the rub: smoking can adversely affect others, and there is reason for those who could be harmed to stay away from smokers.

But this doesn’t mean that we should force someone who doesn’t mind smoking to stay way from smokers. If I own a restaurant and choose to permit smoking, you have no right to come in and force someone not to smoke. You must deal with me first and I might accommodate you or I might not, depending on my values and choices. In a free society this should be the general policy. If you believe that I subject you to harm that you were not warned of, you can sue me. But this is a private dispute, not a matter for public policy.

Some want no smoking near them and ought to be free to associate with others who do not smoke. They should eat in restaurants, work in businesses, and play in clubs where smoking isn’t allowed. Others like to smoke and should be free to join the like-minded to carry on their various activities. And some who don’t smoke may not mind others smoking nearby. They, too, should be free to seek the appropriate company in the appropriate settings.

A free, pluralistic society can accommodate all these people. It isn’t necessary to appoint the government as the caretaker of our health and the overseer of our interpersonal negotiations concerning how we best get along with each other. Only when there are decisive grounds for deeming an action as violating someone’s rights should government enter the picture and prohibit it.

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April 1989

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