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Wednesday, January 4, 2017

Call Off the Anti-Fun Crusade

Moralists and anti-competition advocates unite against our right to a good time.

Paternalists don’t always have nefarious designs when they place bans on unhealthy activities, but a “take your medicine” attitude toward improving people’s health has unintended, sometimes deadly consequences. And, too often, there is an illegitimate purpose to legislating lifestyle politics: ill-gotten gains for rent-seekers.

For those who thought the baptists and bootleggers coalitions of yesteryear disappeared along with Prohibition, consider its longevity.

Bans on Popular Activities

Rent-seekers and anti-fun lifestyle enforcers (still) make strange bedfellows. For example: The State of New York taxes cigarettes at a rate of $5.85 per pack, banned Mixed Martial Arts (MMA) for twenty years, and has an Attorney General obsessed with shutting down Fantasy Sports. And in nearby Pennsylvania, century-old Blue Laws prohibit hunting on Sundays and limit liquor sales to government-run stores.

On the federal level, the FDA announced that it would begin to regulate e-cigarettes. So we have the baptist, in this case, Surgeon General Dr. Vivek Murphy calling for tighter restrictions on e-cigarettes, despite the evidence that youth smoking has declined and that “[r]educing youth access to e-cigarettes appears to increase youth smoking rates.” Then, we’ve got the bootleggers, tobacco companies whose profits are threatened by e-cigarette manufacturers.

Similarly, in Pennsylvania, anti-alcohol activists, or “new prohibitionists,” joined hands with government-liquor-shop unions to halt Blue Law reform.

Only through collusion could those new prohibitionists and their legislative allies manage to keep otherwise popular activities illegal. Before the legalization of MMA in New York and the modest reform of Pennsylvania’s Blue Laws, both changes had overwhelming support.

If the politician and the rent-seeker can line their pockets while simultaneously keeping competition out of the market, why wouldn’t they?

Because the bans are protectionist, they’re usually chock full of exemptions, leading to absurd results.

For example, what do Baltimore restaurateurs do when their brick-and-mortar cafe or chophouse isn’t making money? Why, they go to the legislature, and ask the city to ban food-trucks from parking within 300 feet of a restaurant that sells the same type of food, unless the restaurant assents. That’s what happened when pizza-maker Joey Vanoni hit the Baltimore food-truck scene. He has since enlisted the help of attorneys Greg Reed and Rob Frommer at the Institute for Justice in order to fight the ban.

Ridiculous Reasoning

The arguments offered by either baptist or bootlegger are so implausible that they sometimes border on the ridiculous. Pennsylvania’s Sunday hunting ban is justified by the excuse that animals need a day to rest. The Louisiana Horticulture Commission defended an entry-level exam that prevents new florists from being licensed by explaining that it’s possible “for persons to be injured by improperly assembled floral arrangements.” Naturally, the judges were licensed florists who would lose business to new competitors if any of the examinees passed. The examination had a pass rate lower than the state’s bar exam.

Because the bans are protectionist, they’re usually chock full of exemptions, leading to absurd results. In North Carolina, you can buy a Tesla car in Raleigh but not in Charlotte. In New York, you can buy cartons of cigarettes, but not a single loosey. In Pennsylvania, the Sunday ban doesn’t apply to fishermen. Fish, you see, have much more energy than deer, and so don’t need the extra day of rest.

The sentinels of healthy living might argue that instances of naked economic protectionism, as in the case of Louisiana floristry, are different from cases where paternalists want to protect health and safety. But ideologues blur the line between health and politics.

What if pro-breastfeeding mothers argued that it was a health imperative to ban formula, as others have intimated? Will local government step in to mediate, as Mayor Bloomberg did in New York City?

The point is that government shouldn’t police lifestyle choices. It’s a fine line of unhealthy severity between tobacco and e-cigarettes, e-cigarettes and sugary soda, sugary soda and baby formula.

But as long as paternalists can follow the path of baptists and bootleggers, they will abuse the state legislative process. That’s why the solution is continual legal challenges in state courts.

Although smokers and boozehounds aren’t as sympathetic as, say, a Benedictine monk, they still deserve an advocate.

Also, many new prohibitionists are out of touch. The show South Park got it just right when they imagined this exchange between smoking-ban enthusiast Rob Reiner and a man smoking and drinking at his regular watering hole: “Look man, I work fourteen hours a day at the saw mill. I just got off work and I need to relax.” “Well when I relax I just go to my vacation house in Hawaii.” “I ain’t got a vacation house in Hawaii!”


(Disclosure: The author was a law clerk at the Institute for Justice during the summer of 2016, where he assisted Greg Reed in preparing Joey Vanoni’s lawsuit against the City of Baltimore.)  

  • Alex Grass is a Young Voices Advocate and a student fellow at the Floersheimer Center for Constitutional Democracy at Cardozo School of Law.