Let Property Settle Smoking Disputes

Smoking Regulations Distort a Proper Understanding of Public versus Private Property

Andrew Cohen teaches philosophy at the University of Wisconsin, Stevens Point.

Public policy debates nowadays are often confused about what ought to count as a “public” policy. Injecting a healthy appeal to individual rights could help resolve disputes by showing just what ought to count as anyone’s proper business. The antismoking hysteria gripping America is a case in point. Because smoking is allegedly so bad, regulators and busybodies get to tell others how, where, and when they may smoke. But badness is no argument when it comes to defining our freedom.

Your Loud Stereo

Imagine that you have an obscenely expensive, gratuitously overpowered stereo system. Suppose you have set up this system in your home out in the country. Your house is in a spot where you can play your stereo without bothering any neighbors. You live there all alone, and you play your system at a ridiculously loud volume, 24 hours each day.

Hearing specialists will tell you that this would be foolish. You would be jeopardizing your hearing in the upper ranges, and you very likely would go completely deaf in a few years. But you might not care. Perhaps you love the acoustic rapture you feel when listening to loud music.

In spite of your self-destructive behavior, no one can dispute your right to play your stereo in your own home. After all, it is your home and your hearing.

Suppose an acquaintance of yours is rather fussy about her hearing. She finds it difficult to put up with loud music, and she is especially intolerant of the type of music you like. But she frequently comes to your house for tea and (hollered) philosophic debate. One day, she asks you to lower the music.

If you were polite, you might lower the music. But remember, you’re fond of the tunes at dangerously loud volumes. You (politely) refuse. “After all,” you tell her, “you knew how loud I played my music from the moment you came in.”

This does not satisfy her. “But I insist,” she shouts over the music. “The surgeon general and numerous respected research labs have shown that any exposure to such painfully loud music can permanently damage hearing. You have to turn it down.”

What should that “have to” mean? In a society marked by voluntarism and good will, that would be (at most) a request. In a society confused about what is properly private, that “have to” might take on a different, more forceful meaning.

So what should you do? If you value her company, you should turn down the music. But if the music is more important to you, you may ignore her demand. After all, it’s your house.

And you tell her that.

Indignant, she storms out and petitions the County Board of Regulators, which then passes a law requiring you to lower the music or set aside “nonmusic” sections in your home. “But it’s my house!” you proclaim. “People are exposed to the music only when they voluntarily come on to my property!” But it is to no avail. If you refuse, the government will fine you or throw you in jail.

Such a county board should be denounced for its intrusiveness. Its regulations violate your property rights in your home and give your friend the right to access your property on her terms. That is inconsistent with the principles of property rights. Those rights set out a sphere of freedom that allows individuals to live their lives as they see fit (provided they do not violate the similar rights of others).

From Loud Music to Smoke

Now watch how something mysterious happens to property rights when we switch from the sound in your space to the fumes in your space. Suddenly, property rights go out the window.

Political hostility to smoking began in full bluster in the early 1970s when radio and TV ads were closed off to tobacco companies and when smokers were moved to the backs of planes, trains, and buses. Today most states and hundreds of municipalities have enacted various regulations concerning smoking in “public” areas. These laws range from outright bans on smoking on public transportation to detailed ordinances specifying mandatory policies for offices, retail stores, and restaurants. The march to stamp out smoking has continued, with state attorneys general, under the watch of Congress and the president, negotiating a possible settlement with the tobacco industry.

The most widely cited reasons for regulating smoking are the obvious health concerns. We have heard the statistics about the dangers of smoking. No one can plausibly claim today that smoking is a harmless pastime. Smokers may say the decision is theirs alone (just as people voluntarily decide to go bungee jumping and skydiving.) But critics reply that smoking is not a purely private affair. A key issue now concerns the dangers to nonsmokers. Some studies estimate that 5,000 nonsmokers die each year of lung cancer from passive smoke. Other studies bandy about even larger numbers. The figure could be ten times higher when you consider heart disease, cancers, and other illnesses. (For the record, those studies are disputed by some independent analysts.)

We must grant that smoking is bad. We must also acknowledge that passive smoke is bad. It is not, however, the proper function of law to root out things because they are bad. Law is best confined to keeping people from violating one another’s individual rights. Individuals do not have an automatic right of access to the private property of others.

Regulations and Social Virtues

Besides a concern about the proper scope of law, smoking regulations undermine two important foundations for voluntary relationships, one economic, the other social. Economically, regulations direct merchants’ attentions away from customers and toward the demands of bureaucrats. That undermines the discipline a free market imposes, where merchants must satisfy customers or go out of business. Merchants must tune less to the signals customers give and more to the demands imposed by regulators.

Perhaps more important (and more fundamentally), a regulatory regime undermines the basis for voluntary social relationships. In a civil society, one can request that others accommodate your needs. In relationships defined by mutual concern and trust, people would (and perhaps should) voluntarily stop doing things others see as a nuisance. Mature adults in voluntary relationships do not need to be chaperoned by the state in matters of basic civility. Regulatory supervision undermines the authentic concern people can and should show one another on the way to developing meaningful relationships of all sorts. But smoking ordinances give individuals no choice but to do what regulators want them to do. They are deprived of the chance of expressing genuine concern for others.

Where individuals greet one another as equals, the give-and-take of ordinary human encounters can, over time, foster relationships where they learn to care about one another’s needs. When regulations define their relationship in advance, they are as children on a vigilantly supervised playground. In such circumstances they have less reason to rise above the petty squabbles that maturity and concern for others should serve to resolve.

“Public” vs. “Private”

Besides undermining private virtues, smoking regulations distort a proper understanding of the distinction between “public” and “private” property. Antismoking ordinances purport to regulate smoking in “public” places but often usurp private property. (We have to be careful here because a lot hinges on who controls the areas being regulated.)

If a friend visits you in your home, your home is still your private property. If one hundred fifty of your friends come to visit, that does not change your home from private to “public” property. Nor, for that matter, does your property become “public” if you charge people to gain access. A restaurant, a taxi, or a mall are all just private places that are frequented by the public. Just because the public has access to someone’s private property does not mean they may dictate the terms of access.

The only property legitimately called “public” is anything owned and operated by the government. And (at least for now) the government does not own everything. Regulators have no more business telling you what you may do in your indoor sports arena than they do dictating your conduct in your home. But when it comes to public property, the government can legitimately regulate up a storm.

This is not to suggest that private businesses should ignore the demands of a growing nonsmoking portion of the public. Wise business owners will, on their own, cater to nonsmoking customers. Witness Northwest Airlines’ voluntary ban on smoking on all its flights in 1988. (This preceded the ban the government imposed on all domestic flights in 1989.) Numerous restaurants offer nonsmoking areas for their patrons. Hotels and motels have taken to offering nonsmoking rooms, and some hotels in larger cities have implemented nonsmoking floors. In a free society, if smokers worry that they are being shut out, other businesses would recognize market opportunities and open up “smokers only” establishments. More modestly, businesses might simply be sure always to set aside some areas for smokers. We can applaud (or denounce) any of these private policies; they all represent private businesses voluntarily filling market demand. But no matter what we think, we can never claim a right to implement a smoking policy on someone else’s property.

We have no more right to legally impose smoking regulations than we have to march into people’s homes and force them to do what we want. If other people on their own property are unharmed, we cannot legislate how loud a homeowner’s stereo should be played (even if it hurts our ears when we visit) nor can we dictate what color the drapes should be (even if the pattern hurts our eyes) nor can we insist that the homeowner raise the heat (even if it’s darn cold inside). We don’t own someone else’s home, nor do we own someone else’s restaurant. In neither case do we have any rights regarding the owner’s policies. We don’t have a right to be on someone else’s property. If we do not own the property we are standing on (or in), then we are there by the owner’s permission. It is the owner who can stipulate what he will allow people to do on his property. If we do not like what we encounter, we can leave.

This issue is not how bad smoking is. The badness is assumed. Just because you are doing something bad does not mean that people have a right to stop you, even if that conduct hurts them. Not all harms are rights violations.

Some Thoughts on “Rights”

There is much talk of “rights” here, so let me close with a few remarks about this principle, which is central to classical liberal thought. These things, “rights”: what are they? We might have a murky sense of what they are, but it is hard to pin down, because they are not physical things that you can measure or hold in your hand.

Rights are principles, and there are many justifications for such principles. What justification we can give is still a topic of lively dispute among classical liberals and social theorists of all other stripes. However we cast the foundations of rights, they are claims: they are protected freedoms people legitimately have and can stand on or invoke to keep a space private and protected from others. What makes the notion of rights so powerful and so useful is that they help to resolve disputes among differently minded adults. People can have vastly differing conceptions of what counts as good, and yet they can still be in a position to agree on carving out certain spheres of freedom—regardless of the moral value of the things people do with such rights. That is what people so often lose sight of in disputes about alleged “vices.” Identifying something as a vice is no argument for its illegality, because people should be left free to do what they wish provided doing so does not violate the rights of others. Rights enable people to be free to do as they wish without seeking the permission of others. They are a consequence of each person’s having a life to define and live.

We should be on guard against misleading appeals regarding how good or bad certain activities are. From the standpoint of rights, it does not matter. Classical liberal thought tells us that people should be left free to define and live lives of their own, even if that means that they are left free to do things some people regard as evil or simply distasteful. The upshot of letting rights limit government action is a system of political liberty where people own themselves, and their lives, and may aspire to heights (or depths) that only they can dream of in unfettered circumstances.