No Freedom or Smoking Allowed

This week’s “Daily Journal” guest columnist is Daren Bakst, Legal and Regulatory Policy Analyst for the John Locke Foundation.

Yesterday, the North Carolina House Committee on Health considered an extreme bill that would prohibit smoking in public places and in workplaces. This legislation isn’t a “nanny-state bill.” That would presume that proponents care about the “victims” of secondhand smoke and want to protect them from themselves.

This is a false presumption. This is about some people deciding that they don’t want to deal with smoke — ever — and using the power of government to enforce their own personal preferences. It makes no difference whether the government infringes on personal freedoms or property rights so long as they get what they want.

I have lost family members to smoking. I also don’t like being in restaurants and dealing with secondhand smoke. That being said, I also don’t like others imposing their preferences on others and ignoring critical freedoms. Before addressing how the smoking ban infringes on freedoms and property rights, it is helpful to look at the bill.

The legislation is so extreme it prohibits smoking in private clubs — so much for the freedom of association. If you think this is about caring about victims of secondhand smoke, think again.

The bill would allow cities to ban smoking in parks and any unenclosed area owned by the government. Don’t smoke a cigarette while rowing a boat in the middle of a large lake, or you could be fined. The law even mandates that no more than 20 percent of a lodging establishment’s rooms be smoking rooms — as if secondhand smoke lingers in the air forever.

Again, this law is for the people who don’t want to deal with smoke, whether it is in the air or whether the smell of smoke lingers in the walls of a hotel room. If these people don’t want to deal with smoke, they have an incredible freedom — they can choose to avoid establishments that allow smoking. That’s a problem for them, though. This means they might have to choose not to go to every restaurant or hotel available, and this can’t be tolerated (by them).

The only solution for them is to prohibit smoking everywhere so that their preferences can be accommodated and the choices of others can be ignored. That’s one of the core problems — smoking ban proponents believe that the personal choices of others shouldn’t be respected.

I’m not talking only about the choice of individuals to smoke, although that is certainly one of the choices that should be respected. Smoking ban proponents simply assume that the choice being restricted is the choice of individuals to smoke.

I’m also concerned with the free choice of individuals to be around secondhand smoke: to take that “risky move” and actually visit a park where someone 100 yards away is smoking a cigarillo.

Even assuming that in tight enclosed areas, secondhand smoke can be unhealthy, individuals can make their own choices whether to put themselves in a position where they may inhale smoke. Driving a car is dangerous, but we don’t ban driving. Drinking alcohol can be dangerous, but we don’t ban drinking (although we did, and it wasn’t exactly a big success).

Proponents argue that the health effects of secondhand smoke justify smoking bans, yet they don’t distinguish why being around secondhand smoke is more dangerous than other actions individuals take on a regular basis.

There is, of course, the cost argument — smokers allegedly cost taxpayers more money than nonsmokers. Besides this being completely inaccurate, it is irrelevant. A smoking ban doesn’t prohibit individuals from smoking — a smoking ban prohibits individuals from choosing whether they want to be exposed to secondhand smoke. A more appropriate estimate of costs would be based on the difference that individuals exposed to secondhand smoke cost taxpayers compared to individuals not exposed to secondhand smoke.

For the sake of appeasement, let’s assume that secondhand smoke is costly to taxpayers and, therefore, people shouldn’t be able to make their own free choices regarding secondhand smoke. If the government were to go down a road of prohibiting informed choices that impose costs on taxpayers or society, the result would be scary.

Those who want to ban smoking today aren’t always going to enjoy what is banned tomorrow. The ban may be as “innocent” as prohibiting broadcasts on network television or banning small cars because they are more dangerous than larger vehicles. Unfortunately, it also can get into dark and even evil areas.

Certain sexual behaviors could be banned due to their costs to taxpayers. Individuals with severe mental illnesses or poor genetics could be barred from having children — eugenics is part of American history, a history we should never repeat. Government could isolate certain high-risk groups prone to violence before they even do anything wrong — all in the name of reducing costs to society.

Does this sound extreme? It shouldn’t. First, let me stress — not for a second do I think smoking ban proponents want to pursue these far scarier policies. However, the slippery slope of creating bans that disregard freedom and liberty could slide a society quickly into dark places it never dreamt possible. A fascist state isn’t built in a day.

Now let me clarify a common misperception. If I own private property and serve the public, the property doesn’t magically get transformed into public property. It still is private property, and I still have property rights.

This means I should be able to invite who I want to my property and allow them to engage in legal behavior (as of this writing, smoking was still legal). Smokers have no right to smoke on my property, but I should have the right to allow them to smoke.

The legislation, though, creates a new category of property called a “public place.” It is “an enclosed area to which the public is invited or in which the public is permitted.” As a general rule, I couldn’t allow anyone to smoke in my private property so long as it meets this very broad definition. Local governments would even be allowed to expand this overbroad definition of a “public place.”

Policymakers and the public should ask themselves what it says about their own views of liberty and property rights if they support such an extreme measure. If there’s so much concern that the public can’t make informed choices about secondhand smoke, which by itself is an insult to the public, then the appropriate regulatory act is to require proper notices in public places and workplaces where smoking is permitted. At least then, liberty and property rights don’t have to be sacrificed for public education.

Going beyond this type of requirement is not just overkill but a clear message that free will, individual responsibility, and property rights are secondary to the preferences of those who deem their wishes as superior to the rights of fellow citizens.

In a free society, individuals must make choices all the time. We may not like what our neighbors’ choices are, but unless we are forced to suffer harm from those choices, a scenario which doesn’t exist with smoking, we should tolerate those choices. The day that we stop tolerating those choices, which to some extent we already have, we are no longer a free society.

Do unto others as you would have them do unto you—smoking ban proponents should remember that, and pray that when their behaviors are one day called into question, the public is more tolerant than they’ve been to smokers.