The Volokh Conspiracy

When Liberterians start to attack private efforts to deal with hazards and nuisances, it always leaves me a little confused.

It seems the libertarian who opposes smoking bans would, by force of logic, favor dismantling health departments who worry, among other things, about the safety of our water supply. Furthermore, if we were to move to private enforcement of smoking bans, there would be a lot of dead smokers out there, for the reason that we libertarians assert the right to defend our persons and property. I've already had to put out a smoker's cigarette with a fire extinguisher in an elevator in Munich and feel up to the challenge, if need be.

The interesting normative issue is, of course, whether we SHOULD allow people to "engage in many other risky activities ... under the assumption that individuals should be able to decide for themselves," considering people's general poor decision-making.

But as a descriptive matter, the analogy may be inexact; although people clearly can choose about engaging in self-injurious activity, we don't always have the choice about what we are exposed to, such as second-hand smoke.

I enjoy spitting a great deal. I particularly like to spit in public places with lots of people around and often I like to spit directly on people. It's very satisfying to me because I don't really like people. It seems to me that the laws preventing me from spitting on people are tremendously unfair. If people don't wish to be spat on, they should avoid walking near me. Perhaps Professor Adler will take up my cause and try to ensure that I can spit on people without fear of prosecution?

AverageEuropean,

You have a very successful business model in your back pocket. Have you yet opened your smoke-free bar/restaurant to satisfy the majority of European's tastes?

While we generally can choose which establishments we frequent, I think you are making a very broad assumption that we can choose where and with whom we work.

Many people work to live, and not the other way around, and therefore often cannot choose the job that suits them the best.

Average European: Have you considered investing in smoke-free restaurants and nightclubs in Europe? Admittedly, if you are correct, your clientele would be strictly limited to "the majority of people," but even so, you and your fellow investors might be able to scrape out a few bucks and thereby do good while doing well.

Gob, First, unlike in the case of smoking, most people do not share your aversion for obesity. Second, the imposition on smokers created by a public smoking ban is minimal (smoke outside public establishments) whereas the nuisance smokers create for everyone else is great. Third, your proposal to ban obesity-linked foods is not the analog to a smoking ban. No one here is arguing that cigarettes be banned, just that they be smoked where they are not creating a nuisance for others.

Debauched,

I agree with you that some smokers could use
more manners. However, I sense that your frustration might be because society (for whatever reason) does not view smoking as offensive as say swearing in front of small children. So the man who curses is asked to leave, whereas the man who smokes is permitted to stay.
If you don't like society's judgment call, I suggest you work to change it - by persuading folks that the guy across the restaurant is just as offensive as someone cursing. (Of course, that's why we have smoking/non-smoking sections). And, I think we have moved in your direction. That is, it is considered rude to blow smoke in someone's face, smoke in inappropriate areas.

Gob: If you don't like society's judgment call, I suggest you work to change it - by persuading folks that the guy across the restaurant is just as offensive as someone cursing.

That is just what is happening. Democratically elected legislatures are banning smoking in public places because most of their constituents find it offensive.

Look, why aren't we libertarians applying the cornerstone principal of our philosophy: J.S. Mill's Harm Principal? We don't regulate people eating fatty foods or riding bikes without helments because only they directly stand to lose from such behavior. The case for smoking bans is quite different, since smoking, as the Surgeon General found, truly harms those around you. There is no libertarian case for allowing behaviors that allow one person to directly harm others without their consent. At best, there should be an exception to smoking bans for air-tight smoking areas (or their equivalent such that smoke does not reach nonsmokers).

We wouldn't allow people to inject carbon monoxide into strangers at a bar, would we?

PS - reading the "case against smoking bans" reminds me of a joke about economists, where an economist is abandoned on an island with other professionals and they are trying to figure out how to open up a case of canned tuna.

The economist goes "Assume we have a can opener...."

The cornerstone of the type of economic decisionmaking that Lambert and Adler raise is the idea of perfect rationality in theoretical modeling. This doesn't work, because people are imperfect, and because people have a multitude of variables to consider - would you decline to go to your friends' party beceause it is at a bar which permits smoking? Probably not, even if you are rational - the offensiveness of the smoke, and the personal health risk, is still worth taking given the social cost of not going to bars with your friends.

And that excludes the facts that people are not perfectly rational people who can calculate long term health costs against short term benefits for optimal situations that perfectly match the financial goals of the owner of the establishment, the financial and health preferences of the employees, etc.

The fact of the matter is, that theoretical principles of liberty shouldn't come down to whether smoke is sufficiently physical to be a "battery" but to common sense solutions to societal problems.

To build off of Justin's comments I see two ways that smoking bans might actually increase welfare.

First, people calculate long-term risks (e.g. cancer from second hand smoke) notoriously poorly. There are some circumstances where it is more efficient to have expert, centralized decisionmakers gather the information and make decisions. This proces does not capture the potential welfare of every unique situation the same way decentralized decisionmaking can, but it may be worth it when information is difficult to generate or process. Where fundamental rights are at stake maybe you don't make this calculation, but smoking?

Second, this looks like a classic public choice issue. Smokers care a whole lot about being able to smoke inside - I'm a former 2-pack-a-day smoker myself - it would be THE decisionmaking criteria for nearly every smoker in deciding where to go. For the larger number of non-smokers, it is unlikely to make or break the ultimate decision. So even though it could cause a welfare loss restaurants obey the will of a passionate minority rather than a relatively disinterested majority. The classic solution - kick the decisionmaking proces up to a higher level of authority where the calculus shifts in favor of the majority - here, state legislaures.

Gob -- Thanks for your comment. Actually, I would say my frustration in this instance flows from the fact that increasingly "society" does view smoking as offensive and is expressing its dispproval in disappointingly statist terms, namely, smoking bans. That leaves someone in my position (libertarian who hates smoking) doubly resentful towards smokers -- first for their astonishing presumption in fouling the air I have to breathe if I want to remain indoors with them, and second for the fact that the latest assault on private property rights represented by smoking bans is entirely the result of that presumption. It's remarkable to see so many smokers rallying to the libertarian position on property rights when so few of them give a whit about the libertarian values of not interfering with the equal rights of others (e.g., to enjoy an unpolluted environment, whether it be a river, a park or a restaurant) and internalizing the costs of one's own behavior.

I have big problems with the surgeon general's report saying that there is "no risk-free level of exposure." If we take the phrase literally it is equally true of milk. With both tobacco smoke and milk there is a level of exposure so small we can't detect any harm and a level of exposure sufficently high to cause harm. Thus even on a literal reading this claim is somewhat misleading, e.g., it purports to make a substantive statement but really communicates a truism (we can never know a level of exposure has no harm).

Surely the reason it was included was the PR effect of this statement. The surgeon general must have known that the public would interpret this statement as saying you should worry about any level of tobacco exposure. It seems this determination is tinged with moral disaprobation for the risk of tobacco smoke as the surgeon general isn't announcing 'there is no risk free exposure to gasoline fumes' or 'there is no risk free exposure to trans-fat'. If the surgeon general wanted to provide helpful info rather than a political statement he should have given comparisions of the risks of amounts of secondhand smoke to other everyday risks

Frankly I'm still not convinced that normal amounts of secondhand smoke (say in a restaurant) cause a significant increase in risk. If it was a odorless industrial pollutant would the EPA restrict it's emissions below the level one that floats over from the smoking section in a restaurant?

jimbino,

No, this doesn't follow at all. One can very well believe that public health departments should educate people about health dangers (including smoking) and do what they can to help people avoid health dangers if they so choose but not make the risk/reward judgements for them. In the case of the water supply there is no reasonable way to let people make an informed choice on the risk and no large group of people who would find it more pleasant to have tainted water.

Also to respond to someone else many smokers do make a large effort to internalize the costs of their activity. They don't blow smoke in other people's faces, they responsibly try to utilize the designated smoking areas. Complaining because they don't give up smoking entierly in public is a little absurd. That's like arguing that fat people ought to be banned on the streets because they don't make sufficent effort to cover up their unpleasant obesity by not going outside or wearing giant smocks. Also, to respond to some of the other commenters obesity is analagous because it is both a health harm to the individual and annoys those the obese person is around (it's sad and unpleasant but true).

spitter,

If there was a spitting section in the restaurant and everyone knew that sitting in the spitting section meant people spit on you and you could spit on them I would defend the right of the restaurant to offer a spitting section too. But on public streets or other non-private places you do have something of a point. However, the problem is that many of the smoking bans are driven as much by dislike of smoking as dislike of inhaling the smoke. For instance in berkeley there is a law preventing smoking within 20 feet of a bus stop not just 20 feet of a bus stop when someone else is present. There are many other examples that show when given the chance the anti-smoking lobby will take the chance to make things more inconveint for smokers because they don't like smoking even when no one would be bothered by the secondhand smoke.

So I'm sympathetic to laws that regulate smoking in public just to the amount justified by the actual annoyance smoking causes. However, most people I know who find smoking annoying but don't hate smokers or feel moral outrage don't find the totally minimal amount of smoke they ingest on the sidewalk enough to justify bothering.

Ultimately I just don't understand how it can be acceptable for a strip club to ask (many of) it's girls to be tan (and incurs all sorts of cancer risks) but it isn't okay to demand restaurant employees endure guest smoke.

Also if these bans aren't motivated by animus or by a desire to play to this animus why is there no discussion of effectiveness? Smokers are addicted and they are going to smoke no matter what rules you make.

If you create smoking and non-smoking sections/rooms/areas/zones/whatever smokers will avoid smoking in the non-smoking areas. If you ban smoking entirely or make it very very difficult then many smokers will flout the ban and smoke in non-smoking areas.

We can't simply count on enforcement. In many situations people are (reasonably) reluctant to go tattle. Especially if they see the smoker has no choice but to break the rule. If the break are at your job has a separate smoking room you can politely ask your boss if he doesn't mind smoking in the other room. If the entire break area is non-smoking you just have to put up with it if your boss wants to smoke (or risk your job).

The reaction to smoking in the US is just as irrational as the reaction to drugs in the US. Instead of engaging in cost benefit analysis or trying to work out how effective the ban will be people act on pure moral disapproval and demand the 'bad stuff' be prohibited/restricted. Often this ends up backfiring as is often the case when you act on emotion untempered by reason.

Everyone knows that the libertarian ideal is very close to the free market ideal. Thus, the one and only reason for governments is to correct market failures (imperfect information, public good, externalities, etc.). From that line of reasoning, libertarians should try to prevent government interference on smoking in restaraunts, since the negative externalities of smoke can be avoided easily (and nowadays, everyone knows smoke can kill over time).

In reality, bar owners are very leery of changing their establishment to 'non-smoking' without a strong impetus (like government interference). When there's a choice between the two, smoking places get better business. As a smoker, I'm in favor of the smoking bans -- if I really want a cigarette, I can get up and go outside for it. Not necessarily the libertarian ideal, but I'm okay with it.

By the logic of some, the government should allow public facilities such as restaurants and hotels to opt out of food and fire safety codes, just so long as they post a warning to potential customers (and, to avoid nitpickers, insure that no children are allowed in).

Surely, this would be a reasonable consumer choice, as I would assume that avoiding these ordinances would provide lower prices to the customers.

Come on, we all know that Upton Sinclair was a statist, and it was the MSM that blew the Triangle Fractory fire out of proportion -- I'm sure the women who chose to work there knew that managment locked the doors.

I guess we ought to get rid of OSHA and all worker-safety related reglations in general, since they can easily choose to work in a safer environment.

Well, that's a greater risk increase than many we regulate and, multiplied out by exposed individuals, a material cause of death. I'm kind of libertarian and don't really favor rules against spitting, cursing, or smoking. But if you're going to prohibit the first two, it's pretty tough to distinguish the third.

A few notes: First, riding a motorcycle, with or without a helmet is risky. It's a matter of the level of risk. The same can be said of one's choice of motorcycle, personal skill level, and myriad other factors. But this is true of all human activity.

As an engineer, I was taken aback by outright bans on smoking in workplaces, when no sort of regulatory regime was tried first. A properly designed ventilation/filtration system can maintain immediately adjacent smoking/non-smoking zones in a single room, while still keeping the smoke level in the non-smoking area(s) negligible.

Indoor smoking bans have become quite commonplace. Now outdoor bans are the next Fabian step. I don't think there are any public beaches, piers, or boardwalks left in SoCal which allow smoking.

Now outdoor bans are the next Fabian step. I don't think there are any public beaches, piers, or boardwalks left in SoCal which allow smoking.

One of the main reasons for outdoor smoking bans is not the health implications of second hand smoke, but litter control. Many smokers are in the habit of leaving their cigarette butts on the ground wherever they happen to be standing when the finish their smoke. It's terrible at the beach. Have you ever been to a beach that allows smoking? The sand is littered with butts, which is disgusting.

some guest wrote:

One of the main reasons for outdoor smoking bans is not the health implications of second hand smoke, but litter control. Many smokers are in the habit of leaving their cigarette butts on the ground wherever they happen to be standing when the finish their smoke. It's terrible at the beach. Have you ever been to a beach that allows smoking? The sand is littered with butts, which is disgusting.

At the beaches I've been to I didn't notice them. I was too busy dodging the aluminum tabs, glass shards, and other actually dangerous litter. Never cut my foot on a butt yet.

But wait. Pipe smokers don't leave butts. I'm not sure why that's banned too.

If littering is really the issue, then it's more effective just to ban all littering, and enforce the ban. It would also be honest, a quality too often absent in government these days.

I should add that the anti-smoking crowd ultimately doesn't believe in the value of consent. State and local ordinances prohibit smoking even in venues where all persons present consent. Even if all a bar's management and staff themselves smoke (and desire to smoke on the job), and even if all customers who enter the bar sign a waiver indicating they're smokers and consent to being in the presence of smoke, the law still prohibits it.

A passerby on the street who looks in the window and sees cigarettes being smoked is effectively granted the legal authority to have all the people in the establishment fined or arrested.

Yeah, the commenter who above suggested that freedom lovers shouldn't make fighting smoking laws a priority has a case in that property rights are already so far down the tubes that this fight is pointless. On the other hand, doesn't anyone care about principle anymore? Doesn't anyone care about the millions of business owners and their smoking customers whose liberty is being violated?

Some Guest wonders:

Have you ever been to a beach that allows smoking?

Up until a couple years ago, every beach I had ever visited in half a century allowed smoking.

The sand is littered with butts, which is disgusting.

Never noticed that in any great degree, in fact they now have "sandboni" machines that comb the sand for wayward objects and leave a soft puffy litter free bed of inviting sand for all takers to proceed on their road toward skin cancer.

Indeed, on some beaches you can drink beer while you smoke and burn, and wouldn't you know it, some people bring glass bottles of beer even though the signs clearly say cans only. Glass bottles are dangerous things on beaches, all beer drinking should be banned, yes? No one should be able to enter the beach without applying sunblock 50 in front of the beach attendent, right?

Luke -- you don't need an "activist" judge to overturn smoking bans. Just one who takes seriously the concept of private property. Admitedly, such a judge might well appear "activist" to people who do not themselves take seriously the concept of private property.

Its Prozac without a prescription and no weight gain.

Sloth, once again proving that "activist" means "acting contrary to my preferences"

If my family's preferences are any guide, private actors would be wise to ban smoking from restaurants and hotel rooms. We will not eat in any establishment where our pleasure in the food offerings is destroyed by wafting second-hand smoke, and we will not stay in lodgings where our sleep will be impaired by the noxious emanations from furniture and carpeting caused by previous smoking occupants.

Yes, Gordo, but the problem, as I have experienced it many times in Europe, is this: You sit down to eat in a restaurant that doesn't reek of smoke and where nobody you see around you is smoking. Right after your meal is served, a group of heavy smokers sits down at an adjoining table and a group on the other side, having just finished eating, pulls out after-dinner cigarettes. What do you do?

What I did, many times, was to call over the waiter at that point and ask to be moved to a non-smoking table. This was always accomplished with some fuss, depending on the size of my party.

Many times, to avoid just this problem, I asked upon entering to be seated as far as possible from smokers. Half the time, in spite of those precautions, a table of smokers got put right next to me!

The worst situation was in the days of airplane travel in the 70s and 80s, when airlines began to separate passengers into "smoking" and "non-smoking" sections. Many times, after specifically asking for the seat farthest removed from smokers, I was seated in the last non-smoking row, right in front of dozens of self-proclaimed active smokers.

I have been offered armed-escort off numerous airplanes and buses in my career, for which they have compensated me when threatened by a lawsuit (and no doubt the negative publicity). Once I remember being accompanied all the way to the urinal by two "FBI agents" after complaining about the airplane smoke.

I successfully doused a smoker and his cigarette with a selzer bottle in an elevator of Siemens AG in Munich, after having been informed by the local fire department that they would come and close down all the plant elevators if they got a report of smoking in an elevator! After smoking regulations were introduced, but not followed, at the Dallas airport around 1990, I offered to help several smokers put out their cigarettes, with great success.

I am a libertarian who will continue to practice guerilla libertarian warfare, and I see no reason not to ban smoking as long as we have a nanny state. Once we take down the nanny state, I will be happy to return to helping smokers put out their cigarettes lit in my presence!

I smoke. And where the proprieter permits it, I do so in bars (but seldom in restaurants even if allowed). I prefer the approach taken by a couple of restaurants, which allow you to smoke outside and let you back in, ie do not make you pay the check and then they clear the table and expect you to return as a "new" customer for coffee and dessert. I am well aware that the smell is objectionable and try not to discommode others.

But the SG "... and concludes, among other things, that a) secondhand smoke poses a health risk to non-smokers, b) there is no risk-free level of exposure, and c) the most effective way to prevent exposure is to prevent smoking" is junk.
a. Yes, but how much? We still have laws against spitting in public because it was a definite risk factor in the spread of TB - is it still? Yes, but the possibility has gone from noticeable to near-extinct. And yes, smoking has been provably linked to a number of health problems for some forty years. But ETS is so linked only by "well, it makes sense" and anecdotal evidence. Worse, at least one study done in California with the stated purpose of finding out how badly second-hand-smoke causes/exacerbates asthma concluded that any link was unnoticeable (well, statistically insignifican).
b. More of the same, but even sillier. There is no "safe" level of exposure to water! You can be drowned by less than a tablespoon! Ban water? Bah!
c. What brilliance! Hey, people get sunburn and cancers from the Sun, so the obvious solution is to stop trying to get a tan! Better, outlaw the practice!

Sheesh.

I don't know about the long term health risks but when I go to a bar that allows smoking I always have a cough the next day. While at the bar my eyes get red and irritated and inevitably my clothes and hair reek. I have also been burned by people's ciggarettes at least 3 or 4 times and twice I found burn holes in clothing the day after a night out. Would we allow people to do this to each other by any other means but smoking? The question of why state action is needed to address this rather than leaving it to the market is an interesting one.

As pointed out above, the argument against government regulation in this area is exactly the same as the argument against workers compensation (why pay workers who were hurt, when the CHOSE to work at a dangerous place of employment) and against safety regulations (workers, after all, could have CHOSEN to work in a less dangerous place). Is it a surprise to Thomas Lambert that people don't want to live in a world where they are free to risk life and limb at work without any hope of compensation by the employer?

In the real world, employees and consumers (a) are NOT rational calculating engines, particularly about low-probability, high-cost situations (see Kahneman and Tversky, for evidence); and (b) are NOT in possession of perfect knowledge about all costs and benefits.

Perhaps most importantly, jobs are NOT fungible. If Worker A and Manager B have worked for 10 or 15 years at a company, they are NOT going to quit and go elsewhere if their employer refuses to ban smoking. Their choice is clearly (c) government regulation, since changing jobs has substantial costs (for example, loss of firm-specific knowledge, which increases their value to a company). [Only if knowledge were static - if everyone knew, from the beginning of time, that second-hand smoke was dangerous, for example, would this argument be irrelevant.] And even if in theory there were no costs for switching employers in mid-career, employees don't have PERFECT knowledge of possible employers, so changing jobs voluntarily involves substantial risk.

From an employer's viewpoint, it isn't obvious that banning smoking will happen even if it results in lowering total combined costs for employers and employees. There are costs to the company to implement such a ban (not as much cost, of course, as in other "let the market work" cases, such as voluntarily paying workers compensation, voluntarily implementing safer operating procedures, etc.). Setting up new procedures, enforcing them, and losing some employees who smoke (newer ones, presumably) are up-front costs. Benefits are longer-term (better job applicants, presumably; lower pay?).

When employers face up-front costs and delayed benefits, often "economic rationality" doesn't describe what happens in the real world (where real people live). A company may be under pressure to minimize current costs (competition); management may prefer not to reduce their bonuses today in hopes of increasing their bonuses in future years; and future years are subject to uncertainty (government regulation that wipes out first-mover advantage; outsourcing that makes the entire matter irrelevant, etc.) so they are heavily discounted.

Finally, the argument against government regulation in this area can be extended to banning lawsuits over damage suffered by non-smokers (because, of course, they CHOSE to work in a place where smoking occurred, even though the hazards of second-hand smoke have been discussed for many years). Or lawsuits over anything that an employee might conceivable have known (that safety regulations aren't followed; that overtime regulations aren't observed; that sexual harrassment is occurring, etc.). Because, after all, employees CHOSE to incur such costs, and if they don't like them, they are free to go elsewhere.