Let Property Settle Smoking Disputes by Andrew I. Cohen

[Stephane Budge]

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.