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Smoking and Property Rights

Mises Daily: Tuesday, June 03, 2003 by

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A week ago I received an email that was part of a mass mailing by an anti-smoking activist who was championing all of the new "smoke-free" legislation that is being churned out by state, local, and national governments around the world.

Although I am not a smoker, I must admit to having more than a passing interest in the recent assault on tobacco companies and individuals who use tobacco. (See the recent article by Candice Jackson and me on tobacco litigation.) For the most part, when I receive emails from people and organizations that I believe are anti-freedom, I discard them, but in this case I answered and the director and I then followed with an interesting exchange of emails. From what I read both in his responses to my question, and to the questions that he asked, I was able to look into what I can only say is a totalitarian mindset.

Yes, the activists claim they are only protecting public health and keeping individuals from unwanted intrusions into their "private space," but the methods that they employ only can be successful when government seizes private property—with no compensation for the owners, of course.

After successfully forcing tobacco companies to finance government spending schemes, along with advertisements that use propaganda methods in an attempt to convince people not to smoke, the next step has been to ban smoking in "the workplace." While most of us tend to think of workplaces as offices and the like, the definition that the activists use is much wider, and especially includes establishments like bars and restaurants, which traditionally have been favorite haunts of smokers.

The smoking ban in bars and restaurants in New York City received publicity when a smoker became so enraged after being told to leave a bar that he killed the bouncer. Although anti-smoking activists have jumped on the situation as an example of why smokers are dangerous people, the incident does little to tell us that the real problem with the bans is that they are a form of state theft.

Advocates for "smoke-free workplaces" contend that since nonsmokers work in bars and restaurants, and that since even second-hand smoke contains so-called Class A carcinogens that in large doses can cause cancer, people should be entitled to "safe" places wherein to work. In other words, by banning smoking in these places, government simply is protecting the "rights" of workers.

On the surface, such arguments may sound good, but when one barely scratches the surface, they not only are specious, but downright dangerous. Such laws amount to a confiscation of property. Whatever governing body makes the ruling is using force to limit behavior that can occur on private property, yet it is the owner who is liable for enforcing the rule—on pain of losing the property and perhaps even his or her freedom. Property owners, who in a free market would be able to decide on their own whether or not they want to permit smoking, have that right taken away from them by the state.

One forgets that people who either are employees or patrons of a bar or restaurant are there by choice. To put it another way, those individuals who decide either to work at such an establishment or to eat and drink there freely have made the decision to spend time at that place. No restaurant or bar owner can force anyone to work or eat at his or her establishment, so at best, the state is "rescuing" people from their own free choices, which means that the political authorities—and the activists cheering them on—are in effect also coercing those workers and patrons into making choices that meet state approval.

Much has been made of nonsmokers being "victims" of passive smoke created by smokers. Those of us who are nonsmokers on occasions have complained about breathing the smoke of others, to be sure, and there have been times when I have not gone to certain places where people were smoking. However, it is one thing for me to refuse to patronize a place where people are smoking; it is quite another to employ the state as a vehicle to impose my desires upon others.

The anti-smoking policies in effect give disaffected persons (along with politicians and activists) de facto property rights, something I pointed out to the activist. His response was as follows: "I think ALL Group A carcinogens should be prohibited in the workplace, to the extent possible." 

The "Class A Carcinogens" argument, while at first sounding good, is yet another rhetorical trick. According to cancer researchers, tobacco smoke carries the "Class A" carcinogens, and these supposedly also have an effect upon nonsmokers. Given the political motivation of much anti-tobacco research, one must take these results with a very large bag of salt. (For example, the media recently trumpeted a "study" which claimed that smoking bans could cut heart attacks in half. Jacob Sullum of the Reason Foundation clearly debunks that and other studies.

However, as I pointed out in my responses, there are many hazards in this world, and his reasoning would give unhappy people an absolute veto power over nearly everything. For example, if one is able to walk into any establishment and demand people stop smoking, would not someone who is offended by "R" rated movies have the right to order the theater to stop showing that particular film?  For that matter, all of us are quite aware of the dangers of alcoholic beverages, and if it is dangerous for people to smoke, it certainly can also be dangerous for them to drink.

That being the case, one would expect the political authorities to be so concerned about alcohol abuse that they order bars and restaurants to stop serving such beverages, or at least permit anyone to enter a bar and declare that all drinking must be stopped.

In fact, if one really wants to get at the source of most cancers, there is the sun. If these public health cancer fighters truly were serious about keeping Americans from being exposed to the dangers of cancer, then they would demand legislation that either would prevent the sun from shining or at least require that we block all windows during the day and venture out only at night, something reminiscent of Frederic Bastiat's "Petition of the Candlemakers."

However, my activist email partner emphasized time and again that he wanted only the "Class A" carcinogens to be eliminated from the workplace. That is not as easy a task as one might think, even if all tobacco smoke is eliminated. Carcinogens, you see, come in all places, including clothing and carpet. It is nearly impossible to go through life without coming into contact with such things.

Thus, the safety issue is nothing more than a red herring, or yet another version of the "Camel's Nose."  Anti-tobacco activists most likely will not stop until we have something akin to the 1920s version of Prohibition, this time tobacco being the target, the failures of alcohol and drug bans not affecting them in the least.

While many libertarians have fashioned the argument as a contest between the rights of smokers and nonsmokers, it is a mistake to stop there. There are no doubts that conflicting rights exist here, but legislation targeting tobacco use is not the answer. The real issue here is not whether the law will be used as a mediation device between smokers and nonsmokers, but rather the fact that activists are using the state as a vehicle to hijack private property rights and to take choices away from individuals who are quite capable of thinking for themselves.

"If one abolishes man's freedom to determine his own consumption, one takes all freedoms away," writes Mises. 

The decision of whether or not to ban smoking on private property should be solely left up to the property owner, period. Furthermore, individuals who choose to work or patronize such places should not be permitted to claim later that secondhand smoke made them sick (and then have a jury make them multimillionaires).

For all of the "halo-effect" that supposedly surrounds anti-smoking activists, they are little more than closet thieves. Yes, free speech dictates that they should be able to say what they want in a proper forum. And, yes, private property rights should also dictate that they mind their own business when it comes to the property of others.


William Anderson, an adjunct scholar of the Mises Institute, teaches economics at Frostburg State University. Send him MAIL. See his Mises.org Articles Archive.