TCS Daily


Smoke Gets In Your Eyes... Or Does It?

By Stephen Bainbridge - November 17, 2004 12:00 AM

Smoking bans continue to proliferate. California (where I live) long has banned smoking in almost all places open to the public, including many outdoor venues. In New York City, I'm told that the best place to stand in a bar is the doorway, since you're apparently only allowed to smoke outdoors but also only allowed to drink indoors.

The phenomenon is going global in a big way. Scotland recently adopted a plan to ban smoking in many private workplaces that are open to the places -- including bars and restaurants -- starting in 2006. Just a few days later UK Health Secretary John Reid proposed banning smoking in any place in which prepared food is served.

Some of these folks want to save smokers from themselves. Personally, I don't see why they have the right to do so. Why is it that people have the right to use contraceptives (Griswold v. Connecticut) or abort their babies (Roe v. Wade), but don't have a right to smoke?

One answer, of course, is that smoking has negative externalities. It seems reasonably well-settled that secondhand smoke can be dangerous. But does that justify banning smoking on private property that's open to the public?

Externalities sometimes justify government intervention. If I run a factory that spews pollution into the air, the damage to my neighbors and the environment is part of the overall social cost of running my factory. Because I don't bear those costs, however, I have no incentive to reduce the pollution my factory generates. By adopting appropriate regulations, the government can force me to internalize the cost of pollution, which is a fancy way of saying that the government can force me to take those costs into account when I make decisions.

The mere existence of an externality does not justify legislation, however. In a free society, with limited government and respect for private property rights, at least two conditions must be satisfied before government intervention is warranted. First, my actions must in fact produce external costs. Second, there must be a market failure -- that is, people must be unable to solve the problem without government help.

Because I've conceded the first prong of the test, the merit of public smoking bans comes down to the question of whether the problem can be solved through private ordering. In other words, if we let the owners of private property decide whether people will be allowed to smoke on their premises, will non-smokers be exposed to unreasonable costs?

An affirmative answer is clearly appropriate in some situations. There are some public places in which non-smokers may find themselves a "captive audience" -- that is, situations in which the non-smoker cannot avoid exposure to secondhand smoke. Government offices that serve the public are a good example. If a non-smoker gets a traffic ticket, he may have no choice but to go down to the courthouse. A smoking ban thus might be reasonable in the court building.

These sorts of situations are quite limited, however. Let's start with the most basic example: my backyard. Should I have the right to smoke a cigar on my back porch, where the only ones who smells it are my dogs? Presumably so, since I'm not imposing on anyone (my dogs seem to like the smell).

If you admit that a ban on smoking in my backyard is not appropriate, let's turn to restaurants. Smoking bans routinely apply to restaurants, but restaurants are clearly places in which private ordering can work and in which government intervention is unnecessary.

Consider the following case: The 21 Club restaurant had a long history of being a cigar-friendly environment. Non-smokers who ate there did so knowing that they may be exposed to cigar smoke. On what basis can such people complain? Do they not assume the risk of being exposed to secondhand smoke by visiting an establishment that allows patrons to smoke cigars? Conversely, other restaurants -- say, those wishing to attract a family clientele -- may forbid smoking in whole or in part. If I choose to patronize these establishments, I have no right to expect to be able to smoke there.

This is what I mean by a system of private ordering: If the place is one that nonsmokers can readily choose to avoid, then they have no right to insist on imposing their preference for a smoke-free environment on me or (and this is the key point) the owner of the establishment. Absent a showing that private ordering can't work, the owner of private property has a right to decide what conduct will take place on his property even if that property is open to the public. So long as non-smokers are free to decide not to enter an establishment in which smoking is allowed, the necessary prerequisite for regulating private property simply doesn't exist.

The same sort of analysis could be extended to a host of contexts. Many argue for a ban on smoking in the workplace. And if, for example, an employer concludes that it is cheaper to hire non-smokers, who could object to his banning smoking on his premises? But if another employer concludes that it is cheaper to hire smokers -- perhaps because they'll take lower pay in order to be able to smoke at work -- why should we object to that choice'? So long as non-smokers have other employment options, if they choose to work for an employer that allows smoking, they have no basis to complain. Indeed, there is no externality, because the employer's decision imposes no costs on the non-smokers to which they have not consented.

Many restaurants and workplaces have voluntarily banned smoking. In view of this evidence that private ordering can work, I see no justification for overriding private property rights by banning smoking in private establishments.

Stephen Bainbridge is a professor at the UCLA School of Law. He blogs at www.professorbainbridge.com.


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