Lights out

Tennessee today joins the list of states with indoor smoking bans. Behold the mental clash between my libertarian-ish, anti-regulatory, pro-free-market tendencies and my hostility to cigarette smoke! Oh, the internal philosophical strife!

Comments

[Trisha]

Welcome to the ranks of the evil babysitter-states! PA has recently passed a state wide ban. I don't like smoking and don't want to smell the smoke, but I don't think the government should be telling business owners how to run their businesses.

[kcatnd]

Yeah, I don't think it's that hard to have smoking places and non-smoking places. Unless people get worried about smokers creating an inbred, health-shunning counterculture that plots the overthrow of all things health-nut from the depths of their billowing carcinogenic lairs.

"How much do you smoke a day, dude? A pack and a half? You little puss! I go through two lighters a day!"

-The late Bill Hicks

[JO]

I am absolutely thrilled with the smoking bans. Illinois' goes into effect 1/1/08. There's nothing I like more with a nice meal than the choking smell and annoyance of a cigarette.

I beleive the ban here in IL does separete out bars and clubs, which I'm fine with as well.

[Trisha]

Well, then you are one of the lucky few. Most of the bans don't separate them.

Here's a quick fix to your "nice meal" problem...don't eat at restaurants that allow smoking. If restaurant owners find that they are losing business due to a reduction in non-smoking patronage, perhaps they will decide to go completely non-smoking. The point is, the business owners ought to be making that decision for themselves. The government should not be dictating who their customers should be.

[Josh Rubin]

Wooo! Glad to see that TN has joined the ranks of states concerned about people's health!

Joanna and I were in Williamsburg, VA this past weekend, and we went to a restaurant and were both taken aback when they asked us "Smoking or non-Smoking." It's been so long since we were asked that (our county went to non-Smoking about 5 years ago)that we actually took a moment to think before we answered :-)

[Aaron]

Re: "the clash"... me too.

[Becky]

I'm totally stoked about smoking bans in restaurants. I'm philosophically opposed to smoking and eating because I want to taste and smell my food, not my neighbor's cigarette. That being said, I do wonder if states like CA (where it's practically illegal to smoke anywhere inside) have gone a little bit too far with their smoking bans. As a preggo, I appreciate the ability to eat wherever I want without having to expose my unborn child to cigarette smoke, but I also appreciate that there are some places (like bars or clubs) where preggos really don't belong. If a place exclusively serves alcohol, I don't see why you shouldn't be able to smoke there; it takes away my "smoking ruins the taste of food" argument. It's not like bars and clubs are fountains of good health.

But alas, at the end of the day, I'd rather live in a state with a smoking ban than a state without one. I think as a public health measure, smoking bans should be encouraged. I also support initiatives to make school lunches healthier and crap like that too.

Trisha, I'm not sure the issue is as simple as "choose an alternate venue" or that it can be squished into a purist libertarian restriction of freedom. Your right to swing your fist ends at my nose. Smoking a cigarette in an enclosed space, like a restaurant, forces every non-smoker to be exposed to harmful chemicals in secondhand smoke. I don't get to smack smokers across the face when they light up in an enclosed space with me. Why should smokers get to passively harm me? Should that be a protected right? If smoking only harmed the person smoking, I think it would easier to make arguments against smoking bans.

[dcl]

in my considered opinion smoking is a harm to me, so I have a right not to have to endure it in order to get a meal. And lest we go on the whole, but you don't have to go to those establishments argument, understand that in tobacco crazed Virginia non-smoking establishments are few and far between. One of the things I enjoyed about going out in CA is that there was no smoking in the bars--something basically un-heard of in the state of Virginia even if the whole rest of the restaurant is non-smoking. However, the one thing CA has over other states is smoking is allowed out doors, and generally the weather is nice enough outdoors year round that you can eat there instead of inside if you'd like to smoke. This is not an option in NYC &c. so it does make the situation different. Still your right to swing your fist ends at my nose.

[Alasdair]

Becky - *any* perfume you wear may cause *someone* to have an allergic reaction - are you ready to have *ALL* perfume banned in public places ?

The fist and nose argument works much less effectively when one considers that, in a boxing match, your opponent's right to swing his/her fist *doesn't* end at your nose - if you happen to have chosen to take part in said boxing match ...

If you choose to eat in a restaurant where smoking is allowed, then that is *your* choice, is it not ?

The problem with the California situation si that the ban is *total* ... restaurants and bars flat out are not allowed to permit smokers ...

The "Benihana" style restaurant has ventilation set-ups that draw air from above the centre of each table and then vent that air elsewhere ... the vapours/odours/fumes from each table do not waft over to the adjoining ones for as long as those fans are running ... that sort of set-up is one way that restaurants could have been allowed to function permitting smoking ...

My problem with the smoking ban is that it IS a BAN ... I don't smoke - I don't like the smell of smoke - BUT - I don't like bans ...

What is Sacramento going to try to ban next ?

Alcohol ?

Fats in diet ?

Sodas ?

Candy ?

Peanuts ?

Voting Republican ?

(grin)

[Patrick]

Brendan,

There is no presumptive right for another to contaminate my oxygen. I wouldn't oppose banning cigarettes in outdoor public places as well. Cigarettes are disgusting, dirty, and lethal. Keep them away from my lungs.

[Brendan Loy]

Alasdair, let's dispense with the low-hanging fruit first, shall we?

Becky - *any* perfume you wear may cause *someone* to have an allergic reaction - are you ready to have *ALL* perfume banned in public places ?

But -- and I say this as someone with a severe allergy, which I do not expect other people to bend over backwards to accomodate -- 1) perfume is only harmful to a very small percentage of the population, whereas cigarette smoke is harmful to EVERYONE... 2) ...including the smoker! So, fewer people (i.e., nobody) is actually HARMED by a smoking ban, and vastly more people (i.e., everybody) are benefited, as compared to your perfume ban (which hurts perfume-wearers and helps only a very small percentage of the population). When we're engaging in a balancing test, balancing the interests of one group vs. another, these sort of things matter. Thus, your analogy falls flat on its face.

Speaking of flawed analogies:

Alcohol ?

Does alcohol cause second-hand intoxication?

Fats in diet ?

Do fats cause second-hand obesity?

Sodas ?

Does soda cause second-hand tooth decay?

Candy ?

Same as above.

Peanuts ?

I assume this is an allergy reference. I have a nut allergy (not peanuts, but all tree nuts; peanuts are actually a legume, not a nut) which could potentially kill me, but I don't expect other people around me to just naturally know not to eat nuts. If I want them to be careful, I need to TELL them. I need to be careful what I eat -- that's MY responsibility, not someone else's. (If I ask a waitress whether there are nuts in my food, it becomes her responsibility to give me a correct answer. But that obligation does not attach until I ask.) And if my allergy were so severe that I could die just from inhaling nut dust, then I would obviously need to avoid going to places where I would be likely to encounter nut dust. I certainly wouldn't expect a municipality to ban all nuts just because I have an allergy; that would be ridiculous. My allergy only affects ME. Cigarette smoke, on the other hand, has a negative effect on EVERYONE. That's an enormous difference. Again, if we're engaging in a balancing test, which we are, these are differences you cannot ignore.

That said, your "consent" argument is a more serious one. To wit, the lengthy comment that I composed earlier today:

Like so many things, a lot depends on how you frame the issue. The anti-ban crowd wants to make everything about the business owners' rights; the pro-ban crowd wants to make everything about the (non-smoking) customers' rights. The pro-ban crowd largely ignores the whole issue of business owners' rights, and paints the issue as a question of smokers' rights vs. non-smokers' rights. The anti-ban crowd tries to avoid that question, since it's a losing one for them. For them, it isn't smokers vs. non-smokers; it's business owners vs. the government. But whose rights trump whose? And are we even asking the right question(s)?

Let me propose a slightly different way of framing the issue. The assertion that business owners should have the right to allow smoking in their establishments seems to be premised on the notion, not that their rights trump customers', nor that smokers' rights trump non-smokers' rights per se, but that customers consent to the presence of cigarette smoke when they enter the restaurant, and if they want to go elsewhere, they have that option. Thus, their answer to the "public health" argument is an "assumption of risk" argument. You assume the risk of breathing cigarette smoke when you enter an establishment owned by someone who has chosen to allow smoking. That makes sense, to an extent.

But can we please stop and question the underlying, unstated assumption that second-hand smoke is the sort of public-health risk that business owners have the right to allow, provided their customers consent to it? Certainly, there are many public-health risks, both real and hypothetical, where this is not the case.

Suppose, for instance, there's a Slavic restaurant called "Russian Roulette." Once a month, at an unspecified time, they release an aerosolized poison into the ventilation system. If you happen to be there when this happens, you die. Some customers love the thrill of cheating death, so the restaurant does a brisk business. They put up signs all over the restaurant saying: "Warning: deadly poison released once a month!" They even make their customers sign consent forms before entering. And for the sake of argument, let's assume the poison is completely self-contained; there is no risk to anyone outside the restaurant. So... do you think the government would allow this to occur, given all the conditions I've just stated? Or would it be banned as illegal, regardless of the consent situation? And if so, would you support such a ban?

That's an absurd scenario, I know, but it's a proof of concept. If you would support such a ban, you have to admit there are SOME hypothetical limits on business owners' rights to allow public-health risks that their customers consent to.

And then, when you think about it some more, you'll realize those limits aren't purely hypothetical. More realistic examples, off the top of my head, would include shutting down establishments that have absestos (rather than simply requiring them to put up signs that say, "WARNING: We have absestos!") or shutting down restaurants with failing grades from the health inspector. Like second-hand smoke, these public-health risks don't threaten anyone who didn't consent to be threatened. But we, as a society, have decided that the risks are too great to allow people to consent to them.

Does that make us a nanny state? Yeah, maybe it does. But this is a question of line-drawing, rather than a debate between absolutist libertarianism and absolutist statism/nannyism. We all agree that a line must be drawn somewhere. It's just a question of where we draw the line. ("The line must be drawn HERE!") Once you've admitted that, you then have to justify why second-hand smoke falls on the wrong side of the line, if you will.

One reason we all agree, I think, that SOME lines must be drawn, even when the risk we're regulating is consented-to, is because we all know that lots of people inevitably will ignore (or won't see) whatever warnings they're given, or will otherwise make stupid choices if allowed to do so, and society will be worse for it in various ways. We may differ about which societal detriments are bad enough to justify governmental intervention, but we all agree that SOME detriments are. With regard to the issue at hand, a quick list of detriments to society, again off the top of my head, would include: adults dead from lung cancer before their prime (thus depriving society of their presence) because they spent too much time in smoky bars; babies born with birth defects because their mothers decided to keep waitressing while pregnant at restaurants that allow smoking; and increased health-care costs for everyone.

Anyway, because we're engaging in a line-drawing exercise rather than an absolutist philosophical debate about the role of government and so forth, all sorts of otherwise extraneous facts become relevant to the discussion. For example: sure, it's true in principle that people who want to avoid smoke can choose a non-smoking restaurant, or a non-smoking bar, etc. But how realistic is that? As Dane points out, there are lots of places where it isn't so easy to find a non-smoking restaurant (let alone a non-smoking bar). I'd love to see some market share numbers in this regard. There's a difference between saying the market can accomplish something in principle, and proving that it's done so in reailty. And if we're merely drawing a line rather than setting down a decision based purely on philosophical principle, the reality matters more than the principle.

Another extraneous fact that becomes relevant in a line-drawing/balancing situation: sure, it's true that pregnant waitresses at smoking restaurants and bars can, in theory, get employment somewhere else once they get pregnant. But in reality, that's not so easy to do. The moment when you find out you're pregnant isn't generally the moment when you want to suddenly have no income and no benefits. Also, not all waitresses have lots of marketable skills. So, as a practical matter, our hypothetical pregnant waitress/bartender may be stuck at that job, breathing the smoky air. And who suffers? She does, and you can say that's her choice -- but the unborn baby, who obviously has no choice in the matter, also suffers. That's a bit harder to justify, isn't it? And the same goes for pregnant customers. Yeah, the woman who enters a restaurant that allows smoking is making a choice. But her baby isn't.

I realize that logic, taken to an extreme, could justify almost any sort of nannyism. And generally I'm very hostile to the "BUT IT'S FOR THE CHILDREN!!!" line of dogmatic argumentation. But again, because this is a question of line-drawing, I think the above are factors to consider, albeit not necessarily decisive ones in and of themselves.

In any event, although I'm torn about this because of my libertarian leanings, I'm tiptoeing toward the conclusion that the benefits of a smoking ban -- and the lack of genuine detriments -- for society at large are sufficiently significant that they outweigh the philosophical libertarian concerns and justify drawing the line on the other side of a smoking ban.

P.S. When I say "lack of genuine detriments" ... that's actually a key point. No one is being deprived of anything intrinsically good here, even arguably. Smokers are being deprived, within the confines of particular locations, of the right to engage in a self-destructive activity that also tangentially hurts people around them. By depriving them of this right, we are improving both their health and the health of the people around them. It would be different if first-hand smoke was healthy, or at least health-neutral (a la perfume) but second-hand smoke was unhealthy. Smokers would then have a more compelling case when balancing the interests, I think. But as it is, I don't see any reason -- beyond purely philosophical ones -- why the government should make special allowances for smokers' "rights." If bans like this are wrong, they're only wrong because of the government vs. business owner issue, NOT because of the smoker vs. non-smoker or smoker vs. government issue. The individual smoker is harming people without asking their consent to do so, and harming himself in the process, so he/she doesn't get any standing to complain about his "right to smoke" being violated. Only the business owner gets to complain, and as I said, I tiptoe toward believing that the business owner's rights are trumped by public-health concerns in this instance.

[Brendan Loy]

P.P.S. All that said: if the "Benihana" thing you describe works as you say -- if it truly prevents surrounding tables from being prone to second-hand smoke, and limits the effects of the smoke to the smoker and his immediate companions at the table -- then I tend to think an exception to the ban should be carved out for such restaurants. The ban only makes sense to the extent that second-hand smoke is a problem. If you can eliminate second-hand smoke, you eliminate the need for the bans. Although the harmful effects on smokers themselves does figure into my analysis because I believe it reduces to extent to which the ban can be said to have "genuine detriments," those effects aren't enough by themselves to justify the ban.

[Trisha]

Alasdaire, you said it better than I ever could! My mom actually has an allergy to perfume and I was thinking of making that point.

Brendan,

"Speaking of flawed analogies:

Alcohol ?

Does alcohol cause second-hand intoxication?

Fats in diet ?

Do fats cause second-hand obesity?

Sodas ?

Does soda cause second-hand tooth decay?

Candy ?

Same as above.

Peanuts ?"

Alcohol may not cause second-hand intoxication, but it can lead to drunk driving and therefore the loss of someones life (likely NOT the person who was drinking and driving). Fats don't cause second-hand obesity, but one could argue that the rising obesity rates in the US is a cause for increased insurance premiums, which most Americans feel one way or the other.

I'm not advocating bans of any sort. I don't think bans are good because they take away our inherant right to choose. I have been pregnant, twice, and surely didn't appreciate inhaling other peoples second-hand smoke. And I never suggested that second-hand smoke wasn't harmful. Alasdaire is on the right track when he asks what's next? Is the government going to tell us how many children we can have (Hey, if it works for China, hy not for the US, right?)? Or what kind of car we must drive? What sorts of foods we are allowed to eat? If you give them an inch, they will take a mile.

I'm not a smoker and I never have been. But I'm also not for allowing the government to take away peoples rights. The next thing that goes may be my right to speak up and say anything about it...

[Trisha]

Let me also add that here in PA, the ban is probably quite a bit different. Smokers can not smoke in restaurants or bars, in their cars if there are children (of any age) present (don't get me wrong, I think that idea has merit), or on the sidewalk outside of their place of business or other establishments (or even their own homes!). They made an exception for the "Hooka Cafe" (whatever that is) but would not make an exception for a cigar bar.

While I wish there would be more smoke-free establishments, I think those establishments ought to be making the decisions based on their patronage. We actually have several places here in Erie, outside of the bars, that are smoke-free. We learned several years ago where to eat and where not to based on the smoking arrangements. We have been fortunate to see many of the restaurants here go smoke-free. But the key is that they did it on their own without government interference. That is what I'm advocating here.

[Brendan Loy]

Trisha, I agree that alcohol and obesity both have potential negative secondary effects, but they are far more indirect than second-hand smoke. Drunk driving can be (and has been) made illegal without banning alcohol. Second-hand smoke, by contrast, CANNOT be made illegal without banning smoking in indoor establishments. It is an inevitable result of smoking. The same cannot be said of drunk driving and alcohol use. It's perfectly possible to drink without driving drunk. It's NOT possible to smoke cigarettes without exhaling smoke into the air that the people around you breathe.

As for the obesity/health-care costs thing, you're right, and that's the argument that is often used to justify bans on trans-fats and so forth. As for me, I draw the line before that point. I don't believe the health-care cost argument is enough, by itself, to justify limiting people's freedoms. But it's certainly a contributing factor to consider when doing the balancing test I've described. In the case of second-hand smoke, you have to add health-care costs to all the other factors I mentioned.

The "what's next?" argument is rhetorically appealing, but logically empty. "Slippery slope" is, as our resident libertarian Sean loves to point out, a logical fallacy. :) There are occasions where its use is appropriate, but this is not one of those occasions, because it's perfectly possible to draw sensible distinctions between banning smoking, on the one hand, and banning the other things you're talking about, on the other. There is no reason why one must lead to the other. Therefore it does not necessarily follow that, because we're banning smoking, we'll soon be living in communist China or whatever. That's just silly. You gotta attack the smoking ban on its merits. Suggesting that it will lead to other, far more invasive exercises of government power misses the point. If those things occur, we'll fight against them when they occur, and I'll be whole-heartedly on your side in those fights. Let's stick to THIS fight, though, on its merits, not some other hypothetical irrelevant fight.

[Alasdair]

Brendan - an impassioned response, indeed ...

The Slavic restaurant Straw-man, however, wasn't worthy of your previously-evident skills ...

Alcohol causes second-hand intoxication due to peer-pressure of various kinds ...

Sodas and fats cause 'second-hand' effects due to similar peer-pressure - parents/authority figures consume 'em, so kids do, too ...

In both of the above, the percentages of "harm" in nanny-state officials' minds are at least as high as the eprcantage of harm caused by second-hand smoke concentrations ... I'm waiting to see any causative proof that second-hand smoke is as harmful as you believe - rather than the woolly correlative 'proof' that seems to be the best available, so far ...

Dihydrogen Monoxide kills more people than second-hand smoke does, so when are we going to ban *that* particularly harmful chemical ?

Trisha - I would be a lot happier if the California legislature had decided to go the route you describe ... it's the absolute ban that I am against ...

[Brendan Loy]

ARGH! Alasdair, the Slavic restaurant thing is NOT a straw man. I am NOT saying that allowing smoking in your restaurant is equivalent to killing your customers with poison gas. That would be a straw man, but that was not my point AT ALL. Hence, I explicitly acknowledged that the facts of the example are absurd. I am merely using the Slavic restaurant example as a logical proof of concept. The point is to make you acknowledge that there are SOME situations, at least hypothetically, in which you would support government prohibition on business owners subjecting their customers to risks which the customers consented to. Once you acknowledge that CONCEPT, then we're on the same page, because we both realize we're engaging in a line-drawing exercise, rather than debating whether governmental regulation of consensual risk-taking by paying customers is ever justified where the risks only affect the consenting parties. Once I've demonstrated that there are SOME public health risks that could, at least hypothetically, be too great to allow "assumption of risk" by customers, then we can have a genuine debate over whether second-hand smoke is enough of a risk to be worthy of that treatment. That's what I was trying to get to. You missed the point entirely. *sigh*

As for the "peer pressure" effects, I re-iterate again that those are very much tangential, remote effects, whereas EVERY SINGLE CIGARETTE PUFF ALWAYS CAUSES SECOND-HAND SMOKE. The causation relationship is just so much more direct than anything else you've mentioned.

[Alasdair]

"ARGH! Alasdair" - I thought Talk-Like-A-Pirrrrrrrate Day was a while back ?

By the way - you are actually "saying that allowing smoking in your restaurant is equivalent to killing your customers with poison gas. " - just with an amazingly slow poison gas aka smoke (first- and second-hand) ...

The very-fast-acting example you offered isn't a proof of concept - more it's reductio ad absurdum ...

In some ways, governments already allow such things - though I can never remember if it's the sushi/sashimi of Stone Fish or Lion Fish I am supposed to avoid just in case the chef is off his game ... on principle, I stay away from both/either ...

As for "The causation relationship is just so much more direct than anything else you've mentioned.", as far as can tell, the kids of obese parents are much more likely to be obese kids and die of obesity-related conditions than the kids of smokers are likely to die of lung cancer ...

[David K.]

Alasdair your thinking of fugu a poisonous puffer fish, which while quite tasty when prepared correctly can be dangerous when not.

It might not be a good example either as it is nearly forbidden in the U.S. only 17 restaurants nationwide (12 in New York) serve it, and it is pre-prepared in Japan and flown here. It has been completely banned in Europe.