Smoking Bans in New York:
Outrageous or Reasonable?

By SHERRY F. COLB

Wednesday, Apr. 09, 2003

On Sunday, March 30, smoking became illegal in virtually all bars, restaurants, nightclubs, and other public facilities in New York City. This summer, an even stricter law will take effect in the entire State.

These developments have triggered disdain and outrage from smokers in New York, to say nothing of restaurateurs and bar owners who stand to lose business. Opponents of the ban have mobilized several arguments, each of which warrants attention, discussion, and effective rebuttal.

Relaxation and Liberty

One of the arguments that smokers press these days is that New Yorkers have been through enough. Living in the shadow of the attacks of September 11th and under a continuing threat of terrorism that has escalated because of the war, people in New York want to relax and escape from life's hardships.

One way in which people choose to unwind, in New York and elsewhere, is to kick back, consume alcohol, and smoke cigarettes among friends. Excessively regulating such activities accordingly imposes upon the freedom of people who desperately need an outlet for their tension and stress.

What makes this argument especially potent now is that the United States presents itself to the world as a symbol of freedom. To infringe the individual's liberty to smoke at a time like this therefore seems positively unpatriotic.

One writer, for example, stated that "[it] is a sad miracle that liberty has gone so out of style in some parts of our country as to make these smoking bans possible. These laws rob individuals of their freedom and replace it with a government bureaucracy acting in loco parentis - in the place of parents - to regulate personal behavior with a heavy hand. Any public health benefit gained in this transaction is far outweighed by the price paid by millions in individual liberty."

All appearances to the contrary, however, the liberty argument is weak. Cigarette smoke is unhealthy, not only for the smoker who chooses his poison, but also for other people who inhale the second-hand smoke. To many, it is also a noxious-smelling irritant.

The exercise of liberty to smoke in confined spaces thus pleases the smoker at the non-smoker's expense. Lighting up indoors is not a purely private act with which others have no business interfering.

Furthermore, "go to a different establishment" is not an adequate answer to the impact that an individual's smoking has on third-parties. As between one person who voluntarily generates a noxious smell, and another person who objects to having to inhale that smell, we ordinarily ask the first person to show some restraint.

Comedian Steve Martin put it best, saying: "if I'm in a restaurant and I'm eating and someone says, 'Hey, mind if I smoke?' I always say, 'No. Mind if I fart?'"

Of course, restaurant patrons could go elsewhere, though they should not have to. A group that cannot so easily escape the cloud of poison is the employees of restaurants and bars, who must spend an entire shift inhaling other people's liberty.

Defenders of the "right to smoke" have responded that nonsmokers can work for some other employer. That response, however, ignores both the economic pressures that make people select jobs exposing them to smoke, and the liberty rights of all employees to a clean and safe working environment.

If employees can just go somewhere else to work, moreover, then surely smokers can go outside or home to smoke.

Discrimination?

In addition to the liberty arguments against the bans, smokers and their supporters sometimes invoke the discrimination principle.

They say that lots of activities besides smoking generate unpleasant and unhealthy effects. Yet some of those activities - such as driving polluting vehicles and playing loud music in the streets - remain permissible. Why should smoking be treated differently?

The comparative point here may be a valid one. But the problem for opponents of smoking bans is that it seems to cut in favor of more, rather than less, regulation of air (and noise) pollution.

Smokers could, of course, suggest - as victims of discrimination historically have - that the government's focus on them proves that it does not truly care about pollution but uses pollution only as a pretext to go after an unpopular, despised group.

Such an assertion with respect to smokers, however, would appear to rest on little more than paranoia. People who enjoy unwinding with a cigarette are hardly a despised group in our society. The fact that they smoke does not carry a stigma that disadvantages them in other contexts, independent of the smoking. Indeed, it may be a long history of differentially tolerating smokers' imposition on others that leads them to feel so injured by recent legislation.

Addiction

A final argument against the bans challenges the earlier-articulated notion that people who smoke are simply choosing to relax in one of a variety of ways. Such opponents of the bans say that many smokers are addicted to tobacco and nicotine and therefore need to smoke. Accordingly, they argue, a prohibition on smoking in public facilities effectively excludes a group of people from settings in which individuals like to meet and socialize with others - making them pariahs, and unfairly isolating them.

To this argument, I am somewhat sympathetic. I have seen enough students standing outdoors, looking miserable, smoking in the rain, to understand that for them, consuming cigarettes does not represent a fully voluntary, autonomous choice. Like a ramp for the disabled, an ashtray offers a place at the table to people who would otherwise be left out in the cold.

But the difficulty I have in accepting the addiction argument for permitting smoking in restaurants is that it proves too much. Tobacco and nicotine are not the only addicting substances, after all, and our response to a drug's addictive qualities is ordinarily to ban the substance altogether rather than to permit its use in places of public accommodation. Just imagine, for instance, a heroin addict demanding that restaurants let him shoot up at the bar.

From the perspective of people addicted to most other substances, in fact, smokers are lucky to be allowed to smoke at all. A person addicted to amphetamines or cocaine risks imprisonment when he takes his drug in the privacy of his own bathroom. To him, the public smoking bans are luxuriously indulgent of smokers.

I strongly oppose drug prohibition generally, as I have explained elsewhere. But even for those who take this position, as I do, it does not necessarily follow that state and local laws must actively facilitate addictions, by refraining from regulating these substances at all.

Opposing prohibition does not, in other words, necessarily entail the accommodation of addiction.

The Problem with Opposition to Smoking Bans: A Narrow View of the World

The essential flaw in smokers' opposition to regulation is that their arguments rest on an artificially limited view of the world. They see as no one else's business whether and where they choose to smoke. They also believe that they are victims of irrational discrimination. And some smokers want sympathy for what they view as an addiction that harms no one but themselves.

To smoke, however, is not only to inhale but to release concentrated toxic fumes into one's immediate surroundings. Therefore, other people should not be required to occupy those surroundings with the smoker.

To the question "Mind if I smoke?" a perfectly appropriate response is that if you're going to smoke, don't do it in anyone's face. Your right to swing your fist ends at your neighbor's nose.


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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