Virgina governor Tim Kaine signed into law on March 9th a bill that bans smoking in most restaurants and bars. Texas is considering a similar law. I suspect it will pass. Let’s just consider banning smoking in bars.

Before I start arguing that these types of laws are impermissible restrictions on individual liberty let me make it clear that I have no doubt that smoking is bad for the smoker’s health. I have spent a lot of time trying, with mixed success, to get my patients who smoke to stop. There is no amount of smoking that is safe. It’s bad. So why not ban it? Two good reasons. Governments don’t really want smokers to stop; they get too much tax revenue from the habit. Second, an outright ban would just make more business for the gangsters. Prohibition’s unsavory result still lingers. Thus the need to both tax and regulate practices the state finds distasteful.

Smoking is legal. Nobody has to spend any time in a smoke filled bar, either as a patron or as an employee. I wouldn’t. The proponents of smoking bans in places people visit voluntarily have a shaky case. They argue that second hand smoke is lethal. But so what if you’re only exposed to it voluntarily? John Stuart Mill in On Liberty (1859) said, The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. Over himself, over his own body and mind, the individual is sovereign. The message still hasn’t gotten across.

All sorts of convoluted logic is applied to get around Mill’s declaration of individual liberty. One argument goes like this. No one objects to speed limits in school zones. Banning smoking in bars has the same purpose. This should be self evident nonsense, but let’s show why. Children go to school, adults go to bars. Children occupy a protected space because they are not able to make informed decisions for themselves (unless it’s to get an abortion), hence the need for speed zones near schools. The constraint on individual liberty imposed when the state passes laws aimed at individual adult behavior cloaked in the guise of public health is impermissible if that behavior harms no one else. These laws stem from the belief that one class of citizens knows better how another should behave and intends to force that class to conform. The incoherence of the state’s position on individual liberty is total.

What’s behind all these attacks on smoking? Some of it is based on a sincere and scientifically based effort to reduce exposure to secondhand smoke in public places that nonsmokers must visit. But a lot of it, like the drive to ban smoking in bars, stems from an almost religious zeal on the part of some of my colleagues who are not amenable to reason. I’m going to catch hell from some of them over this statement.

This zeal has carried them to a scientific Never Never Land where wishes substitute for science. Let’s look at some of the evidence that purports to demonstrate the lethal effects of secondhand smoke. The American Lung Association has a Secondhand Fact Sheet that lists the deleterious effects of this noxious substance. This broadside gives no evidence to support its claims. It does refer the reader to the Surgeons General’s report on the subject. But it too gives no data.

The American Lung Association when it claims that 50,00 Americans die annually from secondhand refers the reader to the state of California’s Proposed Identification of Environmental Tobacco Smoke as a Toxic Air Contaminant. This analysis of the components of cigarette smoke in various environments tries to estimate how many deaths would occur if their initial assumptions of the effects of environmental smoke were valid. It doesn’t measure how many people die a year from secondhand smoke. It could be right, but it could be completely wrong. The report has no direct epidemiological evidence in it to support its conclusions. Such evidence would admittedly be very hard to come by. Neither is there any direct evidence that reducing environmental tobacco smoke would have a demonstrable effect on public health. But these reports all based on assumptions have been widely disseminated as absolute fact as to the precise harm caused by secondhand smoke.

In the absence of conclusive evidence, the prudent policy would be to forbid smoking in public places that contain people who don’t want to be exposed to smoke but who must be there regardless of whether there is smoke there or not, again like the workplace. There is, however, no justification for banning smoking in public places that people voluntarily visit with the knowledge that they’ll be exposed to smoke. Preventing voluntary exposure to secondhand smoke while allowing exposure to first-hand smoke is risible even if proof positive as to the harm caused by environmental smoke were available. The Virginia law says you can expose yourself to smoke from your own cigarette, but not from someone else’s. Does this jib with Over himself, over his own body and mind, the individual is sovereign?

None of the above will make any difference. The urge to tell other people how to behave because you know better than they do is irresistible. The best way to deal with this problem is to mandate that places of public accommodation that allow smoking prominently display notice that they do so and include this notice in all their ads. The public that objects to eating or drinking in rooms containing smoke will stay away and force businesses that are smoke friendly to take a financial hit and perhaps change their ways.

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