An it harm no one OR why I'm not libertarian enough for libertarians

[cherydactyl]

I'm on a local email list that is family-oriented, but frequently drifts off specific topic and into social commentary on anything tangentially relating to children and child-rearing. This meaning anything to do with culture, period, sometimes. And I'm as guilty as the next person. It's actually why I like the list.

Here's the text of an email I composed in response to a thread that started with asking about which restaurants were smoke-free and has drifted on to being about smoking bans in restaurants.

---
While I agree that prohibition is, and Prohibition was, a terrible idea, there is one difference between alcohol and smoking that is important. No one ever got sick just from having drinking going on near them. That is not true for smoking. And I think this is true whether we mean tobacco or other things that can be smoked.

There is good evidence that "second hand smoke" is bad for anyone, and particularly bad for children. While I defend your or anybody's right to smoke at all (it's your choice what you want to put in or through your body, and no Big Brother laws should stop you), I support bans in some (quasi-)public places, such as malls and all the establishments therein including the restaurants.

I also support "no smoking withing X distance" of places where smoking is banned. I go to group meetings at the Michigan Union on a regular basis. Often my kids go with me. Sometimes getting in that building means we must run a gauntlet of smokers. I have asthma. I have had pneumonia. My kids may have genetic predispositions toward the same. I think it's reasonable not to want to be forced to breathe second hand smoke or expose my kids to it.

I can get behind the idea that going to a restaurant is a privilege not a right, mostly. Well, actually, no...it is a right for all people to be treated equally. I think what we really mean by this is it's not mandatory or sensible that any given person be able to dictate that a quasi-public place like a restaurant have an environment to their tastes.

But so much of our culture goes on in "private" establishments. Restaurants, hotels, sports arenas, bars, music venues, movie theatres, and shopping centers are all nominally private but functionally public places. The number and scope of truly public spaces is small and marginalized (libraries, city hall, the federal building). Especially if any outdoor venue (such as a park, the diag, the plaza next to the Michigan Union) is considered smoking-allowed simply by virture of being outdoors, people who need or wish to avoid second hand smoke can become virtual shut-ins, practically shut out of the public sphere. I'm not sure what I'm advocating except to say that simply saying a private owner can or should be able to do what he or she likes and the market will bear isn't thinking deeply enough about the impact of what happens in quasi-public places and outdoor public spaces, and who's affected and how when there is smoking present.

I hope this had been food for thought on the issue.
---

Now we'll see if I get flamed. :) If I only get one person to think about how privatized our culture is, and how that interacts with "public" smoking, then I did the right thing.

Comments

[shekkara.livejournal.com]

Good luck. I agree with. I suppose a smoker could argue that if smoking is banned in sufficient public areas that *they* will become the shut-ins. But, in truth, I care less about their ability to go in public. I don't want to see people shut out of the public sphere, but at the same time smokers *chose* to start smoking, which has the ability to damage the health of the people around them. And while they get to put those substances in their bodies, they don't have a right to inflict that damage on others.

One thing I with we had was smoking detox centers that are covered by insurance (or even welfare). We have detox centers for other drugs. Nicotine is one of the most addictive substancs out there, but we don't, as a society, treat it like one. Some people can kick the habit through various means, but there are others who struggle for years and years. They just may need to be checked into a residential detox center.

[cherydactyl.livejournal.com]

About the argument about smokers being shut-ins...well, I don't think even the most die-hard smokers smoke constantly and everywhere they go. I think it's a bit over the top.

Not every smoker chooses...some grow up in smoking homes and are nicotine-addicted before they have enough free will and understanding to make a choice. The times I have seen families with children in smoking sections lighting up...well, it makes me feel really bad for those kids and a mad at the parents.

I totally agree with you about nicotine-detox-centers being a good idea. I wonder if there actually are insurance plans that would cover it out there? It seems like it would be a good use of $, assuming such a program could actually work.

[charliesmum.livejournal.com]

I agree wholeheartedly. I grew up around a mother and a grandmother who smoked, and learned how to breath shallowly whenever I couldn't get away from the smoke. Which was often. I also got burned a lot by clumsly walking into their lit cigarettes. There is nothing worse than trying to breathe when there is cigarette smoke around.

My mother has been very good with the grandchildren - she never smokes when they are around, and when we are at her house, she will not smoke, or at least she will smoke a very little. She's perfectly fine with having to huddle outside. She understands that it isn't fair to subject people to it. (NOW she understands)

I mean it comes down to this: One group is going to be inconvienenced, and it makes more sense to go on the side of people who don't want to breathe in smoke.

I don't agree with the proposed thing to ban smoking in your own car if you have kids. Yeah, you shouldn't smoke with kids in the car, but the government inforcing that in what is basically a private place just seems to be crossing a line to me.

[cherydactyl.livejournal.com]

I hadn't even heard about the car thing...where is that law being proposed/discussed?

[charliesmum.livejournal.com]

It's something they are talking about in NJ and PA, I think. My DJ was talking about it on his radio show the other day. I'm sure it won't go through, but it's still pretty creepy.

[cherydactyl.livejournal.com]

Passing a law to ban it in the car is no more than an annoyance to smoking parents. Kids being exposed to second hand smoke will still happen in the home, until and unless tobacco is made illegal. A very stupid idea for a law. It just forces cops get confrontational over a moral issue. Sigh.

BTW: I have no position on making tobacco illegal. I think making one drug (nicotine) legal and others (cocaine, marijuana) illegal seems haphazard and not well thought out as public policy, especially considering the misery that the illegal drug trade causes.

[beginnermind.livejournal.com]

Anger hurts a lot of people. In fact, anger is nothing but badness, expressions of anger are toxins, especially to helpless children. All expressions of anger should be banned from public places, including so called "private" establishments, whether they're dedicated to political discussion or cater to the politically inclined or not. So much of life takes place in such "private" places that they're basically public, and if one chooses to run such an establishment, they should be considered public, and should be safe for everyone. Including children. Vulgar displays of anger, such as political slogans, demonstrations, political and philosophical discourse, shouldn't be allowed in these public spaces, or close enough to these public spaces that people who want to avoid exposure would have to be exposed against their will. People who want to be political should keep it in their own homes. And if they do, I'd still feel sorry for the children being exposed to the toxicity of the negative they can't help but be exposed to, should the talk, as it almost inevitably does, turns to anger.

Anyways.:) Taxing a habit that is engaged in by addicts about every hour or so, and then shoving the addicts out of the public life by making their habit illegal in public life, well, it's difficult. Not sure there's any good solution.

Me, cigarettes don't bother me much, as an asthmatic ex-smoker, but I'm pretty highly allergic to many, in fact most, perfumes ...

Actually, smoking in public helped me deal with other people's scents, and was a large part of why I smoked for as long as I did.:)

Anyway.:)

[cherydactyl.livejournal.com]

Interesting analogy. It's not a great fit for me, because while anger *is* toxic, it's not toxic in the way that smoke is...I can find ways to deal with anger (and should, and try hard), and should teach them to my children, the only real way to deal with smoke is to get away from it. Same deal for perfume. Unless and until we find some nano-tech way of cleaning the air before it enters our lungs or something.

Personally, I'm with you on perfumes. Anything rose-based sends me over the edge. Unlike nicotine, perfumes aren't addictive. At least as far as I know.

I don't have the answer. I just want us to think about it without knee-jerk slogans if at all possible.

[(Anonymous)]

I'm all for getting away from knee-jerk slogans. It's a complicated issue, really. Most issues are.

Getting away from knee-jerk slogans, looking fully at what crosses your plate, that's something to do with intimacy too, I think.

[cherydactyl.livejournal.com]

Was that you, beginnermind?

[shekkara.livejournal.com]

Doesn't quite work for me either. Someone else can be angry in public without necessarily making me angry. But second-hand smoke is *always* toxic to the people exposed to it.

There's a woman in my office building whose perfume gives me an instant headache. It's not even particularly yucky smelling. I like certain perfumes when used very mildly, but I can be overwhelmed by too much perfume. And some just "tickle" and cause me to sneeze. This is the first one that has really negatively affected me. If I had to work directly with her, I would be forced to try to find a tactful way to bring this up.

[nicegeek.livejournal.com]

I think that the problem is that there's a slippery slope once you move a ban beyond publicly owned properties. Let me posit a few cases:

• Biker Bob has a few friends over to his house for poker.


• Bob decides to hold a garage sale.


• Bob starts running a motorcycle repair service out of his garage.


• Bob builds a dirt-bike racing circle in the back 40, and sells tickets.


• Bob's Biking grows into a corporation, and builds a stadium in that back 40.

At which of the above events would the government be justified in instituting a smoking ban?
What logical tests would be used to distinguish places where a ban is justified from those where it is not?

Also, a key difference between public and private venues is that private venues must remain responsive to their customers to stay in business. Only about 20 percent of the US population smokes; when even a fraction of the non-smokers decide to vote with their feet, businesses are forced to listen to them. Most hotel chains are in the process of going non-smoking, not because the law requires it, but because their customers (myself included) complained about the odor and other secondhand effects. Perhaps a new chain will open up specifically to cater to smokers...and that's fine with me; I just won't go there.

Publicly owned places, on the other hand, care about such things only to the extent that they becomes campaign issues to the controlling politicians; you can't meaningfully boycott the Secretary of State's office, or the city park. That gives a lot more weight to the argument for legal intervention.

[cherydactyl.livejournal.com]

I never said I was advocating for a ban in general, not even for a general ban in restaurants. I just want bans, when in effect, to be real and not just covering the problem with a fig leaf (which is what happens when there is a gaunlet of smokers to run to get into a public place like the Union, or to even use a public sidewalk).

I think the interaction of the fact that most of our culture is in the "private" sphere interacts badly with issues where more than just the person partaking is affected by the act of partaking.

BTW, Bob might be breaking zoning laws on your third and fourth scenarios. I'm more interested in this scenario:

-Bob's Biking offers pocket and dirt bike safety courses for young riders age 11-17.

You can sweeten it by adding one of these:
-He doesn't tell parents there is smoking going on at his establishment (and/or that several of his instructors smoke on their breaks), but he did tell them there is a no refund policy when they signed up.
-One of the 17 year olds gives cigarettes to a 13-year old. Bob or his instructor looks the other way; not his problem, since there isn't a smoking ban at the business.

I'm all for letting people vote with their feet, but all too often pertinent information is passively or actively concealed. With an addictive and harmful substance involved, I'd rather err on the side of protecting people, especially kids.

[nicegeek.livejournal.com]

I'd agree that the presence of children creates an increased justification for intervention, since by legal definition children cannot make their own decisions about being around smoking. I see two levels of distinction that could be drawn:

• Parents can consent for their children. This would treat secondhand smoke the same as other "risky" activities such as body piercings, medical procedures, school trips, etc. Logically, such consent would require the parents to be reasonably informed about the secondhand smoke risks on the premises prior to paying for the course. By failing to do so, your example Bob was a Bad Boy. :-)


• Parents cannot consent for their children. This would be similar to classifying secondhand smoke as a form of assault. It would probably result in parents who smoke around their kids being considered child abusers.

Regarding the cigarette sharing, Bob and his staff don't have any authority to control the actions of either the 17 year old or the 13 year old, so it's hard to say that they have a legal responsibility to police the kids' actions. It seems to me that
the parents of the 13 year old have the duty to prepare their child for the social situations that they're likely to encounter, prior to putting them in such a course.



On the other hand, there's probably an ethical obligation on Bob and his staff to take reasonable measures, which would probably include informing the parents of both children. Failing to do so could incur the same boycott risks I mentioned in my earlier posts.



Regarding the zoning laws...yes, Bob might be breaking them. I suspect most Libertarians take a dim view of zoning laws, in part because there isn't a good way to draw a bright line between the second and third scenarios. But that's probably a different discussion. :-)

[cherydactyl.livejournal.com]

I know that Libertarians tend to take a dim view of zoning laws, but they are the laws that keep my neighbors from starting a hog farm, night club, or other business that would interfere with sleeping and other enjoyment of my home. So I'm okay with them, in principle. They can be abused, just like other kinds of laws, but that is what elections are for.

I wouldn't mind parents who smoke around their kids being legally considered child abusers. I already consider them child abusers myself. While it's perhaps not as bad as beating your children, the consquences to them are possibly just as dire. And perhaps less visible.

Well said!

[ladyisabella.livejournal.com]

I whole heartedly agree with your e-mail and I think you wrote it well. There will always be those who disagree and sadly, in this case, they are usually addicts who's addiction is overpowering their common sense. My own mother is one of them. We had a blowup at Christmas because she was smoking in the house around Katie. She PROMISED me back when I was pregnant, that she would not smoke around my children. But when I mentioned it to her, well...that just ended up being bad. I had to threaten to leave and take Katie with me to get her to calm down and listen to reason. She knows what second hand smoke can do. She admits that my brother's asthma was probably due to her smoking all his life. But when she's got that stick in her mouth, talking to her isn't all that possible.

I do hope you don't get flamed, but if you do...just remember that it's often the addict and not the person speaking.

Re: Well said!

[cherydactyl.livejournal.com]

I live in a pretty liberal town...I'm not getting flamed by smokers at all. The people objecting, like nicegeek above, are objecting to my use of the tern 'quasi-public' as it pertains to restaurants and malls. Which I can understand. I just think that in the US, the truly Public life is stunted...ask 20 people on the street if a mall is a public place, and 19 or 20 out of 20 will say that it is. But legally it isn't: it's private property. What does that mean for our culture and the competing interests of smokers and non-smokers? What does that say about public discourse and policy?

Thanks for your kind words.

And about your anecdote, frankly, I think threatening to leave is less effective than actually leaving. Once. Matter-of-factly without getting mad. "oh, you're smoking, we have to go." If you can manage that, which I know isn't easy. Good luck, and here's hoping that's a battle you don't have to fight again. :)

Re: Well said!

[ladyisabella.livejournal.com]

With my mom, I threatened only because I didn't expect the fight. I reminded her, sort of off-handedly thinking she had just made a mistake, that she shouldn't smoke around Katie. When she blew up at me, I calmly told her that she was welcome to smoke, but we'd have to leave. That ended it. I'm lucky in that she realizes how serious this is to me without me having to leave or prove it in some other way.

I think I understand the debate more clearly now and, since I work with judges every day, I can tell you what I know.

As for "public" places...the law has a term for this "private property used by the general public" or "quasi-public" as you say. It's called "commercial property". Commercial property is governed under a completely different set of rules than your average "private property" such as a residence. The reason for this is because commercial property actively invites and welcomes the general public and therefore, is in some ways responsible for their well being. It's also created to balance the different wants and desires of the general public that comes to a commercial property, in the hopes of keeping some peace there. A business owner is expect to accept this before he hangs the "Open" sign on the door. A good example of how this works is that you can have sex in your home, but not in a private restaurant, even if the owner consents (at least this is how it works in Texas). Commercial property has always been governed by the idea of "greater good" and "majority comfort" where residential is handled with more attention given to individual rights and privacy. As with the sex question, you're welcome to smoke in your home, but not in the restaurant even if the owner is o.k. with it.

Now, cars are a grey area. I think, personally, that a law prohibiting smoking in a car, even with children present, will not stand up to constitutional challenge. The inside of a car has always been defined as residential/private property, much like a home. This is why, if two adults are caught having sex in the backseat of a car, all the cop can do is tell them to "quit and move along". Also, it's pretty pointless to ban smoking in a car and not ban it in the home. This is where I can see the comparison to Prohibition and again, it won't stand up to constitutional challenge.

Re: Well said!

[cherydactyl.livejournal.com]

I'm really glad you responded. It's nice to hear someone who actually knows about the legal theory and practice a little bit instead of people, like me, who think they know stuff and don't really. I seem to have been more on the mark than I knew. :)

I'm totally with you on the cars thing. It's completely nonsensical, even if it would stand up to a constitutional challenge.

Re: Well said!

[cherydactyl.livejournal.com]

And...it seems like you handled the issue with your mom with perfect equanimity. I hope I can do that...often enough I let her have her way (though in my case the issues are more subtle than second hand tobacco smoke).