pageok
pageok
pageok
Dialogue on the Merits of Smoking Bans:
Today's Washington Post reports that a proposed smoking ban in DC restaurants and bars is gaining ground. I have conflicting views on the proposed smoking ban. The debate in my head goes something like this:
  CON: I can't believe DC wants to ban smoking in restaurants and bars. Does the government need to regulate everything? Why can't they just let restaurants and people do what they want?
  PRO: Your ideological preconceptions are blinding you to something important. Being around smoke is a big annoyance for many non-smokers; the smell is very unpleasant, and non-smokers often need to pay to get their clothes dry-cleaned to get the smell out. The smoking ban is about stopping smokers from inflicting those costs and harms on innocent non-smokers.
  CON: But we can let the market decide this. If some people want to smoke, they can go to a smoking bar or restaurant. If some people want to go to a place than bans smoking, some businesses will ban smoking on their own volition to cater to that audience. The market will adjust to have some smoking places and other non-smoking places. It's a win-win.
  PRO: That sounds good in theory. But you're missing the fact that decisions to go to a particular restaurant or bar are usually group decisions, in which the least offensive option for the group wins out. Smokers usually are addicted to nicotine; if given the choice between a smoking place and a non-smoking place, they will voice a very strong preference for the smoking place. Non-smokers may strongly prefer going to a non-smoking place, but they'll voice less objection about going to a smoking place because it's not a chemical addiction for them. This means that even if most individual people prefer a non-smoking place, most groups will choose smoking places, and most bars will permit smoking.
  CON: I think you're basing that argument on a paternalistic value judgment about the merits of smoking, though. If a group makes a collective decision to go to Smoking Bar A instead of Non-smoking Bar B, it presumably means that the members of that group on the whole are happier at A than at B. Non-smokers may be a little bit annoyed by being around smokers, but that annoyance is outweighed by the pleasure the smokers get from smoking. It sounds like you're valuing the views of non-smokers more than those of smokers; you discount the latter because to you they are just "feeding an addiction."
  PRO: Maybe. But is that illegitimate? After all, an addiction could be defined as something that a person feels compelled to do repeatedly even if they realize it is against their best interests. Given that, I'm not sure it's unfair to treat nicotine urges as a less valued set of preferences than a non-smoker's preference to be in a smoke-free environment.
  CON: What's next? Are you going to ban smoking altogether, even in private homes? I don't know where your principle stops.
  PRO: Ah, the dreaded slippery slope argument. There's a good case for limiting the ban to bars and restaurants, actually. Bars and restaurants are enclosed spaces where people are physically close to others they don't know. Smokers often ask their friends if they mind them smoking before lighting up, as smokers realize that many non-smokers are annoyed by the practice. The smoking ban would just extend the same courtesy to strangers.
  CON: That's not quite right, though. The proposed ban wouldn't just give non-smokers veto power. It imposes a ban that all smokers must follow even if everyone in the bar or restaurant wants to smoke. That interferes too much with personal choice for my taste.
  So who has the stronger argument, PRO or CON? And what arguments are they missing? I have enabled comments. As always, civil and respectful comments only.

  UPDATE: I should point out that I intentionally avoided the secondhand-smoke-is-dangerous argument and the bans-hurt-businesses argument because both are at bottom scentific/empirical questions that I am not equipped to answer or evaluate. Strong evidence in support of or against these arguments would shift the debate considerably, but my understanding is that the evidence on both issues presently is inconclusive.
Bob (mail):
A separate strand of argument on smoking bans relates to the health of those employees that work in smoking establishments. In a free market many non-smokers will have to work in smoke-filled environments. The health effects on those who have to breath second hand smoke for entire shifts is not inconsequential. Although regulation on this basis is still somewhat paternalistic, I'd be interested to hear your thoughts on this argument.
6.15.2005 5:46pm
KW (mail):
You're missing:

PRO: Besides, what about the wait staff / bartenders / other servers? They are an extremely economically vulnerable group, making $6 an hour. They take these kinds of jobs because they have to. And their jobs subject them to high degrees of secondhand smoke. One of our most economically vulnerable populations should not be forced to decide between paying the rent and preserving their health.

CON: People go to restaurants and bars to hang out with their friends, and that includes smoking. If DC shuts down the smoking, people will go elsewhere. Restaurants will close down or will lay people off. And the economically vulnerable group won't have a choice in the matter -- their health will be preserved from secondhand smoke, whether they like it or not, and they'll also be jobless and unable to pay the rent. Is it a greater health risk to breathe secondhand smoke, or to live in a box on the street? (Or, for that matter, to turn to other unhealthy employment such as prostitution?) Let them have a say in the matter. Don't make the choice for them.

PRO: But they _don't_ have a say, as it stands right now. Sometimes government has to step in and regulate. Otherwise, industry norms will force workers to accept unsafe conditions. Remember coal mining, prior to government intervention? The market didn't work there. Or for railroad workers. Why do we think it will work here?
6.15.2005 5:53pm
Shelby Wolff (mail):
Although you allude to the market decision, you haven't explicitly considered the economic impact on the bars. In DC, smokers can easily take their business to Virginia, which will probably never ban smoking. The bars in New York took a hit after the ban, and nobody wants to go to Jersey. The DC bars will lose a lot of business to the already-popular northern Virginia establishments.
6.15.2005 6:12pm
LG (mail):
The PRO/CON arguments above appear to present non-smokers or employees as weak groups of people. At least in so-called "progressive" cities non-smokers are likely to exercise veto power within a mixed group of restaurant goers, and their preferences for a non-smoking environment are likely to outweigh the preferences of the smokers, who will just have to go outside to light up. It is also highly unlikely that a non-smoking bartender or waiter would have absolutely no options of alternative employment and would literally be out pan-handling on the street unless they poured drinks in a smoking establishment.

So the arguments for interference on behalf of the alleged "victim" groups seems to me paternalistic. Don't get me wrong - Boston's dining establishments are now smoke-free and it's quite pleasant for me as a non-smoker. But when it wasn't, I'd simply leave if I felt that it was oppressive, just like I would request an alternate hotel room or rental car if the one provided reeked like smoke. This should be a market-driven issue, with opportunities for both [many] non-smoking and [likely fewer] smoking establishments to cater to the appropriate crowd. Opponents of smoking shouldn't despair - they are winning the "war of ideas", and in time I expect there will be fewer and fewer smokers in our society.
6.15.2005 6:15pm
markm:
If I'm in the group, it will be a non-smoking place or one with a non-smoking area that's actually smoke free. What smoke does to my sinuses is well worth standing up to some addicts, but I don't need laws mandating non-smoking areas, just for enough other non-smokers to stand up and demand them that businessmen find it pays to meet that demand. That does not seem to be a problem. I can remember when non-smoking areas did not exist, but that was a very long time ago.

Soon someone will be bringing up the studies that fail to show a correlation between second hand smoke and increased mortality. There are two problems with such studies:

1) There's a very, very wide area between death and no harm, and such studies generally don't cover that. A half hour in a room with a smoker causes about as much trouble for me as being punched in the nose.

2) People can control their exposure to smoke, so all these studies show is that those who are especially sensitive to it generally manage to avoid it. With my vulnerability, why would I ever take a job in a smoke filled place, or train for a job such as bartender? Bars and restaurants are never the only employers around.

So I see no reason whatsoever for regulation of businesses in this matter. Government buildings (where you don't have a choice about going because it's a monopoly) definitely should be no smoking. The law should stand behind property-owners who choose to ban smoking on their premises - if it doesn't act when some asshole brings a smoldering stink-stick into a non-smoking area, then I'm going to have to defend myself...
6.15.2005 6:17pm
William Baude (mail) (www):
To the extent the concerns you cite are valid, there are probably less-restrictive alternatives, like requiring much better ventilation in places that allow smoking rather than banning it altogether. Also, the Pro side seems to slip to a different argument later on in the dialogue. If the "problem" is that smokers always win the bargaining game between themselves and their friends, then there's no particular rationale for a ban in bars and restaurants but not elsewhere. If the "problem" is that smokers should extend the same courtesy to strangers that they already do to their friends, then there's no reason not to let pluralism reign. Without the ban, there are already hundreds of smoke-free bars and restaurants for those who want them.
6.15.2005 6:17pm
Anderson (mail) (www):
Maybe I've not paid enough attention to the issue, but the argument to give less weight to the preferences of addicts for their addictive substances is new to me, and strikes me as both subtle and persuasive. Anyone specifically impressed/annoyed by that part of Prof. Kerr's post?
6.15.2005 6:19pm
Drew (mail):
You could also add there are other solutions. It's not a zero sum game. Many bars have large, sophisticated smoke filtration machines installed in the ceilings (often paid for by the tobacco companies in return for an exclusive branded ashtray/matches deal) which mitigate the problems of 2nd hand smoke. If not enough bars get them, create a tax incentive or a mandate. This a very possible middle ground compromise, but one that does not satisfy the ban purists.

The ban has the mirror image effect of banning alcohol in Cigar Bars, which are for the purpose of smoking. Do they not get to have a beer or a whiskey with their cigars? People that dont like to smoke wont go to a cigar bar. A ban basically forces an entire type of establishment out of business. If people cannot have a beer with their cigars at a lounge, they will probably do it at home. End of that business.

Also, see the NYC experience for the externalities of the smoking ban--numerous smokers congregating outside, in public places (often underneath residences) to smoke. The trash builds up, there are noise and smoke complaints, and other public disturbance issues involved with moving bar crowds in and out of the bar throughout the night. This is less of an issue in CA where there is less density, but in DC it is a real issue.

In addition, the close proximity of jurisdictions creates in interesting competitive issue. Assuming VA is unlikely to ban smoking (packs cost $3 there, $4.50-5.50 in DC) due to its "heritage" then perhaps bars in Arlington will have a competitive advantage over bars in DC just across the river. CA doesnt have that issue, and NYC laughs at NJ. In the case of a DC ban, there would be a valid "level playing field" complaint for DC tavern owners.

Finally I would note that most of those arguments could be transfered to alcohol (the purpose of a bar). People are "addicted" and must go, so others who are less big drinkers have to tag along. There are numerous potential externalities--insults, fights, casual sex, accidents, health problems, on and on. So why not ban alcohol at bars? My point is that everyone not on mars knows smoking (and alcohol) has bad costs. But it has been part of the culture since George Washington who picked it up from VA Native Americans. If you can't go to a bar and get a drink and have a cigarette after a long day, something is lost. It's worth a lot to me, and I am not "addicted." I haven't had a cigarette since I was in a bar last weekend.

I'd ban certain levels of saturate fat in fast food (or at least tax it) before I would ban smoking. Or at least ban them from using cartoons to sell their wares to kids. A lot of the push behind this comes from hatred of the evil cigarette companies. We all know they lied. Sue them, tax them, say mean things abuot them. Put the liars in jail. But is that a reason to harry every smoker out of dive bars that will still smell like smoke even if we pass a ban?

-a VC reader who smokes the few cigarettes he does when he is in bars.
6.15.2005 6:23pm
Nonsmoking in Rockville:
Although you allude to the market decision, you haven't explicitly considered the economic impact on the bars. In DC, smokers can easily take their business to Virginia, which will probably never ban smoking. The bars in New York took a hit after the ban, and nobody wants to go to Jersey. The DC bars will lose a lot of business to the already-popular northern Virginia establishments.

Shelby: I believe that empirically, bars and restaurants in Montgomery County, MD (which banned smoking a year or two ago) haven't lost any business to bars that still have smoking right across the border in DC or across the river in Virginia. Whatever the merits or demerits of smoking bans, I don't think there's any reason to believe bars in DC will lose more business than their neighbors to the north.
6.15.2005 6:24pm
Al Maviva (mail):
I think the elimination of smoking is just the latest cause for busybody moralists and prudes, now that Dr. Kinsey, Herbert Marcuse and the 60's generation have made attacks on beloved but previously taboo sexual practices off limits.
6.15.2005 6:30pm
TMH (mail):
Responding to Bob's comment that "[i]n a free market many non-smokers will have to work in smoke-filled environments."

I disagree. Why would they _have_ to work in such an environment? In a free market, workers are free to choose their occupations and work environments. A server in the smoking section of a restaurant is no more forced to work in such an environment than a coal miner is forced to work in a mine. Or a lawyer is forced to read on a regular basis, or a teacher is forced to talk to students. It's part of the job description, and if you don't like it, there are other jobs available.

Smoking bans are, in my view, incredibly paternalistic. Majoritarian groups become upset that the free market — regulated only by the voluntary actions of individuals free to make decisions in accordance with their values — hasn't produced the exact set of services that they want. Not content to settle for what will be provided to them voluntarily, they seek to use the force of law to coerce others to provide it for them involuntarily. This is a moral issue, in my view. But I realize that a moral argument won't be persuasive for most people.

I do think that most policy makers tend to be very short-sighted in creating new law. They are often frustrated when their seemingly good-intentioned efforts result in unintended consequences, like the job losses and economic decay that the restaurant industry has experienced in NYC and California.
6.15.2005 6:30pm
Texican (mail):
My comment is to Bob. He states that non-smokers HAVE to work in smoking places. This is simply not the case. No-one HAS to work anywhere. If you are employed at a venue that allows smoking and don't like it....then leave. Find somehwere else to work.

I really just wish that if they wanted to make it illegal that they would just outlaw it outright. Rarely are politicians duplicitous (sic) actions on display as it is on the smoking issue. Thet all want to ban it in private establishments, but shudder at the though of losing the tax revenue.
6.15.2005 6:30pm
DK:
Pro is much stronger. I am usually pro-free-market, but this is one case where I think an exception is necessary, for two reasons.

First, I have never observed any area where the free market has led to both smoking and non-smoking restaurants. Instead, generally 99% of the restaurants and bars in a particular neighborhood have the same policy. Why? I don't know, but it makes me suspect a market failure here. I would happily pay a premium to go to non-smoking restaurants of similar cuisines, but in many cases they do not exist.

Second, for many people, smoking is not just a minor annoyance but an immediate health threat. I have asthma, and cannot eat in restaurants with heavy smoke; many other people with allergies, asthma, or other problems have similar situations. I only patronize bars in cities with smoking bans, and I often have to leave restaurants with non-smoking sections b/c smoke drifts in from the smoking section. There are many bars where I am excluded more completely than someone in a wheelchair is excluded from a restaurant without a ramp.

Now, by law, restaurants are classified as public accomodations that must accept all comers. They are not allowed to exclude patrons based on disabilities, race, or (in many cities) sexual orientation. IMHO, there is a logically consistent and reasonable libertarian argument that the government should not regulate any restaurants' freedom to choose its patrons. But, it is neither consistent nor reasonable to accept the ADA and the Civil Rights Act but to reject smoking bans on the grounds that it interferes with "personal choice." The smoking bans are just a natural extension of the ADA and other laws that increase "personal choice" at the expense of restaurant-owners' choice.
6.15.2005 6:33pm
RPS (mail):
It seems like only this past weekend I was eating brunch in Georgetown when someone at the next table lit up allowing me to enjoy the sweet smell of smoke with my eggs benedict while I lamented the lack of a smoking ban...oh wait, it was.

That being said. I wonder how much merit there is to the argument that DC smokers would head to VA. As it is, I know (anecdotally) very few DC residents who go out in VA, mainly because it's such a pain in the arse to get there: a late night trip on le metro or a $25 cab ride home are not exactly appealing options. Would a DC smoker's need for a nicotine fix outweigh the hassle and cost of going out in VA? I tend to doubt it. I could see it affecting the flow of VA residents into the district. I wonder, however, how big that flow is to begin with.
6.15.2005 6:40pm
Pirate (mail):
The Pro side loses out right around when it starts making a decision for banning smoking based around what this hypothetical group would choose. Most people I know don't smoke, and the few smokers I do go out with usually split time as equally as possible between smoking sections and non-smoking sections.

I would suggest most eateries have fairly well designed places with one side being non-smoking and the other being smoking. As a rule the non-smokers are not bothered by the smoking due to well vented and physically seperated sections. This is a win-win, and the goal of the law(in this case) should be to maximize "profit" aka human happiness.

Any place should be allowed to refuse smokers and non-smokers across the board. Most places are smart enough to realize seperating people into two sections solves most/all of the problem. Case rested, Your Honor.
6.15.2005 6:49pm
Pirate (mail):
Sorry for double posting, but can someone please provide some statistics on the amount of eateries that don't have both smoking and non-smoking sections? I do a lot of traveling and most places I go have both. The only places that don't are either "open air" or are bars. Even bars could be regulated to have well vented places for non-smokers to sit if they wanted to. That would be a reasonable compromise most people would take I think.
6.15.2005 6:52pm
RPS (mail):
A different spin is that workers are already compensated for the costs associated with their smoking patrons. Many waiters and servers, particularly students, work those jobs because of their flexibility and pay. In exchange for those benefits, they have to be around smokers. Thus, they have no reason to complain in the first place.
6.15.2005 7:01pm
Gerry Ford:
The assertion that bars and restaurants in NYC lost business due to the smoking ban is not an uncontested one. The NYT covered the dispute earlier this year:

There are still those cursing the ban as an affront to their civil liberties, and some bar and restaurant owners say that it has undoubtedly caused a decline in business. City officials say they doubt that contention, pointing to data from the first year of the ban showing that restaurant and bar tax receipts were up 8.7 percent over the previous year's.


Rutenberg &Koppel, "As Air Clears, Even Smokers Are Converted," New York Times, Feb. 6, 2005.

It's the NYT, so take it with a grain of salt. In any event, it's certain that whatever the overall trend, some institutions have been harmed more than others -- maybe bars more than restaurants? But on the anecdotal side of things: A number of people I know (and I include myself among them) were more frequent bargoers after the ban because they no longer had to suffer through the externalities smokers impose.
6.15.2005 7:01pm
Buck Turgidson (mail):
Two points that really bother me.

1) The arguments are being made as if the situation is in a vacuum. It is not. A number of smoking bans have taken effect over the past 20 years. The same arguments--particularly CON--have been made repeatedly and virtually all turned out to be bogus. A recent survey of post-ban NYC showed that it was smokers who most liked the change! Business did not deteriorate (the economic impact was positive). Smokers did not feel like outcast (at least, not any more than they do already--over 70% of long-term smokers feel a self-imposed stigma of smoking, but are unable or unwilling to quit; this does not apply to younger and, therefore, relatively new smokers). On a personal note, I know a number of smokers who have tried (successfully or not) to quit and if there is one thing they appreciated the most from the experience, it is being able to taste the food they were eating (not to mention regaining the sense of smell).

2) Ignoring the second-hand smoke issue as a scientific uncertainty (in the same sense as "drinking kerosene may be a contributing factor to an untimely demise" being a scientific uncertainty), let's just focus on something that cannot be disputed--whatever statistical effect second-hand smoke may have on the general population, there is a statistically significant demographic sector that is adversely affected by the smoke irrespectively of its potential long-term effects. Some people are allergic to tobacco smoke, period, or are asthmatic. Others, like me, are allergic or sensitive to other ingredients that are byproducts of tobacco smoke (I have a strong reaction to Newports and Virginia Slims, for example, but not Marlboro). Just walking down the street yesterday in an Northeast urban center, surrounded by smokers resulted in respiratory distress. As I walked through a different part of town, where smoking was less common, I stopped coughing.

The point here is that banning smoke is a "soft" restriction--smokers may feel that their rights are violated, but, in reality, it is their preferences that are temporarily thwarted. They would like to have a smoke with or after a meal or while having a drink, but their world is not going to end if they do not. In contrast, allowing smoking is a "hard" restriction for those who exhibit sensitivity to tobacco. They have no choice as to whether to have an adverse reaction or not--in fact, more often than not, they cannot even choose whether they should be in the presence of a smoker or not. Protecting the vulnarable population, in this case, is societal duty. Smokers should know better, but they frequently forget. Some become outright belligirent when politely asked to refrain from smoking.

A libertarian should find it easy to defend restrictions on smoking. Smoking is an act of aggression that violates the natural social contract. One could parallel this with firearms regulations, but not in the way that is favorable to smokers--mere possession of firearms is not analogous to smoking. Instead, the analogy is to discharging a firearm on the street merely for self-gratification. Even if there is no intent to harm anyone, someone may well be harmed by such wanton display. Even the most ardent Second Amendment advocates would find it difficult to argue for elimination of discharge laws in, say, school zones, or heavily populated areas or retail districts (basically, anything within city limits these days).
6.15.2005 7:02pm
Daniel Palmer (mail):
The problem with smoking bans is that the Law of Unintended Consequences rears its head with a vengance.

Chicago has a ban on smoking in office buildings. In the pre-ban days, many companies had smoking lounges. Now, smokers are forced outside and end up congregating around the entrances to buildings. So now I am forced to walk through clouds of smoke everytime I walk into or out of an office building or retail store. The only place where you don't experience this phenomenon is around restaurants and bars where smoking is allowed.

Smoking is already banned from most office buildings, government buildings, planes, buses, and trains. Restaurants offer non-smoking areas (which are frequently larger than smoking these days). If non-smokers want smoke free bars and restaurants, then reward those that have smoke free nights with your business. Don't whine to your elected representatives to restrict a legal activity even further.

Money talks, Bull Sh*t walks (and sucks up second hand smoke)
6.15.2005 7:09pm
jallgor (mail):
Don't forget that NY and NYC are not synonymous. Yes, nobody leaves Manhattan to go to a bar in NJ just because they can smoke there but presumably some upstate New Yorkers might cross the border into CONN, PA, etc. I don't think anyone has shown this is happening though. In fact, I recently read that a recent study showed that bar and restaurant revenues are up in NY since the smoking ban (I realize there could be many reasons for this). I don't think anyone has shown that the ban has hurt business in NY.
Here's a possible analogy for thought about whether reliance on the market may or may not work. Imagine there is a store that offers a unique good (the "super widget")(to many people their favorite bar or restaurant cannot simply be substituted for another bar). Then imgaine that when you walk into that store and go to the shelf that has your superwidget, another patron tosses a foul smelling powder on your clothes and sprays you with a very mild pepper spray that makes your eyes burn and make you a cough (i.e., much like what being in a smoke filled room does to people). Either you are left to put up with the mild assault when you go to get your superwidget or you go to another store and just get a widget. Under one theory, this is how its supposed to work because if enough people resort to widgets the owner of the superwidget store will give the assaulting patron the bum's rush. There seems to me to be something slightly unjust, however, about forcing the non-offending party to go elsewhere to by an inferior widget and hope that someday the market corrects the problem and allows them to buy their superwidget unmolested.
On another note, I think the externalities that one poster described of the smoking ban in NY are pretty nonexistent and in LA all the smokers standing outside the doors of bars with no names simply assist in locating the place.
6.15.2005 7:24pm
jallgor (mail):
Don't forget that NY and NYC are not synonymous. Yes, nobody leaves Manhattan to go to a bar in NJ just because they can smoke there but presumably some upstate New Yorkers might cross the border into CONN, PA, etc. I don't think anyone has shown this is happening though. In fact, I recently read that a recent study showed that bar and restaurant revenues are up in NY since the smoking ban (I realize there could be many reasons for this). I don't think anyone has shown that the ban has hurt business in NY.
Here's a possible analogy for thought about whether reliance on the market may or may not work. Imagine there is a store that offers a unique good (the "super widget")(to many people their favorite bar or restaurant cannot simply be substituted for another bar). Then imgaine that when you walk into that store and go to the shelf that has your superwidget, another patron tosses a foul smelling powder on your clothes and sprays you with a very mild pepper spray that makes your eyes burn and make you a cough (i.e., much like what being in a smoke filled room does to people). Either you are left to put up with the mild assault when you go to get your superwidget or you go to another store and just get a widget. Under one theory, this is how its supposed to work because if enough people resort to widgets the owner of the superwidget store will give the assaulting patron the bum's rush. There seems to me to be something slightly unjust, however, about forcing the non-offending party to go elsewhere to by an inferior widget and hope that someday the market corrects the problem and allows them to buy their superwidget unmolested.
On another note, I think the externalities that one poster described of the smoking ban in NY are pretty nonexistent and in LA all the smokers standing outside the doors of bars with no names simply assist in locating the place.
6.15.2005 7:24pm
Shelby (mail):
I know when I was living in San Francisco and they implemented a ban on smoking in bars and restaurants, I became more willing to go to them -- I could eat and drink without being assaulted by others' smoke. The notion of letting facilities choose whether to prohibit smoking sounds great, but I never found any that did. "Nonsmoking sections" were often de facto full of smoke from those nearby.
6.15.2005 7:34pm
DanB:
Well, I know secondhand smoke is dangerous to me. I don't believe it causes cancer or anything like that, but it most certainly does trigger asthma attacks (and, in the case of long exposure, bronchitis). So far as I'm aware, the case for secondhand smoke causing breathing problems is rock-solid; it is the case for *cancer* that's weak.

So I favor a ban, although I have no strong feelings about whether I have a right to have such a ban in place. But it seems to me that even if the public doesn't have a right to ban smoking in private establishments, it does have a right to require that any private establishments which wish to allow smoking be hermetically sealed to prevent contamination of the outside air, or at least that the private establishments be liable for any contamination of the outside air.
6.15.2005 7:37pm
David Chesler (mail) (www):
The empirical case is strong, but if it were as strong as it appears to be, why haven't more places voluntarily gone smoke-free? Of course in that unlevel field those early adopters lose the smokers who post-ban realize it's not worth the bother of going miles, instead of blocks, to smoke and go to the smoke-free bar, but OTOH those early adopters gain the non-smokers who aren't going to the smoke-allowed bar but would if it were forced by law to be smoke-free.

OTOH, the "group/slowest-ship" argument is getting weaker all the time. This is 21st century after all. The few remaining smokers are already used to not being able to smoke lots of places, and are more willing to voluntarily go to a smoke-free bar for a few hours with their smokeless friends.
6.15.2005 7:39pm
Goober (mail):
Just as a NYC smoker, I can confirm that many of us do appreciate the ban, and NY bars have not really suffered, to my eye. And it's worth pointing out (as has DK) that economic theory does not match observed behavior; while maybe 30% of people who go out smoke, in the absence of a ban far more bars will allow smoking, and most will not have a non-smoking section. So it seems that, although one would expect coercion to deny choice where you would expect choice to exist in the absence of that coercion, in practical effect all it does is replace a market where only smoking bars exist with one where only non-smoking bars exist. And since more people are non-smokers, perhaps that's not such a bad thing.
6.15.2005 7:43pm
SelectionBiasQuestioner:
What about a law that made the default option for bars that they be non-smoking, but allowed them to apply for variances?

Assuming that bar owners will exclusively do what the patronage wants but will only do so if the patronage makes the effort to mobilize to ask them to apply (and will pay the cost of applying through increased prices), we have a nice little Cosean model. In the absence of transaction costs, we will end up with the same number of bars that permit smoking as under a system where bar owners choose whether or not to ban smoking, but we will have put the "organizing" tax on smokers rather than non-smokers. Assuming there is some cost to organizing (and that getting a permit is costly and translates into higher prices), we get the efficient result AND we remove the harm to non-smokers....
6.15.2005 7:47pm
Kalroy (www):
Dunno. The pro arguments sound like, it's an annoyance, wah wah, so are whiny Fran Dresher voices, cell-phones, drunks, anti-war activists, neo-nazis, and anti-American speech. It sounds like one of the pro arguments is that non-smokers are too wimpy to affirm their choice of restaraunts, which is utterly untrue with my friends. And the argument that the slippery slope argument is silly (despite the fact that the slope is already being slipped on with public smoking bans proposed for streets and parks in some places and companies are being allowed to discriminate against smokers legally). The slippery slope argument being silly was used in regards to fattening foods and that slope is being slipped down.


So far nothing seems to succesfully argue against the freedom to commit a legal act. Just like nothing seems to argue against bars and resteraunts that should CHOOSE to go smokeless. And the second-hand smoke health threat was shown to be bogus during the media and politician ignored (or covered up) ossian (sp?) decision years ago.

Kalroy

Yup, I smoke. Drum tobacco at a rate about equivelant to half a pack a day, I don't smoke where it will be annoying, and find the stench of overweight people to be faaaaaaaar more annoying (and smoking helps kill my nose to that stench).
6.15.2005 8:02pm
LindaP (mail):
Bars? Maybe they could ban drinking in bars, and charge for the pretzels. I find drinking as offensive as smoking. Ban it too. Everyone always wants to go to a bar, and the least offensive option usually wins and that is a bar. I cannot speak up or I would have no friends so this law would help me. I am just like those people who cannot tell their friends they do not want to go to a place with smoke. I need a law to help me too.
6.15.2005 8:08pm
Juan Non-Volokh (mail):
The reality is that there are many establishments (see also here) that choose to go "smoke free." Some, like Arlington's Carlyle Grand, proudly trumpet that fact, and remain exceedingly popular. So it seems fairly clear that restaurants and cafes can choose to go smoke free and reap the benefit insofar as there is a market demand for smoke-free dining, drinking, etc. For myself, I definitely prefer eating where there is less smoke (and that goes double for tasting wine), but sometimes a smoky bar fits the bill.

I would also argue that there should be greater consideration for the property rights of the bar and restaurant owners. If it's their place, they should have the right to decide, and if we don't like it, we shouldn't go. Given the lack of externalities -- the exposures are not involuntary because everyone in a smoky bar or restaurant chooses to be there -- I don't see a non-paternalistic basis for a ban.
6.15.2005 8:10pm
gr (www):
Just to be clear, when we say "let the market decide" we're in a market where the smoker gets to externalize some of his costs -- in the harm done to others' health and clothes.

"Let the market decide" doesn't tell me what the market is, unless we mean letting the current market decide.

I did notice something at the VC happy hour: lots of flyers on the table against the smoking ban. And very few people smoking.
6.15.2005 8:11pm
William Baude (mail) (www):
To be clear, the externalities argument against smoking is tenuous at best. As Non-Volokh points out, people who go to a bar where smoking is allowed reap net benefits from the whole experience, that is why they go. And as a wholistic matter, it's not clear that smokers impose net costs in society. They tend to be no less productive than average and then die comparatively young, saving us massive social security costs. Morbid though this may be, it makes it clearer that the rational for regulating smoking has to be premised on a notion that a preference for smoking doesn't "count" the same way other preferences do. (As Professor Kerr acknowledges above.)
6.15.2005 8:20pm
Steve R (mail):
Pro: "Test Markets" show that smokers will not spend enough to cover the costs of providing sufficent fresh air to overcome interior smoke issues. Example: California's smoking ban allowed for separately ventilated areas with a set number of air changes per hour to be provided where smoking would continue to be allowed. Very few restaurants or bars bothered, they just setup outdoor patio seating areas. The Market decided that smokers won't pay enough to cover the costs of clean air.

Pro: Established businesses are conservative and will not make changes unless forced. Customers prefer the smoke free environment, businesses are unwilling to take the risk.

Oddly, as a non-smoker, the California ban's major unintended consequence is that patio seating is now somewhat less desirable (despite our climate) due to the cigarette smoke.
6.15.2005 8:28pm
Gil (mail) (www):
I don't think any of the Pro arguments come close to justifying violating the property rights of the owners to determine the policies themselves.

I think it's sad that it's assumed that anyone else has a right to dictate these policies. Nobody is being forced to put up with smoke. As far as I know, everybody who doesn't like the atmosphere of these places is free to seek (or open) another that he prefers.

People should be free to make what we think are mistakes, so long as they don't impose costs on unconsenting others. Feel free to try to convince people via argument, but when you start using force (personally or politically)to make them conform to your schemes, you've crossed the line of decency.

Over time, I expect better ideas to become more popular. If they don't, perhaps I'm wrong about what's really "better" for other people.

I prefer a world where people are free to pursue their own subjective preferences, not the preferences of those with the most political pull.
6.15.2005 9:02pm
Kim M. (mail) (www):
As pointed out by Juan Non-Volokh and Gil, it is an issue that is driven by property rights of the owners. DK had added the ADA as an additional incentive for the ban. The ADA itself is, in my view, a violation of property rights.
6.15.2005 9:40pm
chuck (mail):
There are established, emperical economic &social costs to smoking that far, far outweigh anyone's so-called "right to smoke". When the day finally comes--and it will--that smoking is largely forgotten, noone anywhere will miss it.
6.15.2005 9:55pm
Daedalus (mail) (www):
This issue is simple. If you like freedom, you are against the ban. If you like nazism, you support the ban. I f*cking hate smoking, but I am pro-smoker in this issue. If you don't like the smoke, go to a non-smoking place. It's up to you. Freedom verses dictatorship (dictating what the private bar owners can and can't do on their property.)
6.15.2005 10:07pm
phillymikec73e (mail) (www):
What about the social costs? If you're looking for a date it makes it harder to tell beforehand whether he/she smokes.
6.15.2005 10:12pm
Perseus (mail):
California provides some evidence for the slippery slope argument. Besides not being able to smoke in all indoor workplaces (including bars and restaurants), forget about smoking within 20 feet of any public building. And because of der Governator's cigar smoking tent that he set up in the state capitol, the legislature wants to extend the ban to any enclosed public courtyard. Many cities have also banned smoking at public beaches. And I certainly wouldn't put it beyond our busybody legislature from forbidding parents from smoking in their own homes lest they endanger the health of their children.
6.15.2005 10:30pm
Neema (mail):
As a libertarian non-smoker who used to live in the Southeast, where smoking is more prevalent, and now in San Francisco, where it has been banned in outdoor parks, I'm deeply conflicted.

Most people who are pro-ban completely disregard the owners' property rights. Would these same people expect to go into a private home and have the government enforce a smoking ban there? No one has a "right" to go to a restaurant or bar. If you can't stand smoke and all the bars near you are smoke-filled, tough luck, right?

However, the benefits to most consumers (including me) of a non-smoking ban are huge and definitely do increase their patronage of restaurants. This is one of the few issues where I feel like a hypocrite.

And as others have pointed out, there are plenty of places in DC that are smoke-free already, which seems to indicate no market failure. However, as someone who has lived in a small town, the market is often too small to support completely smoke-free establishments, especially bars. This is why statewide bans probably go too far.
6.15.2005 10:44pm
TMH (mail):
I don't understand the argument that smokers "externalize" their costs on others who voluntarily choose to walk onto private property in which smoking is permitted. This cost is completely internalized on actors who voluntarily choose to participate in the smoky bar market. The actor weighs ALL costs (i.e. - including $, crowded conditions, loud noise or music, etc), against utility derived from the service and makes his or her decision to buy or not.

I walked into a bar last night, and two musicians, hired by the club, were playing quite loud, making it difficult for me to have a conversation with my friends. The total utility I derived from my social outing was reduced. Were these musicians "externalizing" this cost on me? Have my rights been violated? Shall I lobby the Virginia state legislature for a ban on live music in all bars in the state?

Banning smoking is just a non-monetary version of a price control. As other price control laws demonstrate (rent control, agriculture price stabilization programs, etc), price controls do not magically leave the market intact at a lower equilibrium price. Rather, they alter the market in unexpected ways and result in unintended consequences.
6.15.2005 11:32pm
William Spieler (mail) (www):
SelectionBias raised an excellent point, and it was one that was raised by one of the DC elected officials (whatever we call them here... I've still only been living here 8 months)... A republican at-large, I believe.
6.15.2005 11:34pm
Dustin Ridgeway (mail):
I sympathize deeply with those people who have averse reactions to cigarette smoke; and just how this affects their options of which places they can patronize. Still, there is something fundamentally unamerican about preventing a business owner from permitting allowances for smoking; should he choose to do so.

Also, I understand that the libertarian bent of the contributors and commenters of this weblog is of a more moderate variety; as opposed to those who would say, loudly protest the tyranny of public sidewalks. But I would have to seriously question the libertarian bona fides of anyone seriously rationalizing this direct infringement on private property rights.
6.15.2005 11:41pm
William Spieler (mail) (www):
Dustin: Unfortunately, there is something distinctly American these days about having the government be your mommy. Of course, the entire "failure of the free market" argument assumes that there should be smoke-free restaurants. I want a rocket car, but I don't complain about the failure of the market to sell me a Taurus with a Titan II strapped on top of it.
6.15.2005 11:44pm
Ivan:
The analogies with private homes are misguided. A bar or restaurant is a place of business and as such is (and should be) subject to any number of regulations as to what they can or cannot do; I recognize hard-L libertarians will disagree whether such regulations are proper, but in no way does this change the fact that a place of business is nowhere near comparable with a private home when it comes to the power of the state.

The employee-health issue is, to my mind, the dispositive one. Workplace exposure to health hazards is regulated in various ways, whether in a factory, a hospital, a lab, or even an office environment. It is undeniable that second-hand smoke adversely affects health; while the link with cancer may be inconclusive, the links with respiratory ailments are not. In a perfect world, I would prefer a particulate-matter PPM restriction than an outright ban (both leaving bars free to install high-powered filtering systems, as well as creating an incentive for development of such solutions), but the ban will do.

I will note that in New York, consistent with the employee-safety principle, bars which are solely owner-operated can and do still permit smoking.
6.15.2005 11:59pm
Seth (mail) (www):
There is a market failure because the major cost of a smoking bar - smelly clothes and hair - occurs after a short period of time. Since people typically go to several bars in one night, the value of any single bar being non-smoking is compromised. Thus, bar owners have an incentive to orient their bar towards the interests of smokers, who will always prefer a smoking bar instead of towards non-smokers who will only prefer a non-smoking bar if all of the bars they will be attending are nonsmoking. Aside from distorting incentives for any particular bar, this also creates an entry barrier for non-smoking bars as there must be several such bars before the value addedby being non-smoking can be realized. The result is that virtually no bars are non-smoking in cities where smoking is permitted.

Since the market cannot properly serve consumer preferences, the real question in terms of efficient allocation of resources to meet consumer preferences is whether the preferences of non-smoking bar goers to not be subjected to smokey clothes is greater than the preferences of smoking bar-goers to be able to smoke in bars. Unfortunately this issue cannot be fairly decided electorally becasue numerous non bar goers vote and infrequent bar goers get equal say as regulars. I am not quite sure how to discover this answer.

Perhaps, the solution lies in a different alcohol licensing scheme whereby the city made it easier for bars to obtain licenses if they agreed to ban smoking. This would lead to the development of several non-smoking bars and would give non-smokers the ability to barhop and not smell bad. This idea also makes sense if one thinks of the purposes of liquor license generally being to discourage unhealthy activity. Since drinking combined with smoking is less healthy than just drinking, it makes sense for a smoking and alcohol license to be harder to obtain than just an alcohol license.
6.16.2005 12:01am
Dick King:
Steve R: "Pro: "Test Markets" show that smokers will not spend enough to cover the costs of providing sufficent fresh air to overcome interior smoke issues. Example: California's smoking ban allowed for separately ventilated areas [if they met a lot of requirements]..."

This doesn't make the case. From the point of view of a business considering meeting the requirements and having a smoking section, there's not only the cost of the equipment, there's the cost of defending the goofy lawsuits that seem to me to be inevitible if there's a complex set of requirements. We're rather good at that in California.

http://www.city-journal.org/html/14_1_the_ada_shakedown.html

Yes, it's a different law and the requirements are probably more complicated than the air conditioning requirements, but I can see a business thinking of this as lawsuit bait.

-dk
6.16.2005 1:28am
truetanus (mail):
CON. Im going to be repetative here but if government limited itself to the things it can regulate well (collective actions individuals and small communities cant do (Roads, killing terrorists in Iraq), and matters where a singular voice is required (international actions, trade agreements, etc.)), wow can you imagine how much easier it would be to follow. I am more offended by the idea that a perfectly stable thing like smoking/no smoking, can suddenly become a politial kerfuffle.

In the end markets HAVE solved every single problem in one way or another. What do we do about the slavery problem. Well just invent factories, machines, railroads, and skilled industrial trades which will make slave labor impactical as you cant get slaves to keep a good eye on an assembly line if you want it to work right. End result, north wins, econmoics make producers start to get willing labor, and then the willing labor has freedom to organise and work the market themselves.

I could go on in this vein forever (The rise of shipping and the cheapness of sea based trade routes ending the crusades and bypassing the region for goods for india and the east, etc.), and I know some of these examples are a little vauge and people can disagree. I invite it. I just thing that since markets are going to solve every problem in the end why not cut out the middle man. We worried so long about commies taking over the world, but then we just ralised we could economy them right into the ashbin of history. Lets get past this now and forget the whole weird smoking ban world thing deal. I want freedom to chose and I chose to be able to chose. Who doesnt like a good cigar after a fine hunk of nearly raw aged angus beef.
6.16.2005 1:50am
truetanus (mail):
CON. Im going to be repetative here but if government limited itself to the things it can regulate well (collective actions individuals and small communities cant do (Roads, killing terrorists in Iraq), and matters where a singular voice is required (international actions, trade agreements, etc.)), wow can you imagine how much easier it would be to follow. I am more offended by the idea that a perfectly stable thing like smoking/no smoking, can suddenly become a politial kerfuffle.

In the end markets HAVE solved every single problem in one way or another. What do we do about the slavery problem. Well just invent factories, machines, railroads, and skilled industrial trades which will make slave labor impactical as you cant get slaves to keep a good eye on an assembly line if you want it to work right. End result, north wins, econmoics make producers start to get willing labor, and then the willing labor has freedom to organise and work the market themselves.

I could go on in this vein forever (The rise of shipping and the cheapness of sea based trade routes ending the crusades and bypassing the region for goods for india and the east, etc.), and I know some of these examples are a little vauge and people can disagree. I invite it. I just thing that since markets are going to solve every problem in the end why not cut out the middle man. We worried so long about commies taking over the world, but then we just ralised we could economy them right into the ashbin of history. Lets get past this now and forget the whole weird smoking ban world thing deal. I want freedom to chose and I chose to be able to chose. Who doesnt like a good cigar after a fine hunk of nearly raw aged angus beef.
6.16.2005 1:51am
Tom952 (mail):
PRO: No, I am not going to propose a ban on smoking inside private homes. My principle stops before we reach that point.
6.16.2005 1:51am
Montana Smoker (mail):
OK, obviously I'm biased. But, I'll add, in Montana, the Legislature just passed a statewide smoking ban. This, after a HUGE debate over the smoking ban in my hometown of Helena (the state capital).

That citywide ban DID have massive economic conseqeunces. For example, as there are close alternative (outside city limits and nearby cities), smokers chose to go to places where they could freely smoke, taking nearly all business with them. One bar, for instance, went from 150-200 people on a weekend night to 5-7 people. Including the staff. That bar, even now that the smoking ban is in limbo (the statewide ban does not take effect for 5 years)is now a casino/liquor store. no bands, no huge crowds.

Gambling revenure, in Helena ALONE, was down approximately $55,000 in one quarter )I believe, it may have been more). Becuase, of course, many gamblers smoke.

Economic consequnces aside (obviously, here anyway, a statewide ban would nullify most of those), I believe in the right to choose. Who gets to choose? Well, nobody forced the people to work there or patronize the establishments. This makes health concerns moot. In all the places I patronized, many of the employees smoked, as did the patrons, and no one complained about the smoke. When the citywide ban was up for the vote, many employees of these places were in favor of keeping the status quo. And, in fact, opponenets of the ban published a list of over 90 restaurants and bars that were non-smoking. People ARE free to choose.

As for the issue of "group choice". personally, I and many of my smoking friends are not the types to put pressure on our non-smoking acquaintances. We're fine with going to a non-smoking place and lighting up later, or going outside. A bother, yes, but this is no longer the light-up-in-your-face era.

In the end, all I've ever said about the subject is: let us smokers have a few joints that we can light up in comfortably. Non-smokers don't have to come in. Like a strip club, nobody's forcing you to come in and look at the nekkid wimmin. We've been exiled to the back alleys and shoved out to the sidewalks and taken it with good grace (most of us, anyways) because we're decent folks who don't want to be rude. Can't we have just a FEW places of our own?
6.16.2005 3:26am
Daniel R. (mail) (www):
I believe in California (or at least in San Francisco) smoking in a bar/restaurant is allowed where the restaurant/bar is run as a co-opt - where those working there are also the owners and all jointly consent on allowing smoking.

In SF, there are several of these places - and from at least what they tell me - its legal.

I believe that is a fine compromise between smokers and non-smoker concerns.

Is what I am saying legally correct? In any case is it a good compromise?
6.16.2005 4:53am
Public_Defender:
The strip club analogy is an interesting one because they are so regulated. Most cities have limited strip clubs to a few isolated areas. Many cities also ban nudity in any establishment that serves alcohol.

Liberals who take a First-Amendment purist attitude to nudity/pornography should think about how the same ideas apply to smoking.

Conservatives who take a get-government-off-my-back attitude to smoking should think about how the same argument applies to pornography, strip clubs, aduly prostitution and drug use. If we can ban prostitution and regulate strip clubs to protect public morality, why can't we regulate smoking to protect the public morality?
6.16.2005 8:49am
Matt Glassman (mail) (www):
Living in upstate New York, I can say that one way some bars in the small towns have dealt with the economic impact of the smoking ban has been to simply ignore it. It doesn't seem to be enforced very strongly in many parts of upstate.

The economics of it are VERY complicated - you have some non-smokers shifting their purchases from package stores to bars, some smokers doing the opposite, some increased overall comsumption, some decreased overall consumption, etc.

But one thing that is definitely true, at least in my town, is that the dry cleaning stores hate the ban - no one brings in smoke-drenched sweaters anymore. Lest you think that's a joke, the local dry cleaner i go to had a "Reverse the ban" sign in his window for several months (He was a smoker).
6.16.2005 9:37am
jallgor (mail):
HAS ANYONE EVER BEEN TO BAR (A REAL BAR NOT THE CARLYLE GRAND CAFE "A high energy bistro serving innovative, award-winning food in a casual, fun atmosphere") THAT VOLUNTARILY BANED SMOKING. I have probably been in a couple thousand bars in my time and I have never seen one.
All the people posting lists of smoke free establishments should take a closer look at those lists. All the establishments on them appear to me to be primarily reatuarants or joint restaurant/bars. In my experience, restauarants rarely allow people to smoke and if they do they are usually required to have a smoking section. Also, many smokers don't light up in restaurants because even they don't like their food to taste like smoke and its generally considered rude. Unfortunately, smoking in a bar has no similar social stigma.
This debate really needs to stick to bars because that's where the real problem is.
6.16.2005 10:08am
Former Kerr Student:
PRO: Although I cannot cite any evidence, it seems likely that smoking bans reduce smoking in general. I cite to the fact that convenience stores and gas stations in San Francisco seem to carry about four brands of cigarettes, while those around D.C. carry dozens upon dozens of varieties.

PRO: I can't believe a commenter is complaining that smoking reduced gambling revenue. The horror!
6.16.2005 10:41am
uh clem (mail):
Public Defender hits the nail on the head. In particular, smoking is a nuissance and it is appropriate for the govt to regulate it as such, just like it regulates where you can urinate, view pornography, keep pigs, etc.

The question is whether a total ban on smoking at all bars and restaurants is over-regulation. It's not over-regulation from a constitutional perspective (i.e. I can't imagine what argument one would make to declare it unconstitutional), so it's up to the voters and their elected representatives to decide.

Since I don't live in DC, and have no plans to go there in the foreseeable future I don't have much stake in the outcome. It's like hearing about a small town in flyover country that's considering banning dogs from the public square - the town certainly has the right to do that, whether they want to is up to them.

IOW, we're not talking about fundamental issues here, just the workaday details of implementing public policy.

One further observation - I'd probably vote against such a ban here in Ann Arbor. Mainly because most restaurants and many bars are already smoke free, so it would be a solution in search of a problem.. If smoking was so pervasive that I couldn't go out to eat without encountering smoking, I'd be inclined to vote differently.
6.16.2005 11:20am
Gary from NY:
I'm torn on this issue myself. By nature, I'm against these sorts of regulations and I tend to sympathize with the idea that the market system will take care of the issue by providing choices for everyone. However, in this particular case, the market system is failing and I'm not sure why. Up until the smoking ban was passed in my county, I had personally never ever, not even once been to, seen or even heard of a non-smoking bar despite never having smoked in my life and not having a smoker in any of the groups that I usually frequent bars with. In fact, even further, I've been out to bars with EX-smokers who show more of a preference towards a non-smoking environment than non-smokers simply because of their addiction, but the option just didn't exist before the law. I'm sure that the concept exists somewhere, but the point is that it's not a mainstream choice and the smoking/non-smoking tradeoff can't be made without significant sacrifices in other areas (for example, maybe having to drive to a bar instead of walking thus requiring a designated driver or some sort of mass transportation, or maybe an awful selection of live music). It seems to me that enough people want to go to a non-smoking bar but either the market hasn't responded or as Orin states, the addictive preference of smokers is keeping groups from going to non-smoking bars. However, the latter reason doesn't explain why my group of non-smoking friends has never found a convenient non-smoking bar.

At this point, I'm tentatively in favor of such bans until I can see some evidence (not just theory) that the market really will work in this case. I strongly support free markets in general but I remain open to the idea that they aren't one size fits all and that government may be needed to intervene where the free market hasn't responded. I have to ask the free market to put up or shut up on occasion, and I haven't seen it put up.

I'd be curious of anyone could provide a reason as to why the free market hasn't responded in this case. Maybe there's an impediment somewhere, an unintended consequence of some other regulation, that's holding the free market back here. If so, I'd love to hear it!
6.16.2005 11:22am
just me (mail):
The smokers need to recast their smoking not as a generic personal preference, but as either (1) performance art, to trigger First Amendment claims, or (2) a sexual turn-on, to claim the Lawrence-based sexual autonomy that Eugene recently addressed.

I, for one, am shopping for some psychiatrists who will back my claim that my sexual desires require me to consummate economic transactions on terms mutually agreed upon by buyer and seller alone, without government regulation. I call it "Back to the Future: To Lochner through Lawrence."

Anyone with me?
6.16.2005 11:47am
jallgor (mail):
I have a couple ideas about whyt he free market hasn't responded. Just theories.
1. Bar owners assume that non-smokers want to drink badly enough that they will live with the smoke while smokers will simply not go out anymore if they can't smoke. By allowing smoking bar owners assume they are getting both sides of the market. In reality, this assumption may be wrong but it's obviosly what most bar owners believe if you look at bar industry arguments for opposing smoking bans.
2. Owning a bar is a tough business and few owners would be willing to take the risk of an untried business plan such as non-smoking.
3. Imperfect information. At least in big cities like NY 100's of bars open up and close down each month. A non-smoking bar could easily open up that people never learn exists.
Just some ideas.
6.16.2005 11:59am
Howard (mail):
"At this point, I'm tentatively in favor of such bans until I can see some evidence (not just theory) that the market really will work in this case. I strongly support free markets in general but I remain open to the idea that they aren't one size fits all and that government may be needed to intervene where the free market hasn't responded. I have to ask the free market to put up or shut up on occasion, and I haven't seen it put up."

A market failure doesn't exist simply because the market hasn't provided you with the exact goods and services you want. Nobody has any fundamental right to a smoke-free bar. The only reason you can go into a bar and have a drink with friends is because an entreprenuer has risked his time and money to create such an environment for you. Many independent bar owners (including one friend of mine) have opened up their bars as the fulfillment of a life's dream -- they have saved up money for a decade or more, spent years scouting out a location and planning, and they routinely work long hours (often 7 days a week) to keep their dream alive.

They engage in tremendous effort and struggle to provide a service to the community. They've earned the right to run their business. What valid claim do you have on Jones' property? Entrepreneurs often spend half their lives struggling, but the freedom to do things their way and be their own bosses -- without working for or answering to someone else -- makes it worthwhile. They've put in the hours, the money, the sweat. What have you done? What is your claim on Jones' business? By what right?
6.16.2005 11:59am
NYSofMind:
As a lifelong New Yorker, and a 20-something, let me just toss out there that life is far, far more tolerable under the smoking ban. smokers seem not to object to it very much, either-- I have friends who have managed to get some very attractive dates thanks to the intimacy created by the smaller group grabbing a quick smoke outside. It also created a new advertising venue, via the ashtrays placed outside popular bars and restaurants, and has ennabled non-smokers and smokers to meet each other more, as well, because now non-smokers can feel comfortable in the same bars.

also, frankly, the people who ask others to put out cigarettes are jerks... and anything that creates fewer opportunities for people to manifest the fact that they're jerks is good in my book.
6.16.2005 12:03pm
DRB (mail):
Clem hit the nail on the head. A smoking ban in bars and restaurants is appropriate -- if the population at large so decides -- because smoking is a nuisance. Even if we stipulate that there are no health effects from second hand smoke, smokers smell vile. Being in close proximity to them makes those around them have to deal with the stink and also the coughing their smoke may trigger. If the population at large decides that it shouldn't have to put up with a smoker's repulsive habit in a public place, that is entirely the public's call.

Claims to freedom and liberty are red herrings. Deliberately urinating on the floor of a bar or restaurant will also get you thrown out and rightly so -- this despite the fact that everyone has to urinate at some point, usually several times a day. It's hard to see how a noxious practice like smoking should be any different. On the other hand, if you want to smoke in your own house -- or for that matter pee all over your own floors -- that's your call.
6.16.2005 12:37pm
Gary from NY:
"They engage in tremendous effort and struggle to provide a service to the community. They've earned the right to run their business. What valid claim do you have on Jones' property? Entrepreneurs often spend half their lives struggling, but the freedom to do things their way and be their own bosses -- without working for or answering to someone else -- makes it worthwhile. They've put in the hours, the money, the sweat. What have you done? What is your claim on Jones' business? By what right?"

Your argument takes things to a much broader level that asks whether we have a right to regulate a business in any way, shape, or form. I must admit I don't have a great response for that. Our society does routinely regulate businesses in similar ways, and I've probably accepted this implicitly. To be fair, no business is completely self sufficient - the basic infrastructure that the business sits upon is created and maintained by government, the roads that people use to access it, the police and fire department that protect it, the sewers and water that connect to it, and yes, even regulations that make the area more or less desirable for people to live and do business there. I'm not trying to discount your argument. It's an extremely strong argument, and it's the entire reason for the "tentative" in my "tentative" support. The question of regulating business is not cut and dry, it's simply a matter of where you draw the invisible line. How much right does a community have to regulate its own commerce which is in part supported by the community at large? That's really the question here.
6.16.2005 1:16pm
ray_g:
Perspective from California (where we have had this ban for some time)

Info for Bob (first post): protection of employees was one of the justifications used for the ban on smoking in bars in California.

Slippery slope examples: Some municipalities have considered banning smoking in all public areas, even outdoors (sidewalks and parks); some beaches ban smoking on the claim of too much litter from cigarette butts (why not prosecute littering, not smoking); serious talk about banning smoking in cars if there are children in the car, I expect a similar argument for banning in private homes.

"Market failure" - I really hate this term. In my view the market doesn't fail or succeed, it just operates. When people use this term, they aren't really claming that the market failed, but that the market failed to have the result that they preferred. So arguments trying to justify regulation because of so-called market failure carry no weight with me.
6.16.2005 2:29pm
NYSofMind:
Some people above have already asked this, but I'm not sure there's been a really satisfactory answer-- how IS regulating smoking any different from regulating alcohol? the question of whether or not we *should* regulate alcohol is a nullity; we do. given that smoking is so overwhelmingly unpleasant for an absolutely and relatively huge number of people... well, isn't this one of the pleasantries of democracy, that we can also legislate away nonvital annoyances?

Anyway, I think it's more like an anti-noise ordinance. Yes, you could choose to live in the suburbs, and never have to deal with honking horns and car alarms at night, but asking people to live in a different place just to avoid other people's annoying habits isn't reasonable. Asking people to avoid an entire class of establishment-- essentially, all bars-- isn't reasonable either... and holding out the mere option of smokelessness in bars never translates into businesses adopting the option.

But as a compromise, what if there were a licensing requirement for allowing smoking in a bar or restaurant? you could keep a particular percentage, even an overhwleming majority, of bars and restaurants smoke-free, and people wouldn't have to travel to another state/city to find a bar where they could smoke.
6.16.2005 3:07pm
Anthony (www):
DRB - urinating on the floor of a restaurant or bar will get you thrown out, but the same result would occur at almost all bars and restaurants in the absence of health codes forbidding urinating on the floor. (I say almost, because I live near San Francisco, and I can conceive of there being a bar where that would not be considered unacceptable behavior. Don't ask.) Bar owners would throw such people out anyway, because there's a high direct cost to the bar owner (he has to clean up) and a moderately to very high indirect cost (he'll lose customers if he doesn't clean up and throw out the offender). Smoking doesn't impose those costs on the bar or restaurant owner - cigarette smoke doesn't significantly increase *his* cleaning costs - there are always other things on the floor besides cigarette butts, and enough of his customers smoke, or tolerate smoke, that he won't lose many customers because he allows smoking. Also, in most places, the loss of customers from allowing smoking is invisible, because allowing smoking is the historical norm.

There's a moderately high, visible cost to going non-smoking, and an unknown benefit to it. Rather than legislating, perhaps anti-smokers could try to convince a number of restaurants or bars to go non-smoking, then encourage non-smokers to preferentially patronize non-smoking establishments? I suspect that it would be easy to convince the owners of pretentious, upscale restaurants to forbid smoking on the grounds of interfering with the flavor of the food; other establishments might not be so easy.

Seth - how many people really go bar-hopping on a regular basis? I know there are social groups where that's common, but there are plenty more social groups where people go to one bar and stay there for the evening; so much so that many bars have a core of "regulars".
6.16.2005 3:39pm
JacobS (mail):
"Claims to freedom and liberty are red herrings. Deliberately urinating on the floor of a bar or restaurant will also get you thrown out and rightly so -- this despite the fact that everyone has to urinate at some point, usually several times a day. It's hard to see how a noxious practice like smoking should be any different. On the other hand, if you want to smoke in your own house -- or for that matter pee all over your own floors -- that's your call."

Nope, I would also be opposed to a legal ban on urinating on the floor in a bar. There is no need for a government ban, because there will already be a PRIVATE ban against doing so. No rational bar owner is going to adopt a policy allowing patrons to urinate on his floor. And if one does, I'm completely in favor of his right to open a bar in which he permits his patrons to poop all over the place. I doubt the bar would be very successful, and I wouldn't go there, but I would certainly not lobby my local government to ban his sort of establishment.

There are all sorts of goods and services that the market provides that I happen to dislike. My response is to simply not purchase them -- whereas your response seems to be to use force to coerce others into producing what you instead want. If a nonsmoking bar is such a great idea, why don't you open one? If it's really better, then why don't you prove it by competing in the marketplace, rather than use the force of law to alter the settled expectations of those who have spent years and years of their lives building their private businesses?
6.16.2005 3:44pm
jallgor (mail):
Ray G
"Market failure" is a real thing. Whenever someone argues that the market should prevail on an issue they are talking about an efficient market. An efficient market is one in which all parties have access to the same information and the market accurately matches supply and demand. This is a economic fiction of course. The closest we come to it in real life is probably the stock market (and even then some people have better info than others).
So in this case when people on this post are talking about market failure they are arguing that the demand for non-smoking restuarants is high and the supply is low in such a way that would be impossible if the market was operating efficiently. Sometimes a market fails because, for various reasons, it doesn't match up willing sellers with willing buyers.
6.16.2005 4:05pm
DRB (mail):
JacobS,

I don't do those things because I'm not interested in owning or operating a bar. I am, however, interested in going to and enjoying public establishments (like bars) without having to put up with other peoples' repulsive habit of urinating on the floor (sorry, I mean smoking). There are many other people like me. There are enough of us that legislatures are passing laws banning smoking so that we can enjoy public establishments without having to put up with cigarette smoke.

Floor urinators are of course free to keep doing what they enjoy -- just not when it ruins my enjoyment of a public establishment.

When the bars all shut down because all the smokers bailed, you can say you told me so. Oh wait, that's not happening. In fact revenues are increasing. Huh. Well, carry on then.
6.16.2005 5:15pm
Shelby Wolff (mail):
Shelby: I believe that empirically, bars and restaurants in Montgomery County, MD (which banned smoking a year or two ago) haven't lost any business to bars that still have smoking right across the border in DC or across the river in Virginia. Whatever the merits or demerits of smoking bans, I don't think there's any reason to believe bars in DC will lose more business than their neighbors to the north.

NonSmoking in Rockville: I'm interested to hear that Montgomery County hasn't seen a hit to business. I was recalling a Washington Post article from shortly after the ban was implemented, which claimed that bars were losing business. I would not be surprised to hear that after some time, business would pick up as nonsmokers (like myself!) were MORE willing to go out.

I see that Professor Volokh has noted in his update that he intentionally avoided this empirical issue. Hopefully we'll have some good empirical data in the next few years to better inform our policies. In fact, I think that might be a good argument on the CON side of the debate. In a few years, we'll be better able to see the results of the NYC/CA experiments, and it's much easier to craft a good law later than to repeal a bad one enacted today.
6.16.2005 5:22pm
Samael7:
DanielR: You're correct about worker-owned/employee-approved exceptions in San Francisco. Amber is such a bar, where smoking is allowed because all the employees either smoke or agree to work in a smoking environment. There are a few such places in town, but not many.
6.16.2005 5:28pm
Sam Loftin:
Out here in Salt Lake City, the restaurants have been smoke free for seems like 15 years or so. Lots of scare stories about restaurants going out of business at the time, but none of it happened. Now the move is to extend the ban to bars and clubs, using the worker-health theory. It is easier to accomplish here since the smoker rate is about half the national average, and the predominant local faith frowns on tobacco consumption.

Personally, I don't smoke and don't like to smell it. It really hits home when we go to another state and get asked "Smoking or non-smoking?". I want to say, "It doesn't matter, the whole place stinks.", but I just keep quiet instead. My wife and I quit going to bars and clubs because of the unrelenting haze.

It reminds me of a comedy routine Steve Martin used to do: "Do you mind if I smoke?" "No, mind if I FART? It's a little habit of mine. After a meal, I really get the urge to light one up!"
Have a nice day.
6.16.2005 5:30pm
Steve (a guest) (mail) (www):
A libertarian should find it easy to defend restrictions on smoking. Smoking is an act of aggression that violates the natural social contract.

Which is why it might be acceptable to consider banning smoking on, for instance, public sidewalks. Or at least make it a tortable action.

People enter a smoking establishment with full knowledge that they will be exposed to the smoke. They can choose not to enter. No agression takes place with either decision.

On the other hand, when someone who was previously not smoking lights up in front of you on the sidewalk agression does take place as you have involuntarily been subjected to the smoke.

Question for the lawyers who live here: What would one's chances of success be in claiming damages for injury from a street smoker?
6.16.2005 6:29pm
A Country Lawyer (mail):
I don't understand why it wouldn't be sufficient simply to set very high ventilation standards for bars and/or restaurants that want to allow smoking. Even if you assume second-hand smoking is dangerous (and that is the only plausible basis for limiting it), it's not dangerous if only trace amounts are left in the air. Those trace amounts may smell bad, but that is obviously not a legitimate reason for a smoking ban. Why wouldn't this work?
6.16.2005 6:31pm
none (mail):
How far we've descended where prominent right-wing legal theorists actually write something like this. 10 years ago this would not have even been on the radar screen.

At core, the public health crusaders have mobilized large swathes of Americans with the laughable argument that ETS causes cancer. They have no evidence to that effect.

What this amounts to is an effort on the part of some people in society to use the force of the government to ban an activity because they don't like it: it's dirty, it makes their clothes smell, and they just don't want to be around it. So THEIR preferences trump all other preferences.

That they cook up public health arguments out of thin air to justify this governmental move is to be expected. That they openly complain about how smoking is offensive because they don't like the smell is galling. That they've now got a right-wing blog taking these arguments seriously is kind of pathetic.
6.16.2005 7:54pm
Montana Smoker (mail):
Some follow up comments.

In Montana, where we have an economy constantly in the last 5-6 states in the US, gambling revenues are a HUGE amount of State revenue. (As are the recently jacked up cigarette taxes and tobacco agreement money). Plus, when bars go out of bussiness, or employees lose hours or get laid off, that hurts a lot of people. Sure, waitresses and bartenders don't make much hourly, but tips really add up. And, while $6-10/hour may not be a lot to many of you, it's a decent living wage here.

And believe me--there are, and were, a good number of non-smoking bars. hard to believe, but some bar owners take the stance that they don't want smoke in their establishment. Market forces at work! Restaurants too. However, due to compromises, right now the only establishments in town allowed to be "smoker friendly" are those with gaming machines, so almost all restaurants are, by default, smoke free.

As for the "nuisance" factor--why regulate that? Where does it end? I find people using cell phones in stores a nuisance. Ban them! Parents letting their kids run loose so that they always get in my way--hey, it's a danger to the kids, fine the parents! Extremely obese people really bug me and are endangering their health, let's get 'em to fat farm boot camps!

You say it'll never happen? Five years ago I thought a smoking ban was unquestionable. Soon I bet they'll be back to trying to regulate nicotine. The "health nannies" never stop, and every victory pushes us further down the slippery slope.

I'm willing to live with everybody telling me I've got a filthy habit, I stink, and I'm going to die a horrible death. OK. What's wrong with me having a decent place to do it? Again--nobody's forcing anybody to go to a place that allows smoking. I'm just tired of the law stripping me of every place I can smoke except for private residences, vehicles, and outdoors.

Until, that is, they make it illegal to smoke around non-smokers.
6.16.2005 8:24pm
Public_Defender:
Montana Smoker asks why ban smoking and not other nuisances. That's easy. Because a majority of voters (or the elected representatives) want it that way. Different communities have all sorts of different levels of control over behavior that others find annoying. In some areas, libertarianism prevails. In others, you can get fined if your grass is more than 4 inches high. That's democracy and federalism at work.

To quote Scalia, if you don't like the smoking ban, "pass a law."

To the question of why a majority might chose to ban smoking, the health risk potential of second-hand smoke is a big factor. I agree with Orin that it's currently debatable, but I think the burden should on the person blowing smoke into my lungs to prove that the smoke is safe. And while the long term health effects may be debatable, the short term effects are indisputable. Secondhand smoke causes eye irritation, nose irritation and coughing in many people.

The degree of short term irritation also makes smoking enough of a nuisance to enough people that a democratically-imposed ban sounds fair to me.
6.17.2005 6:34am
BrianC.:
I can't believe that amid these six-dozen-something posts, only two or three people have broached the central issue here: the rights of property owners.

This isn't about smokers and non-smokers, or economic losses and gains, or "externalities" and costs. The whole issue is so much simpler than that: Does a property owner have the right to permit legal activities on his property?

The answer, of course, is yes. That is, unless one takes for granted the "public accommodation" premise, in which case one has already ceded the entire argument — along with countless others — to the pro-ban crowd.

Anyone who insists on turning this into a convoluted empirical argument should at least acknowledge that they have already wrestled with, and reconciled, the property-rights part of the debate.
6.17.2005 12:39pm
Public_Defender:
"The whole issue is so much simpler than that: Does a property owner have the right to permit legal activities on his property? The answer, of course, is yes."

The answer isn't as obvious as you think. Adults having sex is a legal activity, but an establishment that permitted it in public could be closed down quickly. Also, asking whether the government should permit a legal activity is unhelpful because it doesn't address the question of what should be legal in what circumstances.

Lots of things are legal in some contexts but not others, sex for example. Another example is racial discrimination. If I'm a bar owner, I can't refuse service based on race, but it's perfectly legal to be a bigot about who you invite into your home. Gambling is a legal activity in many states, but try running books from your home and see how the government responds.

I think it comes down to the public deciding what behavior it finds so noxious that it wants to ban. For example, there's no inherent reason why alcohol, but not prostitution, should be legal--alcohol probably kills a lot more people than prostitution. But the public, through their elected representatives, has decided that prostitution is noxious enough to be banned.

While there are some protected areas where majorities can't act (shutting down a religion because the public doesn't like it), we generally let people try to persuade enough other people to permit or ban a given activity.
6.17.2005 2:36pm
JacobS (mail):
"I think it comes down to the public deciding what behavior it finds so noxious that it wants to ban. For example, there's no inherent reason why alcohol, but not prostitution, should be legal--alcohol probably kills a lot more people than prostitution. But the public, through their elected representatives, has decided that prostitution is noxious enough to be banned."

I think this is all good and fine for regulating what happens on public property, but it's not so great for regulating private property and private establishments.

The bar owner invested much of his time, money, and life into creating that private establishment. Those elected representatives did not -- they don't absorb any of the cost of regulation, so it's quite easy for them to ignore it and tell the property owners, "hey, that's your problem, not mine."

Bar owner Jones, on the other hand, is in the unique situation of having to balance the costs and benefits of allowing or banning smoking in his private bar. He's in the best position to determine what's the best use of his private property, since the profit motive forces him to consider all of his customers.

I firmly believe that Jones is in a better position to decide how to efficiently use his own property than representative Smith, or even 100 or 1000 Smiths. Jones absorbs the cost of regulation, Smith does not -- so why should Smith both considering it? This is why I think regulation tends not to be very efficient.

Sidenote: A couple people have pointed out that bar tax revenues went up between 2002 and 2003 (post ban). My response: duh. 2002 was a recession year, plus 9-11 had just happened. EVERYONE in NYC was doing better in 2003 than 2002, not just bars.
6.17.2005 4:12pm
probligo (mail) (www):
NZ banned all smoking inside bars about a year back. There was the same debate...

One problem has come out of the ban....


BO

Good ol' body odour.
6.17.2005 4:49pm
Public_Defender:
"I think this is all good and fine for regulating what happens on public property, but it's not so great for regulating private property and private establishments."

Your argument proves too much because it has no limits. Under your theory, the government couldn't stop me from turning my house into a brothel. Under your theory, in support of my brothel, I could argue that "I firmly believe that [I am] in a better position to decide how to efficiently use [my] own property than representative Smith." And I decide that the most efficient use is a brothel. Under your theory, I could also decide that permitting open sex acts in a bar I owned would bring in more business. Or I could decide that selling alcohol to 18-20 year olds would bring in more business.

Your theory would also eliminate all zoning. Local officials regularly tell people that they can conduct one kind of business on one lot, but a different kind on a different lot. Zoning laws tell owners what they can (and cannot) build and where they can (and cannot build it). The laws tell you what you can put in your lawn and how high you can let your grass grow.

The question to you is where do you draw the line? What activities would you permit the government to declare illegal on private property?
6.17.2005 6:10pm
Tomas:
Public Defender, with respect:

You are wrong.

(Just wanted to have the last word! The courteous, civil last word...)
6.18.2005 11:00am
Anonymous Coward (mail) (www):
Agreed, the government has no business outlawing smoking in private premises. But the government has no business doing lots of other things. Can't we agree--let us eat and drink and even walk on the beach in comfort without having smoke around while we work on getting rid of all the other government nonsense. Once that is done, then the LAST law to be abolished will be the one regulating smoking. (At least that will assure that I'm not bothered by smokers in my lifetime.)

As a tactical matter, in many jurisdictions (both in the US and elsewhere) by far the most effective way to clear out the smoke has been the argument that employees are entitled to a safe workplace. This appeals very widely--especially, in my experience, to hospitality industry employees!--and enlists a variety of powerful forces to get rid of smoking. It applies to non-public as well as public areas. This line of thought even assures that "private clubs" are not a way of evasion; the only evaders are tiny properties where the proprietors do all the serving and cleaning themselves, hardly a bother.
6.25.2005 1:53pm