By the way, what would you folks think of banning smoking on public streets, by analogy to the bans on public urination? Both smoking and urine creates smells that many people find offensive. Assume that neither creates a material risk of danger to health. (As I mentioned before, urine is generally mostly sterile; my guess is that whatever harms second-hand smoke might cause, the modest amounts that one inhales from passersby on the street likely have negligible effects.)
I'll gladly concede that smoking on city streets is treated quite differently as a social norms matter from public urination; many people whom I much like and respect have smoked on the street, and some of them probably still do -- I doubt that many of them have urinated on city streets. My question is whether, despite this, smoking should be banned on public streets, and, if it is, whether such a ban would be morally proper.
I'd like to set aside the question of government-imposed bans on smoking in private places (such as restaurants and bars) that are open to the public; that's a separate issue that has been much discussed, both in libertarian circles and outside them. Here, I want to focus on laws that are limited to smoking on government property, and especially outdoor property -- sidewalks (both immediately outside building entrances and more generally), parks, and the like.
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If you really gotta go, it can be done totally discreetly, straight into a sewer drain. No harm done whatsoever. Yet I've known totally reasonable, responsible people that have been ticketed for it. San Francisco in particular offers hardly any legal options for the about-to-bust crowd; you aren't welcome in restaurants, barely tolerated in seedy bars, and the coin-op toilets are either in use for seemingly endless intervals or out of service entirely.
It's far less obnoxious, imho, than the habits of smokers. In cities, it's bad enough to deal with the smoke and the butts. In the country, they tend to set things on fire, causing incalculable damage.
I thought this was interesting:
Courts have repeatedly held in a wide variety of circumstances that there is no constitutional or other legal right to smoke, especially when others may be present. Here is a sample of the judicial opinions.
STADIUM — "The City of New Orleans in the exercise of its police power could prohibit smoking in public stadiums." {1}
AIRPLANE — Passengers have no right to be in a smoking section. {2}
WORKPLACE — Court upheld workplace smoking ban despite smoking worker's argument that his "private rights and interests" are affected. {3}
JAIL — Persons awaiting trial have no right to smoke in jail. {4}
HOME — A municipality may refuse to hire persons who smoke, even in their own homes: "Clearly the 'right to smoke' is not included within the penumbra of fundamental rights [constitutionally] protected" . . . "the act of smoking a cigarette does not rise to the level of a fundamental right." {5}
OFF-THE-JOB — A governmental employer may fire an employee from smoking only one cigarette, even off the job. {6}
SCHOOL — "The right to smoke in public places is not a protected right, even for adults." {7}
RESTAURANT — "Whether tobacco smoke is toxic may be arguable, but that question is one for the legislature and not the court. And it is clearly within the police power of the legislature to abuse what it finds to be injurious to the public health." {8}
{1} Gasper v. Louisiana Stadium, 577 F.2d 897 (5th Cir. 1978); {2} Diefenthal v. CAB, 681 F.2d 1039 (5th Cir. 1982); {3} Rossie v. State, 395 N.W. 2d 801 (Ct. of Appeals Wisc. 1986); {4} Washington v. Tinsley, 809 F. Supp 504 (S. Dis. TX 1992); {5} City of North Miami, v. Kurtz, 653 So.2d 1025 (Supreme Ct. Fla 1995); {6} Grusendorf v. City of Oklahoma City, 816 F.2d 539 (10th Cir. 1987); {7} Craig v. Buncombe County Board of Education, 343 S.E.2d 222 (Ct. of Appeals NC 1986); {8} Alford v. City of Newport News, 260 S.E. 2d 241 (Supreme Ct. Va 1979).
Suppose it was popular among a segment of society to go around randomly punching other people in the face. Assume, for the sake of the comparison, that the punching causes discomfort and immediate pain, but no lasting damage.
Should the state have the power to ban people from punching others in the face?
(Of course, punching people in the face is battery, but presumably if we decided not to ban punches in the face, we would also exclude them from the definition of battery. And on the other hand, cigarette smoke and urine smells are physical, just like a fist.)
The smoking issue really irks me. There is no reason to believe that outdoor smoking is a public health issue at all, many people just really find it annoying and dislike it. Yet most people against public smoking cloak their dislike in terms of health. Still if people dislike it enough I suppose it might make sense to make it illegal even though it goes against my basic libertarian tendencies.
However, I suspect the annoyance at the smoke is only one small component in people's objection to public smoking. There is a very strong sense that smoking is somehow immoral or bad and should be stopped and much of the motivation to stop public smoking seems to be about stopping people from doing something 'bad' as it is about avoiding the annoyance of smoke. If this wasn't true why doesn't anyone favoring smoking restrictions take into account the inconveince and harm to the smokers themselves. Certainly if were debating a law banning eating on the street everyone would agree that it is a matter of balancing the inconveince to the people who want to eat with other public goods. Yet somehow the inconvience to the smokers is totally ignored as if by smoking you lose the right to have your welfare matter.
The authority of state governments (and their subsidiaries) to ban smoking in public places seems clear under the police power, because smoking creates small but real increased risks of fire and littering, and the highly questionable "second hand smoke" risk.
The authority of state governments (and their subsidiaries) to ban smoking in public places seems clear under the police power, because smoking creates small but real increased risks of fire and littering, and the highly questionable "second hand smoke" risk.
I would agree that attempts to completely ban smoking in private would be clearly fascist--but I am hard pressed to see the rest of these steps as being "fascist."
What bothers me is that a lot of the same crowd that thinks there is a duty of the government to discourage smoking because of the public health costs goes into a rage when you suggest that sexual promiscuity, and especially unprotected sexual promiscuity, is also a public health matter where some governmental discouragement would be a good thing.
There is a minor but real public safety issue relating to fires, a legitimate issue about littering (is it that hard to put your butt in an appropriate receptacle?), and a questionable but at least rational argument about second hand smoke.
I've met some people with really bad breath, but I've never seen anyone breath and start a fire. (It would make a great party trick, however.) Nor does breathing qualify as littering (unless you sneeze really hard). As nauseating as some bad breath is, there's no question about it causing cancer.
-dk
-dk
To the perfume guy: an apt analogy would be someone standing on the street, perfume-mister in hand, spraying perfume into the air and onto passers-by. Your example completely misses the mark.
If 30% of Xers does something which is not simply unpleasant, but a likely hazard to life and limb, then prohibiting action X seems to be an accepted theory of American law. That's why we prohibit drunk driving, and why some libertarian purists argue that drunk driving shouldn't be unlawful--only running into someone, and even then, being drunk shouldn't be a factor in this being criminal. After all, not every drunk driver hits someone.
All of these principles, of course, must be abandoned if the subject is STDs.
Also, smoking can leave as lasting a stench as urinating. Why do you think the hotels finally adopted smoking and non-smoking rooms? And the smoking rooms are pretty foul for anyone who doesn't smoke. I took my dog to a smoker's house last weekend. It took about 4 days for the smell to get off her coat.
Personally, I would ban perfumes from theatres and concert halls. Urine and smoke are postively pleasant in comparison to what some women put on themsevles to smell nice.
Just exactly HOW MUCH smoke is being placed into the public by the smoker? Is the amount from a very, very thin cigarette acceptable? If so, how about a reqular filtered? A Camel straight? How about a thin cigar? Move up to a larger cigar, is it still okay? How about someone smoking an "El Ropo"? Finally, someone smoking, literally, like a chimney, and placing large amounts of pollutant into the atmosphere?
How is smoking in public any different than any stack-emitted pollutant? We have stringent regulations on the allowable particulates from industrial plant stacks. Just exactly how (other than in the content/quantity, as noted above) is it ethically/morally different on the small scale of a smoker's emissions?
The comment that "Walk down a stairwell someone smoked in 30 minutes ago and there is no trace" I regret that I must dispute. The long-lingering smell of cigarette smoke lasts for days, sometimes weeks and months. I personally would not be able to purchase a car that had been previously owned by a smoker, simply because it's impossible to get the smell out. It's also why many hotels now have no-smoking rooms, and even no-smoking floors.
As Larry Niven once postulated, as society gets more and more crowded, infringements upon each other will become more and more pronounced. Where and how we draw those lines will become increasingly important, to balance the rights of individuals to pretty much do as they please, but without infringing on the rights of the other persons around them. In this instance, I'm not sure where I stand in balancing one individual's right to ingest their substance of choice, versus another individual's right to breath relatively unpolluted air.
Why should the inconvenience to non-smokers necessarily override the convenience to smokers? Assuming no material health consequences, which I believe to be the case. A similar case could be made for public dress codes. I personally have a greater objection to the publicly ill-dressed than to the public smoker. But I wouldn't impose my views on others.
What I don't like about the anti-smoking movement is that in a sense (but not the usual political sense) it's anti-American. I know that's a loaded term, but here's what I mean: yes, smoking is dirty and unhealthy. But I don't trust a society that condemns everything that's dirty and unhealthy. That's not the America we used to have.
Getting up and walking out into the street is a risk. If you're never going to smoke, or fuck someone who looks like she's seen a few good times, or drive 110 ... well, that's your right, but don't expect me to go along. And if you succeed in getting those preferences adopted by society as a whole, America will be a lot poorer, and duller.
I know that's pretty much what P.J. O'Rourke once said about it, but he's a smart man.
This has reduced my personal concern for smoker's rights to an all time low.
You and I obviously run in different circles.
J/K. But I have noticed, in the cattle-call arraignments for sundry minor offenses here in Orange County, a good portion of the citations are for public urination. On the other hand, I was once pulled over for doing about ninety on I-5 going through southern Oregon in the wee smalls, and told the officer, "hey I really gotta' go." He responded, "hey, why don't you just go right here." So with the cruiser's headlights, spot, and red and blues going, I just drained my bladder there on the side of the Interstate. The cop said, "hey, I know as well as anybody, when ya' gotta' go, ya' gotta' go." And then he took off.
pulling someone's beard prompts a different reaction (i.e. is provocative) from patting someone on the back. this is a matter of evolved interactive protocol. we need not be too intellectual in our analysis to see that the two are different simply as observed phenomena.
the question of when it becomes improper to base legislation on such inclinations is difficult, but it surely can't be answered by these arguments that attempt to abstract entirely from wide-spread social norms.
We're not talking about smoking in private, but in public. Even if you want to be libertarian and not protect individuals, I have a right not to have to endure the smell while walking on the street. Note that driving 110 is quite illegal and will result in your license being revoked in just about any jurisdiction, probably along with jail time. Nor do i think we can ignore the health hazard, the fact that you are smelling it means you are inhaling the toxins.
No one has a right to smoke conveniently. Smoking is a choice, you do not have to do it. No one has a choice whether they have to smell your cigarette, however. Unless they don't go out in public. The right of a couple people to smoke or of the vast majority to go out in public - which of these is more compelling?
smoking in public is something i don't care about and don't think there's any widely accepted social norm about. urinating in public is something I do when necessary but try to keep discreet and out-of-the-way, and I thank others who do likewise.
Cigarette smoke does not produce an equivalent to the puddle. The butts are comparable, but we do make littering illegal, although the ban is horribly under-enforced. Maybe a draconian crackdown would work for that?
On that argument than we should ban driving. Standing on busy street breathing exhaust fumes is far worse for you then second hand smoke.
Eugene, will you still like me when I tell you that I have done both? Of course, I was in the Army at the time.
Again, this is just my personal preference, but I don't see why anyone's anti-smoking preference should outweigh my pro-smoking preference.
"On that argument than we should ban driving. Standing on busy street breathing exhaust fumes is far worse for you then second hand smoke."
That's irrelevant. Driving is an important part of society, there would be substantial harm from banning it. There's no harm to banning smoking; in fact, health costs would go down and some stupid people would live a little longer.
The only reason we have reached the point about worrying about smoking in public is because we have done such a good job of banning smoking indoors. When I started work, secretaries were allowed to smoke at their desks. A few years later, this was stopped and only those who had an office could smoke, and then only behind closed doors. Management later prohibited all smoking in the office. This drove the smokers into the street.
While I continue to be annoyed at cigarette smoke, I believe we have long passed the point of diminishing returns in making this a smoke free society. I blame both sides for the current state of things: obnoxious smokers and antismoking fanatics.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
You could not be more wrong. If you read the 9th and 10th Amendments to that Constitution, you'll see that its authors were very clear that our rights are innumerable. In fact, that was the argument against a Bill of Rights: people might assume (like you are) that the only rights you had were those specified in the document. The Framers didn't want that, so they designed a government of limited and specific powers. Come on, this must sound familiar, right?
Law is a huge, cumbersome instrument that does a bad job of trying to fill the vacuum left behind by the atomization of society. Which, in turn, is caused by anonymity, which is largely a consequence of massive urbanization and easy mobility. In small towns where everyone knows each other on sight, there is probably no need for law to intrude in matters like smoking or urination. The conflicts that arise are solved informally, as they should be.
I really don't understand people who try to pin problems of "morality" on causes like drugs or sexual orientation when it is so obviously a consequence of the massive changes in the way society is organized over the past century. If I could identify one single cause of immorality which could be plausibly removed from society, it would be the automobile.
Oh, and in relation to my earlier post on this thread, I should have made some disclosures before offering any opinions on either urine or smoking: I frequent a bar that tolerates marijuana but forbids tobacco, and I belong to an outlaw motorcycle club whose motto is "Let Us Spray".
As a former owner of a car-detail business, I can assure you that you are quite incorrect. Eradicating smoke smell is generally not a problem for a professional. But, as you intimate in the earlier paragraph, it all depends upon how much (and how long). I've had customers you regularly smoked in a closed-up car, and didn't get regular complete detailings, and the build-up actually accelerated the decay of the interior materials. On the other hand, I've had regular customers, who smoked in their cars - but always with the windows open. And, if you didn't know, you couldn't tell.
I think you'd better bone up on your 1A caselaw there, EricK. Might want to start with Empl Div v Smith. LOL.
I don't care if you smoke in private. I don't even particularly care if you smoke in public, and I opposed both California and Idaho banning smoking in restaurants--even though I find it unpleasant to eat in restaurants that allow smoking. (The non-smoking sections sometimes worked, and sometimes didn't.) I've driven above 110 on a number of occasions in some rare places where it was reasonably safe to do so--before California made speeds above 100 prime facie reckless driving.
As near as I can tell, your biggest objection to me is not that I want laws to tell you what to do, but that you resent me reminding you that your fantasies about an anarchist America of the past are just that--fantasies.
Good point but there is a big difference in a public smoking ban and drug laws, ie civil v criminal.
I can also cite Yoder v. WI, although the court wished to distance themselves from Yoder v. WI in Employment Division v. Smith. This is starting to get off subject so I will stop there.
If this smoking thing is about public health wouldn't banning homosexuals(intravenous drug users) because of aids be a rational public policy?
Many find the odor of cigarettes unpleasent. I find fat people unpleasent. Ban the fatties?
The problem with you anti smoking or anyother zealots is that you never know when to declare victory and go home. You want all your conditions for your lifestyle imposed. You're alot like the Taliban. I can see why Yale would be interested in such "talibans".
Speaking as a Liberal, I tend to think that unless there is good reason we should tend not to legislate.
I'm from the U.K. and the socialist government over here banned the practice of fox hunting. I don't appove of fox hunting, but was appalled by this illiberal legislation. Most people agreed with it, yes, but it also threatened the jobs and way of life of others. Just so the majority could feel better about themselves.
Didn't Aristotle say something about not making new laws unless there is a genuine need?
We quite literraly cannot go to downtown areas where there are crowded sidewalks with people smoking, or she will pass out. Moreover, she cannot use public transportation, since people smoke right at the bus and train stops.
She isn't alone in having this situation either. We have met several other people who have similar allergies to nicotine. Plus, asthmatics and people with other respiratory problems have severe reactions to nicotine.
I think cigarettes are a whole different ball of wax than public urination. I am not necessarily in favor of banning smoking on sidewalks, but I think it is definitely reasonable near bus stops, etc.
Yes it is sterile until about 1/1000th of a second after it shoots out. You need to wash your hands because of touching the aiming mechanism more than the projectile.
Actually in a pool the Chlorine would mitigate the human size petri dish aspect.
By the way.....
Not to get back to topic or anything but,
Public spaces should be open to all legal public uses unless there is an overiding public good issue at stake.
i'm not sure how "convenience" or "inconvenience" is being used in the above paragraph, but there is the small point that (at least in the united states) only about 20% of adults are smokers, according to the CDC.
if anyone's curious about the debate among anti-smoking activists around outdoor smoking bans, this physician's blog is a good place to start.
... and decided to ban smoking in public spaces.
2) Smoking is banned already in many places, laws smokers generally follow. Part of the issue here involves the unintended concentration of smokers in the remaining places due to their _obeying_ the law. To continue the process is to dishonestly legislate a total ban, albeit peicewise. If that is the intention, do so outright so that the 20% of voters who smoke can have an honest issue at the polls. There are commenters here who don't seem to view smokers as fellow citizens, but as the faceless "them."
3) One of the problems I have with anti-discrimination laws in general is that one ends with sets of officially mandated tolerance, and officially encouraged intolerance. Would adding smokers to the anti-discrimination laundry list change the morality of the situation?
There are people who are severely allergic to other things as well. Let's say that there was someone who was violently allergic to mozzarella cheese, to the point that being within 20 feet of a pizza caused him distress. Would this in any way suggest that pizza consumption should be barred from public places? Or does it mean that he simply has to accept that other people may, occasionally and without malice, infringe on his space, restrict his choices, and perhaps make him get up and move?
How is a smoker morally different from someone eating a pungent food?
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No, it means that we have to balance two competing interests. Since only a tiny proportion of people are allergic to being in 20 feet of a pizza, one of the competing interests is very small. If a similar proportion of people were distressed by cigarette smoke as by being near a pizza, then it would be absurd to ban smoking in ublic places.
My father is a pretty heavy smoker and I am quite well aware of how the smell can cling to fabric, cushions and similar material though usually this requires sitting around while they smoke a cigarette not passing acquittance. What I had in mind for a stairwell was the sort of stairwell one might encounter 'outside' in public, e.g., the cement and steel things one sees in parking garages. Assuming they don't hold a cigar convention in such a stairwell any smell will dissipate fairly quickly. If we are talking about smoking in push elevators or the like then it is a different matter. My point is just that in the outside conditions we are talking about urine poses a genuine vandalism problem but smoking does not. My choice of a stairwell was pointlessly confusing but that is what public urination makes me think of.
Duffy Pratt,
I would think peeing in a bottle would be okay modulo the public nudity issue. I always thought the public urination statutes were all about peeing on things inappropriately.
Lawrence F,
I'm sorry about your wife's condition (is she allergic to nicotine or just has very bad asthma that smoking triggers? I'm curious because I didn't know it was possible to be allergic to nicotine). However, as with any question like this the question is whether there is enough people like your wife that their great inconvience makes up for the more dillute but more common inconvience of smokers.
--
Ultimately I have a big issue with the anti-smoking laws because they aren't actually motivated by this sort of rational concern for annoyance or public harm. Rather people have strong feelings about the morality and evilness of smoking and then they trot out these points about health or public enjoyment to justify their position. If smoking bans were really motivated by concern for public welfare these benefits would be compared against the inconvenience to the smoker. However, because smoking is viewed as a morally suspect act the smoker's inconvenience isn't even considered. I mean I suspect that even slight improvement in car emissions standards would do more for public health and enjoyment than laws banning outdoor smoking but since the majority of the populace would pay the price rather than inflicting it on an unpopular subgroup this doesn't happen.
If I could be convinced that the slight benefits to the majority of the populace (and the great benefits to the very small percent who are allergic) outweigh the larger harms to the minority of smokers I would support smoking bans as well but as it is it smells too much like the tyranny of the majority. Unlike nudity which is a form of expression there simply is no plausible argument which provides smoking with constitutional protection. It really is legally equivalent to any other form of pollution (and so is cheese smell) and even if I don't like it I can't deny the laws are constitutional.
I think Public_Defender's comment regarding the unsightlyness of cigarette butts imposes a remedy not aimed at addressing the problem. We have laws against littering which, with proper enforcement, would suffice to discourage the behavior.
Public streets are part of the commons. There are no functional property rights in the commons, no owner with an incentive to discover the most valuable use of the land. The best substitute is democracy.
If the majority tells me that they don't want me smoking on land we own in common, I'll happily comply. If they tell me I can't permit smoking on my own property though, that a different story.
Do other libertarians find the case for banning smoking to be far more compelling on public property rather than private property?
That hypothesis is easy to test, at least in a non-statistical way. I've tested it, and it certainly seems to be true.
The test: brandish a unlit cigarette, cigar or pipe in any place where smoking is banned.
Within a short time some busybody will tell you "you can't smoke here" and point to the "no smoking" sign.
If you politely say "Thank you. Good day", they'll likely as not continue to lecture you that you must put the cigarette away and out of their sight, or "the childrens' sight", or somesuch nonsense, because, well, because you aren't supposed to smoke here.
Their minds are so clouded by ideological or moral fanaticism that they have entirely ignored, likely not even perceived, the fact that you aren't smoking.
Because the justification for banning the one (i.e. smoking is bad for your health) is held as insufficient for banning the other, even though the risk from unprotected sex definitely exceeds that of smoking a cigarette.
This extends not just to law over public spaces, but also with regard to the perception of private matters (e.g. stigmatizing smokers but not barebackers or the STD-afflicted sexually active) and instances where the respective practices actually matter (e.g. firing someone for smoking vs. not even being allowed to ask if they have AIDS). It's not even mitigated by the potential discrimination by proxy -- addicts, after all, are a protected category too.
Basically, the difference in treatment reveals a distinct lack of principle and concern for public health underlying the restrictions.
But if we assume that "neither [smoking nor urination — nor internal combustion engines] creates a material risk of danger to health" but that "[b]oth creates [sic] smells that many people find offensive," I'd like to see a ban on both cars AND GERANIUMS.
If instead of geraniums it was some plant which really did bother lots of people (ragweed, for instance), then it *should* be banned.
Well, we could at least ban smoking indoors. Cars and busses indoors are generally a bad idea.
But cars and busses also serve useful functions. If you have to balance the harm against the benefit, cars and busses cause more benefit, and therefore should be given more lenient treatment. Allowing cars but not cigarettes is like allowing seeing-eye dogs but not regular dogs in a store. The seeing-eye dogs are being used for something; the regular dogs are just there because people like them.
Also, while we don't just ban cars, we don't pay no attention to pollution caused by them, either. Cars are regulated as to what emissions they may cause and the rationale *is* public health.
Because the justification for banning the one (i.e. smoking is bad for your health) is held as insufficient for banning the other, even though the risk from unprotected sex definitely exceeds that of smoking a cigarette.
Regardless of the risk factors involved (or the degree of risk for that matter), there is a fundamental difference between public sex and public smoking. Public smoking (second hand smoke) directly impacts another's health while public sex (and the associated risk of sexually transmitted disease) can only directly impact another's view of morality. There could be a public health interest argument made to ban public sex due to the associated risk of sexually transmitted diseases (which can be mitigated by a requirement for condom use). However, that was not MrL's argument.
On another note, I was surprised no one mentioned The City of Calabasas Smoking Ordinance which is probably the most comprehensive I've come across so far.
http://www.cityofcalabasas.com/secondhandsmoke-faq.html
Yes it is sterile until about 1/1000th of a second after it shoots out. You need to wash your hands because of touching the aiming mechanism more than the projectile.
This is something I never understood. I take a shower in the morning and put on clean underwear. Why, when I go to urinate a couple hours later is my aiming mechanism considered so unclean that I am supposed to wash my hands after touching it? (Assuming I didn't piss on my hands.) Most likely my hands are a lot dirtier than my aiming mechanism and I'd be better off washing my hands before urinating, rather than after. This just seems like some religious dirty-peepee symbolism.
I realize I'm doing some violence here to Ken Aromdee's statement; but, unfortunately, utilitarian and cost/benefit arguments always come down to this.
The "utility" of people's using seeing-eye dogs consists solely of blind people's liking not to run into things. Others may balance the costs and benefits a little differently. I personally prefer the absence of dogs; and if that means I'm going to have to see some blind people running into things, well, that's a price I'm willing to pay.
Similarly, if the utiles or hedon-quantum I get from smoking on a public street is less -- in the estimation of those with the control over the hedonometer -- is less than than the pleasure they get in enforcing their anti-smoking aesthetic, then I guess I lose the "argument."
Likewise, if the satisfaction they feel from "tolerating" my "vices," i.e., being morally superior while suffering in silence, is less than the satisfaction they feel from
being morally superior and taking action, well, I guess the majority rules.
But they don't actually have to persuade me based on some psychic calculus or "science" of hedonism. In the end, we all like what we like.
Ritual filth is filthiest kind.
Maybe in large cities there are times and places when a little smoking regulation is necessary to ensure that others can get through the streets and into and out of buildings without passing through a cloud of smoke. I live in a rural area, so I don't have much recent experience with this, but when I go on business trips to the large cities, I don't have as much trouble with smokers on the sidewalk as with the general pollution of ALL the air - and it's unlikely that tobacco contributed even 1% of that pollution. At any rate, this certainly can't justify broad bans.
Libertarians seem to have this myth of an America that simply did not exist. Sure, technology sucked so the government was unable to enforce some laws, but suggesting that intrusive moralistic legislation is in any way new - that's just empirically wrong.
Yes, and the fact that such laws ignore the actual risk factors makes them classic examples of breaking butterflies on wheels.
Unfortunately the "rational basis test" for constitutionality permits a majority of the electorate or legislature to make the rest outlaws for any bizarre reason, including mere personal animosity toward their choice of pleasure. A significant nexus between the pleasure and any actual harm to the majority, except personal distaste, is not required.
In that sense, the "rational" laws of a constitutional democratic republic differ only in name from the superstitious taboos of a stone age tribe.
A Michigan DNR officer (AKA "game warden") was driving down a rural highway at night and saw another vehicle leave the road and drive off into the woods (on public land) down a narrow track. She followed, suspecting this was an attempt to poach deer. (Even in season, hunting after dark is illegal - but highly effective, since the deer often freeze when a light is shined in their eyes.) Instead, she found a man answering the call of nature - and arrested him. The judge dismissed the case and reamed her about as thoroughly as proper judicial language allowed.
This case left me with two questions: What was her supervisor thinking to allow this to get as far as court? And how would a city-girl get sufficient training as a DNR officer to be patrolling alone without learning anything of country ways?
One person urinating or defecating in the woods doesn't do anything but add a little more natural fertilizer to what the deer and other animals have already contributed. OTOH, 100 people urinating in the same place will create a nuisance, which is possibly even a health hazard. Also, pavement lacks the ability of natural soils to absorb and convert such substances. Therefore, it is necessary for any town to have some regulation of public urination, but a rigid prohibition is not necessary - and as someone else has noted, if you require your police to enforce such a prohibition, you are probably making hypocrites of them.
I think the fairest solution is to not actually have laws against urination as such, but to use the littering and indecent exposure laws, and not too aggressively. If there's a puddle left behind that remains long enough to collect a sample for evidence, it's littering. Usually if someone can see enough to prove public urination otherwise, there's also an indecent exposure case. (Indecent exposure cases should not be followed up where the "perp" had a reasonable expectation of privacy, which would throw out the case where the officer followed someone into the woods.)
So this is an issue of cost/benefit, but the benefit of smoking is not zero. A car in operation doesn't benefit anybody but its users of the moment either.
-dk, who doesn't smoke and who bikes to work but who doesn't like the zealotry.
[1] A collision with a whitetail deer typically causes damages from several hundred to a few thousand dollars. Few deer weigh over 80 pounds, so think of what a 150 pound blind man would do.
Yes, of course I was joking (at least as far as anyone knows) and poking fun at hedonic and cost/benefit calculus. But even if I weren't, maybe the risk of car damage and organ-splatter really is a risk I am willing to take, just as the would-be smoking-banners are willing to pay the price of my not getting my nicotine fix, or my "feeling" "disrespected" or my being emotionally disenfranchised by having my liberty curtailed. It's that easy to assign arbitrary utile-levels to other people's (and one's own) happiness, satisfaction, ophelimity, etc.
rc
So this is an issue of cost/benefit, but the benefit of smoking is not zero. A car in operation doesn't benefit anybody but its users of the moment either.
Taking that further, Ken is asserting that the smoker's consumption of nicotine has no external or economic benefit. It may well be that, for the smoker, the drug is necessary to their well-being, and their contributions to society, the workplace, etc, would suffer if they did not have that drug. For example: people with ulcerative colitis who also smoke are usually medically advised that quitting tobacco might aggravate the condition.
There seems to be an assumption that people smoke only because they are hopelessly addicted, bringing up some moral issues; or because they just like it, bringing up balancing tests; but clearly there is some psychological or physical condition, for at least some smokers, that is effectively treated by inhaled nicotine. Banning them from smoking may cause them more discomfort than they cause to (a minority of) others.
How does that balance?
A longstanding female grievance is the shortage of women's restrooms, especially in venues where women are likely to be elaborately dressed (concert halls, churches, &c.). No one seems to have the sense to realize that women need a lot more time to urinate than men do.
The smoke nazis seem to want to go any extreme.
As always, absent an exception genuinely rooted in the constitution and not in judges' own wishes, it's a matter for legislatures, not for courts. I would no more want libertarians hijacking the judiciary to the detriment of everyone else's write to speak and vote than I would want liberals, fundamentalists, or anyone else.
And maybe everyone answering above did assume so.
Public Health departments, however, report human urine as the vector for transmission of several kinds of bacteria (which can lead to serious or fatal liver, kidney or heart infections), human urine as a transmitter of eggs of some dangerous parasites, and urine as a possible transmitter of rabies, to or from humans.
Also, most answers above seem to confuse all uses of "in public" and "on the street" to mean, always, "onto a street, a flowerbed, or drain" and nowhere else.
Over a few decades, I've seen men pee into the slots of vending machines, into the big blue USPS mailboxes, into the party ice vending freezer outside a convenience store, through partially-opened windows into parked cars, aiming at the door handles of major public buildings, into laundry dryers, spraying it across table tops of outdoor cafes or picnic tables, or splattering the wall in the fine art museum with whatever else he had available besides urine. (Still in grade school when I witnessed that during a mid-day museum visit.)
Why do you think the phone company stopped building the large-booth outdoor payphones? And, famously (near the time of 1960s farm worker strikes) lettuce harvesters peed on the produce they were sending to market. Those are unusual acts of hostility, but you can't assume tidy acts of desperation only. "On the street," in this case, means "including creeps."
Imagine the reservation clerk asking your preferences for upscale hotel rooms: "smoking, or non-smoking," and then "urine-spattered, or relatively clean?"
How is assuming neither creates a health risk much different from assuming both create health risks?
Thus: It's much easier to wash your hands repeatedly than to refrain from breathing -- so, poor analogy.
"There is no way that smoking can be construed as a fundamental right.
Yeah, that 9th amendment couldn't refer to smoking, a very common practice at the time of the Constitution's signing. Everyone knows the 9th is like an amendment with a large ink blot over the substantive text, or like an amendment partially burned away from the careless extinction of a cigarette.
In response to the claim: "On that argument than we should ban driving. Standing on busy street breathing exhaust fumes is far worse for you then second hand smoke."
jvarisco replied,
"That's irrelevant. Driving is an important part of society, there would be substantial harm from banning it. There's no harm to banning smoking; in fact, health costs would go down and some stupid people would live a little longer."
This shows little understanding of economics. It completely ignores the pleasure smokers get from smoking, of which there is easily obtainable and ample testimony. If you ignore the pleasures people get from what others call vices, you could easily use the above argument to ban Twinkies. (And then we'd lose the Twinkie defense!) It's also not clear that health costs would go down, unless jvarisco thinks cigarette smoke is the only thing preventing people from achieving immortality. Otherwise, we all die of something. If its something that drags on more or is more expensive to treat than, say, lung cancer, it could cost society more to ban smoking. If by not smoking people lived longer before dying, it would surely (and health care economists are unanimous on this)increase Medicare costs, since people who otherwise would have died before reaching 65 are now spending taxpayer money for their final health treatments.
"Some people believe people have an intrinsic right to harm themselves. Most of us don't, and that's why we have no problem banning smoking. The fact is that it is a bad and harmful decision, and I have no problem making a judgment about it. Do it in private if you want, but if there is any harm caused in public, ban it."
Is it just me, or is it obvious to everyone the beginning of the paragraph contradicts the end?
If "most people" don't believe everyone has a right to harm himself, and therefore jv has "no problem" making a judgment about it" why in the world does he immediately say, "do it in private if you want." The harm is the same. If the harm to oneself can be morally and legally prohibited, why does jv hesitate to prohibit smoking in one's own (the smoker's own) house?? If on the other hand, "there is any harm caused in public" is required to "ban it" why does jv bring up his eagerness to prevent others from harming themselves?
It seems to jv smoking is like Schumpeter's take on the intellectuals’ view of capitalism. Schumpeter said they were judges with the verdict of guilty already in their back pockets. All they had to do was decide on was what the crime was. To jv, smoking can be banned, whether it’s due to harm to oneself or to others doesn’t matter—it MUST be something!!
But, in a large urban area, what is the utility of commuter vehicles, particularly in very congested commericial districts? Certainly, trucks and other delivery vehicles are critical to the functioning of a city, as is some form of mass transit. But what purpose do commuter cars (particularly when the passengers are able-bodied, and when the vehicle has only one occupant) serve in, say, downtown Chicago, where I work?
The balance between the utility (transporation) and the harm seems very far out of wack with respect to cars in this setting. They aren't fast once the gridlock hits (that's why bike messengers still exist). They are dangerous -- a half ton of metal travelling 10 or 15 mph still has five times more momentum than I do on my bike travelling the same speed.
As for the health issues, it would take a good many chain-smokin' fools to equal the pollutant per unit time output of a single vehicle. Then multiply those vehicles by some suitable power of ten (in Chicago, you're talking about hundreds of thousands), all sitting in the gridlock. Then factor in the dangers of driving itself, to drivers and others. As of February of this year, six cyclists in Chicago had been killed in fatal hit and runs where the drive was at fault.
In the past two years of working in downtown Chicago, I've been hit three times by cars, and typically have to deal with honks and jeers (including, recently, threats of physical harm and death from an off-duty cop and a crazy woman) for ... riding in the bike lane and obeying the traffic signals.
Not everybody needs to be a bike-ridin' hippie, nor does this argument apply for vast swaths of the country. Nonetheless, public smoking is literally noise compared with the public harms caused by commuter vehicles in certain urban settings.
Just because public smoking is repulsive to a good many people who don't find driving offensive doesn't mean that smoking causes the greater public harm in a crowded urban area.
Ultimately, I think if we're going to compare public smoking to public urination, we should also compare it to the massive swell of cars and drivers, as well.
A sidenote: when I was at the University of Chicago, I shared a cigarette with two researchers who were looking at pollution in Midwestern cities. They talked about a series of equivalences based on the background pollution from cars, factories, etc. So, for cigarettes to have an effect on health distinguishable from the background pollution in Chicago, you'd have to smoke more than 2 a day. In Gary, Indiana and in parts of Detroit, apparently that number is near 4. Yikes!
But that is not a disagreement you have with blind people. You like to avoid running into things too. You and blind people agree on this goal; the blind man's condition affects only the method he must use to achieve this goal, not the goal itself. (This is, of course, not true for being around cigarette smoke.)
That is not a useful function in the same sense that transportation is, because only some people consider the function to be useful.
clearly there is some psychological or physical condition, for at least some smokers, that is effectively treated by inhaled nicotine.
If so, then they should be treated like blind people with seeing-eye dogs--they should be able to apply for an exemption to the ban.
But that is not a disagreement you have with blind people. You like to avoid running into things too. You and blind people agree on this goal; the blind man's condition affects only the method he must use to achieve this goal, not the goal itself. (This is, of course, not true for being around cigarette smoke.)
I like to do what I want, to get pleasure (which I do through nicotine). You like to do what you want, to get pleasure (which you do without nicotine). The goal is the same. We don't disagree that utiles and "happiness" are good, only the method of achieving the goal.
So, what's the difference? You say the blind person "must" use the dog. Really? Must? Absolutely must? I understand that miniature horses can function effectively as guide animals. So, if I have a gripe against dogs (rational or irrational), I'm going to deny the necessity. Likewise, if I dislike dogs enough, I'm going to say that even if the only way to avoid bumping into things is to use a dog, it's just not worth it (to me) for the blind person to have a dog. I claim that "we" anti-dog people are more unhappy if blind people get to use dogs than they are happy if they do.
Isn't that the same basic argument against cigarette smoking? I say I must smoke to get pleasure. Someone else says there are other things I can do to get pleasure. I respond that nothing else is like a cigarette -- there are other nicotine delivery systems, but gum doesn't "look cool," for example. And the response is that my pleasure isn't as important or doesn't register as high on the hedonometer as the pleasure others get from my not smoking.
The utilitarian arguments for and against public smoking are just completely sterile. Kinda like urine.
There is no constitutional right to use transportation of any kind, only a right to travel. For example, you can be forbidden to drive a car, boat or airplane by licensure requirements, or by limitations on where you may exercise the privilege. You can even be forbidden to walk in certain places.
There is no constitutional reason that we could not ban automobile driving, any more than we could not ban smoking in public or private. As others have made clear here, the public costs or detriments from automobile driving greatly exceed the public costs or detriments from smoking.
Only some people consider driving automobiles useful or beneficial, either to themselves or to society as a whole. Other people only ride bicycles, walk, take busses, etc. Some people would even like to eliminate cars altogether by legislation. The benefits of driving a car are not universally recognized.
So there is no constitutional or logical reason not to ban driving if we apply the same criteria to both smoking and driving.
Cig heil.