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Smoking on Public Streets:

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.

Tony (mail):
I'd much rather see public smoking banned.

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.
5.5.2006 3:35pm
Stan (mail):
Isn't it a question of indecency rather than offensiveness with public urination?
5.5.2006 3:43pm
Sean Sirrine (mail) (www):
As someone who years ago received a ticket for walking down the street smoking a cigarette, I'd have to say I don't like the idea. I'd like to see them ban wearing perfume in public places, I find that way more irritating.

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).
5.5.2006 3:53pm
KP Jones:
A Wisconsin judge recently ordered 5 men ticketed for public urination to publish letters of apology in the local paper. Read them here. I'd love to see public smokers forced to do the same thing. What a boon for paper manufacturers and newspaper publishers! ;-)
5.5.2006 3:56pm
pp (mail):
The City of Davis (CA) has the strictest enforcements of public smoking bans I have seen. If I remember you are not allowed to smoke in any public area unless you are moving, meaning you can't stand in the doorway of a bar, office, or park as you see in most cities. I am assuming the power to regulate these bans rest entirely with the city as it is there responsibility to enforce. Most cite public health issues as the reason for putting them in place. I assume that the issues of smoking, peeing, and other "offensive" behaviors can be governed by an overiding interest in public health, and does not need to pass any first amendment muster to become a city ordinance or withstand a constitutional review. By the way if you think urine is innocuous look at the corrosion next to a urinal some time. It is also one of the best mediums for bacteria growth.
5.5.2006 4:07pm
Ken Arromdee (mail):
Here's yet another analogy, which I've used before in connection with smoking:

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.)
5.5.2006 4:12pm
logicnazi (mail) (www):
Public urination, unlike smoking, leaves a lasting residue and harms property. Walk down a stairwell someone smoked in 30 minutes ago and there is no trace but if they urinated there the smell will persist until someone cleans it up. Thus public urination is effectively vandalism and deserves to be banned in a way public smoking does not.

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.
5.5.2006 4:12pm
Clayton E. Cramer (mail) (www):
Smoking is a repulsive habit, and I wouldn't mind seeing it go away. I just don't feel very comfortable voting for a public smoking ban, largely because smoking in public places doesn't cause any real discomfort. I suppose that if I had to put up with rude and inconsiderate smokers in public places on a regular basis (and I know that they exist), I might be more willing to vote for such a ban.

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.
5.5.2006 4:15pm
Clayton E. Cramer (mail) (www):
Smoking is a repulsive habit, and I wouldn't mind seeing it go away. I just don't feel very comfortable voting for a public smoking ban, largely because smoking in public places doesn't cause me any real discomfort. I suppose that if I had to put up with rude and inconsiderate smokers in public places on a regular basis (and I know that they exist), I might be more willing to vote for such a ban.

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.
5.5.2006 4:15pm
William Spieler (mail) (www):
I don't have anything to add aside from mentioning that I've greatly enjoyed this line of posts.
5.5.2006 4:17pm
Wintermute (mail) (www):
This anti-smoking crusade has brought out the fascist in so many of my fellow citizens that I fear for the future of freedom in this and other countries.
5.5.2006 4:17pm
Fishbane (mail):
If we assume a public smoking ban is OK, could we also mandate affirmative efforts to limit halitosis? Put aside the measurement problem for now. I've met, as I assume most others have, people with really offensive breath. Are we justified in demanding better dental hygene of those who lack it?
5.5.2006 4:41pm
Clayton E. Cramer (mail) (www):

This anti-smoking crusade has brought out the fascist in so many of my fellow citizens that I fear for the future of freedom in this and other countries.
Which anti-smoking crusade? The one in which public health authorities have advertised strongly against smoking because of the destructive effects it has on public health? The one in which taxes on cigarettes have been raised to both discourage smoking and to try and recover some of the public health costs incurred by smokers who become public expenses?

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.
5.5.2006 4:42pm
Clayton E. Cramer (mail) (www):
Fishbane writes:


If we assume a public smoking ban is OK, could we also mandate affirmative efforts to limit halitosis? Put aside the measurement problem for now. I've met, as I assume most others have, people with really offensive breath. Are we justified in demanding better dental hygene of those who lack it?
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.
5.5.2006 4:46pm
Dick King:
Infliction of an unpleasant smell or noise can also be a battery. I don't think that infliction of an unpleasant sight [as opposed to an uncomfortably bright light] can be, however, because you can avert your eyes.

-dk
5.5.2006 5:01pm
Public_Defender (mail):
Look down on any sidewalk in any city. You will see the filthy mess left behind by smokers. Many may smoke respectfully, but there are enough non-respectful smokers that urban sidewalks are ashtrays.
5.5.2006 5:02pm
Dick King:
However, prohibition of offensive body odor in a public place has a mixed record in the courts.

-dk
5.5.2006 5:05pm
EricK:
I would like to see seafood banned. The smell is terrible, the sight of it is disgusting, and not to mention the health risk due to mercury.
5.5.2006 5:09pm
KP Jones:
Those arguing about body odor &perfumes are off base. The issue is not whether someone who happens smell like cigarettes is offensive, it is whether the act of smoking, which directly produces the odor, is offensive.

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.
5.5.2006 5:11pm
Clayton E. Cramer (mail) (www):

Look down on any sidewalk in any city. You will see the filthy mess left behind by smokers. Many may smoke respectfully, but there are enough non-respectful smokers that urban sidewalks are ashtrays.
There is an interesting question as to whether you should attempt to ban an entire activity because of the actions of only some actors. Pretty clearly, if 1% of the people that do X does something objectionable, and it isn't deeply dangerous, prohibiting what the Xers do would be unfair and unreasonable--you should punish the 1%.

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.
5.5.2006 5:11pm
EricK:
Lets not forget fat people, I think they should be taxed higher due to the huge cost in public health. Lets not forget the discomfort of having to sit next to them in a movie theater, plane, etc.
5.5.2006 5:13pm
Duffy Pratt (mail):
Suppose that urination in public were ok, provided that you urinated into a bottle, like an empty soda bottle, then closed it and threw it out? That would get rid of the health issue, and the damage to property issue. Somehow, I still don't think people would be too keen on allowing it.

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.
5.5.2006 5:17pm
Frank Drackman (mail):
During my service in the first Persian Gulf War, I became aquainted with the term "Piss Bottle". This was a .75 L bottled water container that Marines would use during the night to relieve themselves, rather than walk the 250 yards in full combat gear to the sanctioned urinals. The use of piss bottles was strictly prohibited for sanitary reasons, since even a little spillage starts to add up, but prosecution was rare. The fighter pilots had specially made "piddle packs", a condom with tubing leading to an absorbant bag for those long flights, but I mostly just used the old reliable piss bottles. In the T-34 Mentor, the aircraft pilots start on in flight training, there was a "relief tube" a funnel shaped deal that routed your piss to the airstream. The T-34 also has an ashtray.
5.5.2006 5:17pm
Tom Anger (mail) (www):
Smoking should be banned on city streets (just as cell-phone use should be banned while driving on streets). Other users of city streets have no practical alternative to using them. By the same token, smoking should not be banned (by government) in private places because persons who work in and frequent them do have practical alternatives. Many employers (wisely) would still ban smoking in their workplaces, but that should be their call, not government's.
5.5.2006 5:21pm
Blackwing1 (mail):
Is there a reductio ad absurdum that may be used here?

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.
5.5.2006 5:31pm
frankcross (mail):
I think this issue informs. While there is nothing per se wrong with banning smoking on public streets, the discussion illustrates how ready people are to restrict the liberties of others, when they don't partake in that particular practice.

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.
5.5.2006 5:31pm
Steve in CA (mail):
Clayton,

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.
5.5.2006 5:36pm
Tom952 (mail):
I became touchy over public smoking after sitting at the beach breathing secondhand cigar and cigarette smoke a few times. For some reason, some smokers position their chairs in the edge of the surf and puff away. The sea breeze spreads the smoke out and blows it back onto the rest of the beach dwellers. Perhaps irritated by that experience, I began to notice the cigarette butt litter left by beach smokers using a beautiful public area as a butt can. THEN I started noticing the same thing on the golf course, where butts are inconsiderately dropped on the tees and greens.

This has reduced my personal concern for smoker's rights to an all time low.
5.5.2006 5:39pm
Kevin L. Connors (mail) (www):
Eugene: "I doubt that many [people whom I much like and respect] have urinated on city streets."

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.
5.5.2006 5:42pm
numitor:
i don't understand why there's this hyper-strong inclination to entirely divorce law from background social norms that exist (unless the claim is that they don't). this isn't a matter of logical consistency, because logic can take into account that custom (irrespective of its logical consistency or even its amenability to logical analysis) is an input to law.

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.
5.5.2006 5:43pm
jvarisco (www):
"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. "

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?
5.5.2006 5:43pm
numitor:
my above post is aimed less at the smoking-in-public issue than at the issues raised in prior posts... (e.g. public sex/urination).

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.
5.5.2006 5:49pm
No puddles:
Aside from the smell of urine, a puddle seems like a nuisance to me. And a bright-line rule is easier to enforce ("no public urination") than a rule set says how to pee in public (only on grass or bushes, not on sidewalks, or intro sewage drains, or into bottles of a defined thickness, but not paper cups, etc.).

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?
5.5.2006 5:49pm
snark:
If someone throws down a still-burning cigarette, may I pee on it to put it out?
5.5.2006 5:50pm
ForestGirl:
I always assumed that prohibitions against public urination were related to littering ordinances.
5.5.2006 5:53pm
EricK:
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.


On that argument than we should ban driving. Standing on busy street breathing exhaust fumes is far worse for you then second hand smoke.
5.5.2006 5:55pm
BobH (mail):
"[M]any 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."

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.
5.5.2006 5:56pm
Steve in CA (mail):
Well, I was talking more about social mores than laws, although I hope smoking never becomes illegal. What would upset me just as much (because of what it would say about our society) is if smoking continues on the route to being generally regarded as A Horrible And Unforgiveable Thing. I like smokers because I like people, especially when they're packed together in big, dirty, smelly, noisy American cities. Also, smokers are usually pretty friendly, in my experience.
Again, this is just my personal preference, but I don't see why anyone's anti-smoking preference should outweigh my pro-smoking preference.
5.5.2006 6:01pm
jvarisco (www):
There is no way that smoking can be construed as a fundamental right. Therefore, if a simple majority want to ban it in public, that is sufficient. It is not one person's preference, but that of the majority. That's how our laws work, except for clearly stated specific rights enumerated in the Constitution.

"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.
5.5.2006 6:05pm
Houston Lawyer:
The only time that I've seen urination in public that I thought was acceptable was in Paris, where a woman instructed her two toddlers to drop trou and pee into the gutter.

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.
5.5.2006 6:07pm
EricK:
Well I just decided to start my own religion (if Muhammad could do so can I) and smoking in public is required 5 times a day. So therefore the anti-smoking laws are unconstitutional.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
5.5.2006 6:07pm
Steve in CA (mail):
"There is no way that smoking can be construed as a fundamental right. Therefore, if a simple majority want to ban it in public, that is sufficient. It is not one person's preference, but that of the majority. That's how our laws work, except for clearly stated specific rights enumerated in the Constitution."

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?
5.5.2006 6:10pm
jvarisco (www):
Steve) Jefferson wanted lots of rights. But he was a radical idiot. Tell me Hamilton and Washington believed in innumerable rights. But they are not the issue; our current court certainly does not take a broad view of the 9th and 10th amendments. You can think whatever you like, but you don't get to interpret it.
5.5.2006 6:16pm
Eugene Volokh (www):
EricK: You might want to read Employment Division v. Smith before you get too excited.
5.5.2006 6:18pm
Tony (mail):
After rolling this around in my head, I am reminded of what seems to be a very broad problem with law these days: it is being ever further enlarged to resolve conflicts that are best resolved at the level of local, informal negotiation.

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".
5.5.2006 6:29pm
jack brennen (mail):
Blackwing1, by your arguement I should be able to smoke anything that pollutes less than a Cadallac Escalade since those are still legal. Personally I find crossing the street behind a bus to be much worse than walking by a smoker.
5.5.2006 6:29pm
Kevin L. Connors (mail) (www):
Blackwing1:

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.

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.
5.5.2006 6:31pm
KP Jones:

Well I just decided to start my own religion (if Muhammad could do so can I) and smoking in public is required 5 times a day. So therefore the anti-smoking laws are unconstitutional.


I think you'd better bone up on your 1A caselaw there, EricK. Might want to start with Empl Div v Smith. LOL.
5.5.2006 6:46pm
JOJO:
I'm genuinely shocked by the comments of some conservatives on this thread. Individual liberty, it appears, is defined by some to mean: this individual doesn't like this, so stop it please, Mr. government.
5.5.2006 6:49pm
Clayton E. Cramer (mail) (www):

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.
Huh? Until 1960, homosexual sex was a criminal offense in every state. Until 1975, oral and anal sex (heterosexual or homosexual) was a criminal offense in California. Laws regulating pornography--including government boards of censorship for movies--were the norm into the 1950s. Whether you think these are good or bad, to claim, "That's not the America we used to have" is simply wrong.

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 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.
5.5.2006 6:59pm
Clayton E. Cramer (mail) (www):

I'm genuinely shocked by the comments of some conservatives on this thread. Individual liberty, it appears, is defined by some to mean: this individual doesn't like this, so stop it please, Mr. government.
Liberals have the same view: they just disagree about which things should be banned. Oh, one other difference: conservatives generally argue that the majority should decide what should be banned, as determined by legislative action or popular vote. Liberals believe that the minority should decide what should be banned, as determined by what rights a federal judge suddenly finds hiding in the Constitution--rights that no one else ever seems to have noticed, in the 220+ years since ratification of the Constitution, and the 130+ years since ratification of the 13th, 14th, and 15th Amendments.
5.5.2006 7:04pm
EricK:
Eugene and KP,
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.
5.5.2006 7:16pm
jrdroll (mail):
From an air pollution or public health perspective,if you ban public smoking don't you also have to ban outdoor barbequeing. PM-10 or PM2.5 is the same regardless.

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".
5.5.2006 7:25pm
JOJO:
Hello Clayton,

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?
5.5.2006 7:27pm
Richard Blaine (mail):
Urine sterile? I keep hearing this... So you won't mind if restaurant workers are no longer required to wash their hands after urinating? And have no problem with people peeing in public pools?
5.5.2006 7:35pm
Lawrence F (mail) (www):
Here is another thought to throw on the pile. My wife is SEVERELY allergic to nicotine. Thus, getting any kind of whif of cigarette smoke, even when outside, can cause her to stop breathing. She has gone to the ER several times because of this, carries and inhaler anywhere she goes, etc. There is no way to prevent it, no mask that can protect her, no treatment for her - other than staying away from nicotine.

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.
5.5.2006 7:42pm
Clayton E. Cramer (mail) (www):

Hello Clayton,

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.
"Liberal" means somewhat different things in different places. The Italian Liberal Party and the Dutch Liberal Party are rather like 19th century liberals (something libertarians, but with the fanatic purist streak). Many Americans who call themselves liberals are the sort of Labourites who thought banning fox hunting needed to be done, and that having police officers go undercover in pubs to listen for racist talk, was a good idea.
5.5.2006 7:44pm
Clayton E. Cramer (mail) (www):

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.
Exactly. Rather than accept that the government was no longer going to run around telling homosexuals what they could do in private, gay activists filed suit to try and prohibit enforcement of the laws against public sex in Massachusetts, and insisted on same-sex marriage laws. Fanatics have a hard time stopping, because they live for the power surge.
5.5.2006 7:47pm
pp (mail):
Urine sterile? I keep hearing this... So you won't mind if restaurant workers are no longer required to wash their hands after urinating? And have no problem with people peeing in public pools?

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.
5.5.2006 7:49pm
ajf (mail) (www):

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. ...



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.
5.5.2006 8:04pm
JOJO:
Clayton,

... and decided to ban smoking in public spaces.
5.5.2006 8:22pm
Perseus:
Not being a libertarian, I can't think of any overwhelming moral objections to banning smoking in public spaces. And while we're at it, we could also ban eating ice cream cones in public, which, as Leon Kass points out, is "a catlike activity that has been made acceptable in informal America but that still offends those who know eating in public is offensive."
5.5.2006 8:43pm
Kevin Murphy:
1) I could make a much better case for banning cell phone usage in public places. Often annoying, someimes dangersous (inattention), and frequently rude. After all, almost no smoker is so rude as to light up in a theatre, yet nearly every movie I've gone to recently has had people MAKING cell calls during the film.

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?
5.5.2006 8:50pm
Kevin Murphy:
Lawrence F--

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?
5.5.2006 9:08pm
Tom952 (mail):
The 60% reduction in heart attack admissions at the local hospital in Helena Montana following a smoking ban makes is evidence that public smoking is much more than a nuisance. See http://www.eurekalert.org/pub_releases/2003-04
/uoc—sps032603.php
5.5.2006 10:56pm
ajf (mail) (www):
the helena experience should be taken with a huge pinch of salt. see the BMJ discussion.
5.5.2006 11:33pm
therut:
Perseus---------But eating an Ice Cream Cone can be sexey. At least College age guys thought so.
5.5.2006 11:57pm
Lev:
People should be prohibited from smoking in private, and should only be allowed to smoke in public after having had sex in public.
5.6.2006 1:34am
Ken Arromdee:
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?

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.
5.6.2006 1:39am
logicnazi (mail) (www):
Blackwing1,

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.
5.6.2006 2:37am
Sabra36 (mail):
In response to the comment regarding a car that was smoked in, I'll bet that most people would be willing to buy a car that had been smoked in once a day compared with a car that had been urinated in once a month.

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.
5.6.2006 2:52am
TomHuff (mail):
While I'm completely opposed to smoking bans that apply to private property (bars, clubs, restaurants, etc), I see no moral impropriety in banning smoking on public property.

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?
5.6.2006 3:27am
Ship Erect (mail) (www):
What does a discussion about smoking in public have to do with laws banning certain sex acts? Are people having sex in public, then smoking afterwards?
5.6.2006 4:53am
Fub:
logicnazi wrote:

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.


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.
5.6.2006 5:20am
Frank Drackmann (mail):
I love to piss people off by keeping an unlighted cigarette in my mouth in airplanes,libraries,ball games. You can mess with someones head the whole flight while theyre waiting for you to light up.
5.6.2006 10:37am
Mr L (mail):
What does a discussion about smoking in public have to do with laws banning certain sex acts?

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.
5.6.2006 10:59am
RC (mail):
I have to say I love the idea of having, say, public sidewalks free of noxious fumes. For that reason, I wholly support banning within 100 feet of a public sidewalk the operation of any machinery that emits carbon monoxide. If the banning of smoking really is a public health issue, then I assume the banning of cars — and buses, especially buses — in cities is on the table, too.

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.
5.6.2006 11:24am
Ken Arromdee:
The argument against banning geraniums is the same as the one against pizza: since few people are bothered by being near geraniums, the benefit of banning them is small, and that changes the tradeoff. The law is meant for the public, not you personally, and geraniums just don't bother as many people as cigarette smoke does, even if they do bother you personally.

If instead of geraniums it was some plant which really did bother lots of people (ragweed, for instance), then it *should* be banned.
5.6.2006 12:07pm
Ken Arromdee:
If the banning of smoking really is a public health issue, then I assume the banning of cars — and buses, especially buses — in cities is on the table, too.

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.
5.6.2006 12:12pm
Ari:
MrL, in responding to "What does a discussion about smoking in public have to do with laws banning certain sex acts?", states:

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
5.6.2006 1:12pm
Truth Seeker:
pp said
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.
5.6.2006 2:43pm
RC (mail):

If you have to balance the harm against the benefit, cars and busses cause more benefit . . . . because people like them.


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 seeing-eye dogs are being used for something; the regular dogs are just there because people like them.


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.
5.6.2006 2:59pm
RC (mail):

This just seems like some religious dirty-peepee symbolism.


Ritual filth is filthiest kind.
5.6.2006 3:01pm
markm (mail):
In areas open to the outside, smoke dissipates quite well, and I can say that as a person who is exceptionally sensitive to smoke. If there's a lingering smoke smell more than a few minutes after the smokers, it's due to the ashes and butts - but those are covered by littering laws. Enforce those, no new laws required. Otherwise, are we going to ban the sale of candy bars because the wrappers often wind up as litter?

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.
5.6.2006 3:02pm
jvarisco (www):
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.

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.
5.6.2006 3:19pm
Fub:
Ari wrote:

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.


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.
5.6.2006 3:32pm
markm (mail):
Urine is sterile, when it comes out. An hour later, it's a whole different story, at least if it's on pavement rather than soil where the bacteria can turn urea into fertilizer. There is also a potential indecent exposure angle to public urination. OTOH, unlike smoking it's a natural function that can only be delayed for so long. There are times and places when it should be banned, but there are also cases of irrationally unbending law enforcement. One such story:

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.)
5.6.2006 3:32pm
Dick King:
Ken, cigarettes serve a useful function. They deliver nicotine to a person who wants some. Just because you don't consider that useful is besides the point.

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.
5.6.2006 3:35pm
markm (mail):
"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." RC, I hope you were joking, but there's also a benefit to you from the seeing-eye dogs. They might prevent a blind person from walking out in front of your car, causing considerable damage[1], and leaving quite a mess in the street as well as blood and organs all over the vehicle.

[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.
5.6.2006 3:51pm
RC (mail):
MarkM,

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
5.6.2006 4:09pm
Kevin Murphy:
Ken, cigarettes serve a useful function. They deliver nicotine to a person who wants some. Just because you don't consider that useful is besides the point.

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.
Ulcerative colitis appears to be a disease of non-smokers. Former smokers are at the highest risk for developing ulcerative colitis, while current smokers have the least risk. This tendency indicates that smoking cigarettes helps prevent the onset of ulcerative colitis.
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?
5.6.2006 4:23pm
Kevin Murphy:
Link to that last.
5.6.2006 4:25pm
Michelle Dulak Thomson (mail):
Just a comment on the handful of variations of "When ya gotta go, ya gotta go": For the other half of the population, when ya gotta go, ya gotta tighten various muscles awhile longer. It's possible for a man to pee reasonably inconspicuously in public in many situations. With female equipment . . . not recommended. Unless you can find some very dense shrubbery, and have tissues in your purse.

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.
5.6.2006 4:56pm
Dave Hardy (mail) (www):
I find it interesting how health and suchlike issues (here, smoking) have replaced sexual matters as the new puritanism.
5.6.2006 6:43pm
BubbaRhummy (mail):
I suppose if you live in Tokyo banning smoking on streets might be appropriate. In most countries this would be laughable. I think it is laughable now.

The smoke nazis seem to want to go any extreme.
5.6.2006 9:29pm
ReaderY:
It's a wisdom-and-policy thing. Certainly a jurisdiction can ban it if it wants -- and as an indecent or immoral activity if it wishes, or to discourage people from smoking generally, whether or not street smoke has health effects in and of itself. Whether it should or not is, as always, a different matter.

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.
5.6.2006 11:52pm
lee (mail):
Blackwing1 can smell a cigarette "sometimes months" later. Blackwing1 has an acute sense of smell, so acute that it can detect a smell even when it's no longer there.
5.7.2006 1:03am
msk (mail):
Prof. -- you said assume neither creates any risk.

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.
5.7.2006 1:51am
Ross Levatter (mail):
jvarisco:

"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.
5.7.2006 2:01am
Ross Levatter (mail):
jvarisco:

"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!!
5.7.2006 2:23am
David Eads (mail) (www):
Several people have brought up the issue of cars (and the fumes they pump out) as a counterpoint to the public health aspects of smoking. Several others argued that cars can't or shouldn't be banned because of their utility.

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!
5.7.2006 3:08am
Ken Arromdee:
The "utility" of people's using seeing-eye dogs consists solely of blind people's liking not to run into things.

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.)
5.7.2006 4:09am
Ken Arromdee:
Ken, cigarettes serve a useful function. They deliver nicotine to a person who wants some.

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.
5.7.2006 4:16am
RC (mail):
The "utility" of people's using seeing-eye dogs consists solely of blind people's liking not to run into things.

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.
5.7.2006 10:24am
Fub:
Ken Arromdee wrote:

[Dick King wrote:]
Ken, cigarettes serve a useful function. They deliver nicotine to a person who wants some.



That is not a useful function in the same sense that transportation is, because only some people consider the function to be useful.


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.
5.7.2006 1:47pm
Mr. Mandias (mail) (www):
"This anti-smoking crusade has brought out the fascist in so many of my fellow citizens"

Cig heil.
5.8.2006 11:06am