MayerBlog: The Web Log of
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Smokers’ Rights as Everyone’s Rights
Two other initiatives on the Ohio ballot this fall – Issues 4 and 5 – would ban smoking indoors in most “public places” (government-run establishments and businesses open to the public) throughout the state. One proposal (Issue 5), which is backed by a group of anti-smoking zealots called “SmokeFree Ohio,” would ban smoking in virtually all indoor public spaces, with hardly any exceptions. The other proposal (Issue 4), which is backed by a group called “Smoke Less Ohio,” is a constitutional amendment that also would ban smoking in most public spaces, but with exceptions for about 10% of Ohio’s businesses (bars, restaurants with separate smoking sections, bingo and bowling facilities, and race tracks). Thus, as backers of Issue 4 correctly say, the essential difference between the two proposals is that one bans smoking in 90% of public indoor places while the other bans smoking in virtually 100% of private places. Neither proposal is good public policy. Although backers of Issue 4 call their somewhat less-draconian measure a “common sense” smoking ban, NO smoking ban makes sense! Government has no legitimate purpose banning smoking in any establishments other than truly “public” places; that is, government offices and facilities operated and controlled directly by government. Whether or not smoking is permitted in other public places – including all privately-owned businesses – ought to be determined by the owners of those places; it is their exclusive right, as property owners. Furthermore, in a free society, it’s the right of smokers and non-smokers alike to decide how much risk to their own health they’re willing to take. It’s not the proper function of government, in the name of “protecting public health,” to deprive people of the freedom to choose their own risks. Government bans on smoking, like both Issues 4 and 5, therefore, abuse the power of government and violate the rights of everyone, smokers and non-smokers alike. I should add that, personally, I do not like tobacco products: I do not smoke, and I do not like being in bars, restaurants, or other indoor places where other people are smoking. I dislike the smell (especially the smoky smell that it leaves on my clothes afterward), and the smoke tends to bother my eyes. So, personally, I'd rather not be in a smoky environment, especially when I'm eating. In restaurants, I usually choose the non-smoking section. But I don't think government should dictate to businesses whether or not they can permit their customers to smoke; it's the business owners' property, and they should set their own policies. Most restaurants have found that non-smokers like myself prefer smoke-free environments, so they segregate smokers and non-smokers, to keep their customers happy. That's the free market working as it should. I would not impose my personal preferences on others, just as I would not have them impose theirs on me. And, on principle, I defend the right of smokers to smoke, the right of non-smokers to associate with smokers, and the right of business owners to decide for themselves (just as homeowners do) whether or not to permit smoking in their premises. Much as I dislike smoking, I dislike even more the transformation of government into an all-powerful “nanny” state, limiting everyone’s freedom in the name of “protecting” us from risk and from the consequences of our own choices.
The War on Tobacco
There is in the United States today a veritable “war” on tobacco – a campaign that has as its ultimate goal the total prohibition of smoking and use of all tobacco products – which is being led by diverse group of fanatical busybodies: these include special-interest groups that exploit the issue for fundraising purposes (such as the American Cancer Society as well as the heart and lung associations); physicians who treat the general public in the same condescending, paternalistic way they treat their own patients; surviving family members or friends of persons who have died of smoking-related diseases (such as lung cancer) and who channel their grief into a misguided zealotry to limit other persons’ freedoms; and leftist elitists who find in the tobacco prohibition movement an opportunity to realize their political ambitions – to run other people’s lives. Anti-tobacco activists, like all other paternalists throughout American history, seek to expand the reach of government into every American's life, to expand the "nanny state." And one way to do that – it's a technique that purveyors of paternalism have been using for several generations now – is for politicians to demonize a particular company or particular industry, to inflame public opinion against it, and thus mask the expansion of government. At the turn of the 20th century, politicians like Teddy Roosevelt and Woodrow Wilson did it with "Big Oil" – the co-called Standard Oil "monopoly," which really wasn't a monopoly at all, in the true sense of the word – and today’s politicians and political activists are targeting "Big Tobacco." It's the demon of the moment. It doesn't take any political courage to demonize the tobacco industry. Real courage would be for politicians to stand up for the right of Americans to decide for themselves whether they want to smoke, and for the right of the tobacco companies to freely market their products. Tobacco is no more dangerous than any number of products, legal or illegal, which Americans use for their personal pleasure. Now, I'm not saying that smoking is good for you; there's abundant evidence of the health risks associated with smoking (for smokers, at least, although as noted below, the evidence is still unclear with regard to the effects of secondhand smoke on non-smokers). But there's a greater issue here than the health concern, and that's the issue of individual freedom. People own themselves; that means they should be free to decide for themselves what substances they want to use in their own bodies. (And here I don't stop with just legal substances: the same argument justifies, in my view, decriminalization of all drugs, from caffeine and alcohol and nicotine, to marijuana and cocaine and heroin.) If someone wants to jeopardize their own health, it's their own business. It's not the government's.
The following “Ten Myths of the Anti-Smoking Movement” are excerpted from Jacob Sullum's book For Your Own Good: The Anti-Smoking Crusade and the Tyranny of Public Health: 1. “The tobacco companies hid the truth about the hazards and addictiveness of cigarettes from the American public. Industry double-talk notwithstanding, warnings about the health risks of smoking go back hundreds of years. ... Persuasive scientific evidence of tobacco's hazards, which began to emerge in the early 1930s, has received widespread attention since the ‘50s.... 2. “‘Tobacco is tobacco.’ Although all tobacco products pose some health risks, cigarettes are by far the most hazardous. Cigars and pipes are considerably less dangerous.... 3. “People smoke because of advertising. There is remarkably little evidence that advertising plays an important role in getting people to smoke, as opposed to getting them to smoke a particular brand. ... None of the widely-publicized studies that have appeared in recent years, including the much-hyped research on Joe Camel, actually measured the impact of advertising on a teenager's propensity to smoke. 4. “Smoking imposes costs on society. Because smokers tend to die earlier than nonsmokers, the costs of treating tobacco-related illness are balanced, and probably outweighed, by savings on Social Security, nursing home stays, and medical care in old age. Every analysis that takes such long-term savings into account ... concludes that 'social cost' cannot justify raising cigarette taxes. 5. “Secondhand smoke poses a grave threat to bystanders. The evidence concerning the health effects of secondhand smoke is not nearly as conclusive as the evidence concerning the health effects of smoking. The research suggests that people who live with smokers for decades may face a slightly higher risk of lung cancer. ... In any case, there is no evidence that casual exposure to secondhand smoke has any impact on your life expectancy. 6. “If secondhand smoke really is dangerous, smoking ought to be banned everywhere, except in private residences. Since almost all of the epidemiological evidence about the health effects of secondhand smoke relates to long-term exposure in the home, the fact that this is the one place exempted from current and proposed smoking bans suggests a residual concern for property rights. Yet business owners have property rights, too. If the government respected the right to establish rules about smoking on their own property, potential employees and customers could take such policies into account when deciding where to work or which businesses to patronize. ... [S]uch a voluntary system is the most appropriate way to deal with the conflicting demands of smokers and non-smokers.... 7. “States have a right to demand compensation from tobacco companies for the costs of treating smoking-related diseases under Medicaid. This claim ignores the long-term savings traceable to smoking (see Myth 4) and the tobacco taxes smokers already pay to cover the costs they supposedly impose on others.... 8. “The tobacco companies have been secretly manipulating the nicotine in cigarettes to keep smokers hooked. Nicotine control was never a secret. Several brands of de-nicotined cigarettes were introduced as early as the 1920s. Claims of reduced tar and nicotine have been conspicuous since the 1950s, and the yields of each brand have been advertised since 1971.... 9. “Smoking is ‘a pediatric disease.’ Although most smokers start as teenagers, the vast majority are, in fact, adults. And while it raises the risk of certain illnesses, smoking itself is a behavior--something people choose to do--not a disease.... 10. “Once people have started smoking, nicotine addiction prevents them from stopping. This is so contrary to everyday experience that it's amazing politicians and anti-smoking activists can say it with a straight face. In fact, there are about as many former smokers in this country as there are smokers, and almost all gave up the habit on their own, without formal treatment--usually by quitting cold turkey . . . .”
The “53K Lie” and Other Myths about Secondhand Smoke
The only possible legitimate justification for government regulations restricting smoking would be to protect the health of non-smokers, because the only actions that government should restrict are those directly harmful to others. But there's no valid scientific evidence that secondhand smoke causes any significant health risks. The busybody groups, identified above, that are leading the war on tobacco, support their campaign by spreading outright lies, based upon “junk science” and distortions of epidemiological evidence and statistics. As Robert Levy, senior fellow at the Cato Institute, has noted, the science regarding the link between second-hand smoke and tobacco-caused harms is “tenuous at best.” Those who claim that second-hand smoke poses serious health risks tend to base those claims on two dubious studies: a 1993 Environmental Protection Agency (EPA) study, claiming that 3000 lung-cancer deaths per year among non-smokers in the U.S. could be attributed to second-hand smoke; and a 1998 World Health Organization (WHO) study, widely reported as showing that passive smoking causes lung cancer. But the EPA study was so highly flawed that a federal court rejected it, finding that the EPA “cherry-picked” its data and “deviated from acceptable scientific procedure to ensure a preordained outcome”; and the WHO study has been widely misrepresented, for it in fact showed “no association” between second-hand smoke and cancer in children and a “statistically insignificant” association in adults. Both the EPA study and the WHO study are “entirely without merit,” Levy maintains; and yet, upon these flimsy foundations, organizations such as the American Cancer Society, the American Heart Association, the American Lung Association, and even the U.S. Public Health Service have based their assertions that tobacco smoke has proven health risks to non-smokers. These groups, and other so-called “experts,” frequently toss out the numbers 50,000 or 53,000 as representing the number of deaths caused by second-hand smoke per year in the U.S. – indeed, one anti-tobacco activist group here in Ohio has distributed “53K” wristbands to gullible high-school and college students, as part of their p.c. crusade – and yet those numbers are not based on any hard data at all; they’re merely extrapolated from the original, flawed EPA number of 3000 and then inflated, based on projections from data about heart disease and other supposed tobacco-related deaths. (The hard data continues to show, as the WHO study did, a statistically insignificant greater risk of lung cancer deaths from exposure to secondhand smoke: a difference of 12.5 out of one million, compared to 10 out of one million.) Upon such flimsy “scientific” evidence and outright lies about them, anti-tobacco zealots have based their campaign for local governments to enact bans on smoking in all public places, including bars and bowling alleys, as well as restaurants, hotels, and other businesses. Both Issues 4 and 5 are premised upon these myths about secondhand smoke.
The Right To Smoke
Even if there were sound scientific evidence proving indisputably that secondhand smoke causes serious health risks to non-smokers, it still would not be proper for government to prohibit smoking in public places. (The only exceptions would be those facilities “owned” or operated by the government itself, such as government office buildings.) Businesses, although open to the public, are privately-owned establishments; their owners have the exclusive right to determine whether or not to permit the use of tobacco products on the premises, for that is part of their fundamental right as property owners. Indeed, the right to smoke, broadly considered, ought to be regarded as a matter of property rights, involving not only businesses’ ownership of their premises but also persons’ (both smokers and non-smokers alike) ownership of their own bodies. It cannot be overly emphasized that smoking is a matter of personal choice. In a free society, individuals ought to be free to decide for themselves whether to use tobacco products – smoking cigarettes or cigars, chewing tobacco, inhaling snuff, etc. – just as individuals ought generally to be free to decide for themselves what foods, beverages, or other substances they ingest in their bodies. It’s their own bodies – their own lives – and if they choose to ingest substances that pose risks to their health, that’s their choice, too, an exercise of their personal freedom with which government ought not to interfere (whether it’s smoking or something else – alcoholic beverages, fatty foods, marijuana or narcotic drugs, for example). Individuals who choose to smoke do so for a variety of reasons. Some people find smoking relaxes them or helps them deal with stress. Some people associate smoking cigarettes or cigars with certain activities or certain cultural events; they may, for example, smoke while listening to jazz music or while waiting for a bus. Patrons of single bars might find that smoking gives them something to do with their hands and mouths – something that’s perhaps less dangerous than other things they could be doing with those parts of their bodies. To some young people, smoking is “cool” (and that’s why the anti-tobacco fanatics so detest “Joe Camel,” because they believe advertisements featuring that character glamorize smoking for teenagers and children). And to some, smoking can be romanticized into an expression of themselves and their “sense of life.” The philosopher Ayn Rand, for example, in her great novel Atlas Shrugged (1957) wrote almost poetically about the burning cigarette symbolizing the “spot of fire” alive in a thinking person’s mind, when she had one of the heroes of her novel say: "I like cigarettes. . . . I like to think of fire held in a man's hand. Fire, a dangerous force, tamed at his fingertips. I often wonder about the hours when a man sits alone, watching the smoke of a cigarette, thinking. I wonder what great things have come from such hours. When a man thinks, there is a spot of fire alive in his mind--and it is proper that he should have the burning point of a cigarette as his own expression."
Smoking, after all, is a very human activity. Animals don’t smoke. Only humans do. And so what if it’s bad for their health? Many of the other things that only humans do also are bad for their health or involve risks to their lives – such as mountain climbing or auto racing. Or playing with other dangerous animals, as the late “Crocodile Hunter,” Steve Irwin, did. To say that individuals own their bodies or their lives is to say that they are free to live as they choose, even if their choices – what they choose to eat, drink or smoke, or what activities they choose to engage in, either for work or for pleasure -- might risk their health and even shorten their lives. Some people might say, “All that is true – for adults. But government ought to do everything within its power to stop teenagers and children from smoking.” The problem with this argument is that there’s nothing especially dangerous about the use of tobacco products, compared with all the other things that may jeopardize young people’s health or even their lives, that would warrant government stepping in and functioning, essentially, as their parent. Teenagers have been smoking in America for nearly 400 years, going all the way back to the first cultivation of tobacco in the Southern colonies in the early 17th century. And now, in the 21st century, it's suddenly a big problem? Please! – it's only that it's the "cause du jour," the latest effort of the social engineers to use the coercive power of government to shove their notion of the good life down the throats of all the rest of us, using as their excuse the pathetic cry, “But it’s for the children!” Cultural scholar and social commentator Camille Paglia put it nicely in a column she wrote for Salon magazine a few years ago: "Tobacco, an aromatic Native American herb, has
made extraordinary contributions to Western civilization in the past 400 years.
It focuses thoughts, stimulates energy and improves efficiency. . . . Tobacco,
with all of its long-term health risks, is a far better choice for teenagers
than the host of other legal and illegal drugs that are out there, which dull
the mind over time. Tobacco is a handmaiden of the arts--while Ritalin, which
dopes kids into servitude, will be the end of art as we know it." She has a valid point. I'd rather see teenagers smoking cigarettes, and demonstrating their independence – and let's face it, today, with all the anti-smoking propaganda we're bombarding them with, kids are naturally going to smoke as an act of rebellion – than having our kids turned into mind-numbed conformists, wearing school uniforms, and repeating the same old tired political clichés and bromides they hear from their teachers and parents, and politicians. One might also object, “But what about the rights of non-smokers? Don’t they have the right to breathe air free of tobacco smoke?” The answer, emphatically, is: NO! There’s no such “right,” certainly no such right that would justify governmental action, by use of the coercive power of the law. The only legitimate “rights” that individuals have and that government has a legitimate role to protect – the basic rights to life, liberty, and property – can be violated only by forcible acts that directly cause harm to others. If tobacco products truly were as “poisonous” as the anti-tobacco activists claim, there’d be a plausible case to prohibit their use because of the harm that secondhand smoke actually causes to non-smokers’ health. As noted above, however, the scientific evidence shows at best a statistically insignificant higher risk of heart disease and other smoking-related problems for non-smokers, from their inhalation of tobacco smoke. (Studies show that non-smokers exposed long-term to secondhand smoke have a slightly higher risk of developing lung cancer than do non-smokers not exposed long-term to secondhand smoke; but the difference – 12.5 in one million versus 10 in one million – is so slight as to be statistically insignificant. It’s not enough to say that secondhand smoke “causes” any significant risk to non-smokers’ health, unless one distorts the epidemiological evidence, as anti-tobacco activists like the American Cancer Society do.) Such meager epidemiological evidence is not sufficient to justify government intervention in the name of protecting people from actual, direct harm because there’s no valid proof of such harm. Non-smokers have no more “right” to insist on a smoke-free environment than would, say, atheists, to insist on a religion-free environment; or grouchy misanthropes, to insist on a humor-free environment; or teetotalers, to insist on a liquor-free environment; or prudes, to insist on an “indecency”-free environment. In a free society, everyone has to put up with things that we personally might intensely dislike and find quite objectionable, but which other people enjoy. Just as we do not authorize some people – the “fashion police,” we might call them – to dictate the way other people dress, using the law to prohibit the wearing of white after Labor Day, for example, neither should we authorize some people – the “health police” – to dictate personal choices with regard to the substances people drink, ingest, or smoke. Yet another objection one might raise is, “But don’t businesses have an obligation to prohibit smoking, to protect the health of their employees and their customers?” The answer, again, is emphatically, NO! Anti-tobacco activists may argue there is such an obligation, but their arguments are premised on the misuse of epidemiological evidence, discussed above, as well as on a flawed theory of legal liability that does not give proper consideration to personal responsibility and freedom of choice. Business owners’ property rights include their ability to decide whether or not to permit smoking (or to impose certain restrictions on smoking) on their own premises, simply because it is their premises. Merely being “open” to the public – what under the law is regarded as a “place of public accommodation” – does not negate this basic property right of the business owner – a legitimate right that both customers and employees must respect. No customer is forced to patronize a particular business; it’s the customer’s own choice. Non-smoking customers who object to a bar or restaurant owner’s policy permitting smokers to use tobacco products on their premises can voice those objections to the owner, who, if he’s smart, will give them due consideration and perhaps change or modify the policy (by creating non-smoking sections, for example). If the owner insists on allowing other customers to smoke, however, the intolerant non-smoker still has a choice: to take his or her patronage elsewhere, to other establishments where the owners are more accommodating to their tastes. Similarly, no employee is forced to work for a particular employer; it’s the worker’s own choice. Whether or not smoking is permitted on the business premises is one of the myriad of factors concerning working conditions and other terms of employment – which, properly (again, in a free society) ought to be the subject of free bargaining between employers and employees. Government has no more a legitimate purpose in interfering with such free bargaining, with regard to work conditions, as it has in dictating hours or wages. (The fact that the courts have permitted government to do so – upholding federal minimum wage and maximum hours laws, as well as OSHA regulations, since the late 1930s – does not prove that such dictates are legitimate. As noted in my previous entry, “Minimum Wage, Maximum Folly,” such paternalistic laws do indeed violate the rights of both employers and employees – and ought properly to be regarded as unconstitutional, as they once were, in the early 20th century, when the courts protected liberty of contract as a fundamental right, as they should.) The individual customer who chooses to patronize a particular business, or the individual worker who chooses to be employed at a particular business, assumes the risks associated with tobacco smoke – whether those risks are real health hazards or merely aesthetic annoyances – if the business owner has chosen to allow other customers or employees to smoke on the business premises. That’s the consequence of freedom of contract: it’s a freedom that’s equally enjoyed by business owners, customers, and employees, and exercised in the bargains they make (formally or informally). And it’s a freedom that ought not to be interfered with, in any way, by the government. When government abridges that freedom, it doesn’t just deny smokers their right to use tobacco products; it also denies everyone -- smokers and non-smokers, business owners and customers, employers and employees – their right to freely bargain with others and to assume the risks that result as a consequence of that bargaining. A free society allows individuals not only the freedom to use their own property (their own businesses – or their own bodies) as they wish, but also to take responsibility for the risks such freedom entails. Freedom and responsibility go hand in hand; when government interferes with one, it also undermines the other.
Other Casualties in the War on Tobacco: Property Rights, Personal Responsibility, and the Rule of Law
Government prohibition of smoking in indoor public places is but one example of the implementation of a very dangerous principle, a principle that lies at the heart of the Big Government “nanny state”: the so-called “precautionary principle.” In a fascinating lecture given at The Objectivist Center’s 2003 Summer Seminar, Sam Kazman of the Competitive Enterprise Institute discussed “What the Precautionary Principle Is Really About.” As he explained, the principle has become one of the major political goals of the radical environmentalist movement. “Under the Precautionary Principle, no new technology would be introduced until its safety to both man and environment was assured.” By “assured safety,” advocates of the principle mean no risk of harm – even if the risks are minimal. One famous example from recent history has been the global ban on DDT, a chemical that was an effect agent against mosquitoes, and hence a valuable tool in the fight against malaria, but which ceased being used by most world nations after environmentalists claimed it was a carcinogen and harmful to the environment. These claims proved baseless; meanwhile, the DDT ban has resulted in the deaths from malaria of two million people a year, most of them children. (As Michael Crichton notes in discussing the issue in his recent novel State of Fear, “Banning DDT killed more people than Hitler.”) When government regulatory agencies like the FDA implement the principle, it means that potentially life-saving drugs or medical devices are kept off the market because of regulators’ fears about risks – and thus, that some people are literally losing their lives because of government regulators’ “deadly over-caution,” as Kazman aptly characterizes it. Other current policy battles involving the principle include biotech (genetically modified) foods and global warming (discussed in my previous entry, “Merchants of Fear,” May 17, 2006). Whenever this dangerous principle is allowed to determine public policy, government moves away from its legitimate purpose – protecting people’s genuine rights, by prohibiting forcible acts that directly harm others – and instead begins attempting to protect people from all possible harms, including risks caused by their own voluntary action (or inaction). It’s a truly dangerous slippery slope – one that leads, eventually, to totalitarian government, the kind of society described by George Orwell in his dystopian novel, 1984, where “Big Brother” dictates virtually all aspects of person’s lives. As discussed above, legal prohibition of smoking deprives not just smokers but everyone – smokers and non-smokers, business owners, their customers and employees alike – of their basic rights to property (businesses’ property rights over the premises they own, as well as both smokers’ and non-smokers’ rights to own their bodies, that is, to take risks with their own health). Government prohibition of smoking also deprives everyone of their right to liberty – freedom to act as they choose, freedom to take or assume risks, and freedom to bargain with others about activities, like smoking, that might put their choices into conflict. By depriving people of this freedom, prohibition laws also deny people the responsibility for their own lives and actions – responsibility that goes hand-in-hand with liberty. The “war on tobacco” that has been waged by anti-tobacco fanatics and activists over the past several decades has abridged people’s basic freedoms and undermined individual responsibility in other ways. Among them are the headline-making lawsuits that plaintiffs’ trial lawyers have brought on behalf of smokers (or their surviving family members) against the major tobacco companies. Although tobacco companies occasionally win these cases, in most of them the companies have lost (in large part because the tort legal system is stacked against corporate defendants, as noted below), and in many cases have lost spectacularly, with multi-million (even –billion) dollar verdicts going against them. One such case, in which the U.S. Supreme Court has just heard oral arguments this week, involves a huge punitive damage award against tobacco giant Philip Morris. Jesse Williams, a Portland, Ore. Janitor who smoked three packs of Marlboros a day, died of lung cancer in 1997. His widow, Mayola Williams, sued Philip Morris for fraud and negligence, alleging that her husband’s fears about becoming ill from smoking were assuaged by the cigarette-maker’s publicity campaign that suggested it was safe. (According to Mrs. Williams’ testimony, when he husband learned he had inoperable cancer, he said, “Those darn cigarette people finally did it. They were lying all the time.”) An Oregon jury awarded Mrs. Williams $79.5 million in punitive damages, which was 97 times greater than the actual – or compensatory – damages ($821, 485) awarded by the jury. Philip Morris is appealing the decision to the Supreme Court, arguing that the punitive damage award violates the Fourteenth Amendment’s guarantee of due process of law, not only because it was so excessive in relation to actual damages but also because the jurors were improperly punishing the company for injuries to smokers who were not part of the Williams case. Apart from the interesting constitutional issue that the Supreme Court will decide later this year, the case illustrates the way in which anti-tobacco litigation – and the changes it has wrought in modern tort law – has undermined individual responsibility. How can any responsible individual claim, as Mr. Williams and his widow have, that his three-pack a day smoking habit was “caused” by tobacco company “lies”? Williams, like countless other victims of smoking-related illnesses, was evading his responsibility for his own actions. Even if the nicotine in tobacco truly is addictive (another controversial issue for which there is conflicting scientific evidence), individuals are still volitional beings: they are free to choose to act either in accordance with their addiction or to fight against it. (The millions of people who have successfully quit smoking – many of them with several packs-a-day habits, like Mr. Williams -- show that smoking is a choice, and that whatever physical or psychological addiction smoking may cause can be overcome by one’s will power.) Moreover, how can any responsible (or reasonable) person claim, as Mr. Williams and his widow have, that tobacco company advertising somehow misled him, duping him into smoking in the naïve belief that it was not harmful to his health, notwithstanding all the evidence readily available to smokers (including the government-dictated health warnings that the tobacco companies are legally required to print on all their cigarette packs and advertisements)? Only an irresponsible, unreasonable smoker in modern society could possibly claim that he did not know smoking was harmful, despite not only the wealth of public information but also the evidence provided by his own body – his coughing, his shortness of breath, etc. – that his three-pack-a-day smoking practices might be harming his health. (I’m not saying that all lawsuits against tobacco companies are wrong. Some of the individual smokers' lawsuits – such as those filed by people who became addicted to tobacco back in the 1950s and early 1960s, before the health hazards of smoking were known, and when tobacco companies arguably were deceiving the public – those suits might be valid. But not today, for anyone who began smoking in the past several decades, when the health hazards have become public knowledge. Anyone who smokes today assumes the risk; they have no one but themselves to blame if they develop heart disease, cancer or emphysema.) It is simply unjust to blame tobacco companies for manufacturing and selling – and, yes, for earning a profit on – products that smokers willingly use and, in fact, enjoy, notwithstanding the risks they pose to smokers’ health. Allowing smokers to evade the consequences of their own actions – allowing them to shift the blame for their own health problems to the tobacco companies – is one of the many ways in which the American legal system has become a system for injustice, rather than justice. A big problem with the legal system today--with torts, in particular, in the realm of products liability law--is that it's being used to distort individual responsibility, to shield people from the consequences of their own actions, by shifting the blame to others, under dubious theories of causation, simply because the others have "deeper pockets" and therefore are assumed to be better able to bear the costs. But what about justice? Justice demands that people bear the burden of their own acts, and that's especially so in a free society. As noted above, by undermining the concept of individual responsibility, we're also undermining freedom. And, of course, arguably the greatest injustice being done is the windfall that such lawsuits bring to plaintiffs' lawyers, who make out like bandits, profiting handsomely (in the Williams case -- what, one-third of over $80 million!) from a perverse tort system which permits out-of-control juries to indulge their anti-business biases and reward sympathetic plaintiffs for the folly of their own actions. One of the greatest scandals of the legal profession today is this class of parasites, the trial lawyers, who profit from the sufferings and misplaced moral outrage of others, and who are the ones most responsible for the undermining of the concept of personal responsibility in our society. There are many other casualties in the “war on tobacco,” some related to tobacco litigation and others related to government regulation of tobacco products. Freedom of speech is one of the casualties. Tobacco companies have an absolute right to advertise, and to advertise free of government dictates: it's part of their freedom that ought to be protected under the First Amendment’s freedom of speech clause. I know the Supreme Court has held otherwise, carving out an exception for so-called "commercial speech," but the Court is wrong. The "commercial speech" exception, like the "obscenity" exception, has no basis in the text of the Constitution, which is absolute: "Congress shall pass no law abridging freedom of the press," and "no law" means NO LAW! But where are the so-called civil libertarians--the ACLU and various other First Amendment advocacy groups--on this issue? No where. Again, it takes political courage to defend the rights of tobacco companies and smokers these days, the kind of courage that most of these supposedly "liberal" advocacy groups lack. Sadly, the tobacco companies themselves have rolled over and volunteered to waive their First Amendment rights, beginning with the ban on TV advertising in the early 1970s – first killing off the "Marlboro Man," and then killing off "Joe Camel." Moreover, tobacco campanies have acquiesced to government-mandated health warnings, the Surgeon General warnings that are required to be printed on all packs of cigarettes and on all advertisements. These warnings themselves violate the First Amendment; they’re a form of compelled speech that cannot be justified – as they are – by the rationalization that government is protecting public health by “providing information.” It's not the role of government to provide information. We're not a totalitarian state – yet – and citizens who care about their constitutional freedoms ought to be opposed to anything like a "ministry of propaganda," which force-feeds information to people directly or doing the equivalent, indirectly, by having regulatory agencies like the FDA or Office of Surgeon General dictate to businesses what they can or cannot say on their own products. I think the media – not only newspapers, TV and radio, but all sources of news and information, including particularly today, the Internet – does a fine job in informing people about health concerns. We don't need the government forcing manufacturers to put warning labels on their products when the information is so readily available anyway. People aren't total idiots, as the nanny-statists or “health police” assume they are. And yet another casualty in the “war on tobacco” is the general principle of the rule of law itself, which has been undermined in many ways, especially by the lawsuits brought by both private plaintiffs and the government against “Big Tobacco.” In Chapter 8, “The War on Tobacco,” in the splendid collection of essays entitled The Rule of Law in the Wake of Clinton (edited by Roger Pilon and published by the Cato Institute in 2000), Robert Levy discusses the many ways in which anti-tobacco litigation has undermined fundamental principles of the rule of law, including tort law rules about causation and assumption of risk (discussed above). Levy has been especially critical of the lawsuits brought by the government, state and federal, against the tobacco industry. Those suits began at the state level, with multiple, often coordinated suits based on unprecedented theories of liability, “amounting to little more than extortion by state attorneys general and the plaintiffs bar.” That first wave of litigation culminated in the 1998 quarter-trillion dollar Master Settlement Agreement (MSA), which as Levy shows, “effectively cartelized the tobacco industry,” in violation of the antitrust laws and the Constitution. (The MSA led to a windfall for state governments, which used only a portion of the “blood money,” as I call it – because it had been extorted from the tobacco industry, and hence, ultimately, from smokers – to fund anti-smoking “educational” programs, such as the tobacco “policy center” established, I’m embarrassed to say, at my own Law School and which functions as an advocacy center for the war on tobacco here in Ohio.) Then, as Levy adds, the Clinton Justice Department “decided that it wanted a share of the plunder” – bringing a lawsuit claiming higher Medicare costs, based on the same faulty premises on which the state attorneys general suits were based, and which, unfortunately, the Bush Justice Department has continued. (Levy discusses the government tobacco litigation more fully in his recent book, Shakedown: How Corporations, Government, and Trial Lawyers Abuse the Judicial Process, Washington, D.C.: Cato Institute, 2004, especially in Chapters 2 and 4.) The Justice Department lawsuits, like the state government lawsuits, are based on false premises. As Jacob Sullum observes in his "Ten Myths of the Anti-Smoking Movement" (quoted above), the claim that tobacco increases health-care costs ignores the fact that the costs of treating tobacco-related illnesses are balanced, and probably outweighed, by long-term savings traceable to smoking: savings on Social Security, nursing home stays, and medical care in old age. To put it simply, we should all be grateful to "Big Tobacco" for shortening smokers' lives! Yet there's a bigger issue involved here, and not just simply the erosion of the concept of individual responsibility: it's a very dangerous precedent that such lawsuits set, one that threatens all Americans' rights. As Sullum points out, by the same logic used in the tobacco suits, government could sue "the manufacturer of any product associated with disease or injury, including alcoholic beverages, fatty foods, candy, firearms, swimming pools, bathtubs, skateboards, and automobiles." His claim isn't absurd; the cities of Chicago and New York Orleans are considering banning “trans-fats” from restaurants, on the theory that such fatty foods help caused obesity and increase risks for heart disease and other health problems (yet another dangerous application of the Precautionary Principle). As Sullum concludes, "The makers (and consumers) of such products should not be blamed because politicians decided to pay for health care with taxpayers' money." Rather than sue Big Tobacco (and turn it into a government-regulated cartel, as the MSA has done), what both the federal and state governments ought to do is simply exclude from either Medicare or Medicaid any coverage for smoking-related diseases. That solution would not only save taxpayers money but also would put the responsibility for smoking exactly where it belongs: on the individual who chooses to smoke. What's really involved with the state attorney-generals' lawsuits – as with the Clinton and Bush Justice Departments’ suit – is a blatant grab for money. As Levy notes, the Clinton administration’s initial decision to bring the lawsuit undermined the rule of law, in several ways. The Justice Department, which had no statutory authority to bring a direct suit against tobacco companies, brought the suit on its own initiative, bypassing both the legislative process and the Constitution itself; in effect, asking the federal courts to create new law, ignoring not only established principles like assumption of risk but also the requirement that causation be demonstrated on a smoker-by-smoker basis – all in an effort to make "Big Tobacco" the scapegoat for government’s higher health-care costs. As Levy observes, "When the objective is to replenish depleted Medicare coffers, anything goes – including the rule of law." Levy also has pointed out why tax increases on cigarettes, in the name of discouraging teenagers from smoking, makes absolutely no sense. There are several reasons: it will create black markets (and thus may actually increase teenage smoking), it's an especially regressive tax, and it's simply unfair to make some 44 million adult smokers pay higher taxes because some retailers are breaking the laws prohibiting sales to minors. Most importantly, Levy notes, every scholar who has examined the data has concluded that existing excise taxes more than cover the so-called "social costs" of smoking. "The uncomfortable truth is that federal and state governments have benefited handsomely from tobacco taxes." Why? Because "Big Tobacco" and its customers – the nation's millions of smokers – are an easy target. We're doing it "for the children," which has become the mantra chanted by today's paternalists for every new scheme to limit freedom.
Hobson’s Choice: Ohio’s Issues 4 and 5
The phrase “Hobson’s choice” refers to the choice of taking either that which is offered or nothing at all; in other words, it refers to the absence of a real alternative. (It’s an early 17th-century English term derived from the name of Thomas Hobson (1544-1631), a stable owner in Cambridge, England, who rented horses but gave his customers only one choice, that of the horse nearest the stable door.) The phrase aptly describes Issues 4 and 5, the alternative smoking bans appearing on Ohio’s November 7 ballot. As noted above, the essential difference between the two proposals is that one would ban smoking in virtually 100% of all indoor public places while the other would ban smoking in about 90% of such places. Neither is an acceptable alternative to those of us who respect the rights of business owners to determine for themselves whether or not to allow customers to smoke, or who value the freedom of individuals (including customers and employees) to choose for themselves what risks they are willing to take with their own health. In other words, neither alternative is acceptable public policy for a free society that respects property rights and individual freedom of choice. Issue 5, the more draconian measure supported by the group “SmokeFreeOhio” and backed by various anti-tobacco zealots (including the American Cancer Society), would add a new chapter, 3794, to the Ohio Revised Code that would prohibit smoking in all public places and places of employment, exempting only private residences (unless the residence operates as a place of business), designated smoking rooms in hotels and other lodging facilities, retail tobacco stores, outdoor patios, and private clubs, and family-owned and operated places of business. It would also authorize “a uniform statewide minimum standard to protect workers and the public from secondhand tobacco smoke,” allow for the declaration of outdoor areas as nonsmoking, and create a “smoke free indoor air fund” in the state treasury. Issue 4, the somewhat less draconian measure supported by the group “Smoke Less Ohio” (and backed by various businesses, including R.J. Reynolds and other tobacco companies, bar owners, and the restaurant association), would amend the state constitution to prohibit smoking in enclosed areas, except tobacco stores, private residences or nonpublic facilities, separate smoking areas in restaurants, most bars, bingo and bowling facilities, separated areas in hotels and nursing homes, and race tracks. Issue 4 backers describe their proposal as “a smoking ban that’s 90% No Smoking, 10% Choice” – emphasizing their essential difference from Issue 5, which is virtually 100% No Smoking, and 0% Choice. Because Issue 4 is a constitutional amendment, if both it and Issue 5 passes, it would supersede Issue 5, making it null and void. That means that ordinances in cities like Columbus, which enacted its own virtually total ban on indoor smoking last year, would be preempted, for no municipalities could enact more draconian smoking restrictions. Thus, in Columbus and other cities that have enacted smoking bans, certain businesses -- like bars, bowling alleys, and restaurants with separate smoking sections -- would again be free to permit smoking, if their owners wish. (Polls currently show both proposals winning – Issue 4 with about 55% support and Issue 5 with nearly 60% support, according to a Sep. 24 Columbus Dispatch poll – and so Issue 5 backers are focusing their effort on campaigning against Issue 4, which they’re trying to portray as supported by “Big Tobacco.” Issue 4 backers, in turn, emphasize that theirs is the “common sense” ban that would exempt only about 10% of Ohio’s businesses, “the kind that serve mainly adults, like bars.” They add, “So business owners can still decide their own smoking policy” – but not the 90% of business owners that would be covered by the ban in the proposed constitutional amendment. If that’s the kind of proposal that “Big Tobacco” supports, then it seems that R.J. Reynolds Co. and other backers of Issue 4 have become a bunch of spineless wimps – nothing like the evil purveyors of death, or profits, that the anti-tobacco zealots portray them to be. What a sad commentary on life in today’s “nanny state” that a somewhat less draconian ban on smoking that permits only 10% choice is not only supported by tobacco companies, as the lesser of two evils, but also touted as the “common sense” proposal. Or that its leading opponents are arguing not for more choice, but for less, virtually none at all! Where’s the proposal that really permits all business owners the choice they, and their customers and employees, ought to have – 100% choice?) Voters should reject both proposals. Neither one represents “common sense”; both proposed smoking bans defy reason and violate individuals’ rights (including the property rights of business owners as well as everyone’s freedom of choice, including the freedom to take risks with their own health). The only truly “common sense” proposal would be a constitutional amendment that would provide something like the following: “Neither the State of Ohio nor any local government within Ohio shall make or enforce any law or regulation that interferes with the right of property owners, including businesses open to the public, to determine whether or not to permit use of tobacco products on their premises.”
Now, that would be real progress!
| Link to this Entry | Posted Tuesday, October 31, 2006 | Copyright © David N. Mayer |
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