Smoking is better than Fascism
© kospan13/ebay
The city council of my county's seat (Rockville, Montgomery County Maryland) is debating a proposal to ban smoking in outdoor dining areas of restaurants. Four states (Hawaii, Maine, Michigan, and Washington) already have statewide bans in place, as do many cities, including one other in Maryland (La Plata, in Charles County).

At least thirty states already ban all smoking inside restaurants and bars. What I want to know is whether these bans are a good idea, or whether markets should be relied on to provide appropriate facilities for smoking. Relatedly, I wonder whether smoking should be seen as a tort.

And now a disclaimer: I hate tobacco. I have never taken a cent from a tobacco company in consulting fees, and would never work for them as a lawyer. I have never smoked, and my wife and I have never allowed smoking in any home we have ever owned (going back to the 1970's, when our smoking ban was extremely unusual and roundly condemned by friends and relatives alike). I would threaten to disown one of my children if he or she took up smoking. I believe that states have the constitutional right to ban tobacco sales altogether (though it would arguably be cruel to do this, given that millions of Americans legally consume this product and would have recourse to a massive black market were a ban set up). Indeed, I have read a report that upwards of fifteen states apparently did ban tobacco between 1890 and 1927. One state's ban was challenged and upheld by the Supreme Court (Austin v. Tennessee,21 S.Ct. 132 (1900)). No state wants to ban tobacco today, I think, likely in part because states currently accrue as much or more revenue from tobacco than do cigarette manufacturers.

But here's the rub: if tobacco sales and use are legal, why ban them from restaurants and bars (indoors or outdoors)? It seems to me that, in general, there are only three rationales for a legal ban. The first two seem to be to be hypocritical:
  1. Second-hand smoke could be dangerous to restaurant clients who don't smoke, and to wait staff who must be exposed to smoke. This may be true, though the "science" here is controversial. In any case, we allow employees to have much more dangerous jobs (firefighter, highway worker, high-rise construction worker, etc.) than wait staff in a restaurant. And if second-hand smoke was as dangerous as is claimed, why not ban smoking in bars, in casinos, and in humidor lounges? Clearly, employees and customers are allowed to choose their risk tolerance -- and risk magnitude and tolerance definitely have an impact on the wage demanded to do dangerous work. Of course, if second-hand smoke is truly very toxic, why do we tolerate that parents smoke around their small children? Why wouldn't smoking count as child abuse, leading to removal of young children from chain-smoking households (just as we remove children for other chronically unsafe parental actions)? Children, unlike wait staff, cannot choose the risks to which they are exposed. So this rationals for a smoking ban seems hypocritical and unprincipled to me.
  2. Second-hand smoke could be an externality that makes dining unpleasant (even if not unhealthy) for nearby non-smokers. This is definitely true for me, and I would avoid restaurants that allowed smoking for that reason. But clearly markets can adjust for preferences of smokers and non-smokers alike. I avoid restaurants that tolerate "no shoes and no shirts" but don't insist that they be illegal. Indeed, I avoid rock concerts but would staunchly oppose their prohibition. So the externality argument seems like a hypocritical and unprincipled argument for a smoking ban.
  3. Smoking bans in public places, including restaurants, might be efforts to modify smokers' utility functions. By making it illegal to smoke in public places, governments drive smoking into private places, if not squarely underground. Smokers and non-smokers alike begin to slowly find tobacco-free air to be the normal state of affairs (contrast with the Mad Men era, when adults were obviously un-cool if they didn't smoke in public -- which is why the show made one of its stars die of lung cancer). Is it legitimate for governments to try to influence citizens' private utility functions? Your answer to this question will determine your views on seat-belt laws, motorcycle helmet laws, and default organ-donation check-offs on drivers' licenses.
As for me, I'm not uncomfortable with "nudging by government." I'm less comfortable when the "nudge" becomes a head-first shove. Should special licenses (available upon payment of a tax that would be reflected in food prices) be available for "smoking restaurants?" I frankly don't see why not.

Unless, of course, smoking is a tort. You may not deliberately hit me except in self-defense, so what right do you have to send noxious fumes my way? The tort law here is scant -- but some courts have held that intentionally blowing smoke into an unwilling "victim"'s face is the tort of offensive battery. Presumably, negligently blowing smoke when one should know that the reasonable passerby does not want to be hit by its particulates could be the tort of negligence under a similar rationale. Of course, damages in such a negligence suit (unlike battery suits, where exemplary or punitive damages are available) would be de minimis and hard to prove -- and thus precious few such suits might be expected. But shouldn't the suit be available? And if no tort suit should exist, is that because smoking in public is reasonable? If it is, why is the criminal prohibition of smoking in public places legitimate?

Enquiring minds want to know!
Michael Krauss is Professor of Law at the Antonin Scalia Law School of George Mason University, and is a nationally known scholar of Tort Law and Legal Ethics. His home page is here.