By Matthew Bandyk
The old saying is that “honesty is the best policy.” Even people with intentions to mislead recognize the usefulness of honesty. That’s why they will go to great lengths to not technically “lie,” yet still give a completely false impression,.
An example of this fine art in action came on June 27, when the Surgeon General Richard Carmona released a report on the health effects of secondhand smoke. The report declared that the “debate is over.” Bans on smoking in “public places,” which have surged in cities and states from to, are now indisputably just. It claims that new information shows that secondhand smoke is so dangerous that science can definitively say it is more than just a “mere annoyance.” The logic would follow, then, that if someone blows smoke in your face in a bar, he’s not just being rude: he’s committing an assault against you.
Those who speak out on behalf of bar and restaurant owners and against smoking bans usually talk about freedom of choice and the liberty to do what may harm oneself, but not others. Carmona clearly hopes to turn the tables: anti-tobacco activists are actually the ones protecting liberty, because they’re defending innocent bystanders from deadly pollution involuntarily inhaled.
A look beyond the report’s impressive talking points reveals that that it is not nearly as groundbreaking as Carmona claims, and does little to shift the ground of the smoking debate against libertarians.
The boldest claim in the report is that even brief exposure to secondhand smoke can cause harm. This sounds like the proponents of regulation have won the entire argument from the beginning. “Brief” exposure implies involuntariness: if smoking is allowed in public, I will inevitably be exposed to it briefly unless I become a shut-in. Surely the state has authority to limit harmful conduct involuntarily imposed on others, right?
That all depends on what you mean by harm. Let’s say that after 100 puffs of secondhand smoke, I experience serious health effects. Now, what about those first 99 puffs? Each one made me unhealthier than the last because it got me closer to that 100 mark. So, yes, in that marginal sense, one puff of secondhand smoke is harmful. The report isn't lying, just avoiding the central question: is that harm enough to pose a real public policy concern, not just "mere annoyance"?
Are we doomed to uncertainty on this issue? If what causes minor discomfort to one man can ruin the week of another, how can the legal system ever decide when infringements on liberty really begin?
Conveniently enough, we already have a tool that has worked for hundreds of years for deciding when harms become legally significant: Has anyone made a successful tort claim against a smoker for briefly exposing them to smoke? In other words, has a jury ever recognized that brief exposure goes beyond mere annoyance to the point where a victim is due financial restitution? Under our common law system, to win a tort case, a plaintiff has to show that he was injured in some way. If I walk by you and you blow smoke at me, I might be annoyed, but I can't reasonably claim that I'm injured. The report does specify that brief exposure to secondhand smoke can be more dangerous to people with serious respiratory illnesses. But even if we assume that there are some people who would be injured by even very brief exposure to secondhand smoke, it doesn't follow from those exceptions that we need comprehensive regulations that affect everyone, such as smoking bans. The need for government regulation only exists if common law courts can't sufficiently deal with a problem by itself. That doesn't seem to be the case here. In the rare case where secondhand smoking actually is tortious, the victim can sue.
But perhaps the next major claim in the report will expose secondhand smoke as a pressing concern. Research shows that exposure to smoke among non-smoking adults “raises the risk of heart disease by 25 to 30 percent and of cancer by 20 to 30 percent, and accounted for an estimated 46,000 premature deaths from heart disease and 3,000 premature deaths from cancer last year.”
It is telling that in the report’s press release, the closest that 99% of the people who hear of the report will actually get to reading it, this information follows immediately after the previous bullet point about “brief exposure.” The report has already implanted in our heads the idea that any exposure to smoke is harmful. It’s now just a quick step to the conclusion that those 50,000 extra deaths a year are all cases of persons deprived of their human rights by vicious smokers.
But this statistic has nothing to do with brief exposure: the research was gathered from people who were exposed to smoke over a long period of time, such as at home through a smoking spouse. Can one really say that someone who has chosen to live with a smoker for decades is really being subjected to an assault on his or her body—or is that person merely experiencing the foreseeable consequences of that decision? As the old legal saying goes, volenti non fit iniuria: “that to which you consent is no injustice.” The report removes the critical distinction between those who choose to be around smokers and those who do not by dubbing all secondhand smoke inhalation as “involuntary smoking.”
Yet the voluntary nature of smoking—and truly harmful secondhand smoke—is the crux of the debate over public smoking bans. As long as no one is being forced to breathe smoky air, why isn’t the decision by a bar or restaurant owner to allow smoking in her own establishment fully within her rights as a property owner? How can smoking in these establishments, which occurs only on private property and is not forced upon others outside that property, be considered a threat to public health? We should not be distracted from these important questions by Carmona’s chimera of deadly, “involuntary” smoking.
Matt Bandyk is a 2006 graduate of Davidson College in North Carolina. He now writes about political issues in the Washington, DC area.