When I was about 10 years old, I hid all the ashtrays in our house and posted "Thank You for Not Smoking" signs in each room. Smokers usually got the message, and they did not complain that their rights were being violated. Assuming my parents had consented to the ban, visitors did not think to question their authority. It would have been quite a different story, of course, had I attempted to prohibit smoking in the house next door.
On private property, it is generally accepted that the owner (or the owner's agent) is entitled to establish rules about smoking. Or is it?
Somehow, when the discussion turns to businesses, the notion of private property disappears. The issue becomes a conflict of rights between smokers and non-smokers, a conflict that government usually resolves in favor of the majority. Such is the case with the federal ban on smoking by airline passengers that recently took effect on virtually all domestic flights. By declaring an airplane a public place, Congress usurps the airline's right to set smoking policy on its own property.
What do the airlines have to say about this? Curiously little. The 21 major carriers did not oppose the ban. Indeed, reports the New York Times, "representatives of several airlines said they were pleased with the change." Stranger still. If they wanted to ban smoking, why wait for a federal mandate? Why not follow the lead of Northwest Airlines and cater only to nonsmoking passengers?
Clearly, carriers were worried that such unilateral action would put them at a competitive disadvantage. Smokers would opt for the airlines that permitted them to light up. But what about all those nonsmokers—some 80 percent of passengers? Wouldn't they jump at the chance to ride in smoke-free airplanes? After all, even passengers in the nonsmoking sections often catch more than a whiff of tobacco smoke.
But the behavior of airlines prior to the ban indicates that they feared they would lose more business as a result of prohibiting smoking than they would gain. To put it another way, smokers seem to care more about having to go without cigarettes than most other passengers care about being exposed to smoke. If there were a great demand for smoke-free flights, the market would have provided more of them.
At first glance, the concerns of flight attendants are more persuasive. Working in a closed environment of recirculated air, they are worried about the health effects of prolonged exposure to tobacco smoke. Although the research findings are imprecise, epidemiological studies suggest that such passive smoking increases the risk of lung cancer (by how much isn't clear). Knowing this, a flight attendant might either refuse to work for an airline that allows smoking or demand additional compensation for the risk. The airline, in turn, would have to decide whether the added labor costs outweighed the income from passengers who would go elsewhere if they were not allowed to smoke. Again, the behavior of the airlines indicates that this was not the case.
So the federal ban cannot be justified from an economic perspective. Furthermore, it encourages assaults on property rights by states and municipalities engaged in the antismoking crusade. Already, cities throughout the country require nonsmoking sections in restaurants and prohibit smoking in "public places" such as stores and barber shops.
These ordinances treat private businesses as if they were public property and obstruct market solutions. If enough customers are disturbed by smoke, businesses, acting in their own interest, will either establish nonsmoking areas or ban smoking completely. On the other hand, some businesses will find that smoking does not keep customers away; some might even serve smokers exclusively. (As far as fire safety is concerned, insurance companies would keep businesses in line.)
The tobacco lobby has taken up the cause of businesspeople burdened by smoking regulations. But many critics of government-imposed restrictions are themselves confused about the issues involved. Philip Morris Magazine, for example, last year berated firms that ban smoking on company property or refuse to hire smokers, calling them "Employers Who Forget It Is Still a Free Country." Kentucky's House of Representatives recently approved a bill that would forbid discrimination against smokers by employers.
The notion of smokers' rights, like the countervailing concept of non-smokers' rights, obscures the distinction between public and private policy. A law forcing businesses to hire smokers (or to allow smoking) is no less objectionable than a government prohibition of smoking on airplanes or in convenience stores.
The tobacco lobby recommends common courtesy to resolve increasingly acrimonious disputes between smokers and nonsmokers. But courtesy, which involves a voluntary yielding to another's wishes, works only when the ground rules are clear. Unless you are allowed to smoke, you cannot agree to refrain from doing so out of consideration for others. Unless you are entitled to clean air, you cannot give someone permission to light up. Property rights are an indispensable guide to good manners.
This article originally appeared in print under the headline "Beyond the Smokescreen".