Snuffing Out Freedom

Ballot initiatives as instruments of tyranny

By a margin of more than two to one, Floridians voted on Tuesday to ban smoking in almost all indoor workplaces. The only exceptions are tobacco shops, hotel rooms, "stand-alone bars" (i.e., bars that are not located in restaurants), and private residences (provided they are not being used "to provide child care, adult care, or health care"). This is one of the strictest smoking bans in the country, although it does not go quite as far as California's, which covers bars as well as restaurants--the approach favored by New York City Mayor Michael Bloomberg.

In today's New York Times, the eponymous Manhattan restaurateur Elaine Kaufman makes the case for a less coercive solution: "We'd put a sign out front, letting people know we're a smoking establishment. And here's a grown-up idea: let people make their own decision about whether to enter. As far as the employees go, it would be up to them, too. Since not all restaurants will choose to be smoking establishments, the work force will have other options."

But Floridians do not care for options; like spoiled children, they want things their way all the time. They believe they have a right to demand "a smoke-free environment" everywhere they go, even on other people's property. In principle, this is no different from insisting on "a meat-free environment" in a steakhouse or "a music-free environment" in a noisy bar. Instead of expressing their preferences as consumers and employees in the marketplace, which would lead to a diversity of choices, smoke banners insist on total hegemony, imposing their one best way on everyone.

In a state where about 22 percent of adults smoke, only 30 percent of the electorate voted against the smoking ban. Let's assume smokers did not go to the polls in disproportionate numbers to oppose the initiative, and let's forget about the nonsmokers in the hospitality industry who had an economic interest in defeating it. The results still suggest that fewer than one in 10 Floridians is prepared to defend property rights as a matter of principle.

That disheartening reality illustrates one of the perils of ballot initiatives, which are often portrayed as a way to avoid gridlocked legislatures and deliver what the people really want. Sometimes what the people really want is to lord it over a recalcitrant minority that is exercising its rights in a way that irks them. In such cases, the difficulty of getting laws passed in a legislature pressured by "special interests" acts as a check on the tyranny of the majority.

Yet sometimes voters are more tolerant than politicians. Although polls consistently find that most Americans think patients who can benefit from marijuana should be able to use it without fear of arrest, politicians are afraid to endorse the idea. That instinct may be politically prudent, assuming that voters who support medical access do not feel as strongly about the issue as voters who rebel at the idea that marijuana could be good for anything. Pot-phobic voters may be more likely to hold a candidate's position on medical marijuana against him. But when medical marijuana is presented on its own, as it has been in eight states and the District of Columbia, it wins handily.

That does not mean voters support access to marijuana for recreational purposes. In Arizona and Nevada, where voters had already approved medical use of cannabis, they voted against broader decriminalization initiatives on Tuesday's ballot. More than 60 percent of voters opposed the Nevada initiative, which would have allowed licensed sales and possession of up to three ounces by adults. Apparently Nevadans were not reassured by the measure's prohibition of marijuana consumption outside the home. Perhaps the initiative's backers would have had more luck if they had presented it as a smoking ban.