The Home Front

Smoking ordinances and property rights

The activists and politicians who support laws banishing smoking from private offices, bars, and restaurants have never shown much concern for property rights. Until now.

Backers of a new Montgomery County, Maryland, ordinance that threatens to fine smokers for lighting up in their own homes say they're determined to protect people whose enjoyment of their property might be sullied by whiffs of a neighbor's cigarette. "This does not say you cannot smoke in your house," Montgomery County Council Member Isiah Leggett said. "What it does say is that your smoke cannot cross property lines."

Property lines were never an issue, of course, when Montgomery County, together with local and state governments across the country, overrode the decisions of business owners who wanted to let their customers or employees smoke. It didn't matter that the smoke was confined to the premises and that people who didn't like it could go elsewhere.

Instead of allowing a diversity of choices, the government imposed the majority's preference for a smoke-free environment on everyone. Business owners who wanted to cater to a minority were simply not allowed to use their property that way.

Although the anti-smoking movement's newfound affection for John Locke is transparently insincere, those of us who cared about property rights all along cannot ignore the proclaimed intent of Montgomery County's ordinance. After all, policing property boundaries is one of the government's basic functions.

It's undeniable that some things people do on their own property cannot be tolerated because of the impact they have on neighbors. I have a right to complain if you make it impossible for me to sleep by blasting your stereo at 3 a.m., and I ought to have some recourse if you refuse to turn it down.

But because so much of what people do in their daily lives has detectable effects that extend beyond their property, there has to be some standard for judging when those effects rise to the level of a nuisance justifying government intervention. In the case of noise, that judgment depends on the time of day as well as the decibel level: Operating a leaf blower is not forbidden outright, but doing so in the middle of the night is another matter.

By contrast, Montgomery County's law, which purports to regulate "indoor air pollution," sets no threshold for tobacco smoke. If someone complains about the smell of a neighbor's stogie, the smoker can be fined up to $750.

Without a standard for assessing complaints, this is equivalent to saying that you may not play your stereo, regardless of the volume or the time of day, if the slightest murmur can be detected in a neighbor's apartment or townhouse. Or to pick an olfactory example, it is like fining people because their neighbors don't like the smell of their cooking.

To justify this zero-tolerance approach, the law's supporters argue that tobacco smoke is not just offensive but life-threatening. "Secondhand tobacco smoke is very dangerous and is a known health hazard," said a council spokesman.

It's true that the Environmental Protection Agency declared secondhand smoke a "known human carcinogen" in 1992. But in 1998 that decision was thrown out by a federal judge who found that the EPA had twisted the evidence to fit a preconceived conclusion.

Even if we accept the EPA's report, calling secondhand smoke "very dangerous" is quite a stretch. The EPA estimated that living with a smoker raises a woman's chance of getting lung cancer by 19 percent. This is equivalent to raising her lifetime risk from about 0.34 percent to about 0.41 percent.

If living with a smoker for decades poses such a tiny risk, it hardly seems justified to declare a health emergency every time smoke drifts over from a neighbor's balcony. But that won't stop people from using this pretext to get back at neighbors with whom they've been feuding or simply to punish smokers for their politically incorrect habit.

County officials downplay the potential for such mischief. "We get little or no complaints about smoking," said one, "so I don't think what the council changed is going to have much effect."

To sum up, then, the law's critics worry that it will become yet another excuse for persecuting smokers, licensing busybodies to harangue them even in the privacy of their homes. In its defense, the county argues that there really wasn't any reason to pass the law to begin with. Somehow, I don't find that reassuring.