Forums: Reason Magazine, New York Times, Princeton Town Topics (1996 - 2000)
In her essay, "Censorship: Local and Express," Ayn Rand writes that "in the transition to statism, every infringement of human rights has begun with the suppression of a given right's least attractive practitioners" (Philosophy: Who Needs It, p. 173).
In contemporary American society, the rights that are most consistently under attack are the rights to property, contract, and free association. Given current fashions, the least attractive practitioners of those rights have come to include those who sell and consume cigarettes. After decades of receiving essentially uncontested agricultural subsidies, and despite the fact that the carcinogencity of cigarette smoking has been common knowledge for at least thirty years, the tobacco industry has recently come under hysterical, self-righteous attack by self-proclaimed guardians of "social responsibility" and "public health." Likewise, despite the innumerable legal and informal restrictions on smoking virtually everywhere in American society, a movement has arisen to "ban smoking from all public places." Entirely lost in this debate are some simple questions: Do people have the right to smoke? If not, why not? If so, under what conditions? Do people have the right to sell cigarettes? If not, why not? If so, what are the limits of their liability? Few of the current "public health" zealots have even the beginnings of a cogent response to these questions.
I don't smoke (and have never), and don't intend to start; I think smoking is irrational, and I find the idea of marketing or selling cigarettes a morally dubious practice. Still, smokers have rights, and those rights should be defended. The following letters are my modest contribution to that defense.
1) The Morality of Smoking: A Response to Jacob Sullum (Reason, July 1996)
This first letter, addressed to the libertarian writer Jacob Sullum, was published in Reason magazine (May 1996). In it, I take issue with Sullum's apparent defense of cigarette and marijuana smoking as defensible practices in themselves, and insist that both kinds of smoking be condemned as irrational but defended on legal grounds. I've taken the liberty of responding here to Sullum's rejoinder to me.
To the Editor:
Jacob's Sullum's article "Smoke Alarm" (May 1996) is putatively an attempt to put the widespread social disapproval for marijuana consumption in historical perspective. It is also, however, meant to provide an argument showing that those social concerns are an overreaction, just as were turn-of-the-century attitudes toward cigarette smoking.
Sullum's argument seems to be:
1) Opposition to cigarette smoking was based on moral condemnation rather than questions of physical hygiene;
2) Those moral concerns were spurious;
3) Current opposition to pot smoking is also based on moral condemnation;
4) So it, too, must be spurious.
Unfortunately, Sullum's argument fails twice over.
First, the argument is fallacious even if we concede the truth of its historical claims. Suppose that the moralistic campaign against cigarette smoking really was spurious. It doesn't follow that the moralistic campaign against pot smoking is spurious unless cigarette and pot smoking are fundamentally similar activities. Sullum produces no evidence for this assumption, simply implying that anyone who believes otherwise is buying into anti-pot
propaganda. Unfortunately, this assumption begs the question: Even if cigarette smoking left us morally intact, pot smoking could be different. Sullum never grapples with this issue.
Second, Sullum never explains why the moral condemnations of cigarette smoking were spurious. Nicotine is, after all, an addictive drug. Arguably, addictions do undermine the conditions of rational agency and moral responsibility. There is moral significance to the fact that people sometimes want to quit smoking but find to their surprise that they can't. In many conceptions of morality, a person is blameworthy for voluntarily putting him or herself into such a demeaning position. If that is right, then cigarette smoking is morally problematic.
It's one thing to oppose the war on drugs because it threatens the rule of law and procedural rights. It's another thing to make lame excuses for the moral and intellectual deficiencies of potheads. The former argumentative strategy will help libertarians make the case for decriminalization to a public that is skeptical about the war on drugs; the latter won't.
Jacob Sullum responded to my letter as follows:
As I stated, the comparison between yesterday's fears about tobacco and today's fears about marijuana was intended to be suggestive, not conclusive. Obviously, the fact that people once believed things about tobacco that seem silly now does not prove that contemporary concerns about marijuana are unfounded. But given the pharmacological differences between the two substances, the parallels are striking. They illustrate the point that a drug's reputation is shaped by factors other than chemistry. And yes, the way that perceptions of tobacco (and other drugs) have shifted over the years should give pause to anyone who automatically accepts extravagant claims about the hazards of marijuana.
An examination of the scientific record confirms that skepticism is appropriate. As I noted, there is no credible evidence that marijuana in moderation causes brain damage, destroys motivation, saps productivity, contributes to crime, or leads to "hard" drugs. Like any other psychoactive substance, marijuana can be abused, but it is generally used responsibly--a point that Irfan Khawaja's sweeping condemnation of "potheads" obscures. If by saying that addictions may "undermine the conditions of rational agency and moral responsibility," Mr. Khawaja means to imply a kind of pharmacological compulsion that negates free will, I disagree. In any event, it is one thing to suggest that cigarette smoking is "morally problematic," quite another to say that it damages intelligence, turns boys into liars and criminals, makes students and workers lazy, and fosters opium addiction. I believe that it is fair to say that these ideas have been discredited. If Mr. Khawaja can offer evidence to the contrary, I would be eager to see it.
A postscript (Irfan Khawaja, September 2000):
Mr. Sullum's response to my letter doesn't strike me as particularly responsive to what I actually said in it. He says that he intended his comparison between cigarette and pot smoking to be "suggestive." But my point was that it was suggestive of the wrong things—not of the right to smoke, but of the rationality of smoking either cigarettes or pot. I'm willing to defend the former, but not the latter.
In a move that is typical of contemporary discourse, Mr. Sullum says that there is no "credible scientific evidence" that moderate marijuana use leads to the maladies he mentions. But I never said it did lead to those particular maladies. I merely suggested that smoking was "morally problematic"—an assertion Mr. Sullum mentions without quite discussing. There is, after all, no "credible scientific evidence" to suggest that either cigarettes or marijuana have any beneficial health effects, and excellent evidence suggesting that they're deleterious both to mind and health. Isn't that enough?
I should emphasize that we do not need "scientific evidence" (i.e., controlled double-blinded studies) to prove that cigarette or pot smoking are harmful, any more than we need such studies to show that gluttony, sexual overindulgence, or watching eight hours of TV a day are harmful to health. The harmfulness of these things is a matter of pre-scientific knowledge, gotten from everyday observation and experience. Scientific studies merely quantify and fine-tune what we already know about the harm they cause; they can't subvert our knowledge or explain it away.
Finally, if Mr. Sullum doesn't concede that addictions undermine one's freedom, he hasn't grasped what an addiction is. An addiction is a pharmacologically-induced compulsion. If one is addicted to X, one can't help craving X. That doesn't mean that one's addiction destroys one's freedom and responsibility in every respect, nor does it mean that one is not responsible for having become addicted in the first place. It does mean, however, that the addiction undermines one's freedom in one respect—namely, one's ability to get some distance on the desire to consume X. If I'm addicted to X, then instead of being able to stand back from a desire for X, my addiction for X pushes me into wanting it. That is what I was getting at in my letter, and what Mr. Sullum's defense of smoking glosses over. Besides undermining one's physical health, an addiction undermines one's self-control. Critics of smoking are correct to draw attention to these facts; they're simply wrong to think that such facts justify the use of coercion against smokers.
2) Sometimes a Ban is Just a Ban: A Response to Katherine Benesch of the Princeton Regional Health Commission. (New York Times, New Jersey section, 4/2/2000).
This second letter criticizes Katherine Benesch, a member of the Princeton (NJ) Regional Health Commission (PRHC), which recently attempted to institute a ban on smoking in all "public places," including privately-owned bars and restaurants but excluding the smoking sections of hotels with adequate ventilation systems. Besides being procedurally illegitimate, the PRHC's ban was a blatant attempt to override the property and free association rights of the owners and patrons of the relevant "public" places. The letter was printed in the New Jersey section of the Sunday edition of the New York Times, but badly botched by the paper's typesetters; it is printed here in its original version.
To the Editor:
Your article on the Princeton Regional Health Commission's move to ban smoking on private property contains a somewhat odd assertion by Katherine Benesch, a member of the commission.'This is a smoke-free ordinance,'' she said.''We don't think of it as a ban.''
What, exactly, is the difference between an ordinance that compels private establishments to be''smoke-free'' and a''ban'' on smoking in those private establishments? I would be interested to know whether Ms. Benesch thinks that the penalties to be assessed for noncompliance with the ordinance are best to be thought of as voluntary contributions to public health rather than "fines."
Ignored in Ms. Benesch's attempt to justify the ordinance is the irrefutable fact that a person cannot take in second-hand smoke unless he or she chooses to patronize an establishment that permits smoking. If one doesn't want second-hand smoke in one's lungs, one is fully free not to patronize the relevant establishments. This fact is more obvious, and more easily demonstrable, than anything in the vaunted''research'' on second-hand smoke to which Ms. Benesch and others allude.
''We're not doing anything radical here,'' Ms. Benesch said. No, nothing radical at all; just blurring the distinction between freedom and force with a blithe unconcern for the consequences. That's not radical in Princeton. It's par for the course
Postscript, September 2000:
Though I didn't mention this in my letter, there is great debate about how harmful second-hand smoke is. I suspect that many of the anti-smoking activists of Ms. Benesch's ilk are willing to exaggerate the dangers beyond what the data will bear. In any case, the standard scientific view holds that second-hand smoke causes 3000 cancer deaths a year. I wasn't affirming or disputing that claim in my letter; it may well be true. My point is that it is irrelevant to the issue of a ban even if it is true: the causal relationship between second-hand smoke and harm, however well confirmed by the relevant science, is less certain than the fact that exposure to second-hand smoke in private establishments is typically incurred voluntarily. In the highly untypical case in which second-hand smoke were involuntarily incurred, I admit that that would be a tort (not a crime!), and would require the relevant legal redress (bearing in mind that the burden of proof would be on the plaintiff, not the defendant). But the Princeton Regional Health Commission and its allies—and the anti-smoking activists generally—do not seem particularly interested in the niceties of tort law or the facts of actual causation. If they were, they wouldn't torture the English language as badly as Ms. Benesch did when interviewed by The New York Times.
3) Addicted to Coercion? A Response to Ingrid Robertshaw (Princeton Town Topics, July 5, 2000).
The third letter, printed in a local newspaper (Princeton Town Topics), responds to a typical argument in favor of the ban, and lays out the case against it.
To the Editor:
In a letter in your June 28 edition (Town Topics, June 28), Ingrid Robertshaw defends the recent smoking ban by asserting that she spends time "in California where the entire state has a no-smoke policy" and has "never heard anyone complain about the law." She defends the ban because she is "not willing to sit in restaurants where smokers" make life unpleasant for her, and because smokers remind her of her mother-in-law. [In her letter, Ms. Robertshaw had justified the ban in part because smokers reminded her of mother-in-law, who died of cancer as a result of smoking.]
First, I wonder whether Ms. Robertshaw is aware of the fact that the population of California is approximately 33 million. I'm sure that Ms. Robertshaw spends a lot of time in California, but even so, I somehow doubt that she's canvassed the views of a statistically significant fraction of its residents.
Second, if Ms. Robertshaw is genuinely "not willing" to sit next to smokers, I have a piece of advice for her: don't. No one is forcing Ms. Robertshaw to sit anywhere; if she doesn't want to sit next to smokers, she shouldn't patronize restaurants that allow smoking. If Ms. Robertshaw took her own words seriously, she would note that the meaning of the phrase "I am not willing to sit" is "I shall not sit"—not "I shall impose my will on others, after choosing to sit."
Finally, I think it's worth reminding Ms. Robertshaw that laws and regulations don't exist to help us repress unpleasant memories about our in-laws. If we enacted laws on this basis, we would quickly destroy whatever remnants of the rule of law we have left in this country.
Laws exist to protect individual rights. In this case, the rights in question are the rights of property and free association. A restaurant owner owns his or her restaurant, and has the right to set the terms of trade there. People are invited to patronize the restaurant on the owner's publicly-advertised terms. They have the right to accept those terms or reject them. If they accept them, they consent to accept the consequences of their decision. If they aren't willing to accept the consequences, they shouldn't accept the terms.
A restaurant owner who puts up a sign that says "No Smoking" has the right to turn smokers away from his or her restaurant—and most do. An owner who puts up a sign that says "Smoking Section Available" (or whatever) is providing notice to anyone who enters that there might be smokers inside. Compulsive smokers should avoid the first kind of restaurant; vehement non-smokers should avoid the second.
What one doesn't have is the right to barge into someone's restaurant, and dictate the terms of trade to owners and consenting customers by force—whether one is the Princeton Regional Health Commission, or just a self-appointed paternalist with a hefty sense of entitlement.
I don't smoke at all or even spend much time eating in any of Princeton's restaurants. But there is a principle here that advocates of the smoking ban have consistently misrepresented and evaded: the principle of rights. Either restauranteurs have rights or they don't. If they do, the ban should be repealed. If they don't, neither do the rest of us. I wonder if the advocates of the ban can overcome their addiction to coercion quickly enough to figure that out.
Postscript September 2000:
The Mercer County Superior Court decided against the smoking ban on August 29, 2000 on essentially procedural grounds. According to The Princeton Packet of 9/1/00, "The court is satisfied that (the Health Commission) did not possess the statutory authority to enact (the ordinance) for fire safety purposes. Since State law pre-empts any municipal regulation of smoking except for fire safety reasons, and since the power to enact fire safety regulations rests with the municipal governing bodies and not the (Health Commission), (the ordinance) is invalid and unenforceable on fire safety grounds."
Note the patent hypocrisy involved in Ms. Benesch's originally claiming to want to create a "smoke free environment" to the PRHC's wanting to ban smoking on grounds of "fire safety." Note also that the Health Commission's defeat is a temporary one: if State law pre-empts municipal fire regulations on the grounds the Health Commission and its allies want, the possibility still exists of lobbying the State legislature for "smoke-free legislation."
The anti-smoking activists, of course, realize this, and are preparing the ground for a lobbying effort aimed at the state legislature. The first step in this effort has been an attempt to discredit the county court's ruling. In what must surely be the most idiotic analogy I have ever read in political discourse, Robert Conroy, attorney for the anti-smoking group New Jersey Breathes, told The Princeton Packet: "This decision [striking down the ban] probably in a couple of years from now, we'll look back on as a landmark decision much in the way the Dred Scott decision served as a rallying point for the anti-slavery movement prior to the Civil War." Thus according to anti-smoking activists, smokers are the equivalent of slave-drivers, though they act by purely voluntary means; by contrast, those who coerce smokers are the moral equivalent of abolitionists, despite the fact that they violate the rights of others. Being the moral equivalent of abolitionists, of course, anti-smoking activists apparently have the right to initiate the equivalent of "civil war" against smokers.
What advocates of smoking bans are going to have to learn is that (a) political freedom is a value that non-smokers are willing to defend on behalf of smokers, (b) freedom is violated by legalized intrusions on smokers' right to property and free association, and (a) and (b) represent facts that are as `hard' and as demonstrable as anything that biostaticians will ever demonstrate about the carcinogenicity of tobacco smoke. Instead of hiding behind equivocations like Ms. Benesch's, emotional outbursts like Ms. Robertshaw's, and historical illiteracy a la Robert Conroy, the anti-smoking activists might try to engage their opposition openly and honestly by explaining how they reconcile their goals with these facts. Given their patent inability to engage in linear thought, however, it's not surprising that the anti-smoking activists have resorted to force to achieve their ends. Persuasion is obviously not these peoples' forte—force is. That by itself makes them more dangerous than the second-hand smoke they spend so much time denouncing.