Published in the Laissez Faire City Times, April 23, 2001
The evidence I have seen and plain common sense suggest that the risk of contracting a "smoking related" disease from secondhand tobacco smoke will probably be the hoax of the 20th century. (There are many candidates, though!) Now, a Laissez-Faire City Times reader wrote and cited a court decision awarding damages to the family of an asthmatic man who, the judge ruled, died from a heart attack initiated by an asthma crisis due to secondhand smoke on a flight.
Suppose then that secondhand tobacco smoke does kill, in this way or in some other fashion. Would this be a reason to regulate or forbid smoking in public places? The answer is, No.
The basic reason is that nothing forces nonsmokers to stick around with smokers. Imagine we start from the present situation, where the state forbids airlines to accommodate smokers. Now, suppose that the law starts allowing special flights advertised for "Smokers and Lovers of Secondhand Smoke Only" (call them "SALSSO flights" for short). Since 25 percent of the adult population smokes, and a somewhat smaller but still sizeable proportion of flyers are smokers, a few such flights will likely be offered by profit-seeking entrepreneurs. For logistic reasons, and like for many minority goods and services, these flights may cost more. Yet, even if smokers are statistically poorer than nonsmokers, some smokers would probably be willing to pay for their preferences to be catered to. Indeed, it is precisely because this would happen that the anti-smoking Jihad prohibits smoking on all commercial flights.
The market may evolve. Suppose that some SALSSO flights end up being offered at cheaper rates, or at least at no higher rates, than nonsmoking flights. This may happen for a number of reasons (including, perhaps, the lower probability of air rage in SALSSO flights). Or it might happen that some SALSSO flights are more conveniently scheduled. So, in certain cases, you will find a nonsmoker who judges that the cost of secondhand smoke during a couple of hours is lower than the supplementary cost of his next best alternative (say, waiting a couple of hours in the air terminal). Since consumers are dumber than voters, let have anybody boarding a SALSSO flight sign a discharge form: "I am 18 years old (22 in California), and I understand that this is a smoke-filled plane, and that I will be submitted to levels of secondhand smoke that, according to the Surgeon General, the EPA, the FDA, the CDC...," and so on, and so forth. What would be wrong with permitting this? Nonsmokers would still be at liberty to pay for their own nonsmoking flights.
Miscegenation
Now, not all nonsmokers are smokers or secondhand-smoke haters. Some entrepreneurs may find that there are potential nonsmoking customers who wouldn't mind secondhand smoke provided they are not seated too close to smoking patrons. Perhaps this would first occur on a route where nonsmoking and SALSSO flights are often half filled, and both clienteles can be offered a better rate if they agree to share flights with separate smoking and nonsmoking sections. Although they may not be the ideal, mixed flights could prove, in certain circumstances, to be the most economic alternative. Antismokers (or asthmatic) could still have more expensive nonsmoking flights if they are willing to support the cost of their preferences. Again, what's wrong with that?
The same argument applies to restaurants, bars, and other so-called "public places," which are generally private properties opened to the public. Freedom of choice and private property rights are preferable to public apartheid, even if secondhand smoke carries health risks.
Consider the parallel with other activities that are risky in a social context. Take Alpine skiing, where participants run an important risk of being killed or maimed, often when hit by another skier. In France, 115,000 skiers are injured every year, and more than 50 killed. You might want to choose your resort (for example, family resorts would be less risky than trendy ones), but if you want no risk of ski accidents, there is only one option: don't congregate with other skiers on Alpine slopes.
Now, it can be objected that being hit and killed by another skier, is "inherent in the activity," while being grazed by secondhand smoke is not inherent in the activity of, say, having dinner in a restaurant. This objection assumes that what is "inherent" in a human activity can be defined by some outside expert without reference to the acting individual's own preferences. For example, gun control advocates claim that what distinguishes guns from other risky objects (say, bicycles or swimming pools) is that guns are "designed to kill." Well, guns are designed to do what the customer wants them to do. It does include killing, but also stopping an aggressor, hunting, collecting, target shooting, or plinking. Indeed, policemen are armed but have no license to kill. What is inherent in an activity is what the participant wants it to be: for some, wine is inherent in a meal, for others it will be a cigar, or music, and so on, according the infinite diversity of human preferences. In other words, individual preferences are subjective. Many women and men think that wearing perfume is inherent in social gatherings.
Others complain that they are allergic to fragrances, which can provoke asthma crises among other health problems. There is a growing movement that has already obtained fragrance bans in some "public places." In an interesting American Spectator article ("Scents and Senselessness," April 2000, available at http://www.fumento.com/scents.html), Michael Fumento quotes an antifragrance newsletter: "Symptoms provoked by fragrances include: watery or dry eyes, double vision, sneezing, nasal congestion, sinusitis, tinnitus, ear pain, dizziness, vertigo, coughing, bronchitis, difficulty breathing, difficulty swallowing, asthma, anaphylaxis, headaches, migraine, seizures, fatigue, confusion, disorientation, incoherence, short-term memory loss, inability to concentrate, nausea, lethargy, anxiety, irritability, depression, mood swings, restlessness, rashes, hives, eczema, flushing, muscle and joint pain, muscle weakness, irregular heartbeat, hypertension, swollen lymph glands and more."
The only efficient solution to this clash of preferences is, like for secondhand tobacco smoke, to let private property and individual choices establish the necessary arbitrage. Let every individual free to decide with whom he will associate.
Wandering Photons
Can we find something that is "inherent" in a social activity while avoiding the pitfalls of an "objective," authoritarian and arbitrary determination of different people's preferences? Perhaps, but then, certainly, interaction with other individuals must be part of the definition. Inherent in your dining out or boarding a commercial flight -- inherent in your doing something socially -- is the fact that other individuals may be nearby. Now, if you choose to interact with other individuals, you cannot avoid a "proper assumption of risk," a concept borrowed by Murray Rothbard from Williamson Evers (The Ethics of Liberty, Humanities Press, 1982, p. 236). This includes the risk of catching a contagious disease (perhaps because you have wandered in the wrong bed), of being hit by photons deflected by, or scent particles emitted by, a passer-by, or being glazed by his secondhand smoke.
Risks inherent in social interaction can be limited by private property owners imposing rules on the use of their space. No public regulation is needed, as every property owner can choose to bear the cost of excluding people or behaviors he does not like, or to maximize his profits by catering to the preferences of the clienteles most willing to pay him. This approach justifies private discrimination against smokers, perfume wearers, or sneezing individuals (even if I, for one, do not agree with the values underlying such discrimination); but it also allows the liberty to accommodate them.
Let's consider the extreme case of the killer smoker. Should there be laws prohibiting smoking while filling up at gas stations? The short answer is, No. If an isolated gasoline station posted a sign saying "Smoking permitted, explosion likely, come at your own risk!", and customers went there to fill up, how could we justify that the state send armed men and stop these capitalist acts between consenting adults? You don't go there if you don't want to be blown up, as you don't go on a boxing ring if you don't want a fist on your nose. Gas station owners, take notice! The long answer might be that perhaps efficient common law establishes general standards that protect third parties' lives when immediately and directly threatened. In case of doubt, though, let individuals make their own trade-offs. The state, and addiction to the state, are much more dangerous than any herb you can think of. Security is not the only value, and slave life is not a value to be imposed.
A search would certainly reveal many peaceful activities that have indirectly "killed" a third party. An ayatollah seeing a woman in a bathing suit might die of a heath attack. An asthmatic man making love to a perfume-wearing woman might run the same risk. (So would perhaps a libertarian seeing a government-mandated "prohibited" sign in a private business.) Are we going to sacrifice the life of the ayatollah just for the convenience of the woman on a hot day? Are we going to kill one lover just because his partner likes to wear "Opium" or "Eternity" -- and was too impatient to take a shower with unscented soap? Such questions are basically meaningless in a free society. Everybody chooses with whom to associate or not, and takes the risks that come with the package.