Smoking Bans: Banning Freedom

Aeon J. Skoble,

Release Date
February 21, 2012


Civil Liberties

According to Prof. Aeon Skoble, smoking bans are on the rise in America. At first glance, this trend seems to stage a battle of rights. The smoker claims to have the right to smoke, while the nonsmoker claims the right to clean air in “public” places such as restaurants and bars.

In an important way, however, restaurants and bars are private places. They have owners, just like homes. Skoble argues that restaurant and bar owners should be able to set smoking rules for their establishments, much like you can set smoking rules in your own household.
Nobody forces a customer into a particular restaurant or bar; drinkers and diners are free to choose among the alternatives available, each of which has a unique environment, including its set of smoking rules. Discussions about “smoker’s rights vs. nonsmoker’s rights” miss the fundamental issue: restaurant and bar owners’ property rights.

Smoking Bans: Banning Freedom
In many jurisdictions across the country, we’re seeing more and more bans on smoking in public places. This seems like it’s a conflict of rights because the smoker claims, “I have the right to smoke, don’t I?” Whereas the nonsmoker will claim, “I have the right to breathe clean air, don’t I?”
But in many of these areas the concept of “public places” includes bars or restaurants. And in an important way, those aren’t public places. Those are private places.  The bar, the restaurants, those have owners, just like you own your home. If you’re in my house, you don’t have the right to smoke unless I say that you can smoke. And if I’m in your house, I don’t have the right to clean air unless you say I have the right to clean air. When I’m in your house, we will either smoke or not smoke, depending on what your rules are. When we’re in my house, we’ll either smoke or not smoke depending on what my rules are.
And just as you should be expected to set the use rules for your own home, surely the restaurant owner should be able to set the use rules for what goes on in that restaurant. You don’t have the right to complain that there’s smoking or that there’s no smoking, because it’s not your restaurant.
The restaurant owner knows his or her clientele, knows whether it’s the sort of establishment where it would be more advantageous to allow smoking or to ban smoking. Why not let the restaurant owner make those decisions for that establishment, just the same way that you get to make those rules for your own home?
You’re not required to go to the restaurant in the first place. If you would like to go to a restaurant where there’s no smoking allowed, then you should go to a restaurant where there’s no smoking allowed. If you’d like to go to a restaurant where there is smoking allowed, then you should go to that kind of a restaurant.
But to frame that in terms of rights is to miss the point of whose rights are in question. It’s not really a matter of smokers’ rights versus nonsmokers’ rights. It’s really a matter of property owners’ rights. You have the right to smoke in your property, and you have the right to have a smoke-free environment in your own property. But you don’t have a right to one condition or the other in somebody else’s property. The property owner’s rights are the ones that should determine the rules for use of that property. You don’t have rights that override the property owner’s rights. If I’m in your restaurant, it’s up to you whether I can smoke or not, not up to me.