A legal twist on workplace smoking

Stephen Bainbridge, a professor at the UCLA School of Law makes a legal argument against smoking bans.

Bainbridge notes that one justification for smoking bans is that smoking has negative externalities -- legalese for one person’s smoking has a cost to another person. Bainbridge accepts the premise that secondhand smoke can be dangerous, but still questions the justification for banning smoking on private property that's open to the public.

The mere existence of an externality does not justify legislation, however. In a free society, with limited government and respect for private property rights, at least two conditions must be satisfied before government intervention is warranted. First, my actions must in fact produce external costs. Second, there must be a market failure -- that is, people must be unable to solve the problem without government help.

Along with the professor’s two-pronged legal approach, I favor a set of three criteria that can be applied to any “public” health issue to jest justification for government intervention. Using these criteria, a bar and restaurant smoking ban, statewide or local, doesn't pass the test of a public health problem requiring government intervention even if one concedes that secondhand smoke is a health concern.

Public health/government intervention is at issue only when (1) people are exposed to risks to which they have not consented and which (2) pose dangers to the community at large from which (3) individuals cannot realistically protect themselves.

Brainbridge continues --

Because I've conceded the first prong of the test, the merit of public smoking bans comes down to the question of whether the problem can be solved through private ordering. In other words, if we let the owners of private property decide whether people will be allowed to smoke on their premises, will non-smokers be exposed to unreasonable costs?

An affirmative answer is clearly appropriate in some situations. There are some public places in which non-smokers may find themselves a "captive audience" -- that is, situations in which the non-smoker cannot avoid exposure to secondhand smoke. Government offices that serve the public are a good example. If a non-smoker gets a traffic ticket, he may have no choice but to go down to the courthouse. A smoking ban thus might be reasonable in the court building.

I agree with his analysis, here, and his conclusion that smoking bans are justified in some instances is supported by my criteria as well. Using his “captive audience” example, a person going to traffic court, who felt threatened by secondhand smoke, would be exposed to a risk to which he had not consented, the danger would be to the community at large in that no individual person is immune from having to appear in court and there would be no way for an individual called to court to protect himself from secondhand smoke.

Bainbridge goes on --

These sorts of situations are quite limited, however. Let's start with the most basic example: my backyard. Should I have the right to smoke a cigar on my back porch, where the only ones who smells it are my dogs? Presumably so, since I'm not imposing on anyone (my dogs seem to like the smell).

If you admit that a ban on smoking in my backyard is not appropriate, let's turn to restaurants. Smoking bans routinely apply to restaurants, but restaurants are clearly places in which private ordering can work and in which government intervention is unnecessary.

Consider the following case: The 21 Club restaurant had a long history of being a cigar-friendly environment. Non-smokers who ate there did so knowing that they may be exposed to cigar smoke. On what basis can such people complain? Do they not assume the risk of being exposed to secondhand smoke by visiting an establishment that allows patrons to smoke cigars? Conversely, other restaurants -- say, those wishing to attract a family clientele -- may forbid smoking in whole or in part. If I choose to patronize these establishments, I have no right to expect to be able to smoke there.

This is what I mean by a system of private ordering: If the place is one that nonsmokers can readily choose to avoid, then they have no right to insist on imposing their preference for a smoke-free environment on me or (and this is the key point) the owner of the establishment. Absent a showing that private ordering can't work, the owner of private property has a right to decide what conduct will take place on his property even if that property is open to the public. So long as non-smokers are free to decide not to enter an establishment in which smoking is allowed, the necessary prerequisite for regulating private property simply doesn't exist.

While smoking ban proponents make the argument that they are lobbying on behalf of bar and restaurant employees, Bainbridge applies is two-pronged legal argument to make this point --

The same sort of analysis could be extended to a host of contexts. Many argue for a ban on smoking in the workplace. And if, for example, an employer concludes that it is cheaper to hire non-smokers, who could object to his banning smoking on his premises? But if another employer concludes that it is cheaper to hire smokers -- perhaps because they'll take lower pay in order to be able to smoke at work -- why should we object to that choice'? So long as non-smokers have other employment options, if they choose to work for an employer that allows smoking, they have no basis to complain. Indeed, there is no externality, because the employer's decision imposes no costs on the non-smokers to which they have not consented.

Many restaurants and workplaces have voluntarily banned smoking. In view of this evidence that private ordering can work, I see no justification for overriding private property rights by banning smoking in private establishments.

I whole-heartedly agree.