A Smoke-Filled Room of One’s Own

The liberal case against ever-expanding smoking bans

Because I write about tobacco policy, for more than a decade I’ve followed a Google News alert for the words “smoking ban.” Periodically checking it offers a window onto the creeping progression of smoking restrictions. A current sampling: a town in South Carolina is banning smoking on the beach, officials in Wales seek to expand restrictions to vaping, and West Hollywood is forbidding residents from smoking on their apartment balconies.

Two prevailing trends stand out from this flow of local news stories. The first is that contemporary bans are often completely detached from the original justification that was used to forbid smoking in bars and restaurants, which was to protect workers from dangerous levels of environmental tobacco smoke. The second is that the imposition of bans has a ratchet effect: restrictions get persistently tighter, but one almost never hears of smokers’ liberties being restored.

I was therefore pleasantly surprised to learn that the North Dakota House of Representatives has passed a bill to legalize cigar bars, a type of business that the state’s extremely strict smoke-free air law currently prohibits. To qualify, businesses would have to generate a significant portion of their revenue from cigar sales, provide ventilation, and not allow any other type of tobacco product to be smoked on the premises.

It’s a modest and reasonable exemption, but anti-smoking advocates are predictably vociferous in opposition. One objects that the proposal “opens a door to inequality” and “caters to only 4 percent of North Dakota’s population,” the minority status of cigar smokers apparently justification enough for denying them any place to gather. Or, as another anti-smoking advocate wrote, “It is 2021, we cannot go backwards.”

A counterargument: It is 2021, and we should consider that perhaps governments got a bit carried away with the smoking ban thing. We don’t have to intrude into every inch of every space — indoor and outdoor, public and private — to make sure no one is lighting up. As good liberals, we can tolerate the right of consenting adults to get together and smoke tobacco. We should, in fact, go backwards, at least a little bit.

Sliding Down the Slippery Slope

When the movement for indoor smoking bans gathered momentum in the early 2000s, activists dismissed concerns about a slippery slope. Smokers warned they might someday be banished from patios, park benches, college campuses, golf courses, beaches, sidewalks, parking lots, or even their own homes, but they were ridiculed as unrealistic doomsayers. Today, these are all common policies. As anyone searching for a spot to light up can attest, the slope turned out to be pretty damn slippery after all.

As the boundaries of smoke-free spaces expanded, the pretense that bans are motivated by the need to protect non-smokers from the harms of secondhand smoke has been dropped. Now we’re expected to shield them from the mere sight of people smoking. As Thomas Farley, then-commissioner of health for New York City, testified in favor of outdoor bans, “families should be able to bring their children to parks and beaches knowing that they won’t see others smoking. … We will look back on this time and say, ‘How could we have ever tolerated smoking in a park?’”

While defending bodily autonomy and personal choice in many other contexts, much of the progressive left has adopted an insufferably illiberal prudishness when it comes to tobacco. Their attitude brings to mind judge Robert Bork’s defense of laws forbidding sexual behaviors: “Knowledge that an activity is taking place is a harm to those who find it profoundly immoral.”

These legal prohibitions have real consequences for smokers, such as the Maryland family of four who was nearly evicted from their home for the mother’s apparent crime of smoking in the parking lot. The landlord reversed after damning media coverage, but under federal rules adopted in 2018, anyone living in public housing is now subject to eviction for lighting up in the wrong location.

One gets the impression that ideological activists and researchers in professional tobacco control, enriched by bountiful flows of cash from Michael Bloomberg or the 1998 Master Settlement Agreement with tobacco companies, don’t actually spend much time with the people who bear the brunt of the policies they advocate. To them, smokers are problems to be solved, not equals to be respected.

Smokers themselves report living under a miserably oppressive atmosphere of stigmatization. Read, for example, the curious fieldwork of anthropologists Kirsten Bell or Simone Dennis, the latter thoroughly documented in her book Smokefree. Try actually listening to smokers. They don’t generally seek a return to the bad old days when smoke was everywhere, but they do want to be treated with dignity, not constantly harassed. (Respecting smokers is compatible with caring for their health and helping those who want to quit, especially by not prohibiting or demonizing safer sources of nicotine. Illiberalism poisons the anti-smoking movement in more ways than one.)

A few voices on the left, most notably Barbara Ehrenreich, have remarked on the extent to which the advance of smoking bans particularly targets those with the least financial means. Gone, she notes, is the working-class bar, and workers are forced to huddle in cold, wind, and rain on their smoke breaks. Smoking is concentrated among Americans with low levels of education and income, so whenever smoking bans are expanded, it’s they who get pushed to the fringes. No wonder the policies are popular with the rich.

These class considerations also affect who gets exempted from smoking bans. If there’s one problem with the North Dakota bill to legalize cigar bars, it’s that it’s not inclusive enough. Cigar smokers often secure privileges unavailable to those who smoke cigarettes or hookah. This double standard reflects more the perceived class of the people who use the products than any objective feature of their secondhand emissions, and exemptions should not discriminate among them.

Still, at least in this particular instance, the legislators in North Dakota are better liberals than the smoking ban boundary-pushers in, say, California or New York. It’s easy to respect the rights of people we like or whose habits we enjoy; the test of a true liberal is whether they can do the same for those they disdain or whose habits they find repellant. Liberals who are up to the challenge should endorse the proposal in North Dakota and welcome similar measures throughout the country.

Norms around smoking in the United States have durably changed. Liberalizing draconian smoking laws will not usher in a return to smoking on airplanes or even inside the vast majority of bars and restaurants. We can and should take reasonable steps to restore the rights of smokers to peacefully socialize together and to rebuild friendly communities that were wiped out by the zealous intrusion of government into voluntary spaces. If we are true liberals, we owe it to our fellow citizens to scramble back up the slippery slope.

From Opting-Out to Opting-In

Few of us, myself included, have any desire to go back to the ubiquity of smoking in the 20th century. The degree to which smokers previously assumed the prerogative to burn tobacco in all kinds of shared spaces is astonishing in hindsight. Non-smokers had to stand up against strong social norms to assert their preference for smoke-free air, setting into motion a long-term shift toward non-smoking spaces.

In my book The Rediscovery of Tobacco, I described this as a transition from having to opt-out of smoke-friendly spaces to having to opt-in to them. It used to be that if you didn’t want to be around tobacco smoke, the burden was on you to find a place that catered to your preference. Now we expect smoking to be prohibited just about everywhere. And if you want to find a place to light up, good luck. “No smoking” signs have become superfluous; today we look for signs to indicate the few places we can smoke. This is a positive change in many respects, but the challenge of switching from opting-out to opting-in is that the freedom to do the latter has to actually be preserved. It’s here that we are falling short.

If this were only a matter of social norms, smokers could be left to negotiate them on their own. Restrictions imposed through legislation, however, are another matter. Non-smokers have unleashed the coercive power of the state to claim ever more spaces for themselves, curtailing smokers’ freedom and wiping out their social gatherings. Liberal defenders of smoking bans, who once claimed only to be concerned with non-consensual exposure to harmful levels of secondhand smoke, have made it increasingly illegal for consenting adults to smoke together at all.

It Usually Begins with John Stuart Mill

In a liberal society, the question of whether private behavior ought to be restricted tends to begin with John Stuart Mill’s harm principle. In short, the idea is that the only justification for coercing a capable adult is to prevent them from harming others; protecting their own good is not sufficient reason. If we take this commitment seriously, we must respect the freedom of those who smoke in isolation or only in proximity to others who consent to sharing space with them.

Applying the principle to real life situations gets more complicated, given that smoke wafts away from the smoker and that the harms of incidental exposure are vanishingly small. There’s also the question of establishing consent. Americans in the recent past could rightly complain that secondhand smoke was ubiquitous in daily life. They weren’t forced per se to enter smoky environments, but they did often want for alternatives.

Now, however, smoke-friendly venues are easy to avoid unless one goes looking for them. If you choose to enter one of the country’s few remaining cigar bars, for example, you’re hardly entitled to complain about the presence of smoke. And if you enlist the government to forbid people from peacefully socializing in such venues, it’s fair to say that you’ve become the aggressor encroaching on their rights.

An additional complication is the presence of employees. In the early debates over smoking bans in bars and restaurants, which led to many owners being forced to make drastic and often unwanted changes to their businesses, anti-smoking activists placed a strategic fig leaf over the naked coercion of the policies by shifting the focus onto workers. This argument relied on the intuition that exposure to secondhand smoke should not be requisite for working in the hospitality industry, while also giving non-smokers a high-minded excuse for imposing their preference onto everyone else.

As a bartender myself, I do genuinely appreciate that smoky bars are no longer the norm, though that isn’t to say heavy-handed smoking bans were the ideal means of addressing this concern. I also call bullshit on the notion that an employment relationship erases one’s ability to consent to providing hospitality to smokers.

The situation of hospitality workers parallels that of consumers. That they are no longer subjected to ubiquitous secondhand smoke is a good thing. It does not follow, however, that employees, owners, and patrons should be forbidden from consensually trading together in any environment that involves tobacco smoke. By objective standards, we regularly allow and even encourage people to consent to far more perilous work. The supposed concern with workers’ health obscures the extent to which enthusiasm for smoking bans reflects more the low social status of tobacco use than it does the actual risks of secondhand smoke.

These risks have been greatly exaggerated by anti-smoking groups and by journalists who can’t resist an alarming headline. What began in the 1970s and 1980s as a sincere inquiry into the possibility that chronic exposure to secondhand smoke modestly raises one’s risk of several diseases gradually morphed into an ideological campaign to portray it as a potent, silent killer. The political utility of this portrayal led to an environment in which dissenting scientists were silenced and attacked while extremely dubious findings were widely disseminated in the press.

In recent years this has become a full-blown moral panic. Activists warn that even brief encounters with secondhand smoke can be terrifyingly lethal and researchers promote fear of invisible “thirdhand smoke” on clothing, hair, and other surfaces. The stigmatization is so thorough that smokers themselves become seen as a toxic presence corrupting a clean environment. “Smokers themselves are also contaminated,” a Harvard doctor warned in Scientific American. “Smokers actually emit toxins.”

There isn’t space here to get into the epidemiological weeds on all of this, but suffice to say that anyone whose views of secondhand smoke have been absorbed from press reports from the past couple decades should recalibrate them with reference to the more sober research that continues to be published in scientific journals, albeit without the media splash of more alarmist fare. You don’t have to take my word for it; listen to professional cancer researchers.

None of this is to say that risks are non-existent or to deny that that the shift in norms toward smoke-free spaces has been a good thing. It’s one thing to acknowledge this as progress. It’s quite another to conclude that no smoke-friendly venues should be permitted to exist. Reasonable desires for cleaner air have given way to a totalizing crusade against smokers. If we are truly committed to living in a liberal society, we should consider instead how to better accommodate one another’s differing preferences and cede to smokers some welcoming rooms of their own.