Column: Smoking out a self-serving viewpoint: Justifiable Limits on Bars

I have no shortage of admiration for the men and women who fight for liberty, who battle against prudes, prohibitionists and the control freaks who would order around the rest of us, and tell us how...

Byline: David Staples, Source: The Edmonton Journal
Page: D8, Edition: Final
Edmonton Journal - Sun, Jan 11, 2004 - 867 words

[For the record: Smoking: Who Has the Right? was co-edited by J.A. Schaler and M.E. Schaler]

Edmonton, Alberta, Canada
January 11, 2004

Abstract:

The libertarian argument against smoking bans has been put forward by letter writers, media commentators and, of course, bar owners. It started to be made in earnest about five years ago, getting a boost from a 1998 book, Smoking: Who Has the Right? edited by psychologist Jeffrey A. Schaler, (sic) a public affairs professor at American University in Washington, D.C.

I called Schaler, who told me he respects the health concerns of restaurant staff, such as Ontario's Heather Crowe, a non-smoker who waitressed in smoky restaurants for decades, before coming down with lung cancer. But ultimately, Schaler said, no one forced Crowe, just as no one forces any other restaurant or bar worker, to work in a smoky place. Instead, they choose to work there. "If they find smoking objectionable, go and get a job someplace else. ... Generally speaking, I don't think the employee should dictate what is safe or isn't a safe environment."

I'd put bar and restaurant owners who allow for smoke-filled establishments in that category. That means we should consider their viewpoint, but understand it is tainted by self-interest. But what of Schaler's argument that servers like Heather Crowe should simply change jobs or professions? Isn't that the best way out of a difficult situation? (Copyright Edmonton Journal 2004)

Full Text:

I have no shortage of admiration for the men and women who fight for liberty, who battle against prudes, prohibitionists and the control freaks who would order around the rest of us, and tell us how to live our lives.

Without this liberty-loving faction, there'd be no free speech and no free enterprise in Canada, just a ruling clique telling us what to think and do. But, for all the good that libertarians do, I have to think they've gone too far in the present debate over the banning of smoking at restaurants and bars.

To listen to some libertarians, you'd think the matter was black and white, that the property rights of bar owners are absolute, and if they want to have smoking at their establishments, they should have it, case closed, no matter if their staff members have health concerns about second-hand smoke.

The libertarian argument against smoking bans has been put forward by letter writers, media commentators and, of course, bar owners. It started to be made in earnest about five years ago, getting a boost from a 1998 book, Smoking: Who Has the Right? edited by psychologist Jeffrey A. Schaler, a public affairs professor at American University in Washington, D.C.

I called Schaler, who told me he respects the health concerns of restaurant staff, such as Ontario's Heather Crowe, a non-smoker who waitressed in smoky restaurants for decades, before coming down with lung cancer. But ultimately, Schaler said, no one forced Crowe, just as no one forces any other restaurant or bar worker, to work in a smoky place. Instead, they choose to work there. "If they find smoking objectionable, go and get a job someplace else. ... Generally speaking, I don't think the employee should dictate what is safe or isn't a safe environment."

I'd agree with those who argue that bar owners know best about their own business and have the right to make final decisions. But I'm also mindful that some of the most renowned libertarians, such as Englishman John Stuart Mill (1806-1873), accepted that the state could justifiably limit individual liberty in one regard, and that was the prevention of harm to others.

"Whenever there is a definite damage, or a definite risk of damage, either to an individual or to the public, the case is taken out of the province of liberty, and placed in that of morality or law," Mill wrote in On Liberty, published in 1858.

It's no easy thing to decide on matters where there are conflicting rights, Mill said, such as cases where property rights face off against public health concerns. But in weighing such matters, he noted, it's important to watch out for self-serving arguments from people who gain financial advantage from an activity the state deems to be evil.

I'd put bar and restaurant owners who allow for smoke-filled establishments in that category. That means we should consider their viewpoint, but understand it is tainted by self-interest. But what of Schaler's argument that servers like Heather Crowe should simply change jobs or professions? Isn't that the best way out of a difficult situation?

I put that to Crowe when she visited Edmonton last spring, and she replied that, first of all, for most of her career she didn't know the danger of second-hand smoke and that, secondly, waitressing was all she knew and she had to make a living.

This is no small point. You and I can always abstain from going to smoky bars and restaurants, but people have a limited ability to get training and find a job.

"People's choices are often quite limited," says Osgoode Hall law professor Eric Tucker. "They need to find a job, and that's not always easy to do.

"Let's say you're a bartender. Where can you work where there isn't smoke?"

Or think about a waitress who gets pregnant, which increases the risk to her from second-hand smoke. Must she, in her condition, find a new job suddenly, so that her boss can go on allowing a smoke- filled establishment?

I don't think that's right, and, in this, I'm supported by common law, where there is a well-established principle that you can't use your property to harm others.

Of course, this principal won't satisfy bar owners, as Tucker points out: "The property owners say, 'Yes, but someone has voluntarily agreed to accept the risk' and that's why you have to say, 'Well, no, employees make choices in a constrained world. They don't have this full range of choices that some of these economists like to assume.' "

British lawmakers started to recognize this principle in the 1850s, when the first occupational health and safety regulations came in to tame the deadly railway industry. Safety laws have since been put in place for numerous other work sites, from the oilpatch to hospitals.

I don't see why the hospitality industry should be exempt from safety rules just because the dangers of second-hand smoke are only now being understood.

And, knowing that second-hand smoke is an evil, and that bar and restaurant owners have a financial interest in arguing that their workers tolerate it, I don't see why anyone should be persuaded by their self-serving property rights argument.

dstaples@thejournal.canwest.com