Health Nazis Strike California

by C.J. Carnacchio

Well, the tobacco prohibitionists and the enemies of freedom have won another victory. As of January 1, 1998, smoking has been prohibited in all bars and casinos in California. The only exceptions are bars and casinos on Indian land, bars which are owner operated and have no employees, and bars that are not enclosed by four walls and a ceiling. Owners who do not comply with the new draconian measures will be forced to pay a fine of $100 for the first offense and as much as $7,000 for repeat offenses.

California's ban represents a serious assault on private property rights. Private property is defined as that which is owned by an individual or a group of individuals and not the State. Contrary to the anti­smokers' claims, bars and casinos are not public property. Just because an owner opens his doors to the public, he does not change the nature of his property from private to public. The property is still being controlled and utilized for the benefit of the owners, not the State. Both Jeffersonian and Lockean political thought agree that the surest way for the State to erode its citizens' liberty is to control their property.

As Douglas J. Den Uyl, a professor of philosophy, pointed out, "To 'open one's doors to the public' simply means that one is advertising the terms of an agreement for an exchange to any and all comers. It does not mean that one has a public responsibility to others beyond living up to the terms of the agreement, nor are the owners of such properties implying by their advertisement that they wish to relinquish control of their property to the State."

Smoking policies should be determined by the economic power of the consumer operating in a free market, not by the coercive power of the State. State action, by nature, is universal, rigid, and arbitrary. It ignores the variety of interests involved in any issue.

A free market is defined by freedom of exchange. The benefits of that exchange can only be realized if the individuals involved decide on mutually agreeable terms. Therefore, the incentives of the marketplace seek to accommodate all parties involved.

If one establishment owner finds that the majority of his customers are non­smokers then he is free to adopt more restrictive smoking policies. Conversely, if another owner finds the majority of his customers are smokers, he has a right to make policies to accommodate them. In each case, the owner is responding to market forces. If a non­smoker does not wish to be around smokers, then he should patronize places which are smoke­free or sit in the non­smoking section of the establishment.

Advocates claim the ban is necessary to protect employees from the dangers of second-hand smoke. But, if the smoking policy of an establishment is known to an employee when he considers a job offer, then that person has accepted the policy in accepting the job. If an employee understands the risks and still wishes to work at a smoking establishment, there is no room for legitimate State action on his behalf.

California's ban denies that employees have the right to put themselves at risk. It denies the link between rights and responsibilities and replaces it with paternalistic State action. If an employee does not wish to work at an establishment which allows smoking, the solution is not legislation banning smoking, but simply for that person to seek employment elsewhere.

People today, particularly those of a fanatical stripe, look to the State first to reform behavior which they find objectionable instead of such entities as the marketplace and social forces. This trend, if left unchecked, will surely extinguish the torch of liberty leaving only the shadow of despotism.

To allow the State to assume responsibility for what can and should be the responsibility of individuals is an insidious and grave threat to liberty. When individuals surrender their personal responsibilities they surrender their liberty as well. It is easy to see why the State has chosen the banner of public health to disguise its usurpation of liberties; masters always want healthy slaves. MR

This article was published in the 21 January 1998 edition of The Michigan Review (Volume 16, Number 6).
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