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Can Property Rights Settle Public Smoking Disputes?


Notes for an address to a meeting of the Canadian Property Rights Research Institute, Edmonton.


Lorne Gunter

 Author Notes

Regular columnist with The Edmonton Journal, and frequent contributor to the National Post, National Report, and other publications.

 Essay - 3/15/2000

The American journalist and social critic H. L. Mencken once wrote that a puritan is a person who fears someone, somewhere is having a good time. By that standard, anti-smokers are the new puritans. They lose sleep worrying that someone, somewhere is having a cigarette. So worried are they that even in places they never intend to visit, the anti-smokers are determined to snuff out smoking.

The short answer to the question Prof. Andrew I. Cohen, Assistant Professor of Philosophy, University of Oklahoma, and I have been assigned tonight is "Yes." Of course property rights can settle disputes over whether to permit smoking in bars, restaurants and other commercial establishments.

Property rights should be the mechanism by which such disputes are settled, because they are the only mechanism that preserves the real freedoms of everyone involved. As my friend and fellow commentator Karen Selick has said, "This is not a battle between smokers' rights and non-smokers' rights. This is a question of restaurant owners' property rights."

Indeed, I would argue the question of whether or not to permit smoking in bars, restaurants and hotels is not really about public smoking at all. We have permitted the word public to be distorted in this instance. I blame the mad expansion of government since the Second World War for this. As the state has expanded and expanded, then expanded some more, seemingly everything has become the public sphere. So much so that now, if you admit the public into your private business, your business is seen by government and its fans to be a public place

I'll admit up front to being a bit of an extremist on property rights. A sign on the door of your business that reads "Open" is not the same as one that reads "All Welcome." And so long as you are the landlord or the rightful tenant of the property your business occupies, governments should not have the power or authority to demand you act as though the two were one and the same.

Your business is your private property. It should make no difference, therefore, whether you open the door to the public or not. What goes on within your establishment should remain your concern, and yours alone, and not the ken of posturing politicians, poke-nose bureaucrats, cluck-clucking activists or hypersensitive human rights commissioners.

This is more than a public policy dispute. It is a debate over boundaries: The boundary between public and private, and the boundary between the individual and the collective. Those who would see taverns and cafes as public places tend to believe government has a deciding vote to cast in a whole host of personal, private and interpersonal decisions. While those who would see such spaces as private, would most often wish to place severe constraints on the state and the scope of its action.

Municipal hours of operation bylaws are wrong because they infringe on the private property rights of business owners to chose to operate whenever they please. [Note 1] The Lord's Day Act was wrong, not because of its perceived insensitivity to non-Christians, but because of its infringement on property rights.

If you choose to open your business only on Sundays from 2:00 a.m. to 6:00 a.m., post only Urdu signs out front and inside, and refuse to serve men, whites, heterosexuals and Christians, then I'll back you to the fullest. I won't be among your customers. I may even revel a bit as you go out of business, you anti-straight-white-male, Urdu-loving, night owl, you. But I will support your right to do as you choose.

So concerning property rights and public smoking, it's a no-brainer. First, I don't believe what we are talking about is public smoking. I believe it is private smoking and thus no business of the government or the anti-smokers. And second, if you want to cater to a bunch of wheezing, stinky clothed, lung-horking addicts, go ahead. That is your right. More important, by exercising that right, you are infringing on no one else's rights. You may be infringing on anti-smokers' desires, but not their rights.

It is easy to see how, by exercising your property rights and permitting smoking, you are defending your rights and those of your smoking patrons. But in the real sense of the word freedom, you are also honouring the rights of non-smokers, too.

(And here I want to draw a clear line of demarcation between non-smokers and anti-smokers. I am a non-smoker, not an anti-smoker.)

By permitting smoking on the premises, you have not said to non-smokers "Halt, you may not enter here." (Even if you did, I'd stick by you; but that's a topic for another day.) You have not told them they may not enter. You have merely told them they will encounter tobacco smoke if they do. You have not robbed them of their freedom of choice, of their rights. You have merely made them aware the atmosphere inside may not be entirely to their liking, and if they cannot live with that they are free to stay out or go somewhere else.

The same is true for bar workers. By banning smoking in bars and restaurants, the WCB in British Columbia was not, in fact, standing up for the "rights" of non-smoking workers. Rather, it was using its massive clout to elevate the desires of non-smoking workers (and more likely the Board's own public health agenda) over and above the rights of bar owners and smoking patrons.

If the smoking debate were settled by the use of property rights, bar owners would be free and happy, smokers would be free and happy, and anti-smokers, while they might not be happy, would still be free.

Rights are about freedom, not happiness, anyway. The American Declaration of Independence does not assert everyone has the unalienable right to life, liberty and the attainment of happiness. It asserts people all have the right to life, liberty and the pursuit of happiness.

Even if the anti-smokers could prove secondhand smoke is a hazard to non-smokers' health -- which of course is the nub of their call for smoking bans -- so long as no one deprives non-smokers of their freedom to avoid smoky places; so long as no one takes from non-smokers their right to go to the restaurant or not, to work at the night club or not, so long as no one puts a law to their heads and commands "Breath in this smoke," they have not been deprived of any meaningful right.

That is why property rights should be used to settle public smoking disputes. Only by letting property rights decide can we avoid having the awesome weight of the state come smashing down on one side or the other, crushing their rights in favour of someone else's desires.

Those who insist the world be made over to their liking, or else they are not free, are the logical equivalent of four-year-olds who threaten to hold their breath until they get the biggest piece of birthday cake.

The sad truth, though, is the breath-holders have been allowed to define the terms of this debate. Thus, no time soon will property rights prevent the passage of municipal bylaws and provincial statutes that forbid lighting up in taverns and cafes.

We live in a society that possesses, at best, a weak and misconstrued understanding of property rights.

Property rights are seen as applying only to the rich. Never mind that they are as much the poor man's guardian against intrusion by neighbours, parliament and regulators as they are the guardian of the well-to-do. They are now widely seen solely as a way for the rich to shield themselves from paying their "fair share."

The understanding of property rights has become so poor, last year the Manitoba Court of Appeal, in a case over whether a farmer had the right to sell his own wheat to whomever he chose, ruled "The right to 'enjoyment of property' is not a constitutionally protected part of Canadian society."

That will come as quite a shock to most Canadians. To poll after poll they respond "Yes," when asked whether Canadians have property rights. Yet most lawmakers, judges, special interest lobbyists and journalists do not believe in the inviolability of property rights. They may claim they do, but then in the next breath they will insist property rights must take a back seat to gay rights or women's rights, or the common good, or the need to protect the environment or ameliorate the plight of the poor. Perhaps Canadians do have property rights, but according to our governors and rulers, those rights rank behind every other public policy objective. They have been rendered valueless by the priority given them by governments.

And not only are those who would fight bans on smoking in bars and restaurants entering the field of battle without a substantial shield in property rights, they will be battling an opponent with little interest in the truth about secondhand smoke.

Oh sure, the anti-smoking organizations have websites with addresses such as "thetruth.com" and "tobaccotruth.com," but their core argument amounts to junk science.

Their flagship argument is a widely discredited study that has been exposed as politically motivated propaganda. And still they trot it out on nearly every occasion as though it were a gospel about which no scientist had ever raised concerns.

I am speaking, of course, of the U.S. Environmental Protection Agency's 1993 report on secondhand smoke. It declared secondhand smoke to be "a known human carcinogen," responsible for 3,000 deaths in the United States each year.

In 1995, the Congressional Research Service, a branch of the Library of Congress (hardly a right-wing think tank), pronounced the EPA study biased and scientifically dishonest. The NRS found only one in four of the approximately 30 significant studies on secondhand smoke detected any measurable risk at all to non-smokers routinely exposed to secondhand smoke. Further, it determined the EPA itself had only been able to find elevated risk in one in five studies. The EPA discarded all the contrary studies and drew its conclusions just from the 20 per cent that agreed with its desired conclusion.

On top of this, the NRS discovered that because not even the selected studies showed elevated risks that were statistically significant, the EPA changed the definition of statistical significance so its conclusions would qualify.

In other words, the EPA used in its report only those external studies that backed the agency's anti-smoking crusade. And even in these cases, the agency had to tweak the books to arrive at the conclusion it had set out to reach.

In 1998, a federal judge in the United States, William J. Osteen, formed the same opinion of the EPA report. Osteen wrote "the EPA publicly committed to a conclusion before research had begun." Having thus committed, Osteen continued, the EPA "adjusted established procedure and scientific norms to validate the agency's conclusion."

"Using standard methodology, the EPA could not produce significant results...(so) the EPA changed its methodology." In fact, it changed methodology more than once. Osteen found evidence the EPA used a different methodology for each chapter of its report "based on the outcome sought in that chapter."

Of course, Osteen was immediately set upon by the anti-smokers. He was from North Carolina, they said; a tobacco-growing state. He was a judge, not a scientist. A court was no place to decide such issues.

But to understand how fickle and biased and politicized the anti-smokers are, just look at what they said about Osteen one year earlier. In 1997, Osteen ruled the Food and Drug Administration had the legal authority to regulate nicotine as a "medical device." It was a mixed ruling for the antis. Osteen ruled the FDA could regulate certain aspects of tobacco promotion and sales, but not others.

(In the week following the presentation of this speech, the U.S. Supreme Court upheld an appeal court ruling overturning Osteen's FDA decision. The justices ruled the FDA lacked sufficient legal authority to regulate nicotine.)

Still, in 1997, the antis were ecstatic. Matthew Myers of Campaign for Tobacco-Free Kids called Osteen's FDA decision "the single most devastating loss the tobacco industry has ever suffered in a court in the United States." And David Kessler, a former head of the FDA and perhaps the most vehemently anti-tobacco civil servant in the American government, called the ruling "a great victory for the country, for public health...It is a landmark decision. It is historic."

Not one mention that Osteen presided in a tobacco state, or that he was not a scientist, or that courts of law are the wrong venue to establish scientific fact. Osteen was a hero to the antis and his ruling an historic victory.

Apparently the anti-smokers are only interested in opinions that agree with their own and in scientific research that supports their crusade.

Also in 1998, the UN's World Health Organization, a stridently anti-tobacco organization, tried to keep quiet its own long-term study of 2,000 non-smokers routinely exposed to secondhand smoke. It seems the study proved no statistically significant rise in cancer rates from even heavy, sustained exposure to secondhand smoke.

The was to be the biggie; the study to end all doubt. It was conducted by the International Agency for Research on Cancer, a branch of the WHO. It involved a large sample of subjects. It was conducted over a long period of time. And it was publicly funded, which in the weird world of anti-smokers means it was free from the taint of profits or tobacco-industry funding.

Granted the IARC found an elevated risk of lung cancer for non-smokers exposed at work or in the home, but only 16 or 17 percent. Now that may sound significant. However, consider that the increased risk of developing lung cancer for smokers versus non-smokers is on the order of 2,000 to 3,000 per cent, and you'll get some idea of how tiny a risk factor of 16 or 17 per cent really is. Moreover, most epidemiologists demand increased risk on the order of 50 to 100 per cent before they will declare a finding statistically significant. Sixteen or 17 per cent may be entirely the result of reporting errors made by the subjects and the scientists who interviewed them.

The WHO/IARC study found an exposure among non-smokers working in smoky offices or living with a smoker that was the equivalent of smoking one cigarette every two or three days. It also found no increased risk to young children and toddlers exposed to smoking, at least, no increased risk that survived into adulthood.

Still, once the Daily Telegraph of London caught wind of the study and ran a story about it, the WHO tried to discredit its own report. One news release screamed, "Passive smoking does cause lung cancer, do not let them fool you."

The antis are also apparently only interested in their own research if it too confirms their prejudices.

Just this week a study purported to find that non-smoking women exposed to secondhand smoke doubled their risk of contracting breast cancer. This may be true. My mind remains open to proof tobacco is as harmful as the antis claim. Still, this latest study gives me one reason to question the trustworthiness of its conclusions: It is funded by the government of Canada. Health Canada is fiercely anti-smoking. Thus, I trust almost nothing our government claims in this debate.

And now just one last quick fact to illustrate the ethical double standards at play on this subject. We have heard how Ottawa collects more than $2 billion annually in cigarette taxes. Together the provinces collect almost that much again. Among them, Canadian governments bring in nearly $4 billion annually from tobacco sales.

The combined profits of Canadian tobacco companies, by contrast, is in the range of $700 million to $800 million annually.

Now you tell me, whose motives carry the greatest taint?

Thank you.


1. As a matter of fact, municipal zoning bylaws are about the only intrusions by the state on property rights that one might justify. If there are to be laws governing the interaction of businesses with the communities surrounding them -- as opposed to free-market solutions for when and how customers may come and go, noise, smells, appearance, etc. -- let those laws be local or even sub-local (ward, sub-division or neighbourhood). Those laws should be drafted and enforced by the level of government closest to the people and most sensitive to local customs and norms.

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