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California’s Blow Against Property Rights


California likes its reputation as the trend-setter of the nation, but let’s hope it won’t be true this time. On New Year’s Day, it will become the first state where smoking is forbidden in bars.

Most people don’t smoke, so they may be pleased with this news. But that would be short-sighted, indeed. If we are permitted to do only what no one objects to, freedom is a flimsy thing. It is the unpopular actions that need protection. That is why political freedom has been cherished and fought for.

But what does freedom have to do with smoking? some people will ask. Smoking is risky to health, they will say, and not just to the health of the smoker, but to others as well. Surely that is grounds for prohibition.

That argument, which is so often made, demonstrates how far the United States has drifted from its libertarian moorings. A bar is private property. It may be thought of as a public place, but the term “public place” has come to have two different meanings: a private establishment open to the public, such as a bar, and a government-run, tax-financed facility, such as a public school. Unfortunately, we use the term “public” in both contexts. That only causes confusion.

A government facility is theoretically owned by all citizens and subject to democratic rule, although in practice, it is controlled by bureaucrats. We’d be better off if public schools and other government-owned facilities were privatized, but that is the subject of another article. Our focus today is on the first type of public institution.

We generally understand that the owner of private property sets the rules — that’s what it means to be the owner. Take that right away and property rights are gutted.

That principle does not change if the owner opens his place to the public in order to make a profit. Morally speaking, he retains the right to set the rules. It is his right to decide whether to serve Mexican food or Chinese food. Likewise, it is his right to decide whether to permit or prohibit smoking. It is up to him.

Potential customers have a right too: the right to avoid the property. If they do not like the rules, they are free to go elsewhere. People who cannot bear to be in a room where other people are smoking don’t have to go to any bar where smoking is allowed. But they do not have a right to other people’s property being smoke-free, for if they did, they would be the true owners.

Many readers might go along with this except for the studies indicating that smoking is dangerous to the nearby nonsmokers. Those reports, however, present no reason to overturn the right to run one’s own property. Many legitimate criticisms have been written about those reports. It seems that they are the result of a search for a preconceived conclusion.

But even if the reports are accurate, they cannot justify denying property owners the right to set the rules. At worst, smoke may present a risk to nonsmokers only through prolonged exposure. If a nonsmoker finds himself in a smoke-filled bar, he has time to leave and avoid any harm.

The organized antismokers apparently believe that they have a right to smoke-free air wherever they are. That just is not so. They have a right to avoid smoky places, to organize boycotts, to open smoke-free bars. But they have no right to tell property owners that they may not smoke or permit others to smoke on the premises. Nor have they the right to demand that the state legislature impose a smoking ban.

Why aren’t nonsmokers content to leave the issue to contract and voluntary exchange? After all, if enough people want smoke-free bars, entrepreneurs will oblige. The attempt to deny smokers bars in which they can smoke brings to mind H. L. Mencken’s definition of Puritanism: the haunting fear that somewhere someone is happy.

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    Sheldon Richman is former vice president and editor at The Future of Freedom Foundation and editor of FFF's monthly journal, Future of Freedom. For 15 years he was editor of The Freeman, published by the Foundation for Economic Education in Irvington, New York. He is the author of FFF's award-winning book Separating School & State: How to Liberate America's Families; Your Money or Your Life: Why We Must Abolish the Income Tax; and Tethered Citizens: Time to Repeal the Welfare State. Calling for the abolition, not the reform, of public schooling. Separating School & State has become a landmark book in both libertarian and educational circles. In his column in the Financial Times, Michael Prowse wrote: "I recommend a subversive tract, Separating School & State by Sheldon Richman of the Cato Institute, a Washington think tank... . I also think that Mr. Richman is right to fear that state education undermines personal responsibility..." Sheldon's articles on economic policy, education, civil liberties, American history, foreign policy, and the Middle East have appeared in the Washington Post, Wall Street Journal, American Scholar, Chicago Tribune, USA Today, Washington Times, The American Conservative, Insight, Cato Policy Report, Journal of Economic Development, The Freeman, The World & I, Reason, Washington Report on Middle East Affairs, Middle East Policy, Liberty magazine, and other publications. He is a contributor to the The Concise Encyclopedia of Economics. A former newspaper reporter and senior editor at the Cato Institute and the Institute for Humane Studies, Sheldon is a graduate of Temple University in Philadelphia. He blogs at Free Association. Send him e-mail.