© 1997 Karen Selick
Anti-Smoking Lobby Has Its Own Addiction
An edited version of this article first appeared in the January, 1997 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


 Anti-Smoking Lobby Has Its Own Addiction

I think smoking is one of the dumbest things a person can do.  It’s bad for your health and it’s a waste of money.  I don’t allow it in my home or my office, and I am forever trying to persuade friends and acquaintances to quit.

But, dumb as it is, there are things that are dumber still—for example, trying to use the coercive power of government to protect people from their own stupidity.  The anti-smoking lobby, always so busy complaining that cigarettes are addictive, might better spend its time examining its own addiction to the almighty state.

It’s hard to believe that with the fiascoes of Prohibition and the war on drugs to learn from, some people are still pushing for new vice laws.  It makes you wonder what forces are really behind this movement.  One group that would obviously benefit from another caper of this kind is organized crime.  Every new black market is just another source of profit to these guys.  It wouldn’t surprise me at all to learn that crime syndicates have been surreptitiously funnelling money into promoting the step-by-step outlawing of tobacco.

Despite all the ink spilled over Toronto’s and Vancouver’s recent attempts to ban smoking in bars and restaurants, it has been almost impossible to find a commentator who has correctly identified the nature of the controversy.  This is not a battle between  "smokers’ rights" and "non-smokers’ rights."  This is a question of restaurant owners’ property rights. 

There’s a clear distinction between public property like city hall, which is owned by the government, and private property like your house, which is owned by you.  Most people accept that the city government  has the right to control whether or not visitors smoke in city hall, and you have the right to control whether or not visitors smoke in your house.  But lately, it seems, people have developed a notion that private property like a bar or restaurant suddenly falls into a brand new third category merely because the owner chooses to open it up for all and sundry to enter.  They confuse the two meanings of the adjective "public": owned by  the people versus open to  the people.  Suddenly, they think government has the right to decide whether or not visitors smoke on private property.

Since non-smokers don’t own the air inside restaurants, they can’t claim any "right" to a smoke-free environment.  All they can do is look for someone willing to provide restaurant space that meets their smoke-free specifications.  If they are prepared to pay enough to compensate the restaurateur for the loss of smokers’ patronage, they’ll probably be able to find someone willing to accommodate them.  However, legislating their way to smoke-free dining is giving themselves this privilege without paying for it.  Put bluntly, it’s stealing.  It’s a partial confiscation of the restaurateur’s property.

It’ll be fun to see what happens when the tobacco fascists run headlong into the human rights fascists.  The recent Imperial Oil case informed us that alcohol addiction is a disability, and you can’t discriminate against the disabled.  The tobacco fascists can hardly object when smokers claim to be disabled too—after all, they’re always telling us smoking is addictive.  So what’s the justification for discriminating against tobacco addicts in restaurants?

Okay, we’ll grant them the argument that smokers would not be turfed out merely because of their addiction, but only if they attempted to exercise their vice in the restaurant.  But there’s that mysterious little section 3 in Ontario’s Human Rights Code.  It says, "Every person having legal capacity has a right to contract on equal terms without discrimination because of…handicap."  I always used to wonder what this section could possibly mean, but if it means anything at all, it surely must mean that smokers are equally entitled with non-smokers to contract with restaurateurs regarding the use of the air in restaurants.  How can the tobacco fascists justify denying them this equal opportunity?

Strangely, the human rights fascists have been silent on this issue.  They have not rushed to the defence of this persecuted minority.  Like the tobacco fascists, the human rights fascists are addicted to the state.  Ordinarily, they spend their time using their government-granted powers to bully landlords, employers and other businesses out of their freedom of contract and property rights.  Heaven forbid they should find themselves opposing the government on something, or supporting the freedom of business people to make contracts about the use of their private property.

Tobacco fascists try to justify their activities by claiming they are protecting non-smokers from the medical expenses incurred by smokers.  There are simpler ways of doing this.  Smokers could be charged a premium for their health insurance, or denied coverage altogether for diseases such as lung cancer.  Maybe the extra medical expenses would encourage them to cut back on their smoking.  Tobacco fascists are always telling us that extra taxes on cigarettes would do the trick.

Are they now going to say smokers are too dumb to think that far ahead or make the connection?  Well, it takes one to know one.  Tobacco fascists are too dumb to visualize the crime, corruption and waste their war on tobacco will cause.

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June 15, 2000