The recent action by many New Hampshire businesses and agencies to limit where and when people may smoke angers many of my smoking friends. They feel discriminated against, that their "rights" as smokers have been denied. But is that true? Do smokers have rights? The more I think about it, the more I think they don't, at least in regard to smoking where non-smokers are.
Smokers have a "right" to smoke, in that no majority, even if it believes it has truth on its side, can take away their tobacco by statute. If some sort of Volstead Act were passed tomorrow, I would oppose its tyrannous intent, not out of love for smoking but out of a love for freedom, both the freedom to do what one desires and the freedom to be unharassed for doing it.
But this protection from majoritarian bullying is not the same thing as a carte blanche to smoke whenever and wherever one wants, for at least two reasons. First, tobacco is a dangerous substance, and our society has always found it necessary, and in keeping with democratic norms, to regulate threats to the public health. Enough research has been done by the Surgeon General's office and other independent agencies to confirm the damage caused by smoking to its users and to others in the smoker's presence. To regulate such a well-documented danger does not deny Constitutional rights, any more than inspecting beef abrogates a butcher's "right" to sell contaminated meat.
Second, while smokers, as citizens, enjoy the right not to have a majority view imposed on them, they do not have right to impose their habit on others. This is not to say that smokers must be treated like pariahs, shunted off to a closet some where in the bowels of the building. Smokers have the right to a clean well-lighted place for their smoking area, but it's also clear that they should have a smoking area off by themselves. Smoking may be a private act, but when there is a non-smoker in the area, it then becomes a public act and different rules come into play. We follow a similar tack in dealing with DWI: no government can tell an individual not to drink, but when the private act of drinking mixes with the public act of driving a car, then alcohol is no longer a private matter.
I wish people who smoked didn't. But they do. Given that, two sets of rights need to be satisfied: the smoker's right to smoke and the non-smoker's right to be free of the smoker's habit. Designated smoking areas are the best solution, along with offers by the agency or company to help to break the habit. But there are places, like the Mall, which can't be policed so easily - here, politeness may have to hold sway instead of legislation. Can Americans be that polite and self-restrained? That's grist for another commentary.
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