"Let the market decide" -- James Joyner on the emergence of tobacco lounges in cities where smoking in bars has been banned:
This actually seems like the perfect solution: Public restaurants and bars are smoke free so that the majority of the public that is non-smoking can enjoy those places without contamination and yet those who wish to get together and smoke have an inviting place in which to do so.
Letting the market decide, of course, is the gist of my opposition to smoking bans.
I wrote:
There are some public places in which non-smokers may find themselves a "captive audience" -- that is, situations in which the non- smoker cannot avoid exposure to secondhand smoke. Government offices that serve the public are a good example. If a non-smoker gets a traffic ticket, he may have no choice but to go down to the courthouse. A smoking ban thus might be reasonable in the court building.
These sorts of situations are quite limited, however. Let's start with the most basic example: my backyard. Should I have the right to smoke a cigar on my back porch, where the only ones who smells it are my dogs? Presumably so, since I'm not imposing on anyone (my dogs seem to like the smell).
If you admit that a ban on smoking in my backyard is not appropriate, let's turn to restaurants. Smoking bans routinely apply to restaurants, but restaurants are clearly places in which private ordering can work and in which government intervention is unnecessary.
Consider the following case: The 21 Club restaurant had a long history of being a cigar-friendly environment. Non-smokers who ate there did so knowing that they may be exposed to cigar smoke. On what basis can such people complain? Do they not assume the risk of being exposed to secondhand smoke by visiting an establishment that allows patrons to smoke cigars? Conversely, other restaurants -- say, those wishing to attract a family clientele -- may forbid smoking in whole or in part. If I choose to patronize these establishments, I have no right to expect to be able to smoke there.
This is what I mean by a system of private ordering: If the place is one that nonsmokers can readily choose to avoid, then they have no right to insist on imposing their preference for a smoke-free environment on me or (and this is the key point) the owner of the establishment. Absent a showing that private ordering can't work, the owner of private property has a right to decide what conduct will take place on his property even if that property is open to the public. So long as non-smokers are free to decide not to enter an establishment in which smoking is allowed, the necessary prerequisite for regulating private property simply doesn't exist.
The same sort of analysis could be extended to a host of contexts. Many argue for a ban on smoking in the workplace. And if, for example, an employer concludes that it is cheaper to hire non-smokers, who could object to his banning smoking on his premises? But if another employer concludes that it is cheaper to hire smokers -- perhaps because they'll take lower pay in order to be able to smoke at work -- why should we object to that choice'? So long as non-smokers have other employment options, if they choose to work for an employer that allows smoking, they have no basis to complain. Indeed, there is no externality, because the employer's decision imposes no costs on the non-smokers to which they have not consented.
Many restaurants and workplaces have voluntarily banned smoking. In view of this evidence that private ordering can work, I see no justification for overriding private property rights by banning smoking in private establishments.
