The Era of Jackbooted Nags

July 3, 2005 • Commentary

On Tuesday, June 14 the D.C. City Council heard testimony on a bill that would make it illegal to smoke in a bar, even if the owner, the employees and the customers all agree that smoking should be permitted.

The pro‐​ban forces have packaged their message in the rhetoric of workers’ rights. It’s an effective strategy, one that draws on the insights of smoking‐​ban pioneer Stanton Glantz. At a 1986 conference of antismoking activists, Glantz advised that “the issue should be framed in the rhetoric of the environment, toxic chemicals, and public health rather than the rhetoric of saving smokers from themselves.” Yet “saving smokers from themselves” is a key goal of the banners. David Satcher, the former surgeon general, echoed this theme in his testimony before the D.C. City Council the last time a smoking ban was on the table, arguing that the ban would “be effective in creating a new social norm that discourages people from smoking.” Indeed, at Tuesday’s hearing, a common theme sounded by many of the ban’s proponents was that forbidding public smoking would benefit smokers by making it inconvenient for them to indulge.

If the banners get their way, what will be their next step in the quest to socially engineer smoking out of existence? California, so often the first state to reach new frontiers in silly public policy, was an early adopter of smoking bans, and it shows the direction the pro‐​ban forces may take us. After driving smokers out of bars, anti‐​smoking activists there have sought, with considerable success, to drive them off the beaches, the sidewalks, and other outdoor public spaces. San Francisco city officials, having recently banned smoking in all public parks, moved in March to ban chewing tobacco at all city athletic fields (is the concern there “secondhand spit”?). Golden State antismoking activists have recently turned their attention to restricting smoking on private property. Last year, a bill to ban smoking in the family car when children are present nearly passed the California State Assembly, failing by only five votes.

No one should be under any illusions that the forces pushing for a D.C. smoking ban will be satisfied if and when they stamp out smoking in bars. Action on Smoking and Health (ASH), an influential anti‐​smoking group led by George Washington University Law Professor John Banzhaf, urges legal action to ban smoking in condominiums and apartment buildings. ASH’s website screams “if you can smell it, it may be killing you!” Local activist Eric Marshall, spokesperson for the American Lung Association group BreatheEasyDC, points to California’s innovations and notes ominously that “Smoking outside of workplaces is a concern for many Washingtonians.” (“You there — behind the dumpster: drop it, and back away slowly!”)

There’s even some precedent closer to home for such a measure. In December 2000, just north of the District, Friendship Heights banned smoking on the sidewalk and any other outdoor public place. (That ban fell a year later to a legal challenge on technical grounds that do not apply to D.C.) Last week at a town hall meeting held by Councilman Jim Graham, somebody raised the very good question of what to do when noise complaints skyrocket because every smoker up and down U Street is forced out on the sidewalk. And the answer? Crack down with anti‐​loitering laws.

One wonders if this is really the sort of thing police should be focusing on in the on‐​again, off‐​again murder capital of the United States. But the idea that the police should focus solely on protecting us from crime is one that many have come to think of as archaic. The new view is that it’s also law enforcement’s job to protect us from our own bad habits. In a 2003 sting operation, Fairfax, Virginia police officers entered 20 bars, administered breathalyzer tests, and arrested nine patrons for intoxication. Fairfax police Chief J. Thomas Manger declaimed: “Public intoxication is against the law. You can’t be drunk in a bar.”

And two weeks ago, using night‐​vision equipment on loan from the National Guard, Maryland state troopers swept out and nabbed 111 offenders for the crime of driving without a seatbelt. Scores of people who were driving along, minding their own business, had their evening ruined by an unpleasant encounter with the business end of the law. Welcome to the era of jackbooted nags.

The D.C. smoking ban is only the latest example of this trend. More and more public officials are warming up to the idea that the full force of the state should be brought down on people making unhealthy choices. You may not like the smell of secondhand smoke, but what’s truly suffocating is a government that’s gone from protecting us from criminals to protecting us from ourselves.

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