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A county council in Maryland last December enacted the most far-reaching tobacco ban in the nation — an ordinance prohibiting outdoor smoking on public sidewalks, grassy areas, and parks in the Village of Friendship Heights outside the District. It’s still OK to light up in cars, on private residential lawns, terraces, balconies, driveways, and outdoor business properties. But smoking on virtually all publicly owned areas is forbidden. Residents have engaged in a most unfriendly debate, despite the village’s name. Proponents claim that cigarettes are noxious; ergo, smoking must be restrained for the good of the community. Opponents complain of an overreaching government making unwanted choices for individuals. For now, the ordinance is on hold, thanks to a county judge, who recently held a hearing on the issue. Whatever the judge’s holding, it is certain to be appealed. If and when the ban takes effect, first-time violators will be issued a warning; repeat offenders will be fined $100 for each violation. Although more than 60 other towns and counties have adopted some type of outdoor smoking restrictions, their chief targets are stadiums, skating rinks, and similar crowded and confined spaces; none have targeted public sidewalks. The much broader scope of the Friendship Heights ban is one reason that some residents oppose it, arguing that it could be bad for business and for local jobs. But the longtime mayor of the village, Alfred Muller, insists that the ban is justified. First, he argues, village officials must secure the rights of nonsmokers, who are exposed against their will to secondhand smoke. Second, when adults smoke outdoors, youngsters see them and inevitably engage in copycat behavior. Third, smokers need to be protected from themselves. None of these assertions is persuasive. OUTRAGEOUS BAN First, a personal disclaimer: I don’t smoke. My wife doesn’t smoke. My 17-year-old son doesn’t smoke. I might even favor a smoking ban on public property in closely confined areas where nonsmokers have no easy way to avoid tobacco fumes. That said, the Friendship Heights smoking ban is outrageous. It represents prying, snooping, busybody government at its worst. And it tramples on the rights of an unpopular minority — smokers — without any basis in civics, science, or morality. Muller’s civics argument goes like this: The Friendship Heights ban applies only on public property — that is, property that belongs to the citizens of the community. Why shouldn’t those people decide, through their elected representatives, what is permissible on public property and what is not? To be sure, public property belongs to all of us. Ordinarily, therefore, we allow the political process to set any restrictions on the use of that property. But there are limits. Because we have a constitutional republic in the United States — not a pure democracy — a nonsmoking majority cannot arbitrarily stamp out the rights of a smoking minority. For a regulation to be valid, there must be a close connection (rational basis, for lawyers) between the regulation itself and the goal it seeks to accomplish. Here, there is none. To justify a smoking ban for public health reasons, there must be a demonstrated connection between nonsmokers’ illnesses and exposure to environmental tobacco smoke in a quantity likely to be experienced on sidewalks and in open parks. But that connection is illusory. There is little dispute about the scientific evidence. The World Health Organization examined lung cancer patients in seven European countries and found “no association between childhood exposure to environmental tobacco smoke and lung cancer risk.” For nonsmoking adult workers and nonsmoking spouses of smokers, WHO researchers estimated, respectively, a 16 and 17 percent increased risk of lung cancer. But the study concluded that “neither increased risk was statistically significant.” In fact, to put the WHO results in proper perspective, one source, the Nevada Policy Research Institute, reports that the increased risk of lung cancer for those persons foolish enough to drink whole milk is 140 percent — eight times the risk of household or workplace exposure to secondhand smoke. When the Environmental Protection Agency, in a landmark 1993 report, proclaimed that environmental tobacco smoke is a dangerous carcinogen that causes 3,000 deaths annually, a federal judge lambasted the agency for withholding “significant portions of its findings and reasoning in striving to confirm its … hypothesis.” NO HARD EVIDENCE That’s not the main point, Mayor Muller would insist. Maybe secondhand smoke doesn’t kill people; but how about the damage to individuals with pre-existing asthma, respiratory infections, or skin or eye allergies? (Never mind that automobile exhaust fumes can do more damage in a couple of minutes than outdoor smoking can do in a decade.) Well, listen to Michael Faden, the lawyer for the county council that enacted the Friendship Heights ban. He states that “No hard evidence was brought to the council’s attention of direct health consequences from limited outdoor exposure to secondhand smoke.” All that a nonsmoker has to do if he wants to escape unwelcome outdoor tobacco fumes is take a step away. Mostly, we rely on this sort of common courtesy and mutual respect to control interpersonal relationships. But nosy, intrusive government has polarized the dispute between smokers and nonsmokers. As a result, venom has replaced respect and mulish, obstinate behavior has replaced common courtesy. It is government, not secondhand smoke, that has poisoned the atmosphere. Meanwhile, if a town can persecute smokers, can it rein in any behavior? Public cursing? The display of unconventional clothes or religious garb? If those examples sound like a stretch, what about the whole range of allergies — emanating from perfume, pets, and flowers — that affect people? Muller and his allies don’t seem to understand — or worse yet, maybe they do understand — that an outdoor smoking ban is one step down this dangerous path. If the connection between nonsmokers’ health and environmental tobacco is tenuous, the fit between teen-age smoking habits and outdoor tobacco use by adults is even flimsier. Muller says: “If prohibiting smoking in outdoor public places prevents even a few adolescents from becoming addicted, our regulation will have been worth all the unfortunate heat it has generated.” Maybe so, if the underlying premise were correct. But it isn’t. For starters, there’s not a single study in a peer-reviewed journal or elsewhere that offers any evidence whatsoever to prove that teen-agers smoke more when they observe complete strangers enjoying a cigarette outdoors. And if there were a link, that would suggest the need for a ban on smoking everywhere that teens are present, including private homes. Ironically, a ban on outdoor smoking will drive smokers indoors — precisely where children will see their parents puff away, and where the kids will be exposed to more concentrated doses of secondhand smoke. That doesn’t mean we have no weapons in the battle to control teen-age smoking. The sale of cigarettes to underage smokers is illegal in every state, including Maryland. And vigorous enforcement works. In Woodbridge, Ill., implementing a no-sales-to-minors law produced 90 percent compliance by cigarette retailers. As a result, teen consumption declined by 69 percent over two years. But let’s remember that parenting is, after all, the principal responsibility of mothers and fathers, not the government. THE NANNY STATE Finally, Muller explains, the Friendship Heights ban is not merely meant to protect nonsmokers and kids. It’s for the smokers’ benefit too. What could be more condescending and paternalistic? If the purpose is to protect smokers from themselves, then instead of a label on each pack of cigarettes, we need one on the Friendship Heights ordinance. It should read: “Warning, this ordinance is dangerous to your liberty.” Otherwise, we can count on the nanny state being out of control. Your body belongs to the state and the state knows what is best for it. That’s not paranoia. Listen to Dr. Kelly Brownell of the Yale Center on Eating and Weight Disorders. He recommends grading foods by their fat content, taxing them accordingly, and allocating the tax money to build jogging trails and bike paths. On a Public Broadcasting Service television show, Brownell warned that the United States produces an abundance of low-cost food, but that means even poor people can afford Big Macs and French fries. We need to drive down the price of leafy veggies, according to Brownell, and tax Big Macs so the poor can no longer afford them. For a more clearheaded perspective, consider this advice from former Sen. George McGovern, who lost a daughter to alcoholism and knows firsthand the ravages of abusive behavior. Writing in The New York Times, McGovern cautioned, “Our choices may be foolish or self-destructive, but we cannot micromanage each other’s lives. When we no longer allow those choices, civility and common sense will be diminished.” However unpopular the tobacco industry, and however repugnant that some people may become addicted to smoking, there are countervailing values that sustain a free society. The choice between preserving those values and regulating outdoor smoking is particularly easy when there is no evidence of any link between outdoor smoking and harm to innocent parties. Nor is there any support for the proposition that outdoor smoking by adults leads to an increase in underage smoking. Those facts alone should convince all of us — even persons who detest smoking — that we must not sacrifice cherished liberties to wage war against tobacco. Robert A. Levy is senior fellow in constitutional studies at the Cato Institute in Washington, D.C.

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