Mill: Is there a right to smoke publicly?

In his work “On Liberty”, John Stuart Mill proposes a form of libertarianism which involves minimal government involvement in individual tastes or fancies. According to Mill, one should be allowed to hold his opinion and act upon it at his own cost, as long as he is not hurting other members of the society he is a part of. During the formulation of his work (1850s), tobacco was considered a mild stimulant with supposedly little or negligible side affects to anyone other than the smoker himself. The act of smoking tobacco was considered a mere preference of taste just like preferring whiskey over beer. According to Mill’s maxims, justifying the smoking of tobacco on grounds of sustaining the essence of freedom in the long run was quite reasonable given the presumptions regarding smoking in public. However, in light of recent medical evidence, a libertarian justification of smoking in public comes under serious scrutiny.
First of all, let’s investigate the harm done by tobacco smoke. A common myth is that smoke generated due to lighting up a cigarette is much harmful than smoke generated through pipes or hookahs. A leading heath website in UK claims that – “The truth is that smoking of any kind is bad for your health. There is no such thing as a safe tobacco product” (“NHS Choices”). Nowadays, it is a universally acknowledged fact that smoking has ill-effects on the health of a smoker. Unfortunately, the debate regarding the ill-effects of second hand smoke is still an area contested among the general public. It can be safely assumed that every educated individual in the United States has a basic idea that cigarette smoke is harmful to the innocent bystander, but it the extent of this harm that most smokers are unaware of. The National cancer institute defines secondhand smoke as “the combination of side stream smoke (the smoke given off by the burning end of a tobacco product) and mainstream smoke (the smoke exhaled by the smoker)” (“Secondhand Smoke”). The article also states that secondhand smoke does cause cancer and is classified by the EPA (Environmental Protection Agency) under Class-A Carcinogens. It claims that “Approximately 3,000 lung cancer deaths occur each year among adult nonsmokers in the United States as a result of exposure to secondhand smoke. The Surgeon General estimates that living with a smoker increases a nonsmoker’s chances of developing lung cancer by 20 to 30 percent” (“Secondhand Smoke”). All this data shows that secondhand smoke causes significant harm to non-smokers sometimes referred to by anti-smoking organizations as “the innocent bystanders”.
I would not commit the fallacy of pre-assuming that Mill’s harm principle gives the right for smokers to smoke, even if they do it in a way that does not harm anyone else particularly. Given the widely acclaimed and proven ill-effects of first hand smoke, one might consider the act of smoking as an act of slow suicide. And as Mill claims that the society has the right to intervene in a suicide as by committing suicide, the individual is forgoing his freedom and future decision making and thus the only loss to be considered is that to the society (in terms of the individual’s family, economy’s manpower etc.). However, this argument might end up as being a slippery slope as many other small human actions (like eating too much fatty food) might lead to a similar conclusion. In this paper, I will primarily discuss the shortcomings of (involuntary) secondhand smoking. In a public place, the members of the society have every right to practice their tastes without harming others. As Mill states “If the acts of an individual maybe hurtful to others… [t]he offender may just be punished by opinion, though not by law” (Wootton 630). For example, if someone wears clothes that might seem indecent or distasteful for someone in public, according to Mill, one has the right to have a negative impression regarding the tastes of the concerned individual, however, the law should not have the right to punish the individual just in accordance with customary distastes within a society. However, as shown in the previous paragraph, second hand smoke is not just a matter of public distaste. Consumption of second hand smoke increases the risk of fatal diseases like cancer, thus causing direct harm to the other members of the society. Thus, smoking in public places should be banned; for the greater good of the public (borrowing from Utilitarianism). But however, if we concede the right of private smoking with the ‘no damage to “innocent bystanders”’ clause to an individual, should smoking in privately owned public places (like bars and restaurants) be banned too? Also, given the aforementioned right, is taxing tobacco products justifiable?
Some states like North Dakota, Florida and California have some degree of legalized bans on public smoking in bars and restaurants. But, is a government issued ban in a privately owned place justified? According to Mill, if we punish public smoking (outside privately owned places) by law, it is not the act of smoking that we punish, but rather the harm done to the other members of the society who have equal rights in a publicly owned place. However, when it comes to private ownership, Mill would state any excess government involvement as paternalism. Privately owned bars or restaurants should have the right to allow smoking in their premises. Being a fan of the free trade doctrine, Mill would probably claim that if there is major public opinion against second hand smoke, bars and restaurants would be forced to disallow smoking as it would be bad for business. Thus, it seems as if Mill would agree that the issue of banning smoking in privately owned places should be left up to the owners; regardless of the owner’s choice, it must be imperative that he puts some kind of sign outside the premises which let the general public know of the place’s policies, thus not putting the “innocent bystanders” at any risk due to uninformed consent.
The issue of taxation of tobacco products is another aspect of this debate. Recently, President Barack Obama signed a bill which resulted in greater taxation on tobacco and tobacco related products in the upper Mid-West. An article on Fox Business claimed that this move is intended to decrease the use of tobacco, especially among high school teenagers (“No April Fooling”). According to Mill “To tax stimulants for the sole purpose of making them more difficult to be obtained, is a measure differing only in degree from their entire prohibition; and would be justifiable only if that were justifiable” (Wootton 643). Mills stance on taxing stimulants in “On Liberty” suggest that taxing tobacco or tobacco products for the sole purpose of decreasing its use would be justifiable only if the ban on tobacco or tobacco products were justifiable. However, as discussed earlier, smoking or using other tobacco products without any harm to other members of the society in a private location might be punished by opinion, but not by law. Since a complete ban on tobacco would not be justifiable, thus, according to Mill, increasing taxes on these would not be justifiable either. This stance seems contradicting to a more basic form of Utilitarianism which is synonymous with Consequentialism, where end (the greater good according to Utilitarianism) justifies the mean. Thus, solely based on “On Liberty”, Mill would seemingly disapprove of taxing tobacco or tobacco products for the sole purpose of discouraging their use.
The above mentioned views on smoking in public and some privately owned places seem consistent with Mill’s general libertarian perspective. According to Mill’s philosophy as apparent in his work “On Liberty”, banning smoking in public places seems like a good government intervention for the greater good of the people without violating any comparable private freedom. However, banning smoking in bars and restaurants seem like a paternalistic move and the effect of its consequences on the essence of freedom in the long run is debatable.



Works Cited
Is it safer to smoke pipes and cigars than cigarettes? 4 April 2008. 6 April 2009 .
Mill, John Stuart. "On Liberty." Wootton, David. Modern Political Thought - Readings from Machiavelli to Nietzsche (Second Edition). Indianapolis: Hackett Publishing Company, Inc., 2008. 592-651.
No April Fooling: Higher Taxes On Tobacco Really Do Reduce Smoking, Says American Lung Association of Upper Midwest. 31 March 2009. 7 April 2009 .
Secondhand Smoke: Questions and Answers. 1 August 2007. 7 April 2009 .