Saturday, June 24, 2006

Russ Diamond: Smoking Them Out

Much has been written and said lately about banning smoking in public places. The City of Philadelphia recently passed a smoking ban which could go into effect as soon as January, 2007.

Let’s examine the facts:

Smoking kills. Tobacco use ranks among the top leaders in cause of death for people in modern society. And is there any thinking person who doubts the cold hard facts about second-hand smoke? No one should be subjected to second-hand smoke against their will.

For these very valid reasons, many people have voiced their support for a ban on smoking in public places. Where they completely miss the boat, however, is in their definition of a public place.

Like nearly every other question or issue government faces, whether to ban smoking or not is actually a question of property rights. At any given time, ask yourself one simple question: Whose property am I on?

If you’re at the Capitol building in Harrisburg, your county courthouse or the local elementary school, you are clearly on public property. That property is owned by the public at large and administered by some governmental body for the common good. As a member of the public at large, you can claim some right to be on that property.

If you’re in a bar, restaurant, tavern or any other business establishment, you are on private property. You are there at the invitation of the owner. Patronizing any given business is not a right, but a privilege - the owner can un-invite you just as easily as he or she invited you.

The ability of smoking ban proponents to blur the distinction between public and private property baffles me. It especially baffles me in Pennsylvania, where the number one political issue is property taxes.

The property tax battle, at its very core, poses a nearly identical question: Who owns our property? Should we own it outright or should we rent it from the government in perpetuity?

America was founded on the right to own private property. Our God-given right to “life, liberty and property” was included in the original version of the Declaration of Independence. (The text was changed to “life, liberty and the pursuit of happiness” at the behest of Benjamin Franklin.)

Our God-given right of “acquiring, possessing and protecting property” is firmly ensconced in Article I, Section 1 of the PA Constitution. Note that property is so important that it is listed in the very first declaration of the document, right after “life and liberty.”

Even the smallest child understands the basic concept of property rights: “Mine!”

In light of these realities, is banning smoking inside public places a good idea? Yes.

Given the litigious nature of society today and the potential liabilities associated with second-hand smoke, banning smoking in public (government) buildings makes sense. In addition to the duty of government to provide for the use of that property in some way benefiting the public good, it also has a duty to protect the public from any negative effects of that property’s use.

But banning smoking on private property makes about as much sense as passing a law preventing businesses from going smoke-free. The best solution - as always - is to let the free market decide.

In my hometown, there are three different taverns/eateries. Two allow smoking; one doesn’t. All three do their fair share of business. Those who prefer a smoke-free atmosphere patronize the smoke-free establishment. Those who don’t, don’t. And of course, there are those who do not make their decision based on this particular issue and patronize all three.

If at some point, the respective owners of the two smoking establishments perceive they are losing business to the smoke-free establishment, they will consider changing their policy. Conversely, if the smoke-free establishment loses business to the smoking-allowed establishments up the street, they will consider changing their policy as well.

Either way, it will be a matter of business survival. The decision rightfully belongs to those business owners.

Allowing the nanny state to further trespass on private property is not the direction we need to go in Pennsylvania. What this Commonwealth needs is a reaffirmation of our God-given private property rights, as enumerated by our Constitution.

Russ Diamond is an Independent candidate for Governor of Pennsylvania. Visit his website at