Fanning the Flames: The Freedom Project Blog


Liberty Lost Up in Smoke

By Dave A
On January 1, 2008, Illinois' new law preventing smoking in public places will take effect. In the law's cross hairs is smoking in bars and restaurants. On it's surface, it's laudable and is certainly supported by many people. However, for those concerned about preserving liberty, January 1 won't seem quite the same success.

Legislators concerned about people's health, namely employees and customers at restaurants and bars, made a choice to protect people from themselves. No employees were forced to work where they do and no customers were forced to visit such smoke filled venues. In making their decision, they reinforce the idea that government must protect us from every risk, no matter how slight or how informed consenting adults may be. Keep in mind that smoking is legal, we're not talking about a law that punishes an illegal activity.

Most people I speak to about the law, and I have spoken to dozens to understand where they stand on the law and what their rationale is, are in support of it but primarily so they don't have to be active consumers and seek out voluntary smokeless restaurants and bars. Some retort that there aren't many such places for them to visit. I respond that there must not be much demand for it then. After all, we live in the world's most advanced free market that is hypersensitive to the most obscure consumer trends in search of a competitive advantage in the hunt for profit. At any rate, laziness shouldn't be the basis for taking choice away from consumers.

Next, and almost never on the radar screen of those with whom I speak, are the property rights of the business owners who aren't allowed to let people engage in legal activity. They have invested substantial sums in their businesses and vast amounts of human capital. Now, they stand to suffer by the restriction. Smokers are drinkers. Less smoking, less drinking, less profits. More importantly is the fundamental lack of respect for property owners. Government officials have stripped value from property owners and, worst of all, they've done it without any appreciation or even awareness. For those who believe in the free market system, you have to pause and consider how easily property rights can be taken.

Next, let's look at the health risks purported to be caused by second hand smoke. According to the three major studies, second hand smoke increases the risk for cancer, asthma and a variety of other ailments. However the studies don't test second hand smoke on rats or humans and prove a direct link. Rather, researchers send out thousands of questionnaires and compare the health issues of those people with information about the population at-large. They then account for variables and assign risk to behavior such as being in the presence of second hand smoke. That is to say, they can't prove the connection by direct medical evidence but they consider variables and when they can't otherwise explain a health issue, they assign it to second hand smoke. Apparently this is scientifically accepted and I'm not qualified to refute that. However, when reading the summaries of two of the reports, I can tell you that I was surprised this was the basis for the purported health effects of second hand smoke. I am qualified to report that most people to whom I explain this, also share my surprise about the science behind second hand smoke. At the very least, I think it's valuable that we all, policy makers included, at least understand the underlying basis for decisions which restrict liberty.

Perhaps the most disappointing part of this whole situation is revealed in an unrelated law that passed in 2006 in Illinois. In an effort unabashedly about saving the state money, the Illinois EPA stopped testing vehicles earlier than the model year 1996 because these vehicles don't have on board computers which can be accessed easily, quickly and therefore cheaply, to determine if cars meet emissions standards. Cars older than 1996 were tested, you may recall, by placing a measuring device over the tailpipe of a running vehicle. This system measured the actual emissions and analyzed them for pollutants. This sounds perfectly reasonable until you consider that older vehicles, by far, emit more pollutants than newer cars. Not only because of better technology on newer cars but because the technology is more likely to be functional still. Further, studies from the Sierra Club and others have shown (presumably using the same questionnaires and aggregate statistical comparisons) that vehicle emission are linked to asthma, leukemia and lung cancer, among other ailments. So, on the one hand, the state seeks to protect us from these harms by banning smoking, thereby limiting freedom of choice of and taking property rights while on the other hand they increase many of the same health risks in an effort to save money. Incidentally, if saving money were the state's paramount concern, one could imagine deciding to only test vehicles older than 1996 model year, the most significant polluters.

While we're on the subject of alternative laws, it's important to note that passing legislation isn't easy, it's a balancing act. Collectively, we try to accomplish some good and balance that accomplishment with a variety of factors including cost, limitations on liberty and the likelihood of a law being ignored or enforced. The greater the harm sought to be avoided or good to be accomplished, the more limitations on liberty and cost we're generally prepared to accept. In the present case, I think the legislature didn't place an adequate value on the liberty to chose to assemble in public and engage in a legal activity with consenting adults, nor do they properly value property rights of business owners. Had I felt compelled to accept the science behind the second hand smoke issue, my approach would have allowed smoking by permit, much the same way alcohol can be served only with permits. Allow perhaps 50% of bars to apply for permits, require some reasonable protections for employees, and see how the market responds. This, more balanced approach, would preserve liberty while still offering some relief.

January 1, 2008 is a sad day for liberty which has suffered unreasonably at the hands of frenzy to provide a smokeless environment.


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Managing Director

McCormick Freedom Project

Shawn is responsible for overseeing and managing the operations associated with the McCormick Freedom Project. Additionally, he serves as the in house content expert and voice of museum through public speaking and original scholarship. Before joining the Freedom Project, he taught American Government, Economics, American History, and Chicago History at Community High School in West Chicago, IL and Sheboygan North High School in Wisconsin.

Shawn is a doctoral candidate within the Political Science Department at the University of Illinois at Chicago where he received his MA in Political Science. He is a 2001 James Madison Fellow from the State of Wisconsin and holds a bachelor's degree in Political Science, History, and Secondary Education from the University of Wisconsin at Madison.

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About Fanning the Flames and the McCormick Freedom Project

Fanning the Flames is a blog of the McCormick Freedom Project, which was started in 2006 by museum managing director Shawn Healy. The blog highlights the news of the day, in hopes of engaging readers in dialogue about freedom issues. Any views or opinions expressed on this blog represent those of the writers alone and do not represent an official opinion of the McCormick Freedom Project.

Founded in 2005, the McCormick Freedom Project is part of the McCormick Foundation. The Freedom Project’s mission is to enable informed and engaged participation in our democracy by demonstrating the relevance of the First Amendment and the role it plays in the ongoing struggle to define and defend freedom. The museum offers programs and resources for teachers, students, and the general public.

First Amendment journalism initiative

The Freedom Project recently launched a new reporting initiative with professional journalists Tim McNulty and Jamie Loo. The goal is to expand and promote the benefits of lifelong civic engagement among citizens of all ages, through original reporting, commentary and news aggregation on First Amendment and freedom issues. Please visit the McCormick Freedom Project's news Web site, The Post-Exchange at

Dave Anderson
Vice President of Civic Programs
McCormick Foundation

Tim McNulty
Senior Journalist
McCormick Freedom Project

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