Don't Smoke 'Em If You Got 'Em
Professor Bainbridge debates the merits of smoking bans in a column at TCS:
The mere existence of an externality does not justify legislation, however. In a free society, with limited government and respect for private property rights, at least two conditions must be satisfied before government intervention is warranted. First, my actions must in fact produce external costs. Second, there must be a market failure -- that is, people must be unable to solve the problem without government help.
Because I've conceded the first prong of the test, the merit of public smoking bans comes down to the question of whether the problem can be solved through private ordering. In other words, if we let the owners of private property decide whether people will be allowed to smoke on their premises, will non-smokers be exposed to unreasonable costs?
An affirmative answer is clearly appropriate in some situations. There are some public places in which non-smokers may find themselves a 'captive audience' -- that is, situations in which the non-smoker cannot avoid exposure to secondhand smoke. Government offices that serve the public are a good example. If a non-smoker gets a traffic ticket, he may have no choice but to go down to the courthouse. A smoking ban thus might be reasonable in the court building.
These sorts of situations are quite limited, however. Let's start with the most basic example: my backyard. Should I have the right to smoke a cigar on my back porch, where the only ones who smells it are my dogs? Presumably so, since I'm not imposing on anyone (my dogs seem to like the smell).
If you admit that a ban on smoking in my backyard is not appropriate, let's turn to restaurants. Smoking bans routinely apply to restaurants, but restaurants are clearly places in which private ordering can work and in which government intervention is unnecessary.
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