A Piss-Poor Argument

Even the usually sane law professor Eugene Volokh has his off-days — such as when he wonders if smoking on the street isn't just as bad as peeing on the street. "Both smoking and urine creates smells that many people find offensive," Volokh writes, and then he entertains the idea that maybe smoking outdoors should be banned, analogous to public urination. Is he playing devil's advocate? Here's hoping.

In any case, reader KP Jones, and plenty of others, think that banning outdoor smoking is a great idea. Jones reminds us that

A Wisconsin judge recently ordered 5 men ticketed for public urination to publish letters of apology in the local paper ... I'd love to see public smokers forced to do the same thing.

Sure, and maybe we could subject them to a little public stoning while we're at it.

My take:
1. The pungent smell of urine lingers much longer, and is therefore considerably more objectionable, than the whiff of a cigarette.
2. Public urination necessitates exposing oneself (an arrestable offense). Smokers, by and large, manage to keep it in their pants.
3. If unpleasant smells are to be outlawed from public spaces, I trust that we will also insist on seeing people with offensive body odor arrested, not to mention the multitudes of women who are overly generous with the perfume bottle. Oh, and all drivers of vehicles with combustion engines. Yes, that means you.
4. One Volokh commenter writes: "Even slight improvements in car emissions standards would do more for public health and enjoyment than laws banning outdoor smoking; but since the majority of the populace would pay the price rather than inflicting it on an unpopular subgroup, this doesn't happen." Exactly.
5. Cigarette smoke outside is diluted almost immediately — it vanishes into untold billions of gallons of fresh air. Tobacco nannies know this, and they know the rest of us know this. I'd wager that few people, in their heart of hearts, truly consider public smoking outdoors a public-health issue. Invoking public health is just a, well, smokescreen, so they don't have to confess they simply think smoking is destructive and immoral and therefore no one should be allowed to light up.
6. Wow, it's come to this. There's no appeasing the anti-tobacco crowd, not even with a series of serious concessions that smokers have made in the name of being civil and reasonable. Could anyone have predicted even just ten or fifteen years ago that by 2006, we'd be earnestly discussing banning smoking in the great outdoors, and comparing smokers to vandals and worse?

Read the whole Volokh discussion here. For places where smoking outdoors is already banned, see here and here.

Comments

[c-cipher]

Does it bother anyone else that Eugene Volokh is a thoroughgoing pussy? He presumes that every anti-liberty argument is advanced in good faith, worth a serious examination, and says nothing about the trustworthiness of the source going forward.

Nothing is too stupid to be laughed out of the room or at least dismissed with a snarl of "over my dead body." Why can't the professor ever rest on the sturdy principle that (a) there must be a problem (harm) before there is a solution and (b) a jealous guardianship of liberty and a healthy attitude of defiance are good things.

If we're lefty relying on libertarians like this, freedom's cause is lost. Who let this nutty professor into the movement?

[Jeff in Texas]

Apart from the fundamental issues of liberty at stake, it is the car exhaust comparison that really gets me. A guy walking down a street packed with four lanes of bumper-to-bumper carbon monoxide spewing cars can't spark up a smoke because someone might catch of whiff of it? Give me a break.