Out of the Humidor
From the Print Edition:
Francis Ford Coppola, Sept/Oct 03
I read the editors' note in the August 2003 issue of Cigar Aficionado with sad amusement, especially given the location of the smokers' predicament. But antismoking legislation appears to be increasing with some growing momentum throughout the country.
I have, for example, followed the antismoking ban debate in my home state of Indiana with some (but I will admit not terribly overriding) interest. Antitobacco advertisements have increased, some establishments have created smoke-free areas, and other such surface changes have become more and more visible.
No doubt exists that smoking can have detrimental health effects, and secondhand smoke can possess some irritating side effects, all of which can cause some alarm among those in the health community—not the least of which are simply financial concerns. That said, staying out in the sun too long, eating fatty foods, riding on a motorcycle or driving a car, skydiving, boxing and so many other recreational activities can also have detrimental health effects on the participant as well as on others. I cannot help but wonder that, if matters of tobacco did not come with a price tag, there would be such fervent interest among so many diverse parties.
Granting all that, however, government ordinances regulating behavior typically come across as particularly heavy-handed. Indianapolis (Marion County) may force us to confront an either/or proposition that has faced California, New York and other areas: either smoking should be banned altogether or not at all, as if this remains the only solution available. I find the debate, as constructed, particularly bothersome, but I could not put my finger on why.
Then it struck me: the First Amendment of the United States Constitution protects the freedom of religion, speech, the press, and our right to petition and assemble. "Congress shall make no law respectingÖthe right of the people peaceably to assemble." I do not practice law, but it seems to me that an ordinance forcing a citywide, countywide or statewide smoking ban clearly and forcibly reaches into private property. It identifies and stigmatizes a class of people exercising their inherent right to express themselves freely with a legal recreational substance by forbidding them the right of simply assembling in public as well as on private property.
In other words, strip away all the static about health and cost, and we realize that, before the smoking ban, nonsmokers have the right to assemble; smokers have the right to assemble. After such a ban, nonsmokers can assemble but smokers are stripped of their right to assemble anywhere in public to express themselves in recreation and fellowship. Moreover, an outright ban would have some questionable consequences: if I ran a business out of my residence, for example, would I then be banned from smoking in my home?
That approach strikes me in itself as an unmitigated injustice. Perhaps some clever civil libertarian should explore this further. I refuse simply to accept that in twenty-first-century America, no middle ground exists.