While I teach at Florida A&M University, I regularly run through the Florida State University campus. In December, I noticed that the campus had been plastered with signs announcing that on January 1, 2014 the entire campus would be tobacco free (presumably enforced by killer drones). I was impressed by the extent of the plastering—there were plastic signs adhered to the sidewalks and many surfaces to ensure that all knew of the new decree.
While running does sometimes cause flashbacks, seeing those signs flashed me back to my freshman English class at Marietta College. For one writing assignment I argued in favor of various anti-smoking proposals, including some very draconian ones. I did include area bans on smoking. My motivation was, to be honest, somewhat selfish: I hate the smell of tobacco smoke (except certain pipe tobacco and certain cigars) and react rather badly to it (my eyelids swell and I have trouble breathing). As such, like a properly political person of any leaning, I thought it good and just to recast the rest of the world according to my desires and beliefs.
I thought the paper was well argued and rational. However, the professor (an avowed liberal) assigned it a grade of .62 (I am still not sure if that was out of 1, 4 or 100…). She also put a frowning face on it. And she called me a fascist. Interestingly, almost all that I proposed in the paper has come to pass (the campus wide ban being the latest). On the one hand, I do feel vindicated—if only in regards to my prophetic powers. On the other hand, I wobbled between anarchism and fascism in those days and that paper was clearly written during a fascist swing. Now that I am older and marginally wiser, I think it is worth reconsidering the ethics of the area ban.
While there are various grounds used to warrant area bans on certain behavior, three common justifications include claiming that the behavior is unpleasant, offensive or harmful. Or some combination of the three. In terms of how the justification works, the typical model is to ban behavior based on its impact on the rights others. That is, the behavior is unpleasant, offensive or harmful to others and thus violates their rights to not be exposed to unpleasant, offensive or harmful behavior.
While I have no desire to observe behavior that is unpleasant I do question the idea that I have a right to not be exposed to the merely unpleasant. After all, what is unpleasant is highly subjective and area bans on the merely unpleasant could easily result in absurdity. For example, I would find someone wearing a puke green sweater with neon pink goats unpleasant to view, but it would be rather unreasonable to have an area ban on unpleasant fashion. Roughly put, the merely unpleasant does not impose enough on others to warrant banning it (providing that the unpleasant acts do not cross over into harassment, etc.). As such, the mere fact that many people find smoking unpleasant would not warrant an area ban on smoking,
Obviously, I have no desire to be exposed to behavior that I find offensive. However, I also question the idea that I have a right to not be exposed to what is merely offensive. Even it is very offensive. While the offensive might be a bit less subjective than the unpleasant, it still is very much a subjective matter. As such, as with the merely unpleasant, an area ban on merely offensive behavior would seem to lead to absurdity. For example, if the neon goats on the sweater mentioned above spelled out the words “philosophers are goat f@ckers”, I would find the sweater both unpleasant and offensive. However, the merely offensive does not seem to impose enough on my rights to warrant imposing on the right of the offender. Naturally, offensive behavior can cross over into an actual violation of my rights and that would warrant imposing on the offender. For example, if the sweater wearer insisted on following me and screaming “goat f@cker” into my face all day, then that would go from being merely offensive to harassment. Thus, there mere fact that many people find smoking offensive would not warrant an area ban on smoking. Interestingly, it would also not warrant bans on public nudity.
Obviously, I have no desire to be harmed by the behavior of others. Equally obviously, I do believe that I have a right to not be harmed (although there are cases in which I can be justly harmed). For those who prefer to not talk of rights, I am also fine with the idea that it would be wrong to harm me (at least in most cases). As such, it should be no surprise that I would find area bans on behavior that harms others to be acceptable. The grounds would be Mill’s argument about liberty: what concerns only me and does not harm others is my own business and not their business. But, actions that harm others become the business of those that are harmed.
While the basic idea that it is acceptable to limit behavior that harms others is appealing, one clear challenge is sorting out the sort of harm that warrants imposing on others. Going back to offensive behavior, it could be claimed that offensive behavior does cause harm. For example, someone might believe that his children would be terribly harmed if they saw an unmarried couple kissing in public and thus claim that this should be banned from all public areas. As another example, a person might contend that seeing people catching fish would damage him emotionally because of the suffering of the fish and thus fishing should be banned from public areas. While these two examples are a bit silly, there are clearly some legitimate grey areas between the offensive and the clearly harmful.
Fortunately, the situation with smoking is clear cut. Tobacco smoke is known to be physically harmful to those who breathe it in (whether they are smoking or not). As such, when someone is smoking in a public area, she is imposing an unchosen health risk on everyone else in the area of effect. Since the area is public, she clearly has no right to do this. To use analogy, while a person has a right to wear the “goat f@cker” sweater mentioned above, she does not have a right to wear one that sprays out poison or has been powdered with uranium. To use a less silly analogy, a person in a public area does not have the right to spit on people who get close to her. While they could avoid this by staying away from her, she has no right to “control” the space around her with something that can harm others (spit can, obviously, transmit disease). As such, it is morally acceptable to impose an area ban on smoking.
I would, however, contend that behavior that does not harm others should not be subject to such bans. For example, drinking alcohol in public. Provided that the person is not engaging in otherwise harmful behavior, there seems to be no compelling moral reason to impose such a ban. After all, drinking a beer near people in public causes them no harm. Likewise, campus dress codes would also seem to lack a moral justification—provided that the attire does not actually inflict harm. Merely being offensive or even distracting does not seem enough to warrant an area ban on moral grounds.