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Smoking: Control vs. Freedom of Association

Here are two stories about smoking bans. The first is about New Jersey's ban on indoor smoking in most public places (but not private homes), and the second is about the Scotts company threatening to fire employees who smoke (even at home).

The contrast is interesting. New Jersey's law was advocated on the grounds of public health. The Scotts company's policy was motivated on the grounds of reducing health care costs. As quick as you can say, "New Jersey cares about people, but Scotts only cares about profits," I'll say that you've picked the wrong villain.

You'll counter: But Scotts is trying to control its employees even when they're not at the job! New Jersey is at least allowing people the freedom to smoke in the privacy of their own homes! If we care about freedom, and in this case the freedom to smoke (however distasteful we may personally find the activity), shouldn't we condemn Scotts as worse because its ban is farther-reaching? No, we shouldn't.

Scotts is a business, a private entity. It has an entirely different purpose than the State of New Jersey, a government entity. Governments exist for the purpose of protecting individual rights. Businesses exist for the purpose of earning a profit.

One of the most basic human rights is that of association, the freedom to interact with or to avoid any other person. Interaction is rightly permitted only by the consent of both individuals. Because association is a right, a person's decisions do not need to be defended. They must not be subject to legal scrutiny, which would turn a right into a mere permission.

It is government's job to protect this right. For example, governments should defend a bigot's right to discriminate against unliked people. (Yes, much of "civil rights" is utterly backward and designed to abrogate rather than protect the right of association.)

New Jersey's law prevents the voluntary association between smokers and establishments that allow smoking. Establishments may not allow smoking; patrons may not smoke. The law is sweeping — it applies regardless of consent. A business and a patron who would be mutually happy with smoking are forbidden to pursue that mutually advantageous and completely voluntary situation.

The Scotts company's policy prevents no voluntary associations. The situation is quite unlike the government's. The business declares it doesn't want employees who smoke. Exactly as a bigot should be free to avoid unliked people, a business should be free to avoid unwanted employees. They don't even have to have a reason. Employment is a voluntary arrangement, and both employer and employee should have the broadest latitude in determining their requirements. If the employee wants to keep working but the employer no longer wants to employ them, the arrangement is no longer mutually desired. To impose the arrangement upon the unwilling party would violate their right of association.

Scotts has the right to set its requirements for employment. (And they have to be careful not to lose employees to competing businesses by making their requirements too onerous.)

New Jersey has no proper authority to ban smoking. Scotts has.

As an aside, I must note that Scotts created this policy largely as a result of rising health care costs. Other employers have addressed the same issue by making smokers pay more for their health coverage, or by giving bonuses to nonsmokers. This hints at the correct solution: removing the tax incentives that encourages businesses to provide health coverage in lieu of additional cash wages. In particular, the deductibility of the employer's costs of this coverage, and the FICA taxes that would be due if the health benefit were paid out as cash. Individuals, not businesses, should be the purchasers of health insurance.

Tiny Island