I have a good friend who has varied hobbies and one of them is smoking cigars. I’ve never been a smoker of any sort and allure of cigars is a mystery to me.
But a lot of people enjoy them. My friend wanted to watch one of the NFL playoff games and invited me to an Omaha cigar bar. The smoke wasn’t too bad because the air handling system is good, but I don’t really want to go back.
However, as my mother used to say, “that’s why they make chocolate and vanilla.” My friend enjoys cigars and the comfortable surroundings of his favorite cigar bar. Nobody’s forcing me to go into a cigar bar.
In Nebraska, cigar bars have gotten to be big news as of late. The Nebraska Supreme Court, in a weirdly reasoned opinion, held that the exemption for cigar bars to the Indoor Clean Air Act was unconstitutional “special legislation.” However, the court held that the exemption for hotel rooms designated as “smoking” was constitutional.
The reasoning was bizarre because the function of a legislature is to engage in line drawing. The Nebraska Supreme Court’s opinion read as though it was acting as a second house of the legislature by second-guessing the policy rationale for cigar bars, even to the point of quoting from legislative debates.
State Senator Tyson Larson is sponsoring a bill to reintroduce the cigar bar exemption and the bill goes to considerable lengths to spell out the rationale for it, and I believe that if it’s enacted it will withstand a constitutional challenge.
Good on Senator Larson.
As should be clear, I don’t have a personal dog in the fight. But my generally libertarian instincts cause me to chafe at government paternalism.
Debates about the political legitimacy of paternalist behavior by governments date back at least to Plato. Paternalistic laws are those that the government imposes on you because it believes that certain behaviors are harmful to you, but not necessarily anyone else.
It’s sometimes hard to classify laws as paternalistic. Very few laws are purely paternalistic. Laws requiring the use of seat belts were decried as paternalistic when they began to be enacted by states, and there’s no doubt that there is a large degree of paternalism in them.
But failure to use a seat belt runs a significant risk of imposing burdens on others. Injuries in car accidents are undeniably more serious on average if the occupant isn’t wearing a seat belt. Consequently, costs are imposed on other people through increased insurance premiums, increased numbers who need government assistance through disability payments and the like. Besides that, the burden imposed is trivial. All you have to do is take 3 seconds to put on a seat belt.
But the burden in not allowing cigar bars is much more significant. Of course, there’s nothing that prevents my friend from smoking a cigar at home. But likely the air handling isn’t as good there and he’d miss out on the opportunity to be with others who enjoy cigars. Denying someone a significant pleasure is not a small cost.
Of course, there are some external costs involved. I haven’t looked into it, but probably there are health risks associated with cigar smoking, so in theory there might be costs that the rest of us would assume. But unlike seat belt laws – where the burden is trivial and the risk significant – with cigar bars the reverse is true.
The biggest experiment in paternalism in the United States – Prohibition – was rife with unintended consequences. It created a huge black market for liquor that made gangsters like Al Capone rich. The covertly brewed alcohol that was consumed during Prohibition – moonshine as it was called – was dangerous, because it often included more than the alcohol (EtOH) that we associate with drinking, leading often to blindness. Moreover, it turned the United States into a nation of hard drinkers (rather than consuming mostly beer), because the smaller volume and higher potency of hard liquor made it easier to smuggle.
Of course, all of this has implications for other behaviors that are prohibited or heavily regulated, such as gambling and the use of controlled substances. The calculus for each one varies.
But I’m quite confident that banning cigar bars is unjustified government paternalism.