Laws forbidding business proprietors from permitting smoking in their offices, cinemas, aircraft, stores, etc. are now legion. But such government-mandated prohibitions ignore the rights of those who don't mind smoking as well as those who wish to live in a tolerant society.

No doubt, smokers can be annoying. They even may be harmful to those around them. One need not dispute these contentions to still be concerned with their rights.

In most cases, anti-smoking ordinances aren't limited to public places such as municipal courts. If the government confined itself to protecting the rights of nonsmokers in bona fide public areas, there would be nothing wrong with the current trend in legislation.

Instead of such a limited approach, however, government has embarked upon the full regimentation of people's choices concerning smoking. The government has decided to bully smokers, regardless of whether they violate anyone's rights or merely indulge with the consent of others.

People suffer many harms willingly. And in a society that respects individual rights this has to be accepted. Boxers, football players, nurses, doctors, and many other people expose themselves to risks of harm that comes from others' behavior. When this exposure is voluntary, in a free society it may not be interfered with. The sovereignty of persons may not be sacrificed even for the sake of their physical health.

Individuals' property rights are supposed to be protected by the Fifth Amendment. Not unless property is taken for public use -- for the sake of a legitimate state activity -- is it properly subject to government seizure. By treating the offices, work spaces, and lobbies of private firms as if they were public property, a grave injustice is done to the owners.

When private property comes under government control, practices may be prohibited simply because those who engage in them are in the minority or waver from preferred government policy. Members of minority groups can easily lose their sphere of autonomy.

There is no need, however, to resort to government intervention to manage the public problems engendered by smoking. There are many cases of annoying and even harmful practices that can be isolated and kept from intruding on others. And they do not involve violating anyone's right to freedom of association and private property.

The smoking issue can be handled quite simply. In my house, shop, or factory, I should be the one who decides whether there will be smoking. This is what it means to respect my individual rights. Just as I may print anything I want on my printing press, or allow anyone to say whatever he or she wants in my lecture hall, so I should be free to decide whether people may smoke on my property.

Those displeased by or who object to my decision need not come to my facilities. If the concern is great and the opportunity to work in a given place is highly valued, negotiations or contract talks can ensue in behalf of separating smokers from nonsmokers. In many cases all that's needed is to bring the problem to light. Maybe the firm's insurance costs will be inordinately high where there is smoking, or maybe a change in policy will come about because customers and workers are gradually leaving.The issue of smoking may not undermine the far greater issue of individual, including private property, rights.

In some cases a conflict about this matter may go so far as to involve tort litigation. Exposing employees to serious dangers that are not part of the job description and of which they were not warned may be actionable. But what the company does initially at least must be its decision. And the onus of proof in these cases must be on those who claim to have suffered unjustified harm.

Clearly, smoking isn't universally bad. For some people it may be O.K. to smoke, just as it could be O.K. to have a couple of drinks or to run five miles a day. For others, smoking is very harmful to their health. In either case, health may not be the highest good for many people. All things considered, even those whose health suffers may wish to smoke. In a free society, people are free to do what is wrong, so long as they don't violate the rights of others.

In a free and pluralistic society, it isn't necessary to appoint the government as the caretaker of our health and the overseer of our interpersonal negotiations concerning how we best get along with each other.



Tibor R. Machan is a professor of business ethics and Western civilization at Chapman University in Orange, Calif.