Blowing smoke: Do smokers have a right? Limiting the privacy rights of cigarette smokers

Georgetown Law Journal, Jan 1998 by Tyler, Michele L

MICHELE L. TYLER*

INTRODUCTION

Despite the recent settlement negotiations between the tobacco industry and a group of state attorneys general, the day-to-day debate between smokers and nonsmokers is anything but civil. For example, at a Denny's restaurant in California in 1993, nonsmoker Rachelle Rashan Houston asked Daphnye Luster, a smoker, to extinguish her cigarette. Ms. Luster, who was seated in the nonsmoking section, complied and shortly thereafter left the restaurant. Later, Ms. Luster returned with a 12-gauge shotgun and killed Ms. Houston as Ms. Houston was driving away from the restaurant.' This violent example illustrates the growing tension between smokers and nonsmokers over whether an individual has a "right" to smoke.

Change in the social acceptance of smoking has occurred rapidly, with nonsmokers' passive tolerance of smoking turning within a single lifetime to vocal demands for protection from exposure to tobacco smoke. Not so long ago, smoking was considered an acceptable adult choice; its health effects limited to smoker's cough and yellowed teeth. Smoking was portrayed on television and film as part of a glamorous and sophisticated lifestyle. Lucy and Ricky Ricardo smoked cigarettes they kept in a silver case;2 Humphrey Bogart, who died of lung cancer, and his co-stars smoked in nearly every scene of Casablanca.3 Yet the tide of public opinion began to turn after the 1964 Surgeon General's Report,4 which concluded that smoking increases a person's risk of lung cancer, chronic bronchitis, and emphysema.5 Until the recent settlement negotiations,6 the tobacco industry steadfastly denied the negative effects of smoking,' even in the face of numerous studies and reports by the Surgeon General and the Environmental Protection Agency that demonstrated otherwise.8 Nevertheless, as social attitudes about smoking have changed, nonsmokers have had greater success in passing legislation aimed at controlling smoking.9 As of 1993, forty-four states had passed restrictions on smoking in public places.'o Additionally, some states and many localities have enacted even more restrictive smoking laws and ordinances to prohibit smoking in workplaces, restaurants, and stadiums." Moreover, the private sector, which includes businesses, universities, hospitals, and nonprofit organizations, has responded to the growing health concerns of nonsmokers. By the early 1990s, eighty-five percent of private businesses had put some type of smoking policy in place, although the terms of these policies vary greatly.' 2

Yet there are signs of a smoker backlash. As of 1995, twenty-nine states had passed some type of legislation prohibiting employers from requiring employees to abstain from smoking outside the course of employment.' 13 Additionally, many of the cities and private businesses attempting to enact restrictive smoking legislation have faced political opposition and negative public relations campaigns funded by the tobacco industry. '14

Recently, however, the tobacco company Liggett-Myers acknowledged that tobacco is addictive, causes cancer, and that tobacco companies have consciously marketed cigarettes to young teenagers.'5 In light of such acknowledgment, the tobacco industry and smokers can no longer plausibly deny the addictive effects of cigarette smoking. The industry's denials of the harmful effects of "second-hand" tobacco smoke'6 will likely become suspect even to long-time smokers. Nevertheless, many people will continue to smoke, often asserting a privacy right to do so.'7 This note will address that assertion, analyzing controversial anti-smoking legislation and court decisions with regard to three different meanings of the right to privacy: informational privacy, physical privacy, and decisional privacy.'8

Because infringements on the smoker's "privacy right to smoke" are often justified on the basis of mitigating the harm caused to nonsmokers, Part I will discuss the negative effects of cigarette smoke on nonsmokers, providing background for the change in public attitudes toward smoking. Part II will discuss how recent anti-smoking approaches in the workplace, the home, and public places impact individual privacy rights; it will conclude that smoking is not an activity that should be protected by an individual's privacy rights. Finally, Part III will argue that a conscious effort to shift the civility norms"9 regarding smoking presents an alternative suggestion for protecting the health of nonsmokers while avoiding the backlash a prohibition on smoking might bring.

I. EFFECTS OF TOBACCO SMOKE ON NONSMOKERS

The health effects of tobacco smoke on nonsmokers are well documented and are frequently offered as the justification for impinging upon a smoker's privacy.20 The debate between smokers and nonsmokers is fueled by the harmful effects of environmental tobacco smoke, commonly referred to as "second-hand smoke."2' In 1986, the Surgeon General reported on the dangers of environmental tobacco smoke, concluding that nonsmokers who are exposed to cigarette smoke run an increased risk of acquiring lung cancer, chronic bronchitis, and emphysema.22 In addition, the Surgeon General concluded that although the separation of smokers and nonsmokers within the same air space may reduce the exposure of nonsmokers to environmental tobacco smoke, it does not eliminate it.23 In 1992, the Environmental Protection Agency (EPA) released a report classifying environmental tobacco smoke as a known human lung carcinogen.24 The EPA also attributed an estimated 3000 annual nonsmoker deaths to environmental tobacco smoke exposure.25