Who Owns the Air?

The central argument over the right to smoke versus the right to have “smoke free air” is an issue of property rights, i.e. who owns the air. In a public place, all citizens have equal rights to the air, just like they have equal access to the land and facilities.

If the interests of smokers and non-smokers are considered equal in magnitude, then the division of property must also be equal. Equal in magnitude meaning that in the presence of a smoker inflicts the same amount of harm on a non-smoker as the damage of a smoker being denied the ability to smoke. The only equitable compromise would be to divide all park areas into smoking and non-smoking sections. The division of land would have to be based on the proportion of smokers compared to the overall population. Thus, each interest would be served in relation to its relative population and each individual would be allocated an equal amount of space and consideration within the park.

However, many would contend that not allowing a person to smoke bears a greater inconvenience to the smoker than the presence second hand smoke does to a non-smoker. An analogy would be a driver’s use of a car on a public road compared to a pedestrian’s right to exhaust free air. Not allowing the driver to use the public road provides substantially greater harm to the driver than the car exhaust does to the pedestrian. Even so, there are limitations on car exhaust in Georgia, which recognize the shared nature of public air. The national air quality standard is .053 parts per million averaged annually.

Others contend that being in the presence of “second hand smoke” poses greater harm to the non-smoker than denying the ability to smoke does to the smoker. This is based on the fact that non-smokers outnumber smokers; therefore, the entire public area should be determined non-smoking. Because more people are inconvenienced, the aggregate inconvenience is greater on the non-smokers than the smokers. Such a utilitarian view may be valid. In the U.S., approximately 19.3% of all adults smoke cigarettes, according to the CDC. For each smoker, there are four non-smokers. There, if this argument is valid then the non-smokers would only have to face a quarter of the inconvenience of the smoker.


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