Beaches and butt-heads

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Here we go again. First it was the health police in Santa Monica, Los Angeles and Malibu. Then the butt-heads in Los Angeles County. Now it’s the legislature, about to consider a bill to shield every sun worshipper statewide from the tribulations of beach smoking, and defend every grain of sand along the 1,100-mile coastline against cigarette litter.

One argument for the beach ban goes like this: Cigarette butts are a major source of litter. On cleanup days, volunteers say, they pick up an average of more than 300,000 butts along the beach. If so, that’s a powerful argument—but against littering, not against smoking. A ban on smoking is both over-inclusive and under-inclusive. It’s over-inclusive because responsible smokers who properly discard their cigarette butts do not contribute to litter. It’s under-inclusive because irresponsible non-smokers who improperly discard food wrappers and soda cans are major contributors to litter. By all means, let’s keep the beaches clean. Anyone who flips a cigarette butt onto the sand may deserve to be fined. But let’s reserve our ire, and our legal remedies, for those who actually do something wrong.

The second argument against beach smoking is that secondhand smoke, even a wisp on breezy days, is a health hazard. In the May, 2003, British Medical Journal, researchers found that passive smoke had no significant connection with heart disease or lung cancer death at any level of exposure at any time.

Ordinarily, in a democracy, we let the political process set restrictions on the use of public property. But there are limits on the exercise of political power. Under our constitutional system, a nonsmoking majority cannot arbitrarily stamp out the rights of a smoking minority. For a regulation to be legitimate, there must be a good fit between the regulation and the goal it seeks to accomplish. That means smoking should not be banned—even on public property—without showing, first, that the ban will be effective and, second, that it will not proscribe more activities than necessary to reach its objective.

Government, not secondhand smoke, is polluting the beaches. Surely we can protect the legitimate rights of non-smokers without prohibiting smokers from relishing an occasional cigarette by the sea.

Robert A. Levy

Cato Institute