Civil Libertarian Questions Chief’s Right to Ban Smoking
The recent decision of the Alexandria, Virginia, Fire Department to refuse to employ firefighters who smoke was greeted no doubt with considerable joy by Department of Health, Education, and Welfare Secretary Joseph Califano. But this rule—which conditions public employment under a pledge that a fire fighter will never smoke—should send chills through the hearts of people who are concerned about individual rights.
The genesis of this policy is somewhat obscure. Efforts by the local American Civil Liberties Union to obtain detailed information about the decision-making process were not altogether successful. This much is clear. Virginia state law permits early retirement by a firefighter who becomes physically disabled. Lung and heart problems are a leading cause of disability retirement. Given the dangers of smoke inhalation, that is not surprising. Moreover, the statute creates a presumption that a lung or heart ailment is the product of the conditions under which firefighters labor. The Alexandria Fire Department claims that medical testing is inadequate to determine whether a firefighter’s lung problem is work induced or caused by cigarette smoking. And, according to the Department, all firefighters retired on disability due to heart or lung problems in recent years were smokers. Since there is a significant cost to public budgets exacted by early retirement, the Chief decided that a total ban on smoking would eliminate nonwork related disability retirements, and thus save the taxpayer money.
(I must note for the record that this ban applies only to new employees.)
Personal liberty at stake
There is a temptation to criticize the ban by attacking the scientific evidence used by the Chief in framing this policy, evidence that purports to correlate smoking with disability. Almost any public policy based upon the testimony of doctors is open to such attack; one can always find other experts who will offer conflicting testimony. But I am persuaded that a dispute over the evidence misses the point. The ban offends cherished notions of individual liberty and personal autonomy regardless of whether there is a perfect correlation between smoking and lung disability among firefighters. In fact, the Alexandria Fire Department has not claimed that a perfect correlation exists; the Chief has not asserted that all smokers become disabled, only that all the disabled firefighters were smokers.
First, I cannot imagine how the ban can be enforced without violating basic notions of privacy. Unless the Chief intends to set up a spy system, putting his employees under surveillance when they are in public places or in the privacy of their own homes, or requires each employee to submit periodically to a lie detector test, the rule can’t be enforced—at least with much consistency.
More importantly, it is clear to me that smoking in the privacy of one’s home enjoys a fundamental constitutional protection. That is not to assert that an individual possesses a basic right to smoke. But it is to say that smoking is an activity that is protected by the zone of privacy that surrounds one’s personal life. And where there is no cognizable constitutional right to smoke, there is constitutional status accorded to this zone of privacy. Indeed, this privacy doctrine, essentially an affirmation of personal autonomy, traces its roots back to our English heritage.
Pornography ruling
We have seen this doctrine enunciated in other contexts. For example, while the Constitution has been interpreted to permit civil and criminal law regulation of pornography, since Stanley v. Georgia (1969) it is settled that neither the civil nor the criminal law may be invoked to forbid an individual from reading pornography in the privacy of his/her home.
And just two years ago the Alaska Supreme Court, in the Ravin case, held that quite apart from what the legislature chooses to do about marijuana, the state is forbidden to invoke legal processes to prohibit a person from growing marijuana within one’s home or from smoking marijuana in the privacy of one’s own dwelling.
The central principle of Stanley, Ravin, and a host of similar cases, is that the purpose of the privacy rights embedded in the Bill of Rights, as Mr. Justice Douglas said so often, is to keep government off the back of the individual. There is a point at which what we do to ourselves, as distinct from actions that harm others, is simply not the business of the state.
I conclude that the Alexandria regulation invades that critical zone of personal privacy and autonomy which the Constitution was intended to protect. Indeed, it is not even a close question.
View courts will take
My conclusion that the government has no business legislating in this area does not resolve the issue. The remaining question is: does the invasion rest upon so compelling a basis that the intrusion upon a fundamental privacy is justified? That at least is the way the courts are likely to frame the issue.
I think the answer is no. I just don’t believe that saving tax dollars is ever a compelling rationale for restricting a personal right. Moreover, Alexandria has alternatives it can pursue. It could ask the Virginia General Assembly to amend the state statute so that the disability law reflects the alleged hazards of smoking. If there is a relationship between smoking and firefighter disability, it is surely lawful to limit the disability coverage of firefighters who wish to smoke.
Unhappily press stories suggest that the Alexandria rule is serving as a model for other law enforcement agencies around the country. Thus this rule, or one like it, will surely wind up being challenged in the courts. I don’t know how the issue will be decided. But unlike regulations governing smoking in public places, which I dislike as a smoker but recognize as a valid exercise of the police power, this ban goes too far. Liberty erodes by small degrees, and this ban is one of those incremental incursions into privacy rights that will later be used to justify even greater invasions of personal freedom.
(Reprinted from the April 1978 issue of The Tobacco Observer.)
