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In Greg's response to the question of Is smoking immoral?, Greg wrote:

that serious smoking dramatically increases the odds of nasty illnesses like lung cancer and emphysema is well-established

I know that even in a private establishment, you are not allowed to shoot another person or beat them with a stick even if you put up a big sign that says "shooting or beating people allowed". How does that apply to things like second hand smoking?

asked May 20 '15 at 19:00

Humbug's gravatar image

Humbug
5181285

edited May 20 '15 at 19:01

Hi, Humbug. Just a quick clarification: That statement of mine pertained to to smoking ("serious smoking," as in prolonged and heavy smoking) -- not to mere exposure to secondhand smoke. Secondhand smoke is certainly disgusting and irritating to nonsmokers like me, but I am not aware of any good evidence that it does more than annoy the general public.

(May 20 '15 at 20:52) Greg Perkins ♦♦ Greg%20Perkins's gravatar image

Yes. Subjecting someone to significant amounts of second-hand smoke, without their consent, is a form of force.

There are at least three major differences between second-hand smoke and shooting/beating people: (1) Shooting/beating someone is generally purposeful. Subjecting someone to second-hand smoke is generally incidental. (2) Shooting/beating someone is generally more directly harmful than subjecting someone to second-hand smoke. (3) It is much more common for places to allow smoking than for them to allow shooting/beating people.

(May 26 '15 at 11:37) anthony anthony's gravatar image

Under a proper government, you would be allowed to shoot or beat someone if they properly consented. Just putting up a big sign probably wouldn't be enough, though. Furthermore, at least in terms of shooting someone, it may be very difficult to get proper consent. (Even then, under the right circumstances, such as a sane person who wants to commit suicide for some sane reason, getting proper consent is possible.) And you probably want to keep good evidence of that consent, as it might be hard for a jury to believe it.

(May 26 '15 at 11:37) anthony anthony's gravatar image

A big sign which says "shooting/beating is allowed" would probably not constitute implied consent. It's just too strange of a thing.

A big sign which says "smoking is allowed" would mean that there is implied consent from other people in the establishment to be subjected to second-hand smoke. There can even be implied consent absent any signs at all. If you go to a bar, at least in this area of the United States, and there's no sign that says "no smoking," then it is implied that smoking is allowed. There is implied consent from anyone who enters the bar.

(May 26 '15 at 11:42) anthony anthony's gravatar image

Absent implied consent, a smoker should ask for permission before lighting up. Not doing so, is a rights violation. Even with implied consent, if a person explicitly denies consent, then ignoring that denial of consent is a rights violation. The exception would be what's known as "coming to the nuisance." If someone is already smoking and then you ask them to stop, unless it is your property (or the smoker is violating the rules of the property owner), then it is the person "coming to the nuisance" who has to deal with the smoke or leave.

(May 26 '15 at 11:43) anthony anthony's gravatar image

Of course, if Adam goes to an empty bar, and then Bob sits next to him and pulls out a box of cigarettes, and Adam tells Bob not to smoke, the bartender has every right to kick Adam out of the bar if Adam won't consent to Bob's smoking. That's where property rights come into play.

Finally, I should note that in the case of a violation of such rights, generally damages would be minimal, and except in extreme situations the behavior would generally not amount to a criminal offense.

(May 26 '15 at 11:43) anthony anthony's gravatar image
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Second hand smoke can be a rights violation, depending on the context. Second hand smoke can also not be a rights violation, depending on the context. It all depends on whether or not you have objectively consented to the imposition of the second hand smoke.

In general, the imposition of any physical contact with your person that you have not objectively consented to (including contact with noxious gases) is a rights violation. If you objectively consent to the contact, it is no longer a rights violation.

However, objective consent does not necessarily require you to explicitly consent to the contact—for example, you do not have to verbally say "I consent to you touching me" for you to have objectively consented to my touching you. Consent can be implied , based on a person’s objectively observable actions and the surrounding context. For example, when you reach your hand out to me in the familiar "hand-shake" gesture, it is clear that you have objectively consented to my grasping your hand in a hand shake.

One category of objectively implied consent is consent to the type of bodily contact that is normally incident to the performance of a given activity---by voluntarily engaging in such an activity, you objectively consent to all such bodily contact that is normally incident to that activity. For example, when you ride the subway a certain amount of incidental physical contact with your fellow riders is to be expected (and is probably even unavoidable )—people will brush against you as they enter/exit, people will bump into you as the train changes direction, people’s breath will fall upon you, etc. By choosing to ride on the subway, you consent to all such physical contact that is incidental to the activity. (obviously implied consent, like all consent, has contextual limits, and thus it is not the case that you consent to all contact by engaging in an activity—e.g., you do not consent to being sexually groped merely by riding the subway, since sexual groping is not normally incident to riding the subway (in most locals)).

Applying these principles to second hand smoke, it should be clear that when a person enters an establishment that has a sign warning that smoking is going on inside, that person has impliedly consented to the imposition of the second hand smoke. The physical contact of the noxious fumes with your person is contact that is normally incident to the activity of entering an establishment where smoking is permitted, and thus by voluntarily entering such an establishment you have consented to such contact. On the other hand, you have not necessarily consented to, for example, someone coming up to you and blowing smoke directly in your face—again, implied consent has contextual limits.

Thus, by posting a sign the owner of an establishment has not somehow dictated what constitutes a rights violation on her property—she has no power to dictate what does and does not constitute a rights violation. However, the owner does have the power to require you to consent to something as a condition for entering her property. By posting the sign, what the property owner has done is merely established consent to second-hand smoke as a condition for being admitted into her establishment. The fact that you do no verbally state you consent is immaterial, since your consent is objectively implied by your voluntary action of entering the establishment after having seen the sign. If you do not agree to the condition (i.e., you do not wish to consent to second hand smoke) then you are free to not enter the property.

Note that objective consent is not the same thing as subjective consent. It is possible for you to have objectively consented to something even if deep down inside you really really really do not want the thing to happen. What you want is immaterial; what you objectively demonstrate—through word or action—is what counts with regard to objective consent. The classic case on this point is a girl who was in a line of new immigrants getting vaccinations as a condition for entering the country; she presented her arm to the doctor and did not signal any objection (verbally or otherwise) to the vaccination, but then later tried to sue the doctor for battery on the grounds that she did not consent to the vaccination. The court correctly held that she had impliedly consented by standing in a line of people who were getting vaccinations, presenting her arm to the doctor, and failing to object. The court also correctly held that her sincere desire to have not been vaccinated did not nullify her consent, because all of her objectively observable actions indicated consent.

As for being shot or beaten, yes, it is possible to consent to these things (boxers consent to being hit by their opponent, for example). However, because these things are objectively more serious than, for example, the types of incidental physical contact occurring on the subway, the requirements for finding consent in the case of being shot or beaten will be much more strict than in the case of incidental jostling in public or second-hand smoke. In particular, because shooting/beating are so serious, it is imperative that we are certain (1) that the person did in fact consent, (2) what the actual scope of the consent was (and whether it exceeded). A sign on a door may be insufficient to provide us with the required certainty in these serious cases, and accordingly, it is proper to require something more than a sign on a door in order to find consent in the case of shooting/beating. Just because a sign might be sufficient to imply consent to one thing does not necessarily mean that a sign is sufficient to imply consent to something else.

answered May 21 '15 at 11:19

ericmaughan43's gravatar image

ericmaughan43 ♦
944619

edited May 21 '15 at 11:42

So if people are on a bus, and there's no sign which says "no smoking", and one person asks another person to "stop smoking" and the other person refuses, is that a rights violation?

What if people are at a bus stop, and one person says to the other person "you stink, sit somewhere else". The person being requested to move really does have a slight body odor problem. If the person with the body odor problem refuses to move, is that a rights violation?

I'm not sure that noxious gases can be treated the same as other physical contact, which is why I deleted my original answer.

(May 21 '15 at 11:51) anthony anthony's gravatar image

In any case, please don't treat my comment as being critical. I'm not sure what the answers to these questions are. I'm just trying to explore the outer limits of the principle. I'm not sure exactly what the limit is.

Aside from noxious gases, what about loud noises? Like noxious gases, from a standpoint of physics, noises do involve physical contact (the noise is a result of the vibration of your ear drum, after all). Smells and sounds are both physical. But I don't think talking more loudly on your cell phone than the person sitting next to you has consented to is a rights violation.

(May 21 '15 at 11:52) anthony anthony's gravatar image

Another example would be someone with a peanut allergy. When is it a rights violation to expose someone else to peanut dust? On that issue I'm more apt to side with the person requesting the accomodation, though, as a peanut allergy is much more objectively harmful compared to someone who doesn't like the smell of smoke or body odor or loud cell-phone talking. But that just brings another aspect into play where I'm not quite sure where exactly to draw the line.

In practice, in most cases people would defer to the rules of the property owner. But is that a social principle or a legal one?

(May 21 '15 at 12:05) anthony anthony's gravatar image

So with each of your scenarios, the key to answering whether it is a rights violation lies in answering the question of whether it is reasonble to find implied consent. This often depends on a factual inquiry into what it is reasonble to expect when engaging in a given activity, which may vary from place to place and time to time. So, for example, nowadays in the US, smoking on a bus is unheard of, and therefore noone would argue that you have objectively consented to second-hand smoke merely by getting on the bus. This might not have been true in times gone by though.

(May 21 '15 at 12:14) ericmaughan43 ♦ ericmaughan43's gravatar image

I think one would also need to consult principles from tort law and nuisance law to properly resolve these cases. For example, reasonble expectations plays a lot into whether consent can be infered. Moreover, even if there is no consent at all (implied or otherwise), that does not necesarily mean the offending party can be found legally liable. If the offending party was not culpible in some way (e.g., negligent), then we do not punish them despite the actuallity of the harm cause. Not every rights violation is actionable, but that does not mean that it did not occur.

(May 21 '15 at 12:21) ericmaughan43 ♦ ericmaughan43's gravatar image

Moreover, I think that the doctrine of "comming to the nuisance" would have wide applicability here (unfortunately, this doctrine is not good law anymore in many jurisdictions). So, for example, you probably shouldn't be able to walk up to a smoking person and then force them to move or stop smoking on the grounds that they are violating your rights---you "came to the nuisance" so to speak. Obviously, things get complicated when you start to consider "public" property, but the point is that there are many existing legal principles that I think would help resolve such difficult cases.

(May 21 '15 at 12:26) ericmaughan43 ♦ ericmaughan43's gravatar image

As for fumes/noises being means of rights violation, consider nuisance law, wherein fumes and noises can both be causes of rights violations. I see no reason why this cannot be the case in torts as well. (indeed, although it's been a while, I am pretty sure I remember caselaw from torts finding fumes to be a rights violation...blowing smoke in someone's face being a battery or something? not 100% sure).

(May 21 '15 at 12:28) ericmaughan43 ♦ ericmaughan43's gravatar image

So with each of your scenarios, the key to answering whether it is a rights violation lies in answering the question of whether it is reasonble to find implied consent.

In each of my scenarios, consent is explicitly denied.

I guess you and I aren't on the same page when it comes to the principle that the explicit denial of consent overrides implied consent?

(May 21 '15 at 13:34) anthony anthony's gravatar image

Regarding "coming to the nuisance," thanks, that seems to be a very important principle which I pretty much forgot about.

(May 21 '15 at 13:42) anthony anthony's gravatar image

I guess you and I aren't on the same page when it comes to the principle that the explicit denial of consent overrides implied consent?

I think it depends. If the activity is one that cannot be engaged in without the contact occuring, then I do not see how you can voluntarily engage in the activity while simultaneously claiming that you do not consent to the contact. By the very nature of the activity, you have to consent to the contact if you engage in the activity.

(May 21 '15 at 15:47) ericmaughan43 ♦ ericmaughan43's gravatar image

Suppose you ride a crowded subway car and explicitly state "I do not consent to anyone touching me"---I do not think that such an attempt to explicitly deny consent would make the inevitable incidental contact a rights violation.

(May 21 '15 at 15:49) ericmaughan43 ♦ ericmaughan43's gravatar image

If the activity is one that cannot be engaged in without the contact occuring, then I do not see how you can voluntarily engage in the activity while simultaneously claiming that you do not consent to the contact.

Okay, but can you ride a bus while claiming you don't consent to smelling cigarette smoke? don't consent to listening to loud cell-phone chatter? sit at a bus stop while claiming you don't consent to smelling horrible body odor? eat at a restaurant while claiming you don't consent to being put into anaphylactic shock by breathing peanut dust?

(May 21 '15 at 16:41) anthony anthony's gravatar image

Suppose you ride a crowded subway car and explicitly state "I do not consent to anyone touching me"---I do not think that such an attempt to explicitly deny consent would make the inevitable incidental contact a rights violation.

Okay, I don't either. I guess the key is that the contact is incidental, and that's also true in the case of second-hand smoke.

Furthermore, you know it's likely to happen. Like when you go into a bar you know second-hand smoke is likely to be encountered.

But if you go into a place where it says "no smoking" you don't expect to encounter second-hand smoke.

(May 21 '15 at 16:48) anthony anthony's gravatar image
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Asked: May 20 '15 at 19:00

Seen: 686 times

Last updated: May 26 '15 at 11:52