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The debate over the smoking ban is about rights, and saying it isn't is just silly

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The most mail we've received on local issues in the last couple of years has been about toll roads or the proposed smoking ban. This community certainly has its priorities in order.

Among too many, the current method of political debate is to first frame the issues in the manner most appropriate for your view. You can then go on to explain how, given this frame, you are not only right – and obviously so – but, in addition, anyone who disagrees with you is either corrupt or a moron. Finally, trivialize the main concerns of those with the opposing point of view, while ignoring any valid issues, and you are home.

On the smoking ban:

1) This is about rights, and saying it isn't is just silly. The rights of owners, within reason, to run their establishments as they please is well-established, but much more limited than it used to be in the wake of civil-rights-related legislative precedents, litigation, and public health concerns. On the other hand, the right to see one's favorite band at a venue doesn't exist. Nonsmokers' space may be violated, and their health endangered, but their rights are really not at issue. If they feel invaded at a club or a restaurant, they can leave. The club is not turning them away.

You do not have the right to do what you want, when you want, under the circumstances you want. Although it is not specifically constitutionally guaranteed, most of us would agree we have the right to breathe clean air in public places and in the general environment. There also are rights based in customs and on established practices. But there is no constitutional, implied, religious, moral, or socially contracted right to hear your favorite music wherever you want.

This is not to say the issue is moot or trivial. The argument that this is about nonsmokers' rights isn't valid.

Clearly, bar and restaurant owners' rights are being restricted, but civilized society is an ongoing negotiation to shape our rights in a way that best serves the society. I realize that to Libertarians, religious right-wingers, anarchists, hardcore lefties, and those with a rich variety of other political positions, that's like saying "Many times we have to cut off children's heads" or "In order to be free, we must give up our freedom." Actually, I very much mean that sentence: Our living together and how we interact with one another is an ongoing process, especially in relation to the always-evolving laws that codify the formal rules.

So this is about bar owners' and smokers' rights being restricted. There is no issue of nonsmokers' rights as regards this ban.

2) My main argument is that the ban is likely to force some clubs to close and will hurt others. Everyone in this city pays lip service to the live music scene. Keep Austin Weird has become a successful grassroots marketing campaign. Yet the city has given little practical support to the music industry. Recently, they have reconsidered and made tougher the noise ordinance. Then, working with small-business owners, among others, they came up with a comprehensive plan for smoking bans and restrictions. Then, before those regulations even had a chance to establish their effectiveness, a more encompassing ban proposal was slammed on the ballot. At best, all of these negatively impact the clubs; none of them specifically helps them in any way.

Even if this smoking ban, if passed, turns out to have a benign and minor impact, consider that we have long been putting club owners through hell by forcing them to deal with ever-stiffening regulations – thus making harder, not easier, the lives of some in the community most responsible for nurturing the live music scene. Public health may demand the ban, but that doesn't change this reality.

3) You Are Spiro Agnew! So many are willing to be spokesmen for the silent majority of nonsmokers. They know there is an army of big spenders waiting to pour into the clubs the minute smoking is banned. They know what all nonsmokers think and what they will do. They confidently speak for the silent!!

4) Hey club owners, good news! Ban supporters know your businesses will neither be forced to close nor take a very bad financial hit. They aren't speculating; they know! They are willing to make statements that there is no way they can be certain are in any way accurate. This doesn't slow them down, because they know! So convinced are they of their foresight, they cavalierly gamble with other people's livelihoods and lives – with your livelihoods and lives.

From two letters to the Chronicle:

A) "In other cities the same laws and ordinances have been passed and bar owners pushed back with the same fears of being run out of business. Most bars closing during or after the smoking ban were plagued with poor business or poor business practices before that.

"In many cases, after the smoke cleared, bars saw an upswing in their weekly business. In Austin, where one can step outside unmolested by the weather 300-plus days a year, I think most well-run establishments will fare well."

B) "The premise on which you base your argument of club deaths and disbanding of marginal garage bands is based on the false assumption that there are more smokers than nonsmokers in the general population. This, of course, is patently false. So is the corollary that smokers spend more on entertainment than smoke-free citizens."

Club owners, perhaps if you just ask, these seers are so certain that they will put their money where their mouths are.

5) A common claim is that only the most marginal businesses – and not even many of them – will close. Austin has an unusually large number of so-called "marginal" clubs, which often feature the most original music and incubate the next generation of bands. If enough of them fail, it could impact the overall Austin music scene.

But let me back away from that extreme, given I'm complaining about overheated rhetoric. Even if the most apocalyptic visions don't come to pass, this will hurt, not help, those clubs.

Let me take a moment here to point out that, though it is often suggested that we all call club and restaurant owners where bans have passed to find out how little they have been affected, this is a statistically meaningless endeavor: One is only going to be able to call those owners who are still in business, the ones that survived the ban while losing competition. This is not a valid survey group.

6) There is a very real concern that this is more grease on the already slippery slope of juggling individual rights and community well-being. There is a moral certainty on the part of some who support the ban that gives many of us pause. Some are so absolutely certain that they are right and anyone who disagrees with them is wrong. Over centuries, it's been made very clear that this is not a disease that cures itself. Seeing what is going on nationally and in the state in regard to self-declared moral and religious beliefs being allowed to shape or trump laws, political customs, and constitutional guarantees only makes the more righteous extreme of the anti-smoking community more troubling.

Finally: Vote your heart, your conscience, and your convictions on the smoking ban. If passed, it will not kill the live music scene or destroy Austin. It will break the hearts, and perhaps the spirits, of many in the club community, but music will survive. There are very good reasons to consider a smoking ban. No one is arguing that smoking is safe or healthy. But given this community's history with live music, there are certainly legitimate hesitations about passing the ban at this time.


Sin City Redux:

All I was really trying to say last week is that I do not go to see movies like Sin City to revel in sadistic detail or coo over the impending death of civilization. I go to watch the good guys whomp the bad guys, to watch morality win out, and to be reminded that, as fragmented as this society sometimes seems, we share more common values and moral mandates than might otherwise seem obvious. end story

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KEYWORDS FOR THIS STORY

Austin smoking ban, property rights, individual rights, smokers' rights, nonsmokers' rights, public health, silent majority, moral majority, legislating morality, Sin City, Spiro Agnew

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