Delegate Lee Ware’s op-ed piece published in Sunday’s RTD continues a flawed perspective on the smoking ban issue.  I know and admire Lee Ware – he’s  a good guy and a passionate conservative who believes deeply in a value system that prizes personal freedom and limited government.  Unfortunately, these values, shared by many in the abstract, often collide with other equally compelling values resulting in conflicts that are not satisfactorily resolved by one-sided analysis.  

Delegate Ware frames the smoking ban debate as “the Nanny State” imposing its arbitrary preferences on the owners of private property by banning smoking in bars and restaurants.  Cigarettes are, he says, a “perfectly legal substance” and by banning them in this fashion, we are engaging in a “feel-good surrender of another parcel of liberty.”

Not once does Delegate Ware mention the dangers of second-hand smoke or   acknowledge  that innocent citizens might be subjected to those dangers and perhaps deserve the protections of government.  He fails to recognize that no one has unfettered rights to use their private property in a manner that harms the innocent. 

The balancing of the rights of property owners with the rights of children and workers to be protected from the dangers of second-hand smoke are  what this debate should entail.

The harmonizing of the goals of personal safety, order, and liberty always presents difficult choices.  The very essence of government is drawing those lines.  For example, you and I both have the right to walk down the street, swinging our arms in wide arcs.  But, neither of us has the right to walk down the street, swinging our arms in wide arcs if  it causes a collision between the arms belonging to  us and another’s  body! That person’s right to walk down the street without being physically assaulted is given priority.  Obvious, yes, but easily obscured and often forgotten when one frames only one side of a debate as Del. Ware did in his op-ed piece.

Delegate Ware wrote eloquently in defense of property rights and even the rights of smokers!  But, he ignored what makes the choice a difficult one for some:  the rights of those who find themselves exposed to second hand smoke and who may suffer the harms to their health known to be caused by such exposure.  Primarily children and perhaps workers who have too few options could be victims.  Most adults can choose not to patron establishments that put them in such a position, but some do not have that option.

Careful analysis might lead to the conclusion that the risk of harm from exposure to second hand smoke is too remote in today’s environment where smoking is already banned virtually everywhere else to justify this infringement on private property rights.  Or, it might not.  Frankly, I do not know that answer, but I know that this is the issue.

To suggest as Del. Ware did that somehow a choice to ban smoking with the exceptions carved out by the Governor and the Speaker is an abandonment of Patrick Henry”s “spirit” of liberty is a bit over the top.  One can still be stirred by Patrick Henry’s eloquence and commitment to liberty and, if the facts justify it, support a smoking ban.  It is simply a choice we must make between competing values, each of which deserves protection. 

Painters are free to choose the paint they prefer, but not if it contains lead – we choose to protect children from the dangers of ingesting lead-based paints over  the freedom of painters.

The danger of an incomplete analysis such as that of Del. Ware is the implication that to differ is to abandon liberty- to abandon Virginia’s and America’s revolution and Patrick Henry’s stirring words to “give me liberty or give me death- and to favor the “Nanny State” and ignore property rights.  Our political discourse needs to move beyond this. 

Del. Ware is a scholar and he wrote eloquently in defense of liberty, but he failed to face the hard choice the smoking ban presents.  By doing so, he clearly implies that you cannot value liberty and support a smoking ban.  While most likely unintended, such a position introduces dissonance where it doesn’t belong-one can choose between freedom and public protection without devaluing either.  We do it all the time.

 In the end, Del. Ware may be right for reasons he did not express in that the evidence to support the ban for health reasons may not be persuasive.  But he is not right that all supporters of the ban are insensitive to the erosion of liberty or like the idea of the “Nanny State.”  It is more complicated than that.

Wyatt Durrette is a Director at DurretteBradshaw, PLC and co-founder of the XDL Group. He served three terms in the House of Delegates and was the Republican candidate for Governor in 1985.


  1. Indeed. The debate reminds me of the motorcycle helmet debate back in the 80s/90s.
    I, too, generally like Lee Ware. Mr. Ware’s thinking is very George Allen and those days are over in Virginia. This knee-jerk all change is bad, all regulation is bad approach is simply unsophisticated. Most of us in the general public do not smoke. Many of us do not want to smell it and inhale it while we eat. It is that simple.
    I am one of Mr. Ware’s constituents. He is mistaken if he really thinks we are all beer-swilling, cigarette smoking rednecks.

  2. Please, impose a no smoking ban in establishments that allow public access.
    “cautum ab alqo”.

  3. Hey, quit smoking today and you get to spend two more years in a nursing home!

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