Chula, let’s look at some of the annoying behaviors to which you compare smoking, suggesting that if they can’t be outlawed, neither can smoking:
Fish markets are zoned: I can’t open one up in a residential ara, generally. If I have too much garbage on my property, my neighbors can claim that it’s a public nuisance and get me to clean the place up. Same thing with animal excretion. Smog-filled cities ban outdoor BBQs sometimes (although it’s not exactly for olfactory reasons, I’ll grant).
Oh, how I wish car alarms were banned. I don’t know if they are in any jurisdiction, but there’s no legal reason why they couldn’t be. Certain loud kinds of brakes (jack-brakes?) are banned in certain communities. Speak too loudly, or play your music too loudly, or have a barking dog in the middle of the night, and your neighbors can call in a complaint on you for disturbing the peace. The other sounds aren’t usually incessant, or else (in the case of crying babies/movie coughing) aren’t really preventable, so outlawing them wouldnt’ do much good. And we should all be thankful the first amendment protects stupid people from being silenced.
These visuals aren’t illegal, but others are: shirtless women with fat, hairy bellies or no; signs that don’t conform to zoned standards; sexually explicit advertising; and several other kinds of visuals.
People who drive in the left-hand lane too slowly can be cited by the police (although it rarely happens). People hanging out on your front porch are trespassing. I don’t have a subway in my home town, so I don’t know how much space you’re allowed to take up; it wouldn’t surprise me at all, however, if you were limited to one seat per passenger.
I’m afraid I don’t get your point. Are you arguing that we, as a society, don’t get to criminalize certain repugnant behavior based on the degree to which it lowers the quality of life of everyone around it?
That certainly isn’t how things work now. Whether or not secondhand smoke is dangerous, there’s a perfectly reasonable, constitutional argument that states can make to outlaw public smoking, based on the repugnance of the habit to nonsmokers.
Daniel