Smoking or Non?

PETER: If you’re just joining us, this is BackStory. We’re talking today about the tradition of Americans making claims to the things they want, and the language of rights. We’ve talked about marriage, we’ve talked about religion, we’ve talked about labor. But our show wouldn’t be complete if we didn’t talk about smoking.

ED: That’s right– smoking. This story gets going in the 1970s. At the time, there wasn’t a lot of science linking secondhand smoke to health problems, but there were a growing number of people vocal about having to sit in restaurants, shop in stores, and travel in planes surrounded by a noxious haze of other people’s making. In 1970, Congress passed the Clean Air Act. Finally, thought the anti-smoking crowd, a law that codified their right to breathe clean air. And they framed their case for designated non-smoking sections in terms of rights– civil rights, in fact. Was there any difference, they asked, between being unable to sit at a lunch counter because you’re black, and being unable to sit at a lunch counter because it was clouded with other people’s smoke?

BRIAN: Of course, as we’ve heard today, where there are rights claims, there tend to be equal and opposite rights claims. Historian Sarah Milov has written about big tobacco’s counterattack. She says, it was in part a slippery slope argument– that smoking restrictions would pave the way for all manner of infringements on individual rights.

SARAH MILOV: And the image that the tobacco industry drew upon was a, quote, “shower adjuster.”

BRIAN: Hold on– shower adjuster?

SARAH MILOV: What a shower adjuster was would be somebody who knew what temperature your shower should be at, and so this government bureaucrat would come into your bathroom while you were in the shower, and adjust the temperature for you, because he knew best. Just like a government entity deciding it knew best how to regulate the air.

BRIAN: But Milov says this rights talk went even further. Anti-smokers may have seized on civil rights imagery, but smoking’s defenders claim that their side was much more in line with that earlier rights struggle.

SARAH MILOV: Smokers were, after all, a minority of Americans.

BRIAN: Ah, I see where you’re going.

SARAH MILOV: You’ve got the language of minority rights. You’ve got the language of segregation of smokers and nonsmokers. And you have the image of smokers literally being asked to go to the back of the bus– which is, of course, too tantalizing of an image for the tobacco industry to simply let pass by. Actually, the president of the tobacco Institute, at the time, speaks in 1975, and says the trend toward smoking restrictions– if unchecked– will result in millions of Americans becoming second class citizens, relegated to the back of planes, trains, and buses, restricted in their access to public places, and limited in their employment opportunities. It seems incredible that many politicians who support and fought for civil rights are willing to erect new barriers that divide our people into opposing camps on the basis of smoking or non-smoking.

BRIAN: That’s incredible

SARAH MILOV: Well it also speaks to the preferred method of resolution, that the tobacco industry hoped for, which was– of course– not government intervention, but a return to mere civility and common courtesy.

BRIAN: Right. So how did big tobacco play out their civil rights arguments?

SARAH MILOV: Well aside from pointing out all of the ways in which smokers were being constructed as second class citizens, they actually recruited a fairly prominent civil rights attorney, named Charles Morgan, into the fight. And Morgan gets involved in a dispute in the city of Newport News, Virginia, over that city’s anti-smoking ordinance, which just said that there had to be a non-smoking section in restaurants.

He argued that this violated basic constitutional rights– the right to property, the right to freedom of association– by not allowing the commingling of smokers and non-smokers– freedom of speech, and that the uneven enforcement of anti-smoking laws violated restaurants’ right to equal protection.

BRIAN: Is anybody in the government advocating for non-smokers?

SARAH MILOV: Yeah, so nonsmokers kind of find their greatest champion in the Surgeon General, a man named Jesse Steinfeld. And in 1971, on an anniversary of the 1964 Surgeon General’s report that very famously connects smoking to cancer, argues that it’s time for a non-smoker’s bill of rights. And he calls non-smokers the great silent majority of Americans.

BRIAN: So he was adapting Nixon’s use of his base, as he saw it– the silent majority of regular Americans– and applying it to millions and millions of non-smokers.

SARAH MILOV: Right. And Steinfeld would frequently– and any time he spoke about this, he would be at pains to point out that the vast majority of Americans– over 50% of men and over 70% of women– were nonsmokers, so that the laws should reflect their rights, just as much as the right of smokers to inhabit space, however they saw fit.

BRIAN: So in a way, this is almost the push back against minority rights. We’ve paid too much attention to the rights of minorities– it’s a time to assert, or reassert, the rights of those quiet Americans, who, as Nixon would put it, pay their taxes, go to work, are good family people. We need to hear from them– we need to protect them.

SARAH MILOV: Absolutely. But at the same time, it’s an acknowledgement that the word right has become a tool– a very powerful tool, with which even everyday Americans, who pay their taxes, who go to work, who don’t smoke– you can use to get the government to act on their behalf. Though an addendum to this story is that Steinfeld was asked to resign at the beginning of Nixon’s second term, apparently under pressure from the tobacco lobby.

BRIAN: Well, some minorities have special rights. Thank you so much for joining us today on BackStory.

SARAH MILOV: Thank you.

BRIAN: Sarah Milov is a historian at the University of Virginia. She’s working on a history of tobacco in the 20th century called Growing the Cigarette.