Jeff Jacoby: Oh, Brother

Monday, December 11, 2006
The Boston Globe

Big Brother has been busy.

New York City's board of health voted last week to ban the use of trans fats in restaurants, a step that will force many of the Big Apple's 26,000 eating establishments to radically alter the way they prepare food. The prohibition is being called a model for other cities, such as Chicago, where similar bans have been proposed.

Is it a good idea to avoid food made with trans fats? That depends on what you consider good. Trans fats are said to raise the risk of heart disease by increasing levels of LDL ("bad") cholesterol. They also contribute to the appealing taste of many baked and fried foods, and provide an economical alternative to saturated fats. As with most things in life, trans fats carry both risks and benefits. Do the possible long-term health concerns outweigh the short-term pleasures? That's a question of values -- one that scientists and regulators aren't competent to answer.

Different people have different priorities. They make different choices about the fats in their diet, just as they make different choices about whether to drive a Toyota, drink their coffee black, or get a tattoo. In a free society, men and women decide such things for themselves. In New York, men and women are now a little less free. And since a loss of liberty anywhere is a threat to liberty everywhere, the rest of us are now a little less free as well.

But the slow erosion of freedom doesn't trouble the lifestyle bullies. They are quite sure that they have the right to dictate people's eating (and other) habits. "It's basically a slow form of poison," sniffs David Katz of the Yale Prevention Research Center. "I applaud New York City, and frankly, I think there should be a nationwide ban."

Yes, why go through the trouble of making your own decision about trans fats or anything else when officious bureaucrats are willing to make it for you? Liberty can be so messy. Who wouldn't rather have Big Brother prohibit something outright -- smoking in bars, say, or cycling without a helmet, or using marijuana, or gambling, or working a job for less than some "minimum" wage -- than be allowed the freedom to choose for oneself?

"A nationwide ban," says Katz wishfully. It’s an old temptation. New York’s interdiction on trans fats was adopted on December 5 -- 73 years to the day from the repeal of Prohibition, the mother of all "nationwide bans."

But Big Brother doesn't always appear as a hectoring nanny. Sometimes he comes disguised instead as a victim of the bullies.

Consider the plight of Scott Rodrigues, a Cape Cod man who lost his job with the Scotts lawn-care corporation when a drug test showed that he had violated a company rule against smoking at any time -- on or off the job. Scotts no longer hires tobacco users, since they drive up the cost of medical insurance, and Rodrigues, a former pack-a-day smoker, knew about the policy and was trying to kick his habit. He was down to about six cigarettes daily when he was fired.

Now he claims that Scotts violated his privacy and civil rights, and is suing his ex-employer in Superior Court.

"How employees want to lead their private lives is their own business," his lawyer told The Boston Globe. "Next they're going to say, 'you don't get enough exercise'. . . . I don't think anybody ought to be smoking cigarettes, but as long as it's legal, it's none of the employer's business as long as it doesn't impact the workplace."

It's hard not to feel a measure of sympathy for Rodrigues . Many activities endanger health and can drive up the cost of health insurance, from drag-racing to overeating to promiscuous sex. Yet none of those appear to be grounds for termination at Scotts. It seems capricious to treat only smokers so harshly.

But capricious or not, Scotts is entitled to condition its employment on any criteria it wishes. (With the significant exception of the "protected categories" -- race, religion, etc. -- itemized in civil rights statutes.) Rodrigues has not been cheated. No one forced him to take a job with an antismoking employer. Scotts is a private firm, and if it chooses not to employ smokers -- or skiers, or Socialists, or "Seinfeld" fans -- that choice should be legally unassailable. Rodrigues is free to vent his disappointment, of course. He can criticize Scotts publicly, even organize a boycott. (He can also go to work for one of Scotts' competitors.)

But forcing the company to defend itself against a groundless lawsuit goes too far. That is an abuse of governmental power -- an assault on the liberty of employers to operate freely in the market. It is a different kind of bullying than the ban on trans fats, but it's an act of bullying nonetheless.

The price of liberty, Thomas Jefferson warned, is eternal vigilance. But too few of us have been vigilant. And the bullies keep gaining ground.

Jeff Jacoby is an Op-Ed writer for the Boston Globe, a radio political commentator, and a contributing columnist for Townhall.com.