Cigarettes: the new hurdy-gurdy?

Justice is blindââ?¬â??but with a little help it can be used to single out and prosecute people who enjoy public sidewalks too much. A brief search of municipal codes in the U.S. reveals at least a dozen laws against hand organs and hurdy-gurdies, a musical instrument that looks like a violin and sounds something like bagpipes. The City of Los Angeles municipal code states, “No person shall operate or play any hand organ or hurdy-gurdy in, upon or along any street or sidewalk.” (That’s in Ã? 41.29, sandwiched, perhaps appropriately, between laws against public drunkenness and the building of “spite fences.”) Old Tappan, NJ takes it a step farther, stating nobody “shall have, keep, own, maintain or use within the limits of the borough” any hurdy-gurdy without a license. Presumably, the hurdy-gurdy is the most maligned instrument in the U.S. municipal codes because, at one time, it was associated with street vendors, blind musicians, andââ?¬â??worst of allââ?¬â??dancing “hurdy-gurdy girls.” That line of thinking might sound crazy, but then, so does this, from an editorial in the San Francisco Chronicle today:

Berkeley figures it’s found a way to get homeless people off the streets. Keep them from smoking there. As Mayor Tom Bates sees it, the alcoholics, meth addicts and the like who make up a good portion of the homeless population on Shattuck Avenue downtown and Telegraph Avenue on the south side of the UC Berkeley campus “almost always smoke.” And because smoking bans are the hot ticket these days for California cities, why not meld the two as part of a “comprehensive package” for dealing with the street problem that Bates says “has gone over the top”?

Smoking regulations tend to be one issue where progressives can reliably be found promoting regressive taxes and opting for reduced civil liberties. The city ordinances that prohibit smoking outdoors on sidewalks or at parks, bus stops, and private restaurant and bar patios are rarely enforced. When they are, it is typically a “secondary” enforcement where the first offense is being young, obnoxious, or otherwise uncouth (adjectives which might describe the majority of people who loiter along Berkeley’s Telegraph Ave.). The liberty of the young and/or poor ends where the better judgment of paternalistic lawmakers begins. That paternalism becomes particularly noxious in the regulation of urban commons like sidewalks. Yes, these regulations often relate, at least tangentially, to real public health issues. Just as often, though, they’re intended to drive away people who use public areas disproportionately by criminalizing things they like to do, whether it is skateboarding, smoking or playing the hurdy-gurdy.