Smoking Bans and Theatre – the debate continues

The New York Times reports in this article, that a Colorado State appellate court has ruled against the owners of several theatres who've challenged the State's ban on smoking indoors on First Amendment grounds.  The theatres have indicated that they'll appeal to the state's Supreme Court.

Will they succeed. Is “smoking” an expressive form of speech?  Isn't the use of smoke, lighting cigarettes, etc., sometimes powerful in its symbolism, etc?

Suppose stage directions call for an actress to take a drag on her cigarette, and then, in response to something another character says or does, blow the smoke into his face?  Isn't this a significant part of the playwright's expression of the characters' disdain for one-another?  Isn't this  a form of protected speech?

Under traditional first amendment analysis, the State's law must be “narrowly tailored” to acheive a “compelling government interest”.   The compelling government interest here is ensuring public health and safety… but is a total ban on indoor smoking really “narrowly tailored” .  Is there some, less restrictive alternative available?

If so, should the theatres prevail? Should the burden be on the theatres' entertainment lawyers to prove that such an alternative exists?

I'm inviting your comments… I look forward to hearing what readers think!

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