The Colorado Clean Indoor Air Act (which went into effect in 2006) prohibits indoor smoking of tobacco and other products  in most public places, including theatres… even where the smoking is part of an actor’s performance, or mandated by the text of a play.

Curious Theatre and two other theatre companies sued the Department of Health, claiming that the ban on smoking onstage is an infringement of playwrights’ producers’ and actors’ rights of free expression.  The state agency countered with the argument that there are workable substitutes for actual cigarette smoke, which do not endanger public health.

At trial, actors and other theatre professionals testfied about the various problems  with these substitutes, referring to one situation in which audiences laughed at the fake-smoke effect at a crucial dramatic moment.  The Court however, was not swayed in favor of the free expression arguments.

Today, the Colorado Supreme Court finally weighed in on the case.  In the majority opinion,  Justice Nathan Coats held that even assuming smoking can sometimes be protected conduct, the smoking ban can’t be called unconstitutional because it is narrowly tailored for a specific purpose.   (protection of public health and safety).    “Like the theatrical use of substitutes for virtually every other type of dangerous or illegal conduct”, Coats wrote, [artificial cigarette smoke] ” is capable of amply communicating to an audience an intended message.”

Justice Gregory Hobbs dissented, arguing that  the ban is not, in fact,  narrowly tailored because it bans the smoking of any plant matter, not just tobacco, which “renders alternative means of the protected First Amendment expression untenable and even laughable”.

The battle over smoking bans in theatre rages on in several other states.  Perhaps before long, we’ll see the U.S. Supreme Court weigh in on the issue.

Recommended reading for all up-and-coming producers of reality shows, documentary films, and other media featuring real-world situations.

Not a good idea, but not a crime.

(Hat Tip: Legal Blog Watch.)

According to this piece at the Hollywood Reporter.. YouTube is taking things a step further… allowing users to REPLACE offending music in video soundtracks with pre-cleared music….  (automatically?)

I ask you again…  does this kind of filtering do any harm to Safe Harbor protections?

Did the RIAA just WIN the battle against Fair Use, and nobody noticed?

Andrew J. Contigula’s blog has a good summary of last week’s Supreme Court argument in  FCC v. Fox Television Stations.  The case is being closely followed by entertainment and communications lawyers, and  deals with the Federal Communications Commission’s enforcement efforts against ‘indecent’ speech and broadcasts containing “fleeting expletives”, such as those uttered by celebrities during awards broadcasts, etc.  Recent instances involved Cher, Nichole Richie, U2′s Bono, and others.

After the arrest, the arrestee gave the tape to the Plaintiff, Mary T. Jean, a political activist, who then posted the video on her website.

Shortly thereafter, the police wrote to Jean to demand that the footage be taken down on grounds that it was illegal, and threatened Ms. Jean with prosecution if she failed to comply. The police later “clarified” their demand, restricting it only to the audio portion of the recording. (Under Massachusetts Law, it is unlawful ( a misdemeanor) to intercept or surreptitiously record a person or persons without consent Massachusetts General Law, Chapter 272, Section 99)

Ms. Jean sought and obtained a TRO, and later, an injunction against the police and attorney general. The police appealed.

On appeal, the First Circuit relied on the precedent established but the Supreme Court in Bartnicki v. Vopper, 532 U.S. 514 (2001),(which involved the replaying of an unlawfully intercepted cell phone conversation concerning a matter of public interest), and held:

“We conclude that the government interests in preserving privacy and deterring illegal interceptions are less compelling in this case than in Bartnicki, and Jean’s circumstances are otherwise materially indistinguishable from those of the defendants in Bartnicki,whose publication of an illegally intercepted tape was protected by theFirst Amendment. Jean’s publication of the recording on her website is thus entitled to the same First Amendment protection.”

The case has obvious implications in both the ‘new’ electronic media (bloggers and web page operators, ISPs, etc.), and the traditional media. Note, however, that this opinion doesn’t suggest that the statute in question is unconstitutional, only that it can’t be enforced against a third-party who comes into possession of the material lawfully. The statute CAN (presumably) still be enforced against the person or persons involved in the actual surreptitious recording

Last year, following a number of incidents, Apple sued a ‘rumor site’ which had broken several stories about forthcoming Apple products. Apple argued that the site was violating the company’s trade secrets, and the lower court agreed, overruling the site owners’ argument that their publication of the stories was protected under the first amendment as journalism.

The California Court of Appeals, however has ruled in the bloggers’ favor, stating that web publications are covered under the same first amendment protections as offline publications.

The court refused to get into a lengthy discussion of whether journalism is ‘legitimate’. The so-called ‘reporter’s shield law’ is designed to protect the gathering and dissemination of news… which is exactly what the web-site did.