A good piece by Tony Brown for Sunday's Cleveland Plain Dealer raises the question of whether city and state smoke-free ordinances can- or should- be applied to theatre. The piece draws the important comparison to censorship battles surrounding language and nudity in theater in past decades.
According to Brown's piece, few states, localities or countries have provided for exceptions to their smoking bans. This has led producers and theatres to make changes (usually unauthorized by playwrights), cancel productions altogether, or simply to flout the law. In fact, many such bans even prohibit the use of ‘alternative' smoke products such as the herbal bidi cigarettes often used by non-smokers performing parts that call for smoking. Government officials often take the view that crafting exceptions to a law can ultimately render the law useless.. the exceptions swallow the rule. Nevertheless, a move is afoot in Ohio to carve a theater exception to the state's prohibition on smoking in public places.
For the most part, legal scholars agree that theatres and producer would have the First Amendment on their side, were they to challenge a smoking ban in court. It's hard to imagine a court enforcing such a prior restraint on an artistic expression. the question, then, will be whether smoking on stage can be considered a form of artistic expression.
In my view, neither government nor Courts should be involved in a determination of what constitutes Art. Art, like beauty, is in the eye of the beholder.
Note… interestingly, Ohio has been home to more than a few first amdendment battles. Notably, the unsuccessful 1990 prosecution of the Cincinnati Contemporary Arts Center and its director Dennis Barrie on charges of “pandering obscenity” for displaying Robert Mapplethorpe‘s The Perfect Moment exhibit .