Since I first wrote about this here and here, there have been some interesting developments on the questions surrounding laws banning smoking in public places. Following passage of a smoking ban law in Minnesota (the “Freedom to Breathe Act”), a growing number of bar and restaurant owners have been staging “theatre nights”, wherein they involve the patrons in “performance” of smoking.
The ban, which took effect Oct. 1, 2007, contains an exception for theatrical productions intended to allow actors to smoke as part of a role. But the law does not define a theatrical production, and bar owners have justified allowing smoking by printing up playbills and arguing their patrons are really actors. Their view seems to be that such activities fall within the aforementioned exemption , and so-far, they've been correct. Nobody's been citied by the athorities…. yet.
The State of Minnesota's department of Health has stated that the exemption does not cover the bars and restaurants, and that they expect full compliance with the new law.
The argument that theatrical performances are exempt from smoking bans is not new… I suggested last year that First Amendment grounds might be used to defend against enforcement of a smoking ban against smoking called for in the course of a performance of a play, as for example, where stage directions call for a character to light his cigarette, pipe, or cigar. I believe that if such a stage direction exists, it amounts to a form of artistic expression by the playwright, and as such, constitutes speech. So, the ban would amount to an unlawful prior restraint on such speech, and thus invalid on its face. I don't believe such a ban will ultimately survive constitutional scrutiny, since the government objectives can be achieved through less restrictive laws.