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Smoking Bans and the First Amendment…free speech goes up in smoke in Colorado.

no_smokingThe Colorado Supreme Court has dealt another blow to the First Amendment, holding that public health concerns trump the First Amendment in cases involving bans on smoking.
Curious Theatre v. Colorado Department of Health and Public Environment

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 testified 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.

5 Responses to Smoking Bans and the First Amendment…free speech goes up in smoke in Colorado.

  1. These type of laws are really kind of stupid. NYC has had their smoking ban in effect for years, but it does not affect broadway shows. I saw A Moon For The Misbegotten with Kevin Spacey and he was allowed to smoke on stage and I am pretty sure they smoke in Jersey Boys as well. When it is written into a script that was written long before any smoking bans, the actors should be allowed to smoke. Plain and simple!

  2. Smoking is ‘legal’ except where it is banned to protect public health. Open flames may be legal in some contexts, but theaters know the fire codes prohibit such things onstage, regardless of the director’s ‘vision’ for the play. Common sense and public safety put some boundaries on ‘free expression’.

  3. Presumably it is equally infringing on 1st Amendment rights to preclude actually shooting heroin or committing murder if the script calls for it? I think I’m with Justice Coats on this one.

    • Good point Robert, except that smoking itself is an otherwise legal act. Murder and heroin consumption are never legal acts. This is just another example of legislating morality. I’m not a smoker, and in fact dislike it when real smoke is used on stage, but I will always champion the right of the artist to express himself.

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