The 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.