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Colo. court: State smoking ban applies — even on stage

By David L. Hudson Jr.
First Amendment scholar

No smoking indoors means no smoking indoors — even for actors and actresses performing in theaters, the Colorado Court of Appeals ruled recently. The court reasoned that the state’s indoor smoking ban can be applied to smoking done as part of theatrical performances without violating the First Amendment.

Curious Theatre, Paragon Theatre and Theatre 13 Inc. had asked the court to declare that application of the 2006 Colorado Clean Indoor Air Act, which broadly bans smoking, to smoking in theaters violated the First Amendment.

The theaters contended in an October 2006 lawsuit that smoking in theatrical performances constitutes expressive conduct that triggers First Amendment review. The state countered that smoking in and of itself is not sufficiently expressive and does not convey a particularized message to implicate the First Amendment.

Last year, a state trial court rejected the theaters’ challenge, ruling that “smoking, standing alone, including in the theatrical context” did not amount to “expressive conduct such that First Amendment guarantees, and protections could be extended to it.” In other words, the trial court ruled that the theaters had not even shown that further First Amendment analysis was necessary.

The theaters appealed to the Colorado Court of Appeals, arguing the trial court erred in finding that smoking was not a form of expressive conduct. The Theatre Communication Group filed a friend-of-the-court brief in support of the plaintiffs, arguing why smoking in theatrical performances should trigger First Amendment review.

Its brief stated that smoking conveyed important information to audiences in productions such as “The Graduate,” the opera “Il tabarro,” “Agnes of God,” “Who’s Afraid of Virginia Woolf?,” “Why Do You Smoke So Much, Lily?,” “Match” and “The Last Smoker in America.” “In numerous scripts, … smoking [is] … an essential part of a performance,” the brief states. “In fact, directors and playwrights specifically include smoking in a script or a performance to better convey a sense of a character to the audience, to establish a mood or state of mind, or to express a message that cannot be articulated in words.”

The Colorado Court of Appeals did find that smoking was a form of expressive conduct meriting further analysis. “Contrary to the Health Department’s contention, smoking may be used to give insight into a character’s personality, set the mood, or evoke an era,” Judge Steve Bernard wrote for a unanimous three-judge panel in the March 20 decision Curious Theatre Company v. Colorado Department of Public Health. “A play might use smoking to communicate specific plot twists, such as a character being diagnosed with cancer after a lifetime of smoking. Smoking could be used to make political statements about smoking itself.”

However, the state appeals court still affirmed the lower court because it found that the smoking ban was a constitutional, content-neutral law not designed to suppress expression. In First Amendment jurisprudence, laws that discriminate against speech on the basis of content are subject to a much higher degree of judicial review or scrutiny than laws that are content-neutral.

The appeals court determined the anti-smoking law was content-neutral “because it focuses on the adverse health effects of tobacco smoke, not on expression.” The appeals court emphasized that the law “does not express disagreement with any particular message, theatrical or otherwise.”

The appeals court applied a test from the U.S. Supreme Court’s 1968 draft-card-burning decision, U.S. v. O’Brien, in which the high court upheld a federal law that prohibited the knowing mutilation of draft cards from a challenge by an anti-war protester. The so-called O’Brien test provides that legislation regulating activity that contains both expression and conduct is constitutional if: (1) the law is within the constitutional power of the government; (2) the legislation furthers an important or substantial governmental interest; (3) the government’s regulatory interest is unrelated to the suppression of free expression; and (4) the incidental restriction on free expression is no greater than necessary to further the state’s regulatory interest.

Applying the four-part test, the Colorado appeals court determined that the state clearly had the authority to pass laws designed to promote public health. The smoking ban certainly qualified on that front. As to the second prong, the appeals court found that the smoking ban “served an important governmental interest by protecting the health of Colorado’s citizens,” noting the “well-documented” dangers of smoking.

Proceeding to the third prong, the appeals court found that the state law was not related to the suppression of free expression but was designed to prevent harmful effects associated with smoking. The court relied in part on the secondary-effects rationale that was developed in adult-business zoning cases. The court found that just as cities can regulate adult entertainment because it harms property values and leads to increased crime, the state could regulate smoking even in theatrical performances because of the harm caused by smoking.

The court addressed the fourth prong, which deals with the breadth of the law. According to the appeals court, the law was narrowly drafted “because it focuses on one form of conduct, smoking, upon which the state’s announced interest in protecting public health depends.” The court also noted that the “smoking ban allows other channels of expression, such as outdoor theatrical performances.” The court also reasoned that there are “reasonable alternatives to smoking real cigarettes and pipes” that are available to theaters. These include “fake and prop cigarettes.”

The theaters had argued that there were less speech-restrictive alternatives to the ban, such as providing prior notice to patrons and ventilation systems that would alleviate dangers of second-hand smoke. The court rejected these arguments, pointing out that “content-neutral regulations that incidentally burden speech are not invalid simply because an alternative might be less burdensome on speech.”

A. Bruce Jones, attorney for the theaters, said his clients hadn’t decided whether to appeal to the Colorado Supreme Court, although he indicated that an appeal was “likely.”

He said that two aspects of the ruling were troubling. “First, in numerous plays, smoking is critical to the playwright’s message as he wrote the play and, secondly, despite the court’s decision, the various forms of substitutes available aren’t really adequate,” Jones said. “There isn’t a form of fake cigarettes that can achieve the same thing as actual smoking.”

Colo. high court snuffs out theaters' challenge to smoking ban
By David L. Hudson Law is content-neutral, narrowly drawn to serve state’s health interests, justices rule. 12.15.09


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Federal lawsuit claims ordinance violates First Amendment by preventing smokers from gathering in places where they would otherwise meet. 12.14.03

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U.S. District Judge Victor Marrero rules that 'mere conduct such as smoking is not generally considered speech' and is not protected by First Amendment. 04.10.04

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