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Staging a Smokin' Intervention

By George Wallace

 

Today, a simple legal syllogism:

    If

1.  You cannot shout "fire" in a crowded theater,

    and

2.  Where there's smoke, there's fire,

    it follows that

3.  You cannot smoke on stage in a theater.

The Los Angeles Times reports that, in Colorado at least, this is indeed the law:

Smoking onstage by performers is a commonplace occurrence that most theater professionals don't think much about -- that is, until that right is taken away. 

This week, the Colorado Supreme Court handed down a decision that effectively upholds a ban on onstage smoking in the state.  The ban applies to tobacco cigarettes as well as herbal cigarettes, which are often used as a substitute by theater companies.

The Court's decision, in the case of Curious Theater Company v. Colorado Department of Public Health and Environment, is available via the Colorado Bar Association, here.

At the core of the dispute is the question: when smoking is called for by the playwright, is a prohibition on the act of smoking an interference with "expressive conduct" in violation of the First Amendment's protections of free speech?  When the issue is framed that way, it is no surprise that the theaters in this case were joined by amicus curiae including the Dramatists Guild (looking out for the interests of playwrights) and the American Civil Liberties Union (generally on the side of the angels where Free Speech is concerned).  

The Court majority is on board with the proposition that actions on stage constitute expressive conduct within the Constitution's protection, but concludes that the blanket smoking ban -- which is directed to public spaces generally, not targeted at theaters as such -- is a permissible and reasonable "time, place and manner" restriction:

Because it is clear, without further evidentiary support, that the state has a significant interest in protecting the health and welfare of its citizens and that the welfare of those citizens would be more exposed to harm without the smoking ban than with it, the ban is adequately tailored for purposes of the First Amendment to the United States Constitution.

Dissenting Justice Gregory Hobbs begs to differ, particularly with the majority's conclusion that there are adequate alternative methods of expression available to playwrights and actors once smoking is eliminated.  Justice Hobbs seems clearly an enthusiast for the theater and for the First Amendment.  He trots out several examples of plays in which the act of smoking is central to the action and the presence of smoke an integral part of the mise en scene:

A single puff of talcum powder, or a prop cigarette with a reflective tip or light placed at the tip, can hardly depict the 'boozy veil of smoke' necessary to Who?s Afraid of Virginia Woolf? . See Kirk Johnson, Colorado Court Rules "No Smoking" Means Exactly That, Even on Stage, N.Y. Times, Mar. 21, 2008. 

Neither prop nor talcum cigarettes allow an actor to dramatically exhale a puff of smoke, as Mrs. Robinson does in The Graduate. One of the witnesses at trial testified that the audience had responded to a fake cigarette with laughter, though the author intended no comedy. 

The ability of a theatrical performance to communicate a plot, depict characters, and evoke an era according to the playwright?s intent is severely limited by the inability to light a cigarette, pipe, or cigar on stage. Colorado?s smoking ban lacks an exemption for the expressive conduct of theatrical smoking, allows no adequate alternative to theatrical smoking, and prohibits the smoking of tobacco alternatives. Thus, it is not narrowly tailored to meet the state?s legitimate interest in protection of the public?s health, safety, and comfort.

Exeunt.

~~~

Illustration: "Where There's Smoke There's Fire" (192?) by Russell Patterson; from the Library of Congress via wikimedia commons.

~~~

Full post as published by Declarations and Exclusions on December 16, 2009 (boomark / email).