Wednesday, March 26, 2008
The play tempOdysssey, which has received many favorable reviews, involves a character who dies because of smoking. The plot calls for smoking on stage. Can government uses its powers of land use law to ban such smoking indoors, even in a play? Yes, according to a Colorado appellate court in a decision handed down last week, upholding a trial court’s denial of the theatre’s request for a preliminary injunction. (The case is Curious Theater Company v. Colorado Dept. of Public Health and Environment, No. 06CA2260, March 20, 2008).
The Curious Theater Company argued that its first amendment rights allow it to present a play with smoking, despite Colorado’s far-reaching statutory ban on smoking in “any indoor area,” including theatres. (Colo. Rev. Stat. sec. 25-14-204). Application of the ban to plays would violate the free speech right to expressive conduct, the theater argued. And if the display of nude movies is granted first amendment protection (for example, Erznoznik v. Jacksonville, 422 U.S. 205 (1975)), why not plays with smoking?
The Colorado court, however, trudged through the tests for first amendment protection and concluded that the smoking ban is “content neutral” and fulfills an important governmental interest (limiting the risks from second hand smoke etc., etc.) The court also noted that plays with smoking could be held outside. (There was no indication of whether the difficulty of getting a land use permit is a factor in the first amendment analysis.)
Perhaps the best response to such a case is to focus on the statute itself and to try ensure that this and similar laws include reasonable exceptions, including an exception for theatrical performances, as in the California anti-smoking law (Cal. Lab. Code sec. 6404.5(d)). Or perhaps someone needs to work on a devise that looks like a cigarette but emits harmless clouds of vapor that look like smoke –- until a law is enacted that bans the simulation of smoking, because it legitimizes the practice ....