Wednesday, March 26, 2008

The curious case of smoking at the Curious Theater …

    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).   

Smoking    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 ....

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With all respect, I'd suggest that we focus on some basic assumptions on land use rather than microscopic concerns like the above. The macrocosm (climate change comes to mind here) is too important to be ignoring. For instance, how about defining farmland as having ALREADY been developed? More on this at my blog Diamond Cut Life
Alison Wiley
Portland, Oregon

Posted by: Alison Wiley | Mar 28, 2008 11:49:10 AM

A student of mine from Minnesota mentioned that, in his home state, the anti-smoking law providess for an exception for performances. So what do some bars do? They tell persons that want to smoke that they are "performers," which allows them to smoke. What a clever world in which we live.
Paul Boudreaux

Posted by: Paul Boudreaux | Mar 28, 2008 1:23:41 PM