Colorado justices uphold smoking ban in live theaters

By Kathy Woods | Dec 27, 2009

BOULDER, Colo. (Legal Newsline)-The Colorado Supreme Court, in a 6-1 ruling, has upheld a state ban on smoking in live theaters.

Shortly after the law went into effect in July 2006, Curious Theatre challenged the law with the play,"ODESSEY."

The play's lead character, a smoker, dies and as a ghost he discovers he's dead when he's unable to inhale smoke from a cigarette.

There are 24 states which ban indoor smoking and half of them have exceptions or exemptions on a case-to-case basis for theatrical performances.

The artistic director of Curious Theatre said, "It has been a factor and a strong consideration as we select plays, and it will continue be."

In their action against the Colorado Department of Public Health and Environment the theater had sought both a judgment declaring Colorado's ban on theatrical smoking to be an unconstitutional infringement on their freedom of speech and an order enjoining its enforcement.

The district court denied their motion for preliminary injunction on the grounds that smoking, even in the theatrical context, does not amount to expressive conduct of a type that would be subject to either state or federal constitutional protections for speech. The court of appeals concluded that theatrical smoking was expressive conduct but affirmed the district court on the alternative grounds that the ban was nevertheless constitutional.

The plaintiffs readily concede that the regulation of smoking in public is within the constitutional power of the government, that it furthers an important governmental interest and that the governmental interest it furthers is unrelated to the suppression of free expression.

The court said that, 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.

In a dissent, Justice Hobbs said, "I would reverse the court of appeals judgment and hold that the smoking ban contained in the Colorado Clean Indoor Air Act, as applied to theatrical performances when the script of a play calls for smoking, is unconstitutional because theatrical smoking constitutes expressive conduct protected by the First Amendment. Under the applicable constitutional standard, the state must carry its burden of demonstrating that its prohibition of expressive conduct is narrowly tailored to meet a significant governmental interest."

Attorney General John Suthers said, "These guys are actors in drama and in theater, it's their job to simulate realism, to make you think somebody got shot, to make it look like a building is really burning."

The Curious Theatre is considering appealing their case to the U.S. Supreme Court.

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