Smoking Bans and Theatre - the debate continues March 21, 2008
Posted by Gordon Firemark in : Theatre law, entertainment law , add a commentThe New York Times reports in this article, that a Colorado State appellate court has ruled against the owners of several theatres who’ve challenged the State’s ban on smoking indoors on First Amendment grounds. The theatres have indicated that they’ll appeal to the state’s Supreme Court.
Will they succeed. Is “smoking” an expressive form of speech? Isn’t the use of smoke, lighting cigarettes, etc., sometimes powerful in its symbolism, etc?
Suppose stage directions call for an actress to take a drag on her cigarette, and then, in response to something another character says or does, blow the smoke into his face? Isn’t this a significant part of the playwright’s expression of the characters’ disdain for one-another? Isn’t this a form of protected speech?
Under traditional first amendment analysis, the State’s law must be “narrowly tailored” to acheive a “compelling government interest”. The compelling government interest here is ensuring public health and safety… but is a total ban on indoor smoking really “narrowly tailored” . Is there some, less restrictive alternative available?
If so, should the theatres prevail? Should the burden be on the theatres’ entertainment lawyers to prove that such an alternative exists?
I’m inviting your comments… I look forward to hearing what readers think!
Tags: noneAn Update on smoking bans and theater March 6, 2008
Posted by Gordon Firemark in : Law , add a commentSince I first wrote about this here and here, there have been some interesting developments on the questions surrounding laws banning smoking in public places. Following passage of a smoking ban law in Minnesota (the “Freedom to Breathe Act”), a growing number of bar and restaurant owners have been staging “theatre nights”, wherein they involve the patrons in “performance” of smoking.
The ban, which took effect Oct. 1, 2007, contains an exception for theatrical productions intended to allow actors to smoke as part of a role. But the law does not define a theatrical production, and bar owners have justified allowing smoking by printing up playbills and arguing their patrons are really actors. Their view seems to be that such activities fall within the aforementioned exemption , and so-far, they’ve been correct. Nobody’s been citied by the athorities…. yet.
The State of Minnesota’s department of Health has stated that the exemption does not cover the bars and restaurants, and that they expect full compliance with the new law.
The argument that theatrical performances are exempt from smoking bans is not new… I suggested last year that First Amendment grounds might be used to defend against enforcement of a smoking ban against smoking called for in the course of a performance of a play, as for example, where stage directions call for a character to light his cigarette, pipe, or cigar. I believe that if such a stage direction exists, it amounts to a form of artistic expression by the playwright, and as such, constitutes speech. So, the ban would amount to an unlawful prior restraint on such speech, and thus invalid on its face. I don’t believe such a ban will ultimately survive constitutional scrutiny, since the government objectives can be achieved through less restrictive laws.
Tags: minnesota, smoking, ban, theatre, theater, first, amendment, speech, freedom, free
