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Producers of “Jersey Boys” don’t “Walk like a Man”, cave to Chicago anti-smoking law. July 8, 2008

Posted by Gordon Firemark in : Theatre law, entertainment law , add a comment

Chris Jones of the Chicago Tribune reports that the producers of the hit jukebox musical “Jersey Boys” have decided to present the show “smoke-free” in Chicago, where the city’s anti-smoking ordinance doesn’t permit any form of smoking (whether tobacco, or herbal cigarettes) in public spaces,  including theatres.  Jones’ article points to the absurdity of the anti-smoking law designed to “protect” the public, but which essentially requires a revisionist approach to history.  The fact is, these people (Frankie Valli and the Four Seasons) smoked in real life, but in the musical portraying their lives, they’re supposed to be non-smokers?

Jones has written on this subject before, and  I agree with his position.  In his current article, he calls for a specific exception for arts presentations featuring smoking.

As I’ve previously written here, here and here, I think these laws will fall under constitutional scrutiny.  Limits on the actions conducted on-stage by actors are an unacceptable abridgement of the rights of artistic expression.

Where there’s a less-restrictive-alternative to a total ban on speech,  a governmentally imposed restriction on speech will not stand.  Here, I submit that there ARE such alternatives… mandatory use of special high-power ventilation systems, for example… that would acheive the same governmental goal (public protection)

All we need now is someone to stand up for the First Amendment by defying one of these  overbroad anti-smoking laws.  It’s a shame the Jersey Boys producers didn’t show more backbone.

Whether you favor smoking bans or not, this is a matter of concern for you.  This is the beginning of a slippery slope.  What’s next?  Shall we permit government to ban on-stage portrayals of points-of-view we don’t agree with?  Could a local government ban  the use of weapons on stage, because portrayals of violence lead to the real thing?  (Sword fights in Romeo and Juliet, knife/gun fight in West Side Story, etc.).  What happens when a law is passed prohibiting negative portrayals of the President?  Where will we draw the line?

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An Update on smoking bans and theater March 6, 2008

Posted by Gordon Firemark in : Law , add a comment

Since 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.

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