Colorado Supreme Court says smoking ban extends to actors puffing in live performances

Colo. Supreme Court bans smoking in live theater

DENVER — The Colorado Supreme Court has upheld a state ban on smoking by actors onstage, ruling that public health trumps actor’s freedom of expression.

The court ruled 6-1 on Monday that a state indoor smoking ban applies to theaters. Observers called it the first decision by a state court upholding the extension of a smoking ban to theatrical performances.

Of 24 states with indoor smoking bans, 12 have exemptions or exemptions on a case-by-case basis for theatrical performances, according to the ruling.

The court said performances typically convey their message “by imitation rather than by scientific demonstration” and that there are alternatives to smoking on stage.

It also agreed with Attorney General John Suthers’ argument that the state Legislature passed a narrowly tailored law to protect public welfare, not to limit speech.

Colorado’s law bans using alternatives to tobacco cigarettes, such as cigarettes filled with cloves or tea leaves.

Theater companies argued smoke that lingers on stage is crucial to set a mood, develop character, or establish a time period. In a 20-page dissent, Justice Gregory Hobbs said allowing only prop cigarettes, including those filled with talcum powder, would be “untenable and laughable.”

“The characters and plots would lack depth and expressive force without the hovering smoke on stage, the poignant exhale of a puff of smoke, and even the ability or inability to smoke,” Hobbs wrote.

Hobbs pointed to several scenes in plays where smoking is crucial, including a seduction scene in the stage adaptation of “The Graduate” where Mrs. Robinson establishes her dominance over her younger lover partly with a strategic puff of smoke.

Curious Theatre Co. challenged the law when it staged a play, “tempODESSEY,” shortly after the smoking ban took effect in July 2006.

In the play, the central character, a smoker, dies and as a ghost he discovers he’s dead when he’s unable to inhale smoke from a cigarette. The theater staged the play by having the actor open a lid from a jar of dry ice to release a white vapor to simulate smoking.

“It has been a factor and a strong consideration as we selected plays, and it will continue to be,” said Chip Walton, artistic director for Curious Theatre. The company said it was considering appealing the decision to the U.S. Supreme Court.

Curious Theatre’s attorney, A. Bruce Jones, and another theater group said the Colorado court may have overstepped its legal bounds by including aesthetics as part of its definition of public welfare, as noted by Hobbs in his dissent.

“The ruling goes beyond the pale. It allows the government to impose their aesthetics on speech. It’s mind boggling,” said Ralph Sevush, executive director of the New York City-based Dramatists Guild of America, which filed a brief in court opposing Colorado’s ban.

Jones said the government could take aesthetics into account when considering parks, buildings or other public areas, but not expressions through smoking in a private indoor facility.

“It doesn’t quite compute,” Jones said.

Bob O’Neil, a constitutional law professor, said that beyond an obligation to produce plays as they are written, some playwrights and their heirs won’t allow performances of their plays without smoking — most notably the heirs of English playwright Noel Coward, who died in 1973.

“It’s the artistic imperative, however reasonable or unreasonable. If an esteemed, acclaimed playwright puts it in the script, it’s not for anybody else to second-guess that judgment,” said O’Neil, director of the Thomas Jefferson Center for the Protection of Free Expression, which also filed a court brief in the case.

“These guys are actors in drama and in theater,” said Suthers, the attorney general. “It’s their job to simulate realism, to make you think somebody got shot, to make it look like a building is really burning.”