Colo. high court snuffs out theaters’ challenge to smoking ban

Tuesday, December 15, 2009

Editor's note: The Associated Press reported Dec. 30 that Curious Theatre Co. would ask the U.S. Supreme Court to review the decision. Lawyers planned to file a petition in March.

Colorado’s law that bans indoor smoking — even smoking by actors in plays — does not violate the First Amendment, the state high court ruled yesterday in Curious Theatre Company v. Colorado Department of Public Health and Environment. The law is content-neutral and is narrowly drawn to serve the state’s health interests, the court reasoned.

Three theaters — Curious Theatre, Paragon Theatre and Theatre13 — sued in state court in October 2006, contending that Colorado’s Clean Indoor Air Act violates the First Amendment. In 2007, a trial court rejected the theaters’ challenge, ruling that “smoking, standing alone, including in the theatrical context” did not amount to “expressive conduct such that First Amendment guarantees and protections could be extended to it.”

On appeal, the Colorado Court of Appeals ruled in March 2008 that smoking in theatrical performances did amount to expressive conduct, but that the law was still constitutional because it was content-neutral “because it focuses on the adverse health effects of tobacco smoke, not on expression.”

The theatres appealed to the Colorado Supreme Court, which also rejected their claims in yesterday’s opinion. Writing for the majority, Justice Nathan B. Coats declared that smoking in theatrical performances could amount to expressive conduct meriting First Amendment review. But he then applied the U.S. Supreme Court’s so-called O’Brien test from U.S. v. O’Brien (1968), which is often applied when conduct has both communicative and non-communicative elements. Under the O’Brien test, a regulation is constitutional if the government has the power to pass the law; the government has a substantial interest; the regulation is not related to the suppression of free expression; and the measure is no greater than essential to the government’s interest.

The relevant question in the case, according to Coats, was the last (narrowly tailored) prong of the O’Brien test, which he characterized as a “relatively lenient standard.” He did not require the government to produce actual evidence that the smoking ban at plays would improve public health or reduce the level of secondhand smoke. Instead, he wrote that “there can simply be no question but that the state’s legitimate interest in preserving and improving the health, comfort, and environment of the public is furthered by limiting the public’s exposure to environmental smoke, even from tobacco-free alternatives.”

Coats also suggested that the “use of a fake or prop cigarette … like the theatrical use of substitutes for virtually every other type of dangerous or illegal conduct, is capable of amply communicating to an audience an intended message.” Coats also rejected the theaters’ argument that the measure violated the free-expression provision of the Colorado Constitution.

Justice Gregory B. Hobbs dissented, finding that “the state has failed to meet its burden because the smoking ban leaves the theaters without adequate alternative channels for their expression.” He noted that of the 24 states that have indoor-smoking bans, 12 grant exemptions for theatrical performances outright and others do so on a case-by-case basis. He also noted that Colorado’s law had exemptions for smoking at the airport and in hotel rooms.

Hobbs based his dissent on the fact that the state “provided no support for the claim that the smoking of or secondhand smoke from tobacco-free alternatives poses a public health risk.”

A. Bruce Jones, attorney for the theaters said his clients were considering whether to appeal the ruling.

“The dissent got the argument and appreciated what we were saying particularly about realistic smoking as a critical part of a number of plays,” Jones said. “The majority took a very paternalistic view.”

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