“Colorado Supreme Court upholds ban of smoking on stage”

by Walter Olson on December 16, 2009

The state’s high court “voted to uphold lower-court decisions barring cigarette use in performances. … a coalition of state and national theater groups [had] argued in multiple courts that the ban infringed on free-speech rights and interfered with their abilities to accurately produce plays.” [Denver Post, OnPoint News (outspoken dissent by Justice Gregory Hobbs), Michelle Minton/CEI "Open Market", Declarations and Exclusions]

{ 10 comments }

1 Richard Nieporent 12.16.09 at 9:09 am

Six justices found that regardless of whether onstage smoking is a form of expression, the ban on smoking in public places is constitutional because it aims to promote public health rather than stifle free speech.

How did these Justices make it to the State Supreme Court if they are incapable of being able to think logically? Anyone with a modicum of intelligence will realize that smoking on stage will have no effect on public health.

Even so, lawmakers intended the band to extend to artistic performances, said former state Rep. Mark Larson, who carried a similar bill in 2005 and supported it in 2006, the year it passed.
A theater exemption was briefly amended into the bill but taken out of later versions, Larson said.
“Acting is acting,” Larson said. “Why not having a fake cigarette? What . . . difference does it make? Come on.”

The mind-boggling stupidity of State Rep. Larson is self-evident. Obviously the Justices are no smarter than this jackass.

2 A.W. 12.16.09 at 9:44 am

Well, the decision is not as crazy as one might think. We have developed this idea in this country that somehow if a camera is rolling anything you do is okay.

So for instance a man says to a woman “I will pay you $1,000 for sex” that is prostitution. But if he says, “I will pay you $1,000 for sex on film” suddenly that’s not prostitution anymore, that is just porn. Does the fact it is filmed suddenly make it better? I would say if anything it makes it worse.

But on the other hand, you can’t go and actually shoot a person with a gun on camera, so there are limits to this.

I think the law (apart from any constitution) has to recognize limits to this. For instance, a state might have a law banning a person from covering their face in public (this was the case under several states anti-klan laws). We might say that this should generally apply, but not to a performance, b/c otherwise you could never make a movie like Mississippi Burning. I would tend to say the same with smoking on stage. On the other hand, I would tend to say that filmed or not you cannot have sex for money.

3 Richard Nieporent 12.16.09 at 8:13 pm

Well, the decision is not as crazy as one might think.

Only if you don’t believe in the First Amendment.

4 mojo 12.17.09 at 2:47 pm

Ignore it, pay the fine, raise ticket prices to compensate.

5 Lawyer who handles these sorts of cases 12.18.09 at 11:19 am

It’s not as straightforward as R.N. portrays it. First, there are studies (one from Pueblo is the most famous) that show a downtick in heart attacks in nonsmokers when indoor smoking bans go into effect. The theory is that even brief secondhand exposure can cause physiological effects (increased heartrate, slight dilation of blood vessels) that can cause some already-prone individuals to have a coronary incident.

Second, while audience members are only briefly exposed to secondhand smoke, the actors portraying the smoking are not. It’s not hard to imagine that (for example) smoking half a pack a night in Who’s Afraid of Virginia Woolf? might cause negative health effects in an actress.

Third, most of the cigarettes used on stage are herbal cigarettes. There is virtually nothing known about what exposure to this sort of smoke can do to you — the only study I know of is the Scots one that shows that they are markedly worse.

I guess the bottom line is that the Colorado legislature passed a law that specifically considered these issues (read the legislative history if you haven’t — this was all brought up at committee). The judges were asked to decide if lawmakers overstepped their bounds in trying to protect the public. They refused to interfere. I think it’s the right decision (whether or not you agree with the law in the first place).

6 A.W. 12.18.09 at 1:26 pm

richard

Is it your position that you may do whatever you want, as long as it is part of a stage production?

Suppose you wanted to shoot a person? okay, so long as on stage?

How about if you wanted to take heroin? Same story?

the first amendment doesn’t give an exemption to all laws. that being said, i think a rational exception should be made, although i am not sure the constitution demands it.

“A lawyer”

But then again, you know its one thing to say that smoking can and should be baned for its affects on other people. but to ban it because it harms you, seems to overstep the bounds of recent privacy decisions. Seriously, how is it that there is a right to be gay supposedly in our constitution, but not a right to smoke. I think if anything a better case can be made for a right to smoke, given that our founders were very often tobacco farmers.

Your argument is made up entirely of “but the actresses suffer.” well, so they do, but its inconsistent with the supreme court’s rulings on privacy to say that this means a damn.

7 Lawyer who handles these sorts of cases 12.18.09 at 2:20 pm

Your argument is made up entirely of “but the actresses suffer.” well, so they do, but its inconsistent with the supreme court’s rulings on privacy to say that this means a damn.

Please reread my comment. I made three arguments. The first — that even brief exposure to secondhand smoke has documented health effects — has nothing to do with actresses. The third — that the type of smoke being ingested contains unknown risks because it is rarely studied — applies equally to audiences and actors. Only the second was specific to theater employees.

And with respect to actors/actresses (and other theater employees, who are likely exposed to significant amounts of secondhand smoke during a production run), what I would say is that there is a qualitative difference between telling someone that they cannot do something to their own body, and telling an employer that it cannot make doing something potentially unsafe a precondition of employment. The first type of law is solely paternalistic (though I note that we have plenty of those on the books). The second type of law recognizes that oftentimes risks assumed during the course of employment really aren’t voluntary, at least in a pure sense.

I will refrain from addressing the privacy jurisprudence comment.

(Incidentally, will I caution against taking the dissent on face value, especially on the question of the realism of prop or talcum cigarettes. If memory serves, there was actually significant disagreement between the parties as to whether the record showed that such devices are sufficiently realistic, or whether this finding by the trial judge was dicta.)

8 A.W. 12.18.09 at 3:25 pm

lawyer

Ah, so its okay if they do it for love (of tobacco), but not for money?

Except of course that “job” in question is acting.

Personally as a matter of policy, if not necessarily constitutional law, the law should not regulate things related to acting unless the need is stronger than this. i mean i said above, i can understand saying no murder, even in a play; and ditto even on sex. but smoking? sheesh, give me a break.

9 Richard Nieporent 12.19.09 at 10:18 am

First, there are studies (one from Pueblo is the most famous) that show a downtick in heart attacks in nonsmokers when indoor smoking bans go into effect. The theory is that even brief secondhand exposure can cause physiological effects (increased heartrate, slight dilation of blood vessels) that can cause some already-prone individuals to have a coronary incident.

I’m sure it benefits a lawyer like you to believe in the legitimacy of these types of studies. However, there is a word for them – junk science. That is why we get laws like CPSIA.

As far as the actors go, let them decide for themselves. If they think that smoking cigarettes on stage is harmful then they don’t take the job. See how simple that is. Or do you believe that we shouldn’t allow adults to make decisions about what they do. I guess we should also ban sky-diving, mountain climbing and other hazardous forms of recreation. After all we must protect people from themselves.

10 Richard Nieporent 12.19.09 at 10:34 am

Is it your position that you may do whatever you want, as long as it is part of a stage production?
Suppose you wanted to shoot a person? okay, so long as on stage?

Absolutely, A.W. In fact snuff films are my favorite.

When you make reductio ad absurdum arguments I have to respond that way. Yes there is a limit to symbolic speech.

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