In an opinion issued last month that gave short-shrift to almost every freedom of expression issue raised, the Colorado Supreme Court, in an en banc 6-1 decision, voted to uphold Colorado’s ban on indoor smoking even in the context of a an actor smoking a tobacco substitute on stage. Here’s the complete opinion in Curious Theatre Company v. Colorado Dept. of Public Health, including a fuming dissent by a more artistically informed Justice Hobbs. I can’t blame the Colorado Supremes for going en banc. I wouldn’t want to sign my name to this opinion either.
The decision is the first in the nation to address the issue to what extent the First Amendment protects theatrical smoking. If the U.S. Supreme Court were to grant the Petitioner’s sought after review, the case could become a landmark free expression decision.
The majority opinion failed to lend a breath to the principle that theatrical smoking is protected expressive conduct, and inserted its inexpert literary judgment that a fake cigarette and a beaker of dry ice would do just fine to convey the intent of the script and director. This photo demonstrates otherwise.
Justice Hobbs’ 20-page dissent smokes out the errancy of the majority’s reasoning. He points out that plays such as Who’s Afraid of Virginia Woolf? would suffer serious distortion of their expressive intent if smoke could not hang over the stage or be expelled from a character’s mouth. In the stage production of The Graduate, for example, “the exhale of smoke shows Mrs. Robinson’s power over young Benjamin.” The script directs Mrs. Robinson to take a drag, kiss Benjamin, and then exhale after their lips part. She then begins to take off her clothes and jewelry.
But when Mrs. Robinson “smoked” a fake cigarette in a Colorado production of the play, the audience burst out laughing. This judicially altered script distorts the meaning of the dramatist and creates a play within a play, where Colorado’s smoking ban becomes an unintended farcical secondary theme.
And of course theatrical smoking can become a political statement about smoking and smoking bans itself, as in Smoking Bloomberg the Musical. All the artistic expression arguments, however, seemed to just waft over the heads of the statist and philistine Colorado justices. Elizabeth Taylor will probably be as upset as I am when she gets a whiff of this ruling.
Colorado is one of only three states in the U.S. whose ban on indoor smoking both extends to theatrical productions and also bans non tobacco clove or tea leaf cigarettes as less restrictive alternatives. Ohio is another one, but there play producers are disregarding the ban and taking their chances. Cleveland Plain Dealer theatre critic Tony Brown has a great take on the issue.
Curious Theatre Company was joined in the case by several amicus parties, including the ACLU, The Thomas Jefferson Center for the Protection of Free Expression, and the National Dramatists Guild. Presumably these parties and more will join in the cert petition to the U.S. Supreme Court urging that this ruling goes down in flames.