No First Amendment exception to a smoking ban for smoking on-stage in a play

[Volokh, Eugene]

Any thoughts on this?
 
http://www.rockymountainnews.com/drmn/local/article/0,1299,DRMN_15_51066
58,00.html

Plays are filled with characters who smoke, but the actors portraying
them won't be doing it in Denver's theaters, a judge ruled Monday.

Smoking that is written into a production by a playwright isn't part of
an actor's artistic expression and is not protected free speech, Denver
District Judge Michael Martinez said.

The ruling was the result of a lawsuit by three theater companies who
sued the state health department, contending that Colorado's smoking ban
violates rights to free expression protected by the state and U.S.
constitutions.

The companies were seeking an exemption to the state's smoking ban that
went into effect in July. They wanted permission to smoke cigarettes
made of tea leaves or a similar substance, not tobacco....

"I'm disappointed," said Chip Walton, artistic director for Denver's
Curious Theatre, whose premiere of tempOdyssey opens Nov. 4.

The play tells the story of Little Genny, a temp receptionist who has
fled to Seattle believing that she is an accidental Goddess of Death.
One character in the play is a chain smoker - and smoking plays a
pivotal and symbolic role in that character's development....

But Martinez said state lawmakers already rejected such an exemption. He
said the smoking ban serves a public health interest.

"Smoking is not inherently expressive conduct," he said.

Theater directors said substitute cigarettes, like those containing
talcum powder, look fake and distract the audience.

They also are only good for a few puffs and not suitable for a character
like the boozing Martha, who chain-smokes through most of Edward Albee's
play, Who's Afraid of Virginia Woolf, said Richard Devin, artistic
director of the Colorado Shakespeare Festival for 17 years....