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

[Volokh, Eugene]

	Well, if O'Brien applies, the theater might have a good argument
that applying the law to it isn't narrowly tailored to the government
interest, in the sense of being overinclusive with regard to the
interest -- especially if the cigarettes really were tobacco-free, and
thus likely harmless.  The question is whether Rumsfeld v. FAIR suggests
that O'Brien doesn't even apply; I have in mind this particular excerpt
from FAIR:



In United States v. O'Brien, we recognized that some forms of "'symbolic
speech'" were deserving of First Amendment protection. But we rejected
the view that "conduct can be labeled 'speech' whenever the person
engaging in the conduct intends thereby to express an idea." Instead, we
have extended First Amendment protection only to conduct that is
inherently expressive.... 

Unlike[, for instance,] flag burning, the conduct regulated by the
Solomon Amendment is not inherently expressive. Prior to the adoption of
the Solomon Amendment's equal-access requirement, law schools
"expressed" their disagreement with the military by treating military
recruiters differently from other recruiters. But these actions were
expressive only because the law schools accompanied their conduct with
speech explaining it. For example, the point of requiring military
interviews to be conducted on the undergraduate campus is not
"overwhelmingly apparent." An observer who sees military recruiters
interviewing away from the law school has no way of knowing whether the
law school is expressing its disapproval of the military, all the law
school's interview rooms are full, or the military recruiters decided
for reasons of their own that they would rather interview someplace
else. 


> -----Original Message-----
> From: Michael MASINTER [mailto:masinter at nova.edu] 
> Sent: Wednesday, November 01, 2006 2:39 PM
> To: Volokh, Eugene
> Cc: Conlawprof at lists.ucla.edu
> Subject: Re: No First Amendment exception to a smoking ban 
> for smoking on-stage in a play
> 
> Without endorsing the result, doesn't O'Brien's version of 
> intermediate scrutiny control, and if the smoking ban was 
> adopted for a purpose within the power of the government 
> (presumably it was) unrelated to the suppression of 
> communication (surely the case), isn't the incidental burden 
> on symbolic speech permissible?
> 
> Michael R. Masinter			3305 College Avenue
> Professor of Law			Fort Lauderdale, FL 33314
> Nova Southeastern University		(954) 262-6151 (voice)
> Shepard Broad Law Center		(954) 262-3835 (fax)
> masinter at nova.edu			Chair, ACLU of Florida 
> Legal Panel
> 
> On Wed, 1 Nov 2006, Volokh, Eugene wrote:
> 
> > Any thoughts on this?
> >  
> > 
> http://www.rockymountainnews.com/drmn/local/article/0,1299,DRMN_15_510
> > 66
> > 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....
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