e: No First Amendment exception to a smoking ban for
smoking on-stage in a play
Mark Rahdert
mark.rahdert at temple.edu
Thu Nov 2 07:21:39 PST 2006
I think the nude dancing cases may be relevant. Banning smoking in a play
seems a lot like banning nudity in a dance, and would be subject to a
similar "secondary effects" analysis. Requiring the use of fake cigarettes
seems analogous to requiring pasties and g-strings.
Mark Rahdert
Temple
At 09:43 PM 11/1/2006, Douglas Laycock wrote:
> O'Brien requires a substantial interest, although it seemed to be
> substantial without teeth. This application is like the exemption issue
> in the free exercise cases. There is a
>substantial government in restricting smoking in public places, and
>in preventing the audience from smoking, but no substantial interest
>in refusing an exception for the play itself.
>
> Quoting Michael MASINTER <masinter at nova.edu>:
>
> > 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_51066[1]
> >> 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....
> >> _______________________________________________
> >> To post, send message to Conlawprof at lists.ucla.edu
> >> To subscribe, unsubscribe, change options, or get password, see
> >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof[2]
> >>
> >> Please note that messages sent to this large list cannot be viewed
>
> >> as private. Anyone can subscribe to the list and read messages
>that
> >> are posted; people can read the Web archives; and list members can
>
> >> (rightly or wrongly) forward the messages to others.
> >>
> >>
> >
> >
> > _______________________________________________
> > To post, send message to Conlawprof at lists.ucla.edu
> > To subscribe, unsubscribe, change options, or get password, see
> > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof[3]
> >
> > Please note that messages sent to this large list cannot be viewed
>as
> > private. Anyone can subscribe to the list and read messages that
>are
> > posted; people can read the Web archives; and list members can
> > (rightly or wrongly) forward the messages to others.
> >
> >
> >
>
>Douglas Laycock
>Yale Kamisar Collegiate Professor of Law
>University of Michigan Law School
>625 S. State St.
>Ann Arbor, MI 48109-1215
> 734-647-9713
>
>Links:
>------
>[1]
>/horde/services/go.php?url=http%3A%2F%2Fwww.rockymountainnews.com%2Fdrmn%2Flocal%2Farticle%2F0%2C1299%2CDRMN_15_51066
>[2]
>/horde/services/go.php?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Fconlawprof
>[3]
>/horde/services/go.php?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Fconlawprof
>
>
>
>----- End forwarded message -----
>
>Douglas Laycock
>Yale Kamisar Collegiate Professor of Law
>University of Michigan Law School
>625 S. State St.
>Ann Arbor, MI 48109-1215
> 734-647-9713
>
>My recollection is that O'Brien requires a substantial interest, although
>it seemed to be substantial without teeth. This application is like the
>exemption issue in the free exercise cases. There is a substantial
>government in restricting smoking in public places, and in preventing the
>audience from smoking, but no substantial interest in refusing an
>exception for the play itself.
>
>Quoting Michael MASINTER <masinter at nova.edu>:
>
> > 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_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....
> >> _______________________________________________
> >> To post, send message to Conlawprof at lists.ucla.edu
> >> To subscribe, unsubscribe, change options, or get password, see
> >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> >>
> >> Please note that messages sent to this large list cannot be viewed
> >> as private. Anyone can subscribe to the list and read messages that
> >> are posted; people can read the Web archives; and list members can
> >> (rightly or wrongly) forward the messages to others.
> >>
> >>
> >
> >
> > _______________________________________________
> > To post, send message to Conlawprof at lists.ucla.edu
> > To subscribe, unsubscribe, change options, or get password, see
> > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> >
> > Please note that messages sent to this large list cannot be viewed as
> > private. Anyone can subscribe to the list and read messages that are
> > posted; people can read the Web archives; and list members can
> > (rightly or wrongly) forward the messages to others.
> >
> >
> >
>
>
>Douglas Laycock
>Yale Kamisar Collegiate Professor of Law
>University of Michigan Law School
>625 S. State St.
>Ann Arbor, MI 48109-1215
> 734-647-9713
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed as
>private. Anyone can subscribe to the list and read messages that are
>posted; people can read the Web archives; and list members can (rightly or
>wrongly) forward the messages to others.
Mark C. Rahdert
Professor of Law
Temple University
Beasley School of Law
1719 North Broad Street
Philadelphia, PA 19122
Phone: 215-204-8966
Fax: 215-204-1185
Email: mark.rahdert at temple.edu
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