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

Volokh, Eugene VOLOKH at law.ucla.edu
Thu Nov 2 11:39:35 PST 2006


	I wonder which way the nude dancing cases would cut.  Scalia's
concurrence would suggest that the smoking ban could be applied, but
that concurrence only drew Scalia's vote.  Souter's concurrence relied
on secondary effects, but that too drew only his vote; and it's hard to
see how smoking of a tea-leaf cigarette (which is what the court
rejected here) during a performance would have much of a secondary
effect.  The plurality focused on the theory that public nudity may be
barred on the grounds that it has been traditionally recognized as
immoral -- but what's immoral in smoking a tea-leaf cigarette during a
play?


  Mark Rahdert writes:


________________________________

	From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mark Rahdert
	Sent: Thursday, November 02, 2006 7:22 AM
	To: Douglas Laycock; conlawprof at lists.ucla.edu
	Subject: Re: e: No First Amendment exception to a smoking ban
for smoking on-stage in a play
	
	
	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  
	



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