Conlawprof Digest, Vol 37, Issue 2

[Rosenthal, Lawrence]

Surely it is at least clear that the law would be valid on its face under the First Amendment. Most smoking does not involve anything more than casual social interaction and does not therefore qualify as expressive activity protected under the First Amendment.  See City of Dallas v. Stanglin, 490 U.S. 19 (1989) (upholding a dance-hall ordinance barring minors because most dancing does not involve any form of expressive association protected by the First Amendment).  Accordingly, the law could not be deemed "substantially overbroad" and could not be attacked on its face.  The only real question is whether an as-applied challenge could succeed. On Justice Souter's view in Barnes (which is very possibly controlling because his was the narrowest rationale in support of the Court's judgment), the ordinance still could be vulnerable as applied to particular expressive activites, at least if the possibility of a simulated cigarette were not deemed an adequate alternative. See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 585 n.2 (1991) (Souter, J., concurring in the judgment).  But given that most of the incidental regulation cases uphold regulations that leave ample alternative means of expression, I think that the simulated cigarette ought to pass muster without need to rely on Justice Souter's concurrence.  
 
Larry Rosenthal
Chapman University School of Law

 
Message: 11
Date: Thu, 2 Nov 2006 11:39:35 -0800
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
Subject: RE: e: No First Amendment exception to a smoking ban for
        smoking on-stage in a play
To: <Conlawprof at lists.ucla.edu>
Message-ID:
        <9160246DA68F8E49BCE01AFE96156C54023388B2 at UCLAWEVS.lawnet.lcl>
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        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 
       



End of Conlawprof Digest, Vol 37, Issue 2
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