Smoking ban and O'Brien exceptions

[Volokh, Eugene]

	Indeed, the law is facially valid; the question is whether
O'Brien mandates as-applied exemptions to expressive uses that don't
materially implicate the government interest.

	Eugene	

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of 
> Rosenthal, Lawrence
> Sent: Thursday, November 02, 2006 1:57 PM
> To: conlawprof at lists.ucla.edu; conlawprof at lists.ucla.edu
> Subject: RE: Conlawprof Digest, Vol 37, Issue 2
> 
> 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>
> Content-Type: text/plain;       charset="us-ascii"
> 
>         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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