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

[Mark Rahdert]

My own tentative view is that the smoking ban on theater players would 
probably fail under an analysis derived from the nudity cases -- especially 
if tea leaves (analogous to fig leaves?) are also banned.  I think the 
rationale in the nudity cases themselves was pretty shaky, however.  As I 
read them, they would require some form of intermediate scrutiny, but with 
a decent factual grounding for the government's interest.  Assuming the 
government interest to be the health of the audience, I doubt that any such 
showing could be made.  Assuming the government interest is the health of 
the players, that's a much closer case, but I'm dubious that occasional 
exposure to onstage smoke by nonsmoking players poses much of a 
demonstrable threat.  The demonstrable threat is to the health of the 
smoking players, but their needs can be accommodated by a LRA of allowing 
the onstage smoking only with their consent -- unless there is good reason 
to think they would be vulnerable to coercion.  In other words, I think an 
obligation to accommodate a player who does not want to smoke on stage 
would be constitutional, but an outright ban on onstage smoking may go too far.

If I were a judge in an oral argument on the matter, I would also ask about 
the First Amendment implications for bans on fire in crowded theaters, as 
applied to onstage fires for dramatic effect.  Shades of the dictum in 
Schenck.

Mark R.

  At 02:39 PM 11/2/2006, Volokh, Eugene wrote:
>         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:
>
>
>________________________________
>
>
>         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
>
>
>_______________________________________________
>T


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