No First Amendment exception to a smoking ban for smokingon-stage in a play

[Volokh, Eugene]

	I'm puzzled:  How did we get to "speech, especially symbolic
speech, involving morality" somehow being the antithesis of "political
speech"?   I think that Communism is immoral, but that doesn't stop
Communist advocacy from being political speech.  Praise of changing
various vice laws may related to "morals legislation," but it's
political speech.  A play's showing a character drinking may well be
speech related to social issues (the pluses and minuses of drinking),
which the Court has long treated as no less protected than political
speech.

	One might distinguish political speech from nonpolitical speech
(though with some difficulty).  One might distinguish speech or
expressive conduct restricted because of its communicative impact from
speech or expressive conduct restricted because of its noncommunicative
impact.  But I don't see how one can distinguish "speech, especially
symbolic speech, involving morality" from "political speech"?

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Steven Jamar
> Sent: Friday, November 03, 2006 7:07 AM
> To: Conlawprof at lists.ucla.edu
> Subject: Re: No First Amendment exception to a smoking ban 
> for smokingon-stage in a play
> 
> Any support out there for Article 19's approach of allowing 
> states to  
> regulate speech in areas of public morality more than other speech?   
> That is, why not just straight up recognize that speech, 
> especially symbolic speech, involving morality, like nude 
> dancing, pornography, smoking, drinking, and a few others, 
> can be regulated much more readily than say, political 
> speech?  Isn't that pretty much what is done anyway with 
> adult theater zoning and nude dancing regulation?
> 
> BTW, I don't see smoking in a play to be speech at all in 
> most contexts.  Indeed, I have trouble imagining how a lit 
> cigaret matters as opposed to an unlit prop.  I've seen lots 
> of fire props on stage over the years and not had much 
> difficulty hanging with the story.
> 
> As to O'Brien requiring an exception -- I don't think so both 
> because I don't think it is an O'Brien case and because I 
> don't think the regulation is anything but time, place, 
> manner, even if it is conceded that there is sufficient 
> speech happening to make it worth tapping into this confused, 
> jumbled vein of constitutional cases.
> 
> Steve
> 
> 
> -- 
> Prof. Steven D. Jamar                     vox:  202-806-8017
> Howard University School of Law           fax:  202-806-8567
> 2900 Van Ness Street NW         mailto:stevenjamar at gmail.com
> Washington, DC  20008	                http://iipsj.com/SDJ/
> 
> "Nothing that is worth anything can be achieved in a 
> lifetime; therefore we must be saved by hope."
> 
> Reinhold Neibuhr
> 
> 
> _______________________________________________
> 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.
>