No First Amendment exception to a smoking ban for
smokingon-stage in a play
stevenjamar at gmail.com
Fri Nov 3 09:48:36 PST 2006
Well, Eugene, the rest of the world seems to do it. And, in fact, we
do it too -- if you read the cases on nude dancing and adult theater
zoning as I think they are fairly read as some different sort of
analysis than straight political speech cases get.
And don't we do this all the time in our law anyway -- indecent
exposure, bans on public nudity, gambling, etc.?
And yes, of course the line is hard to draw. But there are always
edge cases for obscenity, fighting words, advocating illegal conduct,
If one wants to buy into the idea that all ideas are political, all
actions political, all contentions about morality are political, for
first amendment speech purposes then pretty much the whole enterprise
collapses, doesn't it?
So we would have contests and cases about the line between regulating
morality and free speech. We do already.
On Nov 3, 2006, at 12:24 PM, Volokh, Eugene wrote:
> 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
> 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
> 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.
>> 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
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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/
"Whenever you find yourself on the side of the majority, it is time
to pause and reflect."
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