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

[Steven Jamar]

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,  
commercial speech.

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.

Steve


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
> 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.
>>
> _______________________________________________
> 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.

-- 
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."

Mark Twain