Smoking on Stage and the First Amendment

[Volokh, Eugene]

	Well, I think we've staked out our disagreement here, and I
think the Clark analysis supports me on this; but I'd love to hear what
others think.  Under O'Brien, must expressive conduct be exempted from a
generally applicable law when the expressive conduct can be identified
up front as not jeopardizing the substantial interests behind the law?
Or is the law applicable to all conduct, including expressive conduct as
to which application doesn't advance the interest, so long as such
conduct is rare (and therefore the law in general can't be said to cover
*substantially* more speech than necessary).

	As to the secondary effects question, it seems to me that when a
certain kind of use can be identified up front as being nearly certain
not to generate any secondary effects, then I would think that a
secondary-effects-justified ordinance can't be applied to that kind of
use.

________________________________

	From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Rosenthal,
Lawrence
	Sent: Wednesday, November 08, 2006 9:35 PM
	To: conlawprof at lists.ucla.edu
	Subject: RE: Smoking on Stage and the First Amendment
	
	
	I'm afraid that I can't agree.  I think there's no real
difference between a "no overinclusiveness rule" and a "least
restrictive alternative" rule.  Either one forbids any across-the-board
regulation -- the government always has to prove that the evil
justifying the legislation is present in every application of the
challenged law.  To go back to the adult use cases, is an adult use
ordinance is invalid as applied when the particular establishment that
is the target of enforcement claims that it has generated no secondary
effects?  I don't think that the either an anti-smoking or an adult use
ordinance has to be justified on an establishment-by-establishment, a
play-by-play, or striptease-by-striptease basis; as long as the
challenged law is not prohibit "substantially more speech than
necessary" it will be valid; and as the overbreadth cases teach, laws
that are valid except in extremely small proportion of its potential
applications do not burden "substantially" more speech than necessary.
For example, in Albertini, the Court, citing the passage from Clark that
I referenced in my earlier post, wrote:  "The First Amendment does not
bar application of a neutral regulation that incidentially burdens
speech merely because a party contends that allowing an exception in the
particular case will not threaten important government interests."
That's my point.
	 
	Larry Rosenthal
	Chapman University School of Law
	 
	I don't think so; I'm arguing for a "no overinclusiveness" rule
	(i.e., a law can't be applied to speech or expressive conduct
that can
	be identified up front as not materially implicating the
government
	interest, even when aggregated with other similar instances of
speech
	and expressive conduct), not a "least restrictive alternative"
rule.
	And while the Court has said the latter isn't part of the Ward,
O'Brien,
	and Central Hudson "narrow tailoring" tests, the former still
seems to
	be
	
	.  Consider, for instance, that the rejection of the least
	restrictive alternative inquiry in Clark was followed with the
statement
	that "There is no gainsaying that preventing overnight sleeping
will
	avoid a measure of actual or threatened damage to Lafayette Park
and the
	Mall" -- a statement that the law wasn't overinclusive as to the
	expressive sleeping, because the expressive sleeping did
implicate the
	interest.  Likewise, consider that though Fox and Ward rejected
the
	inquiry, they insisted that "the regulation not 'burden
substantially
	more speech than is necessary to further the government's
legitimate
	interests.'"  (I take the "substantially" to refer to what it
takes to
	strike down such a restriction on overbreadth grounds; when
we're
	talking as-applied expressive conduct challenges, then it seems
to me
	that the Court would focus -- as it did in Clark -- on whether
the
	regulation burdened expressive conduct that didn't implicate the
	government's interests, and the rarity of the expressive conduct
would
	cut *in favor* of an exemption, since it would diminish the risk
that
	the aggregate burden would be great.)
	
	> -----Original Message-----
	> From: conlawprof-bounces at lists.ucla.edu
<http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof>  
	> [mailto:conlawprof-bounces at lists.ucla.edu
<http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof> ] On Behalf
Of 
	> Rosenthal, Lawrence
	> Sent: Monday, November 06, 2006 12:20 PM
	> To: conlawprof at lists.ucla.edu
<http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof> 
	> Subject: RE: Smoking on Stage and the First Amendment
	> 
	> Isn't this is an argument that the First Amendment requires 
	> the least restrictive alternative -- if there are particular 
	> instances in which the dangers of second-hand smoke are 
	> minimal, then the First Amendment requires an exemption?  I'm 
	> not convinced that this argument applies to smoking on stage 
	> (no danger of second hand smoke to other actors, etc.?), but 
	> even if it did, the Supreme Court has repeatedly rejected 
	> this approach, most notably in Clark.  The plaintiffs argued 
	> that their particular protest was not going to damage the 
	> park, and the Court responded that it didn't matter:  "this 
	> regulation need not be judged solely be reference to the 
	> demonstration at hand."  The First Amendment does not require 
	> that every regulation that has an incidental effect on 
	> expressive activities permit ad hoc exemptions; the "narrow
tailoring"
	> prong of the test, as the Court admits in Ward v. Rock 
	> Against Racism, isn't really narrow tailoring at all, but 
	> merely a requirement that there not be substantial 
	> overbreadth.  Thus, given that the regulation is justified 
	> without reference to the content of speech, is not 
	> substantially broader than necessary to achieve a legitimate 
	> governmental objective, and leaves open sufficient 
	> alternatives (simulated smoking, etc.), the regulation, at 
	> least in my view, should be upheld.
	> 
	> Larry Rosenthal
	> Chapman University School of Law
	> 
	> 
	> Message: 1
	> Date: Mon, 6 Nov 2006 10:15:29 -0800
	> From: "Volokh, Eugene" <VOLOKH at law.ucla.edu
<http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof> >
	> Subject: RE: Smoking on Stage and the First Amendment
	> To: <conlawprof at lists.ucla.edu
<http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof> >
	> Message-ID:
	> <9160246DA68F8E49BCE01AFE96156C5402338A86 at
UCLAWEVS.lawnet.lcl
<http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof> >
	> Content-Type: text/plain; charset="us-ascii"
	> 
	> Hmm -- I had thought that even given the recent cases, 
	> the O'Brien/Clark test requires exemptions even from 
	> generally applicable laws that serve an important government 
	> interest, if in a particular instance (and others like it) 
	> the expressive conduct doesn't materially implicate the 
	> important government interest.  That, after all, is why Clark 
	> considered the argument that "if the symbolic city of tents 
	> was to be permitted and if the demonstrators did not intend 
	> to cook, dig, or engage in aspects of camping other than 
	> sleeping, the incremental benefit to the parks could not 
	> justify the ban on sleeping, which was here an expressive 
	> activity said to enhance the message concerning the plight of 
	> the poor and homeless," and rejected this argument on the 
	> facts (concluding that allowing such expressive conduct 
	> coupled with other conduct like it would indeed implicate the 
	> government interest).  
	> 
	> So if smoking tea-leaf cigarettes for expressive 
	> purposes doesn't materially jeopardize the government 
	> interest, even when you consider other claimants who might 
	> bring similar claims, wouldn't O'Brien/Clark require an 
	> exemption -- assuming, of course, that they apply to such 
	> smoking in the first place, even though the smoking is not 
	> inherently expressive unless you consider the context
surrounding it?
	> 
	> Eugene
	> 
	> 
	> ________________________________
	> 
	> From: conlawprof-bounces at lists.ucla.edu
<http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof>  
	> [mailto:conlawprof-bounces at lists.ucla.edu
<http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof> ] On Behalf
Of 
	> Rosenthal, Lawrence
	> Sent: Friday, November 03, 2006 10:52 PM
	> To: conlawprof at lists.ucla.edu
<http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof> 
	> Subject: RE: Smoking on Stage and the First Amendment
	> 
	> 
	> The O'Brien test, as refined in Renton, Rock Against 
	> Racism, and the other more recent cases, asks first whether 
	> the regulation is justified without reference to the content 
	> of the speech.  That test is plainly met here.  The 
	> regulation is justified on health grounds, and not based on 
	> the content of anybody's speech.  The test then asks not if 
	> the regulation is justified in every application, but whether 
	> it is substantially broader than necessary to achieve its 
	> goal.  Rock Against Racism specifically rejects as "least 
	> restrictive alternative" test.
	> Since smoking on stage is so rare, it seems difficult to me 
	> to say that an ordinance prohibiting smoking in any public 
	> place is substantially broader than necessary merely because, 
	> in very rare instances, it could be applied to smoking on 
	> stage.  The is the mirror image of the overbreadth inquiry, 
	> and everyone seems to agree that the ordinance is facially 
	> valid -- it cannot be said to be substantially overbroad in 
	> light of the fact that most smoking is not protected by the 
	> First Amendment.  The only remaining inquiry is if there are 
	> ample alternatives means to communicate the same message.  
	> Maybe, as Souter suggests in Barnes, this test is flunked 
	> when it comes to nudity in at least some plays -- perhaps 
	> nudity really essential to some interpretations of the 
	> bedchamber scene in Romeo and Juliet -- but given the 
	> availability of props and simulated smoking, I fail to see 
	> how there are not ample alternatives for smoking on stage.  
	> So, I do not see how the ordinance can be invalidated even as 
	> applied to a serious play in which smoking is integral to a 
	> character or plot.
	> 
	> Larry Rosenthal
	> Chapman University School of Law
	> 
	> 
	> _______________________________________________
	>