Theatrical smoking ban stands

The U.S. Supreme Court has declined to review an earlier state high court decision denying an exemption from the state’s smoking ban for theater companies.

A group of three theater companies had filed suit challenging the state’s smoking ban when it comes to theater companies, arguing that smoking during theater productions is a First Amendment right of free expression.

A Denver District judge rejected the argument in October 2006. The decision was appealed, but a three-member appellate court in March 2008 agreed with the lower court. The case was then taken to the Colorado Supreme Court, which late last year also upheld the earlier court decisions, denying the exemption.

Last month, Theatre Communications Group Ń the New York-based service organization for professional not-for-profit theater companies Ń filed an amicus brief with the U.S. Supreme Court, petitioning the court to take up the case based on the freedom of expression argument. The case included Denver-based Curious Theater and Paragon Theatre companies.

But Colorado Attorney General John Suthers yesterday announced that the U.S. Supreme Court declined to review the earlier cases. Suthers, a Republican, agreed with the decision.

“The Colorado Supreme Court’s December decision, upholding the Colorado Clean Indoor Air Act in the context of theaters, was well reasoned in upholding the law,” Suthers said in a statement. “Although the Curious Theatre case would have been fascinating to argue at the U.S. Supreme Court, I am pleased that the justices have declined to hear this case.”

Suthers had earlier argued the Colorado Supreme Court case himself at Alamosa High School as part of the Courts in the Community program.

Theater companies, however, point out that theatrical smoking has been a part of free expression in America since the First Amendment’s ratification in 1791.

“Theaters rely on actors’ expressive conduct, including smoking, to convey meaning in tandem with a play’s dialogue, movement, mood and tone,” argue theater companies.

The Theatre Communications Group says 18 states have indoor smoking bans prohibiting theatrical smoking, but they say the laws are inconsistent. Some theaters have responded by self-censoring themselves and not performing shows that include smoking, rather than modifying the plays or facing fines or criminal charges.

Chip Walton, producing artistic director for the Curious Theatre Company, said yesterday that his company was disappointed to learn of the U.S. Supreme Court’s decision.

“Obviously we’re disappointed, but not entirely surprised,” he told the Denver Daily News in an e-mailed statement. “The United States Supreme Court hears only a small fraction of the cases submitted for review, and we knew that going in.”

Walton hopes that his group’s lawsuit has alerted other theater companies to the issue, stating that the case might go forward in the future if more theater companies decide to join the complaint.

“Clearly, there are still some prevalent misconceptions about the relationship of theatrical smoking to free expression as guaranteed by the First Amendment,” he said. “It’s my hope that despite our own disappointment, perhaps our initial efforts will ignite some momentum around this issue nationwide, and if we’re lucky, even here in the State of Colorado.”

Laurie Baskin, spokeswoman for Theatre Communications Group, agreed that the U.S. Supreme Court likely declined to take the case because of the small number of theater groups signed onto the lawsuit.

But she believes that with some more interest, the case might one day get picked up by the nation’s Supreme Court justices.

“We’re watching to see if there are difficulties that other theaters in other states are experiencing,” she said. “If other theaters decide to pursue legal action, there could be an opportunity for the Supreme Court to revisit this issue in the future.”


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