A Stitch in Haste

When it's done on stage:

[A] Denver District judge refused Monday to exempt Colorado's theater companies from the statewide smoking ban.
...
"It sounds to me like we could be back here for a constitutional argument," said retired Colorado Shakespeare artistic director Richard Devin, who testified in the case brought by the Curious, Paragon and Theatre 13 companies.

[Judge Michael A.] Martinez ruled the act of smoking, even in performance, "is not inherently an expressive behavior," and therefore does not qualify for free-speech protections under the U.S. constitution.

The plaintiffs had argued that any action performed on a stage — from a gesture to body language to smoking — communicates a meaningful artistic expression that must be protected.

This is not the first time that this fact pattern has arisen, but it is the first time such inanity has surfaced in the U.S., and therefore butted into the First Amendment.

Recall the basic First Amendment test: Generally speaking, a restriction on freedom of expression must be: (a) narrowly tailored to (b) a compelling government interest, and (c) leave open ample alternative channels of communication. See, e.g., U.S. v. Grace, 461 U.S. 171 (1983) (Congress cannot summarily ban the display of all flags or banners around the Supreme Court building).

"No smoking nowhere never" hardly meets that test. It is not narrowly tailored; censorship of art is never a compelling government interest; and failing to exempt sporadic smoking on stage during a performance is certainly not the least restrictive alternative.

Note also that actors rarely smoke tobacco cigarettes during a performance (they use herbal or tea cigarettes), just as they don't really drink alcoholic beverages (would it be permissible to prohibit high schoolers from drinking mock booze in a high school play?).

If the government operated a public performance hall (which would be bad enough), then it might be able to impose viewpoint-neutral restrictions on the use of that hall. That's a more complicated question. But it bears repeating that if the far more reasonable rule were followed — i.e., that private property owners should be allowed to decide for themselves based on market forces whether to allow smoking — then we wouldn't have to worry about turning the First Amendment into collateral damage in the War on Tobacco at all.

(Via Reason's Brickbats.)