This week, in a decision that is likely to limit what theaters decide to produce, Colorado’s Supreme Court upheld the state’s ban on theatrical smoking.

The 2006 Colorado Clean Indoor Air Act prohibits smoking inside public buildings. This is something we welcome! However, contrary to the situation in other states where smoking on stage is exempt, Colorado performers are banned from smoking even herbal cigarettes. Yet, smoking is often a necessary component of a play’s plot and of character development.

Therefore, three not-for-profit theaters in Colorado sued the state’s department of Public Health and Environment on the grounds that the ban on theatrical smoking was an unconstitutional infringement on freedom of speech.

In an amicus brief to the Colorado Supreme Court, NCAC and the Dramatists Guild of America argued that theatrical smoking constitutes expressive activity, and that the state had not demonstrated that banning theatrical smoking was necessary so as to protect Colorado residents from the health hazards of second hand smoke. The brief referred to the expressive role of smoking in the plays of playwrights such as Edward Albee and Eugene O’Neill.

We also argued that the ban on theatrical smoking was not tailored in such a way that expression was only restricted in so much as it was absolutely necessary in the interest of protecting health. We cited bans on indoor smoking from 13 different jurisdictions, which included exceptions for theatrical smoking.

Despite our disappointment in the decision of the court, we are heartened by the dissenting opinion, which stated that: “The smoking ban containing in the Colorado Clean Indoor Air Act, as applied to theatrical performances when the script of a play calls for smoking, is unconstitutional because theatrical smoking constitutes expressive conduct protected by the First Amendment. In a play’s performance, smoking becomes a form of expression that is distinct from the act of smoking itself; it is used to communicate meaning and thus to convey a particularized message. The characters and plots would lack depth and expressive force without the hovering smoke on stage, the poignant exhale of a puff of smoke, and even the ability or inability to smoke."

Photo by Dean Terry