Denver’s Curious Theatre is taking its case for the right to smoke non-tobacco products onstage to the U.S. Supreme Court, claiming a right to creative expression and free speech. -DB
The Denver Post
December 31, 2009
By John Moore
Denver’s Curious Theatre will petition the U.S. Supreme Court for the right to smoke non-tobacco products in its theatrical productions, artistic director Chip Walton said Wednesday.
For three years, Curious has unsuccessfully argued in various courts that it should be exempt from the state’s indoor-smoking ban, contending that smoking is a form of creative expression that should be protected under free-speech rights.
But in a 6-1 vote Dec. 14, the Colorado Supreme Court refused to grant live theaters an exemption, saying the promotion of public health supersedes the right to free speech.
Curious says it has never argued for the right to smoke actual tobacco products. The company, along with co-plaintiffs Paragon Theatre and the now-defunct Theatre 13, asked instead to be allowed to smoke noncarcinogenic herbs when smoking is called for in plays. But the Colorado statute specifically prohibits smoking any material that is packaged, including herbs and teas.
“The Colorado Supreme Court was wrong because their decision does not allow plays to be presented as written by playwrights,” Walton said.
There is no guarantee the Supreme Court will hear Curious’ petition, which Walton expects to be filed in March. Walton admits it’s a long shot.
He’s pinning his hopes on the current divide on the issue among states. Of the 24 states that have indoor-smoking bans, he said, half allow exemptions for theatrical performances, while half do not. That split, he believes, gives the case validity at a national level for the U.S. Supreme Court to consider.
“We will be watching closely what the Supreme Court decides,” said Mike Saccone, spokesman for the Colorado attorney general’s office. “We certainly think it would be a fascinating First Amendment case.”
The Supreme Court has never considered whether any statewide smoking ban has merit or relevance on the basis of live theater or freedom of expression, Walton said.
“Clearly there is a significant discrepancy in the way states across the country administer statewide smoking bans as they relate to artistic expression,” Walton said. “There should be some clarity on a constitutional basis about what’s right and what’s not.”
Curious has a play called “Up,” which opens April 24, that calls for smoking.
Opponents of a theatrical exception to the smoking ban have argued that smoking can be adequately faked onstage just as well as murder, gunfire and drunkenness.
“But we have not ever actually smoked tobacco, so it has always been a theatrical substitute,” Walton said. “We don’t have any desire to smoke real tobacco on stage.”
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