By Matt Masich, LAW WEEK COLORADO
DENVER — Public health concerns trumped freedom of expression in a Colorado Supreme Court ruling this morning. In a 6-1 decision in Curious Theatre v. Colorado Department of Public Health and Environment, the high court held that the state’s indoor smoking ban, enacted in 2006, bars actors from smoking onstage as part of plays.
The plaintiffs, a group of local theaters, had argued that smoking onstage is protected expression under the First Amendment. The court ruled that even assuming smoking can sometimes be protected conduct, the smoking ban can’t be called unconstitutional because it is narrowly tailored for a specific purpose.
The theaters argued that fake cigarettes aren’t an adequate substitute. But the majority opinion, written by Justice Nathan Coats, held that using fake cigarettes, “like the theatrical use of substitutes for virtually every other type of dangerous or illegal conduct, is capable of amply communicating to an audience an intended message.”
Justice Gregory Hobbs was the lone dissenter. He contended the ban is not narrowly tailored because it bans the smoking of any plant matter, not just tobacco, which “renders alternative means of the protected First Amendment expression untenable and even laughable.”