By Matt Masich
LAW WEEK COLORADO
DENVER — Does Colorado’s indoor smoking ban apply to actors performing in plays? The Colorado Supreme Court will tell us Monday when it releases its decision in Curious Theatre v. Colorado Department of Health and Public Environment.
Actors have been forbidden from smoking onstage since 2006, when the Colorado Clean Indoor Air Act took effect. Curious Theatre and two other theater groups sued to overturn the ban in performances, arguing it infringes on First Amendment rights to freedom of expression. Denver District Court and the state Court of Appeals disagreed, ruling that free expression isn’t hampered because theater troupes can use alternatives to lighted cigarettes that are just as effective.
Bruce Jones, an attorney with Holland & Hart who represents the theater groups, talked with Law Week Colorado shortly after the Supreme Court heard arguments in the case in May. He described testimony an actor and producer gave in trial court about the problem with using fake cigarettes (plastic tubes through which actors blow talcum powder).
“He said they had used one of the fake cigarettes in a dramatic moment in one of the plays that he had been involved with — and the audience laughed. By definition, in his view, that meant it was not an adequate substitute,” Jones said.
“You can’t draw on a [fake] cigarette and blow a smoke ring, or blow smoke at someone to show disdain or derision, or do any type of smoking that requires actually exhaling smoke as part of the play.”
Jones said he didn’t read too much into the questions the Supreme Court justices asked during oral arguments, but thought some questions hinted that the court might find the smoking ban to be overbroad, especially as it forbids the smoking of non-tobacco herbal cigarettes.

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