Petition for Writ of Certiorari — Curious Theatre Co. v. Colorado Department of Public Health & Environment
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Text
reme Court, U.S.
ns FILED
No. 991118 HAR 15 2010
In The OFFICE OF THE CLERK
Supreme Court of the Anited States
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CURIOUS THEATRE COMPANY,
a Colorado non-profit corporation, and
PARAGON THEATRE,
a Colorado non-profit corporation,
Petitioners,
Vv.
COLORADO DEPARTMENT
OF PUBLIC HEALTH AND ENVIRONMENT,
and JAMES MARTIN, its executive director,
Respondents.
+
On Petition For A Writ Of Certiorari
To The Colorado Supreme Court
¢
PETITION FOR WRIT OF CERTIORARI
¢
A. BRUCE JONES*
STEPHEN G. MASCIOCCHI
PAUL J. KYED
HOLLAND & HART LLP
555 Seventeenth Street, Suite 3200
Denver, Colorado 80202
Telephone (303) 295-8000
Facsimile (303) 295-8261
bjones@hoilandhart.com
smasciocchi@hollandhart.com
pjkyed@hollandhart.com
*Counsel of Record
Attorneys for Petitioners
COCKLE LAW BRIEF PRINTING CO (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED
1. Does the Colorado Clean Indoor Air Act,
which bans the smoking of any “plant matter” in most
indoor facilities open to the public, violate the First
Amendment as applied to smoking of tobacco-free
alternative cigarettes by performers during live the-
atrical productions?
2. When a State enacts a criminal law that com-
pletely bans a mode of protected artistic expression,
does the State bear any burden of proof to establish
narrow tailoring, or can the State justify the ban on
mere esthetic grounds?
ul
RULE 29.6 STATEMENT
Petitioners have no parent companies and no
public companies holding 10% or more of their stock.
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED .....................ccccceceeees i
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TABLE OF AUTHIORE Be oeccccccccsccccccccseccescccecees Vv
PETITION FOR A WRIT OF CERTIORARI ....... 1
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iin incininnopeenaassoiakaumsienngimancuinen 1
CONSTITUTIONAL AND STATUTORY PRO-
Fe Be Oe Bi icitiereccnecesvctevsisrsiunmiveiserens 2
STATEMENT OF THE CASE......................2222000 2
A. The Colorado Clean Indoor Air Act (Colo-
Ee SE I icstticnciviccccnsvonccestencintecs 5
B. Smoking Bans Throughout The United
INE cick sc cevoasacenanaaaenaliabictenadulermacuaminsinaindie 6
C. Denial Of A Preliminary Injunction By
The Denver District Court ........................ 7
D. Opinion Of The Colorado Court Of Ap-
I isccicaccshnanh co puccnammmeaniaua ia taedmaaeninaiete 10
E. Opinion Of The Colorado Supreme Court... 11
1. Majority Opinion By Justice Nathan
BA ED iccvctcpncciaccaisechecioan cate aiaes 11
2. Dissenting Opinion By Justice Gregory
GO; TS bccn aviilttinnsttsenaceaee 12
1V
TABLE OF CONTENTS — Continued
Page
REASONS FOR GRANTING THE PETITION... 13
I. The Issue Presented Provides This Court
With An Opportunity To Clarify Whether
General Laws Regulating Conduct, Which
Are Not Specifically Directed At Expres-
sion, Warrant Any First Amendment
IEE cccissaccnenstomenadicistatiintuciniaireusenmecenie 13
II. The Case Would Allow The Court To
Clarify The Evidentiary Burden, If Any,
On States To Show That A Content-
Neutral Statute Restricting Free Expres-
sion Is Narrowly Tailored.......................... 16
A. The Colorado Supreme Court Did Not
Require Any Evidentiary Showing
Pe fanniicvecnuadienawenterersnevcnsadenbonit 16
B. The Opinion Below Rationalized The
State’s Lack Of Evidence By Relying
On “Esthetic” Interests ....................... 17
C. The Colorado Clean Indoor Air Act Is
Not Narrowly Tailored ........................ 18
Bt RRA a artcetre ete Ree eS RI a 19
APPENDICES
A. Opinion of the Colorade Supreme Court....... App. 1
B. Opinion of the Colorado Court of Appeals ...App. 42
C. The Colorado Clean Indoor Air Act............. App. 73
TABLE OF AUTHORITIES
Page
CASES
Barnes v. Glen Theatre, Inc., 501 U.S. 560
ERNIE D auciescceuuncul cone Ulan unten dncomiaarenbencrcdesaiaanale 16
City of Erie v. Pap’s A.M., 529 U.S. 277
a ihidecdentideadditadeGedehy te vnislameoe ssauaesedadioons 14, 16,17
Clark v. Community for Creative Non-Violence,
ee ND cvavcsecixorssecrerctvdcerevnciouremnnaiabea 16
Douglas v. City of Jeannette, 319 U.S. 157
(RSS GI presi iy te pe ay POEMS EGE OO SER Binie Hie ce Bie. 2
Frisby v. Shultz, 487 U.S. 474 (1988) ............ ce eeeeee 13
Members of the City Council v. Taxpayers for
Verecene, BES TTD. TED (IGG) orcs cccceccesecevcreccconcersccece 17
Southeastern Promotions, Ltd. v. Conrad, 420
kT 24. : | semen Men aioe dot | 14, 15, 16
United States v. O’Brien, 391 U.S. 367 (1968)........... 11
Ward v. Rock Against Racism, 491 U.S. 781
fg RAG AN See enc le gH RPE ae RHR CR 16
STATUTES
C.R.S. §§ 25-14-201 to -209 (2009)............-.cccccesecsees 2,3
oe onic cs ceineauune vaeeniey wow atinndevardwanevente 6
co ae I Sos sceaewpeeuunmicemaossuauswnsesrna 5
a: ee oa cvieesnnpdecivonnencnrwtmbeneninmnnies 5
CAL. LAB. CODE § 6404.5(d)(9) (2009)... eee 2
CHICAGO, ILL. MUN. CODE § 7-32-10, -15 (2009)........... $
v1
TABLE OF AUTHORITIES — Continued
Page
ee ee ee nD OD on os eccensscnsonsesvedvevbbardecenees 2
IowA CopDE §§ 142D.1 to -9 (2010) .....2.. 00. 7
MicH. Compt. LAWS §§ 33.12601-17 (2010).................. 7
Monrg. CoDE ANN. §§ 50-40-103(8), -104 (2009) ........... 3
N.C. GEN. Stat. §§ 130A-491 to -498 (2010)................ 7
N.J. REV. STAT. §§ 26:3D-57, -59 (2009) ..........0............ 3
NEB. REV. STAT. §§ 71-5726 to -27 (2009).....................3
NEB. REV. STAT. §§ 71-5717 to -5734 (2010)................. 7
N.Y.C. ADMIN. CODE § 17-503(a)(8) (2009) ................... 2
PHILA., PA. CODE § 10-602(2\(f), (3 a)(0.4) (2009)........ 3
SAN ANTONIO, TX. CODE OF OrDsS. § 36-1, -3 (2010)......... 3
TENN. CODE ANN. §§ 39-17-1803 to -1812 (2010)......... 7
WASH. Rev. CoDE § 70.160.020 (2009) ................0... 3
re oe rn Oe OOD on . . cesuxeuswabeuseeescoures PO
OTHER AUTHORITIES
RR ee i eee Heer 2, 13, 15, 16
SS TS a 2
1
PETITION FOR A WRIT OF CERTIORARI
Petitioners Curious Theatre Company and
Paragon Theatre ask this Court to issue a writ of
certiorari to review the judgment of the Colorado
Supreme Court.
OPINIONS BELOW
The opinion of the Colorado Supreme Court (App.
1-41) is reported at 220 P.3d 544. The opinion of the
Colorado Court of Appeals (App. 42-72) is reported at
216 P.3d 71. While the District Court for the City and
County of Denver issued its decision orally, it is
discussed in both Colorado appellate opinions. (App.
5, 44-45).
—_—--— +
JURISDICTION
The Colorado Supreme Court issued its judgment
on December 14, 2009. Neither party sought rehear-
ing. The jurisdiction of this Court is invoked under 28
U.S.C. §1257(a). The Colorado Supreme Court’s
opinion affirmed the denial of a preliminary injunc-
tion and effectively ended the case since Petitioners’
only basis for injunctive relief was that the smoking
ban violated Petitioners’ free speech rights.
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2
CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
The Free Speech Clause in the First Amendment
of the Constitution provides in relevant part: “Con-
gress shall make no law ... abridging the freedom of
speech... .” U.S. CONST. amend. I. The Free Speech
Clause applies to Colorado via the Due Process
Clause of the Fourteenth Amendment of the Consti-
tution. U.S. CONST. amend. XIV sec. 1; Douglas v. City
of Jeannette, 319 U.S. 157, 162 (1943).
The Colorado Clean Indoor Air Act, C.R.S. § 25-
14-201 to -209 (2009), is reproduced infra in the
Appendix. (App. 73-85).
STATEMENT OF THE CASE
In the past several years, numerous states and
cities have passed bans or limits on indoor smoking in
order to protect non-smokers from the dangers of
second-hand tobacco smoke. Many of these statutes
and ordinances contain exceptions for smoking by
performers in live theatrical productions, either ex-
pressly or by allowing the use of “alternative”
cigarettes containing cloves or herbs. See, e.g., D.C.
CODE § 7-1708(3) (2009) (allowing smoking “[u]pon the
stage by performers during the course of any theat-
rical performance if smoking is part of the theatrical
production”); N.Y.C. ADMIN. CODE § 17-503(a)(8) (2009)
(“except that smoking may be part of a theatrical
production”); CAL. LAB. CoDE § 6404.5(d\9) (2009)
3
(ban does not apply to “[t]heatrical production sites, if
smoking is an integral part of the story in the
theatrical production”).
Several states and cities, however, have not only
omitted a theatrical exception, but defined “smoking”
and/or “tobacco” so broadly as to make the smoking of
any substance illegal during a play. See, e.g., NEB.
REv. STAT. §§ 71-5726 to -27 (2009) (“(S]moking means
the lighting of any cigarette ... regardless of its
composition.”); N.J. Rev. Stat. §§ 26:3D-57, -59 (2009)
(“‘Smoking’ means the burning of ... tobacco or any
other matter that can be smoked.”); MONT. CODE ANN.
§§ 50-40-103(8), -104 (2009) (“‘Smoking’ ... includes
the act of lighting . . . any smokable product.”); WASH.
REv. Cope § 70.160.020 (2009) (“‘[S}jmoking’ means
the carrying or smoking of any kind of lighted pipe,
cigar, cigarette, or any other lighted smoking equip-
ment.”); CHICAGO, ILL. MUN. CODE § 7-32-10, -15 (2009)
(“‘{Sjmoking’ means the... burning... of any kind of
. cigarette, hookah, weed, herb[], or any other
lighted smoking equipment.”); PHILA., PA. CODE § 10-
602(2)(f), (3a)(0.4) (2009) (*‘Smoking’ [means] ...
burning ... any lighted cigarette ... which contains
tobacco or other smoke producing products”); SAN
ANTONIO, TX. CODE OF Orbs. § 36-1, -3 (2010) (“Smok-
ing means ... burning ... any ... cigarette, pipe,
weed, plant, or other combustible substance in any
manner or in any form.”).
In 2006, when it passed the Colorado Clean
Indoor Air Act, the Colorado legislature specifically
rejected an amendment allowing theatrical smoking,
4
and defined “tobacco” to include “cloves and any other
plant matter or product[.]” (App. 77). On December
14, 2009, the Colorado Supreme Court became the
first state high court to address the constitutionality
of a complete ban on smoking as part of live
theatrical presentations. The court, over a vigorous
and thorough dissent, upheld the ban as a content-
neutral restriction on freedom of expression.
This case presents the Court with the oppor-
tunity to clarify the requirements of the fourth prong
of its O’Brien test as applied to theatrical expression,
i.e., the requirement of narrow tailoring. Because the
Colorado Clean Indoor Air Act forbids the smoking
not only of tobacco but of any other plant matter that
can be smoked, performers in Colorado cannot realis-
tically portray smoking as intended by playwrights,
both famous and obscure. The Colorado General As-
sembly could have tailored the Act to allow smoking
during theatrical productions by mandating warnings
to patrons before they attend a play or by permitting
smoking of alternatives like herbal cigarettes. If
O’Brien does not require such an accommodation of
free expression, then virtually any content-neutral
legislation is beyond the reach of the First Amend-
ment.
This case also provides the Court with the op-
portunity to clarify the evidentiary burden imposed
on the government with respect to narrow tailoring.
Here, the Colorado Supreme Court held that this
burden was met, even though no evidence was sub-
mitted by the State during the trial court hearing.
5
Alternatively, the Colorado Supreme Court found
that an “esthetic” interest may justify a prohibition
on “intrusive and unpleasant formats for expression,”
such that “the connection between limiting exposure
to environmental smoke and banning indoor public
smoking in places of public accommodation is ap-
parent without further evidentiary support.” (App.
15-16). This unique rationale for upholding a
complete ban on theatrical expression is also worthy
of this Court’s review.
A. The Colorado Clean Indoor Air Act (Colo-
rado’s Smoking Ban).
Colorado’s smoking ban criminalizes the act of
smoking in certain facilities, including all theaters.
C.R.S. § 25-14-208(1)-(3) (App. 84). It applies both to
persons who smoke in forbidden places and to those
who own or manage the facilities in which impermis-
sible smoking occurs. /d. Criminal fines accumulate
with each violation. Jd.
One of the most important aspects of Colorado’s
smoking ban, pertaining to whether it is sufficiently
tailored, is its definition of “tobacco.” The statute
defines “tobacco” to include not only cigarettes, cigars,
and other forms of tobacco, but also “cloves and any
other plant matter or product that is packaged for
smoking.” C.R.S. § 25-14-203(17) (App. 77) (emphasis
added). This wide-ranging definition of tobacco re-
sults in a smoking ban that prevents actors engaged
in live theatrical productions from smoking anything
6
that burns, t.e., anything they can light and inhale,
whether softly or deeply. The legislative history of the
Colorado smoking ban includes a refusal by the Colo-
rado House of Representatives to pass an amendment
that would have created an exemption for theatrical
productions. (App. 50).
The legislative declaration to the ban states that
the general assembly wished to protect the people
of Colorado from “involuntary exposure” to tobacco
smoke, and also that “a balance should be struck be-
tween the health concerns of nonconsumers of tobacco
products and the need to minimize unwarranted gov-
ernmental intrusion into, and regulation of, private
spheres of conduct and choice with respect to the use
or nonuse of tobacco products in certain designated
public areas and in private places.” C.R.S. § 25-14-
202 (App. 73). The declaration adds that the ban’s
purpose is “to preserve and improve the health,
comfort, and environment of the people of this state
by limiting exposure to tobacco smoke.” Id.
B. Smoking Bans Throughout The United
States.
As the Colorado Court of Appeals noted, smoking
bans are rapidly appearing throughout the United
States.’ (App. 46-50). In March 2008, the month in
The Colorado Supreme Court, whose opinion superseded
that of the court of appeals, did not survey smoking bans outside
Colorado.
7
which the Colorado Court of Appeals issued its opin-
ion, the court listed 27 states (other than Colorado),
plus the District of Columbia, as having some form
of a smoking ban. (App. 47-48). Of these, twelve
exempt actors participating in live theatrical per-
formances and the owners and operators of such
facilities. (App. 49-50). Two years later, as of the filing
of this Petition, at least six additional jurisdictions
have chosen to enact statewide bans on smoking in
nongovernmental facilities. See LOWA CODE §§ 142D.1
to -9 (2010); MicH. Comp... LAws §§ 33.12601-17
(2010); Nes. Rev. Stat. §§ 71-5717 to -5734 (2010);
N.C. GEN. STAT. §§ 130A-491 to -498 (2010); TENN.
CopDE ANN. §§ 39-17-1803 to -1812 (2010); Wis. Srar.
§ 101.123 (2010). None of these statutes specifically
exempt actors participating in live theatrical per-
formances and the owners and operators of such
theaters.
C. Denial Of A Preliminary Injunction By The
Denver District Court.
Three small, independent Denver theaters, two of
which are the petitioners here, sought a preliminary
injunction from the Denver district court to avoid
criminal liability if they staged a play in which smok-
ing is an integral part of the plot.’ The Denver district
The third theater ended operations during the appellate
process.
' The theaters challenged the smoking ban pre-enforcement.
As the legislative history makes clear, the general assembly
(Continued on following page)
8
court held a hearing on October 30, 2006, during
which the theaters introduced exhibits and testimony
to support injunctive relief based on their right to free
expression.
The theaters’ evidence showed the importance of
smoking — whether of actual tobacco or tobacco-free
alternatives — during plays in which the script calls
for smoking. The theaters presented the testimony of
four witnesses with combined professional theatrical
experience in excess of 60 years. All four were
emphatic that smoking is part of the theatrical
expression of numerous plays and is vital tuo the de-
velopment of a character or group of characters. One
witness testified about his company’s upcoming
production of the play, tempOdyssey, in which a char-
acter initially smokes, then realizes he has died be-
cause he can no longer smoke, thus making smoking
an essential part of a plot twist. (App. 24-25).
Another witness confirmed the importance of
maintaining the artistic integrity of a play by using
considered and rejected an exemption for theaters from the
smoking ban. (App. 50). Thus, the theaters reasonably antici-
pated that they risked criminal sanctions if they allowed smok-
ing in a play. The cumulative nature of those sanctions chilled
any thought of ignoring the ban. Further, the State never
suggested its officials would “look the other way.” To the con-
trary, John Suthers, the Colorado Attorney General, who pre-
sented the State’s position in oral argument before the Colorado
Supreme Court, assured the justices that the State would
enforce the statute against the theaters if given the opportunity
to do so.
9
cigarettes, particularly when performing older pieces
by deceased playwrights, where all that is known
about their intentions is what is in their script.
He went on to state that smoking was integral to
numerous plays, both planned and already presented
by his company, including: Who’s Afraid of Virginia
Woolf?, by Edward Albee; Mojo, by Jez Butterworth;
Look Back in Anger, by John Osborne; Buicks, by
Julianne Shepherd; Sailor Song, by John Patrick
Shanley; Vieux Carre, by Tennessee Williams; A Moon
for the Misbegotten, by Eugene O’Neill; and The Care-
taker, by Harold Pinter. (App. 25). The theaters also
proved the chilling impact that the smoking ban
would have on future presentations in Colorado,
including being forced to choose plays based not on
their artistic merit but on whether they required
smoking. Indeed, the theaters demonstrated that
they would be contractually precluded from present-
ing plays that included smoking where the play-
wright requires strict adherence to the script. (App.
38).
The evidence also showed the limited nature
of most theatrical smoking. For Petitioner Curious
Theatre’s planned presentation of tempOdyssey, only
one partial, non-traditional tobacco cigarette was to be
smoked. The maximum amount of smoking that was
described for any play was 15-20 minutes spread out
over two hours. (App. .°7 n.3).
All four witnesses insisted that so-called prop or
fake cigarettes — in which an actor blows a puff of talc
out of the “cigarette” — were inadequate substitutes
10
for real smoking. One testified that an audience
laughed at the use of a fake cigarette during a drama
when laughter was not the play’s intent. (App. 41).
The theater company representatives also testi-
fied that their respective companies provided advance
notice to their audiences if smoking was to occur on
stage. (App. 35-36). They added that actors were in-
formed about the need for smoking during auditions,
and that no actor or crew member was forced to be
near any smoking. (App. 36).
Just as notable as the evidence put on by the
theaters is the evidence the State never presented
in response. While the State listed exhibits on the
health dangers of smoking tobacco and inhaling it
second hand, it produced no viable scientific studies
to show that tobacco alternatives, including those
encompassed by the Colorado Clean Indoor Air Act,
pose similar health risks. (App. 32-35). Nor was there
evidence of any harm specific to smoking in theatrical
performances. Yet, at the close of the theaters’ evi-
dence, the court held for the State without requiring
any responsive evidence, and concluded that theat-
rical smoking did not constitute expression.
D. Opinion Of The Colorado Court Of Appeals.
The Colorado Court of Appeals affirmed the
district court’s denial of a preliminary injunction,
although on different grounds. The court of appeals
reached its decision through a three-step process:
(1) contrary to the district court, it determined that
ll
smoking in the theatrical context does constitute
expressive conduct for First Amendment purposes
(App. 55-61); (2) it deemed the applicable provisions
of the Colorado Clean Indoor Air Act to be content
neutral because the statute focused on health rather
than speech (App. 61-62); and (3) it applied the four-
part intermediate scrutiny test of United States v.
O’Brien, 391 U.S. 367 (1968), and held that the Colo-
rado smoking ban met that test, including the fourth
requirement of narrow tailoring (App. 63-69). The
court agreed with the State’s assertions that ade-
quate alternative channels of expression existed be-
cause plays could be staged outdoors (even though
Petitioners both operate small indoor theaters) and
that fake, talecum-powder cigarettes could serve as
effective substitutes in indoor performances (despite
the undisputed testimony to the contrary). (App. 67-
68).
E. Opinion Of The Colorado Supreme Court.
1. Majority Opinion By Justice Nathan B.
Coats.
The Colorado Supreme Court affirmed the judg-
ment of the Colorado Court of Appeals by a 6-1 vote.
The majority opinion by Justice Coats assumed,
without deciding, that theatrical smoking constituted,
or at least could constitute, protected expression.
(App. 4, 7-8). But it concluded that, “Even assuming
that theatrical smoking actually can amount to pro-
tected expressive conduct under some circumstances,
12
the statutory ban does not impermissibly infringe on
the plaintiffs’ constitutional freedom of expression
because it is content neutral and narrowly tailored to
serve the state’s substantial interest in protecting the
public health and welfare.” (App. 4).
2. Dissenting Opinion By Justice Gregory
J. Hobbs.
In dissent, Justice Hobbs demonstrated that
theatrical smoking constitutes protected expression,
that the smoking ban is not narrowly tailored, and
that the State had provided no evidence to justify the
statute’s broad reach to any “plant matter.” First, by
reference to such plays as Who’s Afraid of Virginia
Woolf? by Edward Albee, The Graduate adapted for
theater by Terry Johnson, A Moon for the Misbegotten
by Eugene O’Neill, and Vieux Carre by Tennessee
Williams, Justice Hobbs concluded that theatrical
smoking did, in fact, constitute expressive conduct.
He noted that all of these plays feature smoking as an
integral tool for properly portraying characters and
developing plots. (App. 23-26). Justice Hobbs also
noted that smoking can be and has been used in plays
to convey political messages. (App. 26-27).
Second, Justice Hobbs concluded that
Colorado’s smoking ban is not narrowly tai-
lored as applied to theatrical performances
that call for smoking because the statutory
ban bars the use of any plant matter in addi-
tion to products of the tobacco plant, fails to
take into account measures that limit expo-
sure to patrons of the theater to demonstrably
13
harmful tobacco products, and renders alter-
native means of the protected First Amend-
ment expression untenable and even laughable.
(App. 23). Quoting Frisby v. Shultz, 487 U.S. 474, 485
(1988), Justice Hobbs noted that “‘[a] complete ban
can be narrowly tailored, but only if each activity
within the proscription’s scope is an appropriatcly
targeted evil.’” (App. 31). The State, having presented
no evidence, did not meet this requirement. (App. 31-
32). Further,
[pJermitting smoking in theatrical perfor-
mances would achieve the government’s in-
terest in public health no less effectively
because citizens could choose to forego plays
that include smoking, actors could refrain
from auditioning for smoking roles if they
prefer, and, in any event, the exposure to
secondhand smoke from theatrical smoking
is minimal].
(App. 38).
REASONS FOR GRANTING THE PETITION
I. The Issue Presented Provides This Court
With An Opportunity To Clarify Whether
General Laws Regulating Conduct, Which
Are Not Specifically Directed At Expression,
Warrant Any First Amendment Scrutiny.
The Colorado Supreme Court dismissed the thea-
ters’ contention that the smoking ban failed to allow
“ample alternative channels of expression.” The court
14
found that the “argument fails to appreciate that
a general law regulating only conduct, no matter
how symbolically expressive that conduct may be, by
definition leaves unregulated the communication of
any intended message by actual speech, writing, or
publication.” (App. 16). Thus, although Justice Coats
never explicitly says so, his opinion essentially adopts
the view shared by Justices Scalia and Thomas that
“a general law regulating conduct and not specifically
directed at expression [should not be] subject to First
Amendment scrutiny at all.” City of Erie v. Pap’s
A.M., 529 U.S. 277, 307-08 (2000) (Scalia, J., and
Thomas, J., concurring in the judgment). This case
starkly presents the effect of that approach on free
expression. If this is indeed a correct interpretation of
this Court’s precedents, the First Amendment is of no
consequence to a content-neutral law regulating
conduct that has the effect of banning certain means
of expression.
This issue is an important one warranting review
for several reasons. First and foremost, free expres-
sion has been curtailed. Theatergoers can no longer
experience many theatrical plays as intended by the
playwright; the playwright’s message has been al-
tered, as recognized by the dissent. (App. 24-27, 38).
And theatrical smoking, i.e., smoking as part of the
presentation of a play, is unquestionably expressive
conduct. A theatrical script is speech. “By its nature,
theater usually is the acting out — or singing out — of
the written word, and frequently mixes speech with
live action or conduct.” Southeastern Promotions, Ltd.
v. Conrad, 420 U.S. 546, 557-58 (1975). Separating
conduct from speech — within the context of a play —
15
ignores the fundamental nature of this form of ex-
pression. /d. The impact of the ban on free expression
was cogently summarized by Justice Hobbs’ dissent:
The ability of a theatrical performance to
communicate a plot, depict characters, and
evoke an era according to the playwright’s
intent is severely limited by the inability to
light a cigarette, pipe, or cigar on stage.
Colorado’s smoking ban lacks an exemption
for the expressive conduct of theatrical smok-
ing, allows no adequate alternative to theat-
rical smoking, and prohibits the smoking of
tobacco alternatives.
(App. 41).
Next, this issue is one of first impression with a
high likelihood of recurrence. Given that nearly all
the states and many municipalities have adopted
some form of smoking ban, and given the wealth
of live theatrical performances constantly occurring
across the country, the issue presented here will arise
again and again. And if this Court declines to grant
the Petition, the next state or federal trial court
asked by actors, directors, producers, playwrights, or
theater owners to allow smoking during the perfor-
mance of a great play by a famous playwright (or any
play for that matter), will no doubt begin its analysis
by consulting the opinion of the Colorado Supreme
Court. Compelling First Amendment questions like
the one raised by this case instead ought to be de-
cided with finality by the highest court in the land.
Finally, this Court has not adaressed the scope of
protection for theatrical expression for some 35 years.
16
Not since 1975 in Conrad has this Court decided a
case concerning theatrical free expression (aside from
the theatrical aspects of nude dancing). Here, the
Colorado Supreme Court relied on three different
lines of this Court’s First Amendment jurisprudence,
including “time, place and manner” decisions such as
Clark v. Community for Creative Non-Violence, 468
U.S. 288 (1984) and Ward v. Rock Against Racism,
491 U.S. 781 (1989), symbolic conduct cases such as
O’Brien, and the nude dancing decisions in City of
Erie, and Barnes v. Glen Theatre, Inc., 501 U.S. 560
(1991). But these precedents are a poor fit for classic
theatrical expression. As the Court stated in Conrad,
“lejJach medium of expression, of course, must be
assessed for First Amendment purposes by standards
suited to it, for each may present its own problems.”
420 U.S. at 557. After 35 years, it is time for the
Court to again assess the appropriate First Amend-
ment standards for theatrical expression.
II. The Case Would Allow The Court To Clari-
fy The Evidentiary Burden, If Any, On
States To Show That A Content-Neutral
Statute Restricting Free Expression Is
Narrowly Tailored.
A. The Colorado Supreme Court Did Not
Require Any Evidentiary Showing
Whatsoever.
The district court denied the request for a pre-
liminary injunction without requiring the State to
17
present any evidence. Likewise, after holding that
smoking in the theatrical context constituted pro-
tected free expression, the Colorado Court of Appeals
nonetheless found that the statute was narrowly
tailored even though the State had presented no
evidence. (App. 65-69). And the Colorado Supreme
Court questioned whether any evidentiary showing
was necessary in light of this Court’s decision in City
of Erie. (App. 16-17). As recognized by Justice Souter
in his City of Erie concurrence, this Court’s decisions
on the government’s evidentiary burden are confusing
and should be clarified. 529 U.S. at 311. Otherwise,
obvious accommodations for free expression — as were
demonstrated by the theaters’ evidence before the
trial court — can be ignored. The State’s supposed
evidentiary burden becomes no burden at all.
B. The Opinion Below Rationalized The
State’s Lack Of Evidence By Relying
On “Esthetic” Interests.
The Colorado Supreme Court also relied on the
State’s “esthetic interests” to cure the absence of any
evidence of the health effects of non-traditional ciga-
rettes. (App. 15-16). Justice Hobbs responded that
“the majority’s use of aesthetic grounds to totally ban
on-stage smoking and criminalize violations of the
ban, constitutes censorship in violation of the First
Amendment.” (App. 34). While the State may have
legitimate esthetic interests to justify restrictions on
expression in public areas, see, e.g., Members of the
City Council v. Taxpayers for Vincent, 466 U.S. 789,
18
805-07 (1984), those interests should not extend to a
theatrical presentation inside a_ privately-owned
building. Nor did the State so contend; the Colorado
Supreme Court created the State’s esthetic interest
from whole cloth. This unique extension of the gov-
ernment’s interest in restricting expression should be
reviewed.
C. The Colorado Clean Indoor Air Act Is
Not Narrowly Tailored.
As Justice Hobbs discussed, the State dic not
affirmatively demonstrate that its prohibition on use
of tobacco-free alternatives — in place of traditional
cigarettes — is narrowly tailored to the State’s interest
in health, safety, and comfort. In fact, the State pro-
duced nothing to demonstrate the hazards of these
tobacco-free cigarettes generally, much less when
used in the limited context of live theater. (App. 32-
35). If narrow tailoring is of true consequence within
the context of a content-neutral restriction on free
expression — particularly when the restriction is an
outright ban — the State should be required to show
that a less restrictive alternative will be ineffective in
achieving the State’s goals. The State failed to do so
here, again warranting this Court’s review.
e
19
CONCLUSION
The Court should grant the petition for a writ of
certiorari.
Respectfully submitted this 15th day of March,
2010.
A. BRUCE JONES*
STEPHEN G. MASCIOCCHI
PAUL J. KYED
HOLLAND & HART LLP
555 Seventeenth Street, Suite 3200
Denver, Colorado 80202
Telephone (303) 295-8000
Facsimile (303) 295-8261
bjones@hollandhart.com
smasciocchi@hollandhart.com
pjkyed@hollandhart.com
*Counsel of Record
App. 1
SUPREME COURT, Case No. 08SC351
STATE OF COLORADO
Two East 14th Avenue
Denver, Colorado 80203
Certiorari to the
Colorado Court of Appeals
Court of Appeals Case
No. 06CA2260
Petitioners:
Curious Theatre Company, a Colorado
non-profit corporation; Paragon Theatre,
a Colorado non-profit corporation;
and Theatrel13, Inc., a Colorado
non-profit corporation,
v.
Respondents:
Colorado Department of Public Health
and Environment and James Martin,
its Executive Director.
JUDGMENT AFFIRMED EN BANC
December 14, 2009
A. Bruce Jones
Stephen G. Masciocchi
Danicl R. Pabon
Holland and Hart L.L.P.
Denver, Colorado
Attorneys for Petitioners
App. 2
James W. Hubbell
Kelly Garnsey Hubbell & Lass L.L.C.
Denver, Colorado
Attorneys for Amicus Curiae
The Thomas Jefferson Center for the
Protection of Free Expression
John W. Suthers, Attorney General
Daniel D. Domenico, Solicitor General
Robert C. Douglas, First Assistant Attorney General
Lisa Brenner Freimann, Assistant Attorney General
Josh Urquhart, Assistant Attorney General
Denver, Colorado
Attorneys for Respondents
Edward T. Ramey
Isaacson Rosenbaum PC.
Denver, Colorado
Attorneys for the Dramatists Guild of
America and the National Coalition
Against Censorship
Adam M. Platt
Steven D. Zansberg
Levine Sullivan Koch & Schulz, L.L.P.
Denver, Colorado
Bruce E. H. Johnson
Noelle H. Kvasnosky
Davis Wright Tremaine L.L.P.
Seattle, Washington
Attorneys for Amicus Curiae
Theatre Communications Group
App. 3
Christopher P. Beall
Levine Sullivan Koch & Schultz, L.L.P.
Denver, Colorado
Mark Silverstein
ACLU Foundation of Colorado
Denver, Colorado
Attorneys for Amicus Curiae American
Civil Liberties Union of Colorado
John R. Mann
Kennedy Childs & Fogg P.C.
Denver, Colorado
Kurt S. Lewis
Lewis Law Firm, L.L.C.
Denver, Colorado
Attorneys for Amicus Curiae Crossroads
Theater at Five Points, L.L.C.
JUSTICE COATS delivered the Opinion of the Court.
JUSTICE HOBBS dissents.
The non-profit theaters that were plaintiffs below
petitioned for review of the court of appeals’ judgment
affirming the denial of their motion for preliminary
injunction. See Curious Theater Co. v. Colo. Dep't of
Pub. Health & Env't, 216 P.3d 71 (Colo. App. 2008).
Their action against the Colorado Department of
Public Health and Environment seeks both a judg-
ment declaring Co’orado’s ban on theatrical smoking
to be an unconstitutional infringement on their free-
dom of speech ani an order enjoining its enforcement.
The district court denied their motion for preliminary
injunction on the grounds that smoking, even in the
App. 4
theatrical context, does not amount to expressive
conduct of a type that would be subject to either state
or federal constitutional protections for speech. The
court of appeals concluded that theatrical smoking
was expressive conduct but affirmed the district court
on the alternative grounds that the ban was never-
theless constitutional.
Even assuming that theatrical smoking actually
can amount to protected expressive conduct under
some circumstances, the statutory ban does not im-
permissibly infringe on the plaintiffs’ constitutionally
protected freedom of expression because it is content
neutral and narrowly tailored to serve the state’s
substantial interest in protecting the public health
and welfare. The judgment of the court of appeals is
therefore affirmed.
I.
Three non-profit theater companies, Curious
Theatre Company, Paragon Theatre, and Theatrel13,
Inc., brought a declaratory judgment action against
the Colorado Department of Public Health and En-
vironment and its executive director, challenging the
constitutionality of the Colorado Clean Indoor Air Act’
and seeking to enjoin its enforcement against the-
atrical smoking. The Act prohibits smuking in any
indoor area, including a theater, unless the smoking
' §§ 25-14-201 to -209, C.R.S. (2009).
App. 5
falls within an express statutory exception. The
plaintiff-theaters asserted that theatrical smoking
can include expressive conduct and that the Act’s
blanket prohibition against indoor smoking therefore
amounts to an impermissible infringement on their
freedom of speech, as guaranteed by both the federal
and state constitutions.
The district court entertained evidence and the
arguments of counsel before denying the plaintiffs’
motion for preliminary injunction. At the hearing, the
theaters presented the testimony of four witnesses
with lengthy and varied professional theatrical
experience, to the effect that smoking has been a part
of theatrical expression in numerous plays; that the
theaters provide advance notice to their audiences if
smoking will occur onstage; and that prop or fake
cigarettes are inadequate substitutes for real smok-
ing. At the conclusion of this testimony, and with-
out finding any need to receive evidence from the
defendant-Department, the district court concluded
that the plaintiffs had failed to make a number of the
showings required for a _ preliminary injunction,
including, most notably, a showing that they were
likely to succeed on the merits of their claim. More
specifically, it found that the plaintiffs had failed to
prove that smoking, even in a theatrical context, can
amount to expressive conduct to which either federal
or state constitutional protections would extend.
The plaintiffs immediately appealed the denial of
their motion for preliminary injunction to the inter-
mediate appellate court. Although it disagreed with
App. 6
the district court’s conclusion that theatrical smoking
is not expressive conduct, the court of appeals never-
theless affirmed the district court’s refusa! to grant a
preliminary injunction, finding that the smoking ban
is content neutral and is adequately tailored to meet
constitutional requirements for a content-neutral, in-
cidental restriction on expressive conduct.
We granted the plaintiffs’ petition for a writ of
certiorari challenging the court of appeals’ determina-
tion that the smoking ban is constitutional.
Il.
First Amendment protections notwithstanding,
“le|xpression, whether oral or written or symbolized
by conduct, is subject to reasonable time, place, or
manner restrictions.” Clark v. Cmty. for Creative Non-
Violence, 468 U.S. 288, 293 (1984). The United States
Supreme Court has “often noted that restrictions of
this kind are valid provided that they are justified
without reference to the content of the regulated
speech, that they are narrowly tailored to serve a
significant governmental interest, and that they leave
open ample alternative channels for communication
of the information.” Jd. Although the “time, place, or
manner” test was developed for evaluating restric-
tions on expression taking place on public property
that had been dedicated as a public forum, it has also
been applied to conduct occurring in what are essen-
tially places of public accommodation. See Barnes uv.
Glen Theatre, Inc., 501 U.S. 560, 566 (1991) (plurality
App. 7
opinion) (also noting previous application of “time,
place, or manner” test to conduct occurring on private
property in Renton v. Playtime Theatres, Inc., 475
U.S. 41 (1986)).
The delivery of messages by conduct that is in-
tended to be, and in context would reasonably be un-
derstood to be, communicative has received particular
attention in the jurisprudence of the Supreme Court.
“Symbolic expression of this kind may be forbidden or
regulated if the conduct itself may constitutionally be
regulated, if the regulation is narrowly drawn to
further a substantial governmental interest, and if
the interest is unrelated to the suppression of free
speech.” Clark, 468 U.S. at 294 (citing United States
v. O’Brien, 391 U.S. 367, 377 (1968)). While each
focuses on slightly different aspects of the inquiry,
these two articulations of constitutionally permissible
limitations on protected expression have nevertheless
been interpreted to embody much the same stan-
dards, see Clark, 468 U.S. at 298; see also City of
Colorado Springs v. 2354 Inc., 896 P.2d 272, 297 n.19
(Colo. 1995), and have been applied accordingly, Clark,
468 U.S. at 299 n.8 (“We note that only recently, in a
case dealing with the regulation of signs, the Court
framed the issue under O’Brien and then based a
crucial part of its analysis on the time, place, or
manner cases.”).
Unlike conduct that is regulated or prohibited
precisely because of the message it symbolically con-
veys, see, e.g., Texas v. Johnson, 491 U.S. 397 (1989)
(flag burning), it is often unclear whether conduct
App. 8
that is regulated without regard to any message it
may convey is in fact “expressive” in a way that
would be constitutionally protected. Although the
Supreme Court has clearly rejected “the view that an
apparently limitless variety of conduct can be labeled
‘speech’ whenever the person engaging in the conduct
intends thereby to express an idea,” O’Brien, 391 U.S.
at 376; see also City of Dallas v. Stanglin, 490 U.S.
19, 25 (1989) (“It is possible to find some kernel of
expression in almost every activity a person under-
takes — for example, walking down the street or
meeting one’s friends at a shopping mall — but such a
kernel is not sufficient to bring the activity within the
protection of the First Amendment.”), the Court has
more than once chosen to simply assume a sufficient
“communicative element” in regulated conduct where
the regulation in question would pass constitutional
muster in any event, see, e.g., Clark, 468 U.S. at 296
(“we have assumed for present purposes that the
sleeping [in a national park] banned in this case
would have an expressive element”); O’Brien, 391
U.S. at 376 (“even on the assumption that the alleged
communicative element in [draft card burning] is suf-
ficient to bring into play the First Amendment”); cf.
Barnes, 501 U.S. at 565 (plurality opinion) (“‘[A]lthough
the customary “barroom” type of nude dancing may
involve only the barest minimum of protected expres-
sion, we recognized in California v. LaRue, 409 U.S.
109, 118 ... (1972), that this form of entertainment
might be entitled to First and Fourteenth Amend-
ment protection under some circumstances.’” (quoting
Doran v. Salem Inn, Inc., 422 U.S. 922, 932 (1972)).
App. 9
The plaintiffs readily concede that the regulation
of smoking in public is within the constitutional
power of the government; that it furthers an impor-
tant governmental interest; and that the governmen-
tal interest it furthers is unrelated to the suppression
of free expression. They assert only that the ban is
not tailored adequately to serve the purpose for which
it was adopted, bringing into question not only the
extent to which tailoring to the service of a significant
governmental interest is required by the First Amend-
ment but also the precise nature of the governmental
interest the ban was meant to serve.
Unlike a law directed at the content of speech or
the communicative nature of conduct, it is not neces-
sary for a content-neutral time, place, or manner
restriction, much less the regulation of conduct for
reasons completely unrelated to the suppression of
free expression, to be justified by “a substantial show-
ing of need,” or compelling state interest. Johnson,
491 U.S. at 406-07. Nor must the content-neutral
regulation of expression be limited to the least re-
strictive or least intrusive means of serving the
government's interest. Ward v. Rock Against Racism,
491 U.S. 781, 798-99 (1989). In fact, O’Brien’s “rela-
tively lenient standard” requires only that any inci-
dental restriction on expressive conduct be no greater
than is essential to the governmental interest in
regulating the conduct at issue. Johnson, 491 U.S. at
407; O’Brien, 391 U.S. at 377.
Expressed otherwise, such content-neutral regu-
lation is valid with regard to any requirement of
App. 10
narrow tailoring so long as the government could
reasonably have determined that its interests overall
would be served less effectively without that regu-
lation. Ward, 491 U.S. at 799. If the government has
a legitimate interest in protecting the welfare of its
citizens, and if the welfare of those citizens would be
more exposed to harm without a particular regulation
of conduct than with it, the regulation is safe from
invalidation under the First Amendment. See Clark,
468 U.S. at 297 (“If the Government has a legitimate
interest in ensuring that the National Parks are
adequately protected, which we think it has, and if
the parks would be more exposed to harm without the
sleeping prohibition than with it, the ban is safe from
invalidation under the First Amendment as a rea-
sonable regulation of the manner in which a demon-
stration may be carried out.”).
Although the Supreme Court has on occasion
required some demonstration of an evidentiary basis
to connect the government’s asserted rationale for
regulating expressive conduct with the particular
regulation itself, see, e.g., Turner Broad. Sys., Inc. v.
FCC, 520 U.S. 180, 195 (1997), it has also made clear
that this connection may be apparent, plain, or
beyond doubt, without specific evidentiary support,
see, e.g., Clark, 468 U.S. at 299 (acknowledging that a
substantial governmental interest in conserving park
property is plainly served by preventing overnight
sleeping); O’Brien, 391 U.S. at 381 (finding “ap-
parent” the governmental interest in maintaining the
continued availability of draft cards and “equally
App. 11
clear” that the prohibition against draft-card destruc-
tion protects this interest); see also Nixon v. Shrink
Mo. Gov’t PAC, 528 U.S. 377, 391 (2000) (“The quan-
tum of empirical evidence needed to satisfy height-
ened judicial scrutiny of legislative judgments will
vary up or down with the novelty and plausibility of
the justification raised.”). In City of Erie v. Pap’s
A.M., this issue was brought into focus by Justice
Souter’s partial dissent, which questioned whether
establishments featuring dancers forced to wear
“pasties” and “G-strings” would have a markedly dif-
ferent effect on netghborhoods from establishments
whose dancers were completely nude. 529 U.S. 277,
314-17 (2000) (Souter, J., concurring in part and
dissenting in part). The judgment of a four-justice
plurality, rejecting Justice Souter’s call for a firmer
evidentiary connection, was joined by two additional
justices who would not subject “a general law
regulating conduct and not specifically directed at
expression” to any First Amendment scrutiny at all.
Erie, 529 U.S. 277; id. at 307-08 (Scalia, J., joined by
Thomas, J., concurring in the judgment).
We consider it unnecessary to determine whether
smoking in the theatrical context might in some cases
contain an expressive element because we think it
clear that, in any event, the statutory smoking ban at
issue here withstands the plaintiffs’ assertions that it
is insufficiently tailored. The plaintiffs assert that the
smoking ban is insufficiently tailored to satisfy the
requirements of the Supreme Court’s First Amend-
ment jurisprudence for three distinct, but related,
App. 12
reasons. They contend that: 1) the declared govern-
mental interest in banning indoor smoking is more
limited than was appreciated by the appellate court
when it found the ban to be adequately tailored to the
government’s interest; 2) the record is devoid of any
factual justification for a ban on theatrical smoking;
and 3) the record does not support the appellate
court’s determination that the ban leaves open ade-
quate alternate means of expression.
With regard to the government’s interest, the
plaintiffs assert that the General Assembly’s use of
the words “involuntary exposure” in its declaration®
evidences its limited purpose of protecting only those
who would choose to avoid places of public accommo-
dation if forewarned that smoking would occur on the
premises and, consequently, the General Assembly’s
failure to tailor its own regulatory scheme to that
* Legislative Declaration, § 25-14-202 (“The general assem-
bly hereby finds and determines that it is in the best interest of
the people of this state to protect nonsmokers from involuntary
exposure to environmental tobacco smoke in most indoor areas
open to the public, public meetings, food service establishments,
and places of employment. The general assembly further finds
and determines that a balance should be struck between the
health concerns of nonconsumers of tobacco products and the
need to minimize unwarranted governmental intrusion into, and
regulation of, private spheres of conduct and choice with respect
to the use or nonuse of tobacco products in certain designated
public areas and in private places. Therefore, the general as-
sembly hereby declares that the purpose of this part 2 is to
preserve and improve the health, comfort, and environment of
the people of this state by limiting exposure to tobacco smoke.”).
App. 13
end. Apart from the fact that this interpretation of
the term “involuntary” is, as a matter of statutory
construction, simply untenable, the argument itself
confounds the governmental interest to be served by
regulating particular conduct with the method or
approach chosen by the legislature to further that
interest.
In the abstract, the term “involuntary,” could
have a number of different meanings. It could refer to
a choice subject to any variety of external or internal
pressures or, for that matter, to action devoid of any
conscious choice whatsoever. Therefore, its precise
meaning must be derived from the context, or
statutory scheme, in which it appears. See Walgreen
Co. v. Charnes, 819 P.2d 1039, 1043 & n.6 (Colo. 1991)
(applying the rule that statutes relating to the same
subject matter be construed in pari materia,
gathering the legislative intent from the whole of the
enactments). Were the term “involuntary exposure”
restricted to exposure that could not be avoided by
merely avoiding places where smoking is known to
occur, as the plaintiffs propose, rather than encom-
passing any exposure to the smoking of others that
must be endured as a cost of enjoying the benefits of
places of public accommodation, the purpose would be
met in all cases by the mere posting of warnings,
which would render the legislative ban on indoor
smoking entirely superfluous. While the intended
meaning of an ambiguous statute might be clarified
by reference to an unambiguous declaration of legis-
lative purpose, see, e.g., Vensor v. People, 151 P.3d
App. 14
1274, 1277 (Colo. 2007), it would make little sense to
construe an ambiguous declaration of purpose as
having a meaning that renders the legislature’s spe-
cific proscriptive provisions themselves superfluous
and, in this case, unconstitutional, see Catholic
Health Initiatives Colo. v. City of Pueblo, 207 P.3d
812, 822 (Colo. 2009) (the court has an obligation to
avoid statutory interpretations that invoke constitu-
tional deficencies).
Perhaps more to the point, however, the legis-
lative declaration in this case expressly states that
the Act’s purpose is “to preserve and improve the
health, comfort, and environment of the people of this
state by limiting exposure to tobacco smoke.” § 25-14-
203. The determination of the General Assembly that
“it is in the best ‘nterest of the people of this state to
protect nonsmokers from involuntary exposure to
environmental tobacco smoke in most indoor areas
open to the public,” when read in context, evidences
the balance struck “between the health concerns of
nonconsumers of tobacco products and the need to
minimize unwarranted governmental intrusion into”
private choices — not its purpose or interest. /d.
Rather than contradicting itself or obtusely failing to
grasp that its regulatory scheme was wholly unneces-
sary to its purpose, it seems abundantly clear that
the General Assembly’s purpose was to protect its
citizens from exposure to the smoking of others
without at the same time forcing them to choose
between their comfort or health, on the one hand, and
App. 15
the benefits offered by regulated, public accommo-
dations, on the other.
With regard to the demonstration of an eviden-
tiary connection between the government’s rationale
for regulating this conduct and its chosen means of
doing so, there can simply be no question but that the
state’s legitimate interest in preserving and improv-
ing the health, comfort, and environment of the
public is furthered by limiting the. public’s exposure
to environmental smoke, even from _ tobacco-free
alternatives. This is apparent without reliance on
empirical studies detailing particular health risks
associated with breathing second-hand smoke. Apart
from its interest in the public’s physical health, the
State has “a weighty, essentially esthetic interest in
proscribing intrusive and unpleasant formats for ex-
pression” sufficient to justify a content-neutral re-
striction on expression. Members of the City Council
v. Taxpayers for Vincent, 466 U.S. 789, 805-07 (1984);
see also Berman v. Parker, 348 U.S. 26, 33 (1954)
(“The concept of the public welfare is broad and in-
clusive. The values it represents are spiritual as well
as physical, aesthetic as well as monetary. It is within
the power of the legislature to determine that the
community should be beautiful as well as healthy,
spacious as well as clean, well-balanced as well as
carefully patrolled.” (citation omitted)). As was the
* For purposes of the Colorado Clean Indoor Air Act, tobacco
is defined to include “cloves and any other plant matter or
product that is packaged for smoking.” § 25-14-203(17).
App. 16
case with maintaining the availability of draft cards
by prohibiting their destruction, see O’Brien, 391 U.S.
at 381, and conserving park property by banning
overnight camping, see Clark, 468 U.S. at 299, the
connection between limiting exposure to environmen-
tal smoke and banning indoor public smoking in
places of public accommodation is apparent without
further evidentiary support.
Finally, with regard to their contention that the
smoking ban permits no ample alternative channels
of expression, the plaintiffs’ argument fails to appre-
ciate that a general law regulating only conduct, no
matter how symbolically expressive that conduct may
be, by definition leaves unregulated the communica-
tion of any intended message by actual speech,
writing, or publication. Perhaps for this reason, the
Supreme Court has never included a separate re-
quirement for alternate channels of communication in
its standard for regulating expressive conduct, as it
has in its standard for time, place, or manner restric-
tions generally. See, e.g., Clark, 468 U.S. at 293-94.
Even with respect to time, place, or manner re-
strictions on constitutionally protected speech itself,
however, the Supreme Court has required only that
otherwise narrowly-tailored, content-neutral restric-
tions also leave open “ample alternative channels for
communication of the information,” see id. at 293, not
alternative channels with equivalent dramatic im-
pact.
Accepting that there may exist certain kinds of
expressive conduct for which actual speech could not
App. 17
provide an adequate substitute, such as, erotic danc-
ing, the Supreme Court has made clear that regula-
tions limiting the full expressive impact of such
conduct can nevertheless comport with the First
Amendment. See Erie, 529 U.S. at 301 (plurality
opinion) (although prohibiting full nudity, a law
permitting dancers wearing “pasties” and “G-strings”
leaves open ample alternative channels of expressing
the message of erotic dancing). Whether or not the
use of a fake or prop cigarette can have precisely the
same dramatic impact or convey the same degree of
realism as an actual, burning, smoke-producing ciga-
rette, it, 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. Especially in the
context of a theatrical performance, where the mes-
sage is typically conveyed by imitation rather than by
scientific demonstration, some resultant lack of real-
ism cannot be considered fatal to the regulation of
conduct.
Because it is clear, without further evidentiary
support, that the state has a significant interest in
protecting the health and welfare of its citizens and
that the welfare of those citizens would be more
exposed to harm without the smoking ban than with
it, the ban is adequately tailored for purposes of the
First Amendment to the United States Constitution.
App. 18
iil.
The guarantees of the First Amendment are
applicable to the states through the Due Process
Clause of the Fourteenth Amendment, Douglas uv.
City of Jeannette, 319 U.S. 157, 162 (1943); Marco
Lounge, Inc. v. City of Federal Heights, 625 P.2d 982,
983 n.1 (Colo. 1981), and the Supremacy Clause of
the Federal Constitution establishes their precedence
over conflicting state constitutional provisions. Like
other protections of the Bill of Rights, however, the
First Amendment limits the power of the federal and
state governments to abridge individual freedoms,
not the power of states to even further restrict gov-
ernmental impairment of those individual freedoms.
See PruneYard Shopping Ctr. v. Robins, 447 U.S. 74,
80-81 (1980); Bock v. Westminster Mall Co., 819 P.2d
55, 59 (Colo. 1991). The plaintiffs assert that article
II, section 10 of the Colorado Constitution is more
restrictive of the enactment of laws regulating ex-
pressive conduct than the First Amendment.
This court is the final arbiter of the meaning of
the Colorado Constitution, and as such, it is clearly
within its power to determine that the state consti-
tution places restrictions on legislative action even
greater than those imposed by the Federal Constitu-
tion. In the past, we have, however, generally de-
clined to construe the state constitution as imposing
such greater restrictions in the absence of textual
differences or some local circumstance or historical
justification for doing so. Simply disagreeing with the
United States Supreme Court about the meaning of
App. 19
the same or similar constitutional provisions, even
though we may have the power to do so, risks under-
mining confidence in the judicial process and the
objective interpretation of constitutional and legis-
lative enactments.
With regard to constitutional guarantees of free-
dom of speech, the text of article II, section 10
actually differs from that of the First Amendment. In
addition to prohibiting, in very similar terms, the
enactment of laws “abridging” or “impairing” the
freedom of speech, the state constitution goes on to
affirmatively guarantee the freedom of every person
“to speak, write, or publish whatsoever he will on any
subject,” without prior approval or restraint, subject
only to being held accountable for any abuse of that
liberty. See generally ‘Thomas M. Cooley & Walter
Carrington, 2 Cooley’s Constitutional Limitations 876-
98 (8th ed. 1927) (collecting numerous similar state
constitutional provisions and emphasizing their
departure from the wide-spread acceptance of prior
restraints on publication that existed at common
law). Noting this textual difference, we have at times
characterized the state constitution as _ providing
greater protection for individual freedom of expres-
sion than the Federal Constitution. See, e.g., Tattered
Cover, Inc. v. City of Thornton, 44 P.3d 1044, 1054
(Colo. 2002); Bock, 819 P.2d at 58. We have, however,
rarely, if ever, construed article Il, section 10 to cir-
cumscribe more narrowly than the First Amendment
the regulatory powers of government.
App. 20
Although we may not have initially intended to
interpret article II, section 10 as deviating from First
Amendment mandates on the issue, we have con-
tinued to demand proof by clear and convincing evi-
dence of actual malice before a private individual may
recover under the law of libel in all matters of public
interest, even after learning that the Federal Consti-
tution would extend this evidentiary requirement no
further than allegations of libel by public figures. See
Walker v. Colo. Springs Sun, Inc., 188 Colo. 86, 98,
538 P.2d 450, 457 (1975) (adopting greater protections
without reference to the Colorado Constitution and
specifically qualifying its reliance on another court
that reached the same result by noting that the other
court “relied in some part upon a state constitutional
provision”); Diversified Mgmt., Inc. v. Denver Post,
Inc., 653 P.2d 1103, 1109 (Colo. 1982) (concluding that
Walker must have been based on article II, section 10,
and conforming the Walker protections for statements
related to public issues to the federal standard for
statements about public officials). We have also
enforced the protections of article II, section 10
against certain nongovernmental entities by inter-
preting the concept of “state action” more generously
than would the Supreme Court with respect to the
First Amendment. Bock, 819 P.2d at 60. And although
we expressly rejected an invitation to follow the lead
of at least one other jurisdiction with similarly broad
protections for freedom of speech and to find ob-
scenity to be a form of constitutionally protected
speech, we nevertheless held that “obscenity” must be
limited to materials that cannot be “tolerated” by the
App. 21
community, whether or not a community standard of
“acceptance” might ultimately be found adequate to
satisfy the requirements of the First Amendment.
People v. Ford, 773 P.2d 1059, 1066 (Colo. 1989).
Finally, we have relied on the broader protections
of both sections 7 and 10 of article II to impose a more
onerous burden on law enforcement investigations
seeking specific customer purchase records from inno-
cent, third-party bookstores than would be required
by the Fourth Amendment of the Federal Consti-
tution. Tattered Cover, 44 P.3d at 1056. In doing so,
however, we made clear that we considered the
imposition of a “strict scrutiny” or “compelling need”
requirement on this kind of “search” to be justified
by the state constitution only because the purchase
records were sought specifically to discover the con-
tent or ideas contained in a particular customer’s
reading material. Jd. at 1057 n.23, 1059. Contra Pap’s
A.M. v. City of Erie, 812 A.2d 591, 612 (Pa. 2002)
(requiring strict scrutiny whenever protected expres-
sion is involved, even if the regulation is content
neutral).
With respect to content-neutral time, place, or
manner regulations and the regulation of conduct
incidentally affecting symbolic expression, by con-
trast, we have applied the four-part test of O’Brien to
uphold legislation against challenges under both the
First Amendment and article II, section 10, without
suggesting any distinction between the two. See 7250
Corp. v. Bd. of County Comm'rs, 799 P.2d 917, 924-28
(Colo. 1990) (regulation of conduct); Williams v. City
App. 22
and County of Denver, 622 P.2d 542, 546 (Colo. 1981)
(time, place, and manner regulations). And we see no
basis in the text of article II, section 10, or in local
circumstance or history, for departing from this
precedent.
IV.
Because the Colorado Clean Indoor Air Act is
content neutral and narrowly drawn to further the
state’s substantial interest in protecting the public
health and welfare, its prohibition of smoking, even
in the theatrical context, does not impermissibly
infringe on the plaintiffs’ constitutionally protected
freedom of expression, as guaranteed by either the
federal or state constitution. The judgment of the
court of appeals is therefore affirmed.
Justice Hobbs, Dissenting
I would reverse the court of appeals judgment
and hold that the smoking ban contained in the
Colorado Clean Indoor Air Act, as applied to
theatrical performances when the script of a play
calls for smoking, is unconstitutional because the-
atrical smoking constitutes expressive conduct pro-
tected by the First Amendment. Under the applicable
constitutional standard, the state must carry its
burden of demonstrating that its prohibition of ex-
pressive conduct is narrowly tailored to meet a
significant governmental interest. See Clark v. Cmty.
App. 23
for Creative Non-Violence, 468 U.S. 288, 298 (1984)
(applying the United States v. O'Brien, 391 U.S. 367,
377 (1968) test); Denver Publ’g Co. v. City of Aurora,
896 P.2d 306, 312-17, 319 (Colo. 1995).
In this case, the state has failed to meet its
burden because the smoking ban leaves the theaters
without adequate alternate channels for their expres-
sion. See Denver Publ’g, 896 P.2d at 316-17. The
majority finds the fourth O’Brien factor, requiring
that the ban be narrowly tailored, has been satisfied
because adequate alternatives exist for the expressive
conduct under Clark, 468 U.S. at 293, 296-99, and
Denver Publishing, 896 P.2d at 313-17. I respectfully
disagree.
Colorado’s smoking ban is not narrowly tailored
as applied to theatrical performances that call for
smoking because the statutory ban bars the use of
any plant matter in addition to products of the
tobacco plant, fails to take into account measures that
limit exposure to patrons of the theater to demonstra-
bly harmful tobacco products, and renders alternative
means of the protected First Amendment expression
untenable and even laughable.
A. Theatrical Smoking Is Expressive Conduct
Live drama, no less than written or spoken word,
can communicate “pungent social and political com-
mentary.” See Se. Promotions, Ltd. v. Conrad, 420
U.S. 546, 563-64 (1975) (Douglas, J., dissenting in
part and concurring in part). Thus, theater as a
App. 24
medium is afforded First Amendment protection. See
id. at 557-58 (majority opinion).
In order to determine whether smoking within
theatrical performances is conduct that is sufficiently
expressive to be protected under the First Amend-
ment, the court must determine whether (1) “an in-
tent to convey a particularized message was present”
and (2) “the likelihood was great that the message
would be understood by those who viewed it.” Texas v.
Johnson, 491 U.S. 397, 404 (1989) (quotations and
citations omitted). Smoking by itself is not expressive
conduct. NYC C.L.A.S.H., Inc. v. City of New York,
315 F. Supp. 2d 461, 476 (S.D.N.Y. 2004). However,
smoking by performers in a play when a script calls
for it meets the Johnson test.
With respect to the first prong of the Johnson
test, witnesses with extensive theatrical experience
testified before the trial court that smoking is in-
cluded by playwrights to develop character and plot.
One witness testified that “[smoking]’s at the very,
very core of character development and_story-
telling.... [I]t’s as necessary as if a character is a
soldier and is supposed to have a gun in their hand.”
The theaters point to a specific upcoming produc-
tion of tempODYSSEY, a play in which a character
initially smokes, then realizes he has died because he
can no longer smoke. The script describes this
dramatic moment:
App. 25
[CHARACTER]: | It’s over. All over.
(({CHARACTER] pulls out his smokes, still
crying, sticks one in his mouth and tries to
light up. Nothing. He inhales harder. Noth-
ing. He throws it to the ground, pulls out
another, lights up, nothing. ... He squashes
his cigarettes one by one)
[CHARACTER]: Nosmoke. No air. No breath.
No scream. No sound.
Dan Dietz, tempODYSSEY 49 (Dramatists Play
Service, Inc.) (2007).
The theaters also point to other plays that utilize
smoking as a tool for expressing character and story,
such as Who’s Afraid of Virginia Woolf? by Edward
Albee, The Graduate adapted for theater by Terry
Johnson, A Moon for the Misbegotten by Eugene
O'Neill, Mojo by Jez Butterworth, and Vieux Carre by
Tennessee Williams. For example, in Who’s Afraid of
Virginia Woolf?, a main character, George, uses the
cloud of cigarette smoke on stage as a descriptive tool:
GEORGE: I’m forty-something. (Waits for
reaction ... gets none.) Aren’t you surprised?
I mean ... don’t I look older? Doesn’t this
gray quality suggest the fifties? Don’t I sort
of fade into backgrounds ... get lost in
cigarette smoke?
Edward Albee, Who’s Afraid of Virginia Woolf? 19
(Dramatists Play Service, Inc., Rev. Ed. 2004) (1962).
App. 26
In The Graduate, the exhale of smoke shows the
character Mrs. Robinson’s power over young Ben-
jamin:
MRS. ROBINSON: ... Ill get undressed
now. Is that alright?
BENJAMIN: Sure. Fine.
({MRS. ROBINSON] stands up, takes a last
pull on her cigarette and turns to put it out.
BENJAMIN moves closer and kisses her.
When their lips part she exhales her cig-
arette smoke. She takes off her jewelry then
begins to unbutton her blouse.)
Terry Johnson, The Graduate 32 (Samuel French, Inc.
2003) (2000).
As the court of appeals points out, theatrical
smoking can be used to make political statements
about smoking itself. Curious Theater Co. v. Colo.
Dep’t of Pub. Health & Env'’t, 216 P.3d 71, 79 (Colo.
App. 2008); see David Conrue, Sam _ Holtzapple,
Warren Loy, & Chris Todd, Smoking Bloomberg,
http://www.smokingbloomberg.com (last visited Dec.
9, 2009) (a Broadway musical comedy about New
York City Mayor Michael Bloomberg’s ban on smok-
ing tobacco in public places, which has been described
as “explor{ing] the loss of personal freedoms in
modern-day America, targeting the Left, the Right,
and everyone in between.” Kenneth Jones, Smoking
Bloomberg, the Musical, Gets Transport Group Read-
ing in NYC April 22, Playbill, Apr. 22, 2009,
App. 27
http://www. playbill.com/news/article/128495-Smoking _
Bloomberg _the Musical Gets_Transport_Group_Reading
_in_NYC_April_22 (last visited Dec. 9, 2009)).
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.” See Johnson,
491 U.S. at 404. 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.
“Would Mrs. Robinson be as much of a smol-
dering volcano in “The Graduate’ if she could not wave
her cigarette so suggestively? Would George and
Martha’s living room broadsides in ‘Who’s Afraid of
Virginia Woolf?’ be equally vicious without their
boozy veil of smoke?” Kirk Johnson, Colorado Court
Rules “No Smoking” Means Exactly That, Even on
Stage, N.Y. Times, Mar. 21, 2008, available at http://
www.nytimes.com/2008/03/2 1/us/2 1smoke.html. No.
The second prong of the Johnson test requires
that at least some of the audience perceive that
theatrical smoking has some message, even if the
audience does not comprehend its intended point. See
Holloman ex rel. Holloman v. Harland, 370 F.3d 1252,
1270 (11th Cir. 2004); see also Hurley v. Irish-Am.
Gay, Lesbian & Bisexual Group of Boston, 515 U.S.
557, 569 (1995) (“[Al narrow, succinctly articulable
message is not a condition of constitutional protec-
tion,” and if First Amendment protection were so
App. 28
defined, it “would never reach the unquestionably
shielded painting of Jackson Pollock, music of Arnold
Schéenberg, or Jabberwocky verse of Lewis Carroll.”).
It is reasonable that some audience members
would perceive a message from the use of cigarette,
cigar, or pipe smoking in such plays as described
above. See Holloman, 370 F.3d at 1270. Therefore, the
Johnson test is satisfied; theatrical smoking is ex-
pressive conduct for First Amendment purposes.
Once the conduct is proven to be expressive,
O’Brien applies. See 391 U.S. at 377. Here, the
theaters agree with the state that O’Brien’s first three
factors are met: (1) Colorado’s legislature has the
authority to enact statutes, such as the smoking ban,
that promote public health; (2) the legislature’s
purpose in enacting the smoking ban, to protect the
health of the state’s citizens, § 25-14-202, C.R.S.
(2009), serves an important governmental interest;
and (3) the smoking ban is content neutral.
In this case, the majority finds the fourth O’Brien
factor, requiring that the ban be narrowly tailored,
has been met and adequate alternatives exist for the
expressive conduct under Clark, 468 U.S. at 293, 296-
99, and Denver Publishing, 896 P.2d at 313-17. I
disagree. A closer analysis of the statute and an
assessment of the available alternatives to theatrical
smoking reveal that the mayjority’s conclusion is
untenable.
App. 29
B. Colorado’s Smoking Ban Is Not Narrowly
Tailored
The Colorado Clean Indoor Air Act bans all smok-
ing of tobacco in any indoor area, including theaters.
§ 25-14-204(1) (x), C.R.S. (2009). The legislative
declaration states the statute is meant to effectuate a
balance to protect nonsmokers from involuntary expo-
sure to tobacco smoke and unwarranted govern-
mental intrusion:
The general assembly hereby finds and de-
termines that it is in the best interest of the
people of this state to protect nonsmokers
from involuntary exposure to environmental
tobacco smoke in most indoor areas open to
the public, public meetings, food service
establishments, and places of employment.
The general assembly further finds and de-
termines that a balance should be struck
between the health concerns of nonconsumers
of tobacco products and the need to minimize
unwarranted governmental intrusion into,
and regulation of, private spheres of conduct
and choice with respect to the use or nonuse
of tobacco products in certain designated
public areas and in private places. Therefore,
the general assembiy hereby declares that
the purpose of this part |] is to preserve and
improve the health, comfort, and environ-
ment of the people of this state by hmiting
exposure to tobacco smoke.
§ 25-14-202 (emphasis added). However, the statute
gocs on to broadly define “tobacco” to include any
App. 30
“plant matter or product that is packaged for smok-
ing.” § 25-14-203(17), C.R.S. (2009) (“Tobacco’ also
includes cloves and any other plant matter or product
that is packaged for smoking.”). The state has failed
in this case to prove that the ban is narrowly tailored
to allow adequate alternative means of expression for
theatrical performances.
Colorado’s ban on indoor smoking is among the
most restrictive in the country. Of the twenty-four
states that have indoor smoking bans, at least twelve
have exemptions for theatrical performances or grant
exemptions on a case-by-case basis. See Curious
Theater, 216 P.3d at 75-76. Only three states, in
addition to Colorado, ban theatrical smoking and also
ban smoking of cigarettes made from cloves, tea
leaves, or other tobacco alternatives. See, e.g., N-.J.
Rev. Stat. §§ 26:3D-57, -59 (2009); Mont. Code Ann.
§§ 50-40-103(8), -104 (2009); Wash. Rev. Code
§ 70.160.020 (2009).
Despite the especially broad ban on smoking in
Colorado, airpert smoking concessions are exempted.
§ 25-14-205(1 Xf), C.R.S. (2009). This exemption is not
justified by the stated legislative purpose of the
smoking ban and, in fact, works against this stated
purpose. See § 25-14-202 (“the purpose of [the ban] is
to preserve and improve the health, comfort, and
environment of the people of this state by limiting
exposure to tobacco smoke”). In contrast, other ex-
emptions, such as the exemption for hotel rooms,
§ 25-14-205{1)(c), clearly work towards the legis-
lature’s goal of striking a balance “between the health
App. 31
concerns of nonconsumers of tobacco products and the
need to minimize unwarranted governmental intru-
sion into, and regulation of, private spheres of con-
duct,” § 25-14-202.
To be narrowly tailored to serve a content-neutral
purpose, the state’s regulation “need not be the least
restrictive or least intrusive means of doing so.” Ward
v. Rock Against Racism, 491 U.S. 781, 798 (1989). The
state must prove that the regulation promotes a
government interest that would be achieved less
effectively absent the restriction. Jd. at 799; Denver
Publ’'g, 896 P.2d at 314, 319. Nonetheless, “[glovern-
ment may not regulate expression in such a manner
that a substantial portion of the burden on speech
does not serve to advance its goals.” Ward, 491 U.S.
at 799. “A complete ban can be narrowly tailored, but
only if each activity within the proscription’s scope is
an appropriately targeted evil.” Frisby v. Shultz, 487
U.S. 474, 485 (1988).
The state bears the burden of proving that the
smoking ban’s incidental burden on _ expressive
theatrical conduct is narrowly tailored. See Denver
Publ’g, 896 P.2d at 319. Contrary to the majority’s
contention that no specific evidentiary support is
necessary to justify the statute here, maj. op. at 11-
12, we have held that the quantum of evidence re-
quired for a statute to withstand constitutional re-
view is necessarily included within the constitutional
test. Denver Publ'g, 896 P.2d at 319 n.20; see also City
of Cincinnati v. Discovery Network, Inc., 507 U.S. 410,
416, 416 n.12 (1993) (“[S]ince the State bears the
App. 32
burden of justifying its restrictions, it must affir-
matively establish the reasonable fit we require.”).
Thus, the state must demonstrate that its prohibition
against smoking tobacco-free alternatives is narrowly
tailored to the state’s interest in the public’s health,
safety, and comfort. See Denver Publ’g, 896 P.2d at
319. The state has not carried this burden.
The state presented several exhibits to the trial
court dealing with the health consequences of smok-
ing; however, the state provided no support for the
claim that the smoking of or secondhand smoke from
tobacco-free alternatives poses a public health risk.
The state’s exhibits included the Surgeon General’s
2006 report on the health consequences of tobacco
smoke. Def.’s Ex. D. However, this highly reputable
report considered only the effects of secondhand
smoke from tobacco cigarettes and not their tobacco-
free counterparts. Id.
The state also provided three exhibits touting the
health hazards of herbal or “alternative” cigarettes.
The first is a press release from the Federal Trade
Commission (“FTC”) regarding a settlement reached
between the FTC and companies selling tobacco-free
herbal] cigarettes. Def.’s Ex. G. The FTC alleged that
the companies “falsely implied that smoking [] her-
bal cigarettes did not pose the health risks associated
with smoking tobacco cigarettes.” Jd. In response to
this claim, the companies agreed to disclose that
herbal cigarettes are dangerous to health in future
advertising. Jd. Not only did this news release not
cite any studies or scientific information relating to
App. 33
the health risks of herbal cigarettes, but a settlement
agreement can hardly be used as evidence supporting
the government’s position that the secondhand smoke
from tobacco-free alternatives poses a risk to the
public health.’
The second exhibit is from the website http://
www.yourhealthconnection.com and relies heavily on
the FTC’s settlement order; however, the exhibit cites
no scientific studies in support of the state’s claims.
Def.’s Ex. F.
The final exhibit dealing with herbal cigarettes is
a briefing by an advocacy group, ASH Scotland, to the
Health Minister of Scotland advocating the inclusion
of non-tobacco products in legislation banning envi-
ronmental tobacco smoke. Def.’s Fx. H. ASH Scotland
admits in its briefing that peer-reviewed, published
evidence on non-tobacco cigarettes is sparse, but goes
on to rely on a 1990 Australian study that found some
similarities between tobacco and non-tobacco cig-
arettes. Id. However, evidence of non-tobacco prod-
ucts’ connection to adverse public health effects is
lacking.
The majority asserts that “there can simply be no
question but that the state’s legitimate interest in
preserving and improving the health, comfort, and
environment of the public is furthered by limiting the
' The press release included a disclaimer that “[a] consent
agreement is for settlement purposes only and does not consti-
tute an admission of a law violation.” Jd.
App. 34
public’s exposure to environmental smoke, even from
tobacco-free alternatives.” Maj. op. at 16. Dispensing
with any requirement for a factual showing, the
majority posits that the state has an “aesthetic
interest” in banning the on-stage smoking of non-
tobacco products, even “without reliance on empirical
studies detailing particular health risks associated
with breathing second-hand smoke.” Jd. at 16-17. The
majority goes on to state that the legitimacy of this
aesthetic interest is “apparent.” Jd. at 17.
However, the state in this case has not claimed
an aesthetic interest in banning actors from smoking
non-tobacco plant matter; rather, it contends that
smoking the available alternatives adversely affects
the public’s health, safety, and comfort. In my view, in
the absence of evidentiary support, the majority’s use
of aesthetic grounds to totally ban on-stage smoking
constitutes censorship in violation of the First
Amendment. What other aspects of Mrs. Robinson’s
dress, speech, or actions might be considered un-
acceptable on aesthetic grounds? See Se. Promotions,
420 U.S. at 563 (Douglas, J., dissenting in part and
concurring in part) (“As soon as [the government is]
permitted to pick and choose ... between those pro-
ductions which are ‘clean and healthful and uplifting’
in content and those which are not, the path is
cleared for a regime of censorship under which full
voice can be given only to those views which meet
with the approval of the powers that be.”).
Our cases require evidentiary support to justify
the regulation of expressive conduct. See Denver
App. 35
Publ’g, 896 P.2d at 319. This requirement protects
First Amendment expression by imposing a burden of
proof involving a convincing factual presentation. The
authority cited by the majority does not support the
claim that an aesthetic interest, by itself, is sufficient
to justify a ban on expressive conduct. Members of the
City Council v. Taxpayers for Vincent, 466 U.S. 789,
805 (1984), stands only for the proposition that a
state has a legitimate interest in advancing aesthetic
values. Such an interest does not relieve the state
from proving that its regulation is narrowly tailored
to that interest. The majority also relies on Berman v.
Parker, 348 U.S. 26 (1954), in which the U.S. Su-
preme Court evaluated the state’s interest in the
public welfare in the completely unrelated context of
an eminent domain proceeding.
Taken together, the state’s exhibits provide only
conjectural support for its claim that the ban of
tobacco-free cigarettes in theatrical performances is
narrowly tailored to the government’s interest in
protecting the public. Thus, I would hold that the
state has not met its burden of proving that any plant
matter in addition to tobacco “is an appropriately
targeted evil.” See Frisby, 487 U.S. at 485. Moreover,
Colorado’s smoking ban is not narrowly tailored
because the burden it places on theatrical smoking
does not further the state’s goal of “protect[ing] non-
smokers from involuntary exposure to environmental
tobacco smoke.” § 25-14-202 (emphasis added).
The theaters proved to the trial court that no
audience member would be forced involuntarily to
App. 36
attend a play or inhale secondhand smoke. Patrons of
the theaters typically buy tickets in advance rather
than showing up on a given night, and adver-
tisements for the plays generally make clear when
smoking will occur on stage. The theaters offer warn-
ings about the smoking at the time the ticket is sold
and directly prior to the performance, and they offer
refunds to any person choosing to forego viewing the
play after being notified of the theatrical smoking.
Additionally, when advertising to the acting com-
munity for roles that may require smoking on stage,
directors disclose this requirement, leaving it up to
the actor to decide whether or not to audition.’
The argument that such a scheme “forcles] [citi-
zens] to choose between their comfort or health, on
the one hand, and the benefits offered by regulated,
public accommodations, on the other,” maj. op. at 16,
fails to account for the unique nature of theatrical
productions. Exposure to smoke during theatrical
productions is by performers engaged in expression,
while exposure to smoke from fellow patrons at places
of public accommodation involves no expression
whatsoever.
Moreover, exposure to smoke during theatrical
performances is limited because the onstage smoking
takes place at a distance from the audience and
* The theaters contend that these practices were common
prior to the smoking ban and are how they would manage the-
atrical smoking in the future.
App. 37
scripts usually require the smoking of one cigarette or
less.. A ban on smoking by theater patrons would
strike the balance the legislature intended between
protecting public health and avoiding overly intrusive
governmental regulation, see § 25-14-202, while al-
lowing expressive conduct by the actors in theatrical
performances.
In Ward, the U.S. Supreme Court held New York
City’s requirement that performers at an outdoor
amphitheatre in Central Park use the city’s sound
equipment and the city’s sound technician to be
narrowly tailored to the city’s substantial interest in
noise control. 491 U.S. at 800. The sponsors of a rock
concert contended that this requirement “targets
more than the exact source of the ‘evil’ it seeks to
remedy.” /d. at 801. The Court disagreed. /d. at 801-
02.
However, the Court distinguished the following
situation from the one at issue in that case: “If the
city’s regulatory scheme had a substantial deleterious
effect on the ability of bandshell performers to
achieve the quality of sound they desired, [the rock
concert sponsor]’s concerns would have considerable
force.” Id. at 801. Thus, if the quality of a perfor-
mance is_ substantially affected by the _ state’s
* The theaters’ witnesses testified before the trial court that
the maximum amount of smoking for any play was fifteen to
twenty minutes spread out over two hours.
App. 38
regulation, the argument that the regulation is nar-
rowly tailored loses credibility.
In this case, the state’s ban on theatrical smoking
presents the situation the Court distinguished in
Ward. Here, the smoking ban has a substantial effect
on the ability of the theaters to achieve the intended
effect of theatrical performances that include smok-
ing, so much so that the theaters would choose not to
present those performances where smoking was
integral to the characters or plot.
The theaters demonstrated that they would be
contractually precluded from presenting theatrical
performances that include smoking where the play-
wrights require strict adherence to the script. This
chilling effect on theatrical expression is unaccept-
able under the First Amendment. Permitting smoking
in theatrical performances would achieve the govern-
ment’s interest in public health no less effectively
because citizens could choose to forego plays that
include smoking, actors could refrain from audi-
tioning for smoking roles if they prefer, and, in any
event, the exposure to secondhand smoke from the-
atrical smoking is minimal.
The substantial effect on the ability of the the-
aters to present some plays at all and, otherwise, on
their ability to present authentic theatrical perfor-
mances according to the playwrights’ intent demon-
strate that Colorado’s smoking ban “targets more
than the exact source of the ‘evil’ it seeks to remedy.”
See Frisby, 487 U.S. at 485.
App. 39
Other states have avoided a First Amendment
violation by narrowly tailoring their smoking bans to
ensure that expressive conduct during theatrical
performances is not prohibited or by allowing alter-
natives to smoking tobacco. Colorado’s ban does not
exempt theaters, and it prohibits the smoking of
tobacco alternatives, such as cloves or tea leaves,
which are often used instead of tobacco products
during theatrical performances.* See § 25-14-203(17);
see also Zachary Pincus-Roth, No Smoking in the
Theater, Especially Onstage, N.Y. Times, Jan. 28,
2007, available at http://www.nytimes.com/2007/01V/
28/theater/28pinc.html?_r=1&scp=1&sq=pincus-roth®
20n0%20smoking&st=cse.
In contradiction to Colorado’s theatrical smoking
ban is the unjustified exemption for airport smoking
concessions. See § 25-14-205(1)\(f). There is no con-
stitutional right at stake in the airport context, yet
smoking is allowed. See td.; see also NYC C.L.A.S.H.,
315 F. Supp. 2d at 478-79 (holding that smoking in a
public indoor establishment such as a bar or restau-
rant does not constitute expressive speech under the
First Amendment because a smoker’s motivation in
that context is generally not to convey a message).
‘ Actors that do not smoke often prefer tobacco-free cig-
arettes because they lack the addicting chemical nicotine, and
the theaters testified that they also use tobacco-free cigarettes
for the comfort of their patrons
App. 40
Despite the majority’s confusion about whether
an analysis of alternate channels of communication is
appropriate when the law in question regulates only
conduct, maj. op. at 17, the Supreme Court has ex-
pressly applied the alternate channels of communi-
cation analysis to cases involving expressive conduct.
Clark, 468 U.S. at 295 (assessing the alternatives to
the symbolic expression of individuals sleeping over-
night in a national park to demonstrate the plight of
homelessness); Ward, 491 U.S. at 802 (applying the
alternatives analysis to a city regulation that allowed
city control of a rock concert’s sound mix). Where
sufficient alternatives to the prohibited expressive
conduct are available, the regulation can withstand
constitutional scrutiny. See Denver Publ’g, 896 P.2d at
316-17.
The majority opinion fails to appreciate the com-
municative nature of smoking during theatrical per-
formances. It holds that a fake or prop cigarette “is
capable of amply communicating to an audience an
intended message.” Maj. op. at 19. Talcum cigarettes
work by the actor blowing into the cigarette to cause
a puff of talcum powder to be excreted. There is some
debate whether talcum cigarettes can be used for
more than the first puff of smoke. In any event,
talcum cigarettes do not allow the actor to exhale
smoke, since no smoke is actually inhaled. Prop
cigarettes emit no smoke at all.
A single puff of talcum powder, or a prop cig-
arette with a reflective tip or light placed at the tip,
can hardly depict the “boozy veil of smoke” necessary
App. 41
to Who’s Afraid of Virginia Woolf?. See Kirk Johnson,
Colorado Court Rules “No Smoking” Means Exactly
That, Even on Stage, N.Y. Times, Mar. 21, 2008,
available at http://www.nytimes.com/2008/03/2 1/us/
Z2ismoke.html. Neither prop nor talcum cigarettes
allow an actor to dramatically exhale a puff of smoke,
as Mrs. Robinson does in The Graduate. One of the
witnesses at trial testified that the audience had
responded to a fake cigarette with laughter, though
the author intended no comedy.
The ability of a theatrical performance to com-
municate a plot, depict characters, and evoke an era
according to the playwright’s intent is severely
limited by the inability to light a cigarette, pipe, or
cigar on stage. Colorado’s smoking ban lacks an
exemption for the expressive conduct of theatrical
smoking, allows no adequate alternative to theatrical
smoking, and prohibits the smoking of tobacco al-
ternatives. Thus, it is not narrowly tailored to meet
the state’s legitimate interest in protection of the
public’s health, safety, and comfort.
Accordingly, I respectfully dissent.
App. 42
COLORADO COURT OF APPEALS
Court of Appeals No.: 06CA2260
City and County of Denver District Court
No. O6CV 10876
Honorable Michael A. Martinez, Judge
Curious Theater Company, a Colorado non-profit
company; Paragon Theatre, a Colorado non-profit
company; and Theatre13, Inc., a Colorado non-profit
company,
Plaintiffs-Appellants,
v.
Colorado Department of Public Health and
Environment; and Dennis F. Ellis,
Executive Director,
Defendants-Appellees.
JUDGMENT AFFIRMED
Division II
Opinion by: JUDGE BERNARD
Rothenberg and Carparelli, JJ., concur
Announced: March 20, 2008
Holland & Hart, LLP, A. Bruce Jones, Daniel R. Pabon,
Denver, Colorado, for Plaintiffs-Appellants
John W. Suthers, Attorney General, Robert C.
Douglas, Jr., First Assistant Attorney General, Alisa
Campbell, Assistant Attorney General, Lisa Brenner
App. 43
Freimann, Assistant Attorney General, Denver,
Colorado, for Defendants-Appellees
Levine, Sullivan, Koch, & Schulz, LLP, Steven D.
Zansberg, Denver, Colorado; Davis, Wright, Tremaine,
L.L.P., Bruce E. H. Johnson, John Sherman, Seattle,
Washington, for Amicus Curiae Theatre Communica-
tions Group
Plaintiffs, Curious Theatre Company, Paragon
Theatre, and Theatrel3, Inc. (collectively, the Thea-
ters), appeal the judgment denying their request for a
preliminary injunction and a declaratory judgment
against the enforcement of the Colorado Clean Indoor
Air Act, sections 25-14-201 to -209, C.R.S. 2007 (the
Smoking Ban), by the Colorado Department of Health
and Environment and its Executive Director, Dennis
Ellis (collectively, the Health Department), as applied
to theatrical productions.
This case involves the question whether the
Smoking Ban violates the Theaters’ rights under the
First Amendment and Colorado Constitution article
II, section 10 because it precludes conduct — namely,
smoking — that may be presented as part of certain
theatrical productions. Because we conclude the
Theaters’ constitutional rights are not violated by the
application of the Smoking Ban to them, we affirm.
I. Background
The Smoking Ban became effective on July 1,
2006. § 25-14-201, C.R.S. 2007; Ch. 22, sec. 9, 2006
App. 44
Colo. Sess. Laws 63. It prohibits smoking “in any
indoor area, including .. . [aJny place of employment
that is not exempted ... [and] [theaters.” § 25-14-
204(1)k\(T), (x), C.R.S. 2007. “Place of employment”
refers to “any indoor area or portion thereof under the
control of an employer in which employees of the
employer perform services for, or on behalf of, the
employer.” § 25-14-203(12), C.R.S. 2007.
The Smoking Ban covers all smoking. not just
cigarette smoking. § 25-14-203(16), C.R.S. 2007
(“Smoking’ means the burning of a lighted cigarette,
cigar, pipe, or any other matter or substance that
contains tobacco.”); § 25-14-203(17), C.R.S. 2007
(“Tobacco’ also includes cloves and any other plant
matter or product that is packaged for smoking.”).
The facial constitutionality of the Smoking Ban
was unsuccessfully challenged on due process and
equal protection grounds in Coalition for Equal
Rights, Inc. v. Ritter, F.3d ___, __. (10th Cir. No.
06-1511, Jan. 29, 2008).
In October 2006, the Theaters sought a judgment
declaring the Smoking Ban unconstitutional under
both the federal and_ state constitutions and
prohibiting its enforcement because they wished to
present plays in which characters smoked. The trial
court denied their request after the Theaters set forth
their evidence, but before the Health Department
presented any evidence. The court ruled that
“smoking, standing alone, including in the theatrical
context” did not amount to “expressive conduct such
App. 45
that First Amendment guarantees, and protections
could be extended to it” and that the Theaters had
not established that they had “a reasonable likelihood
of success on the merits at trial.”
Il. Smoking Bans
Over the past several decades, there has been
increasing evidence of the dangers of cigarette smok-
ing and second-hand smoke. See generally NYC
C.L.A.S.H., Inc. v. City of New York, 315 F. Supp. 2d
461, 476 (S.D.N.Y. 2004) (discussion of research
detailing the harmful effects of smoking and subse-
quent regulations). We recognize that the legislature
created the Smoking Ban to
protect nonsmokers from involuntary expo-
sure to environmental tobacco smoke in most
indoor areas open to the public, public
meetings, food service establishments, and
places of employment. The general assembly
further finds and determines that a balance
should be struck between the health con-
cerns of nonconsumers of tobacco products
and the need to minimize unwarranted
governmental intrusion into, and regulation
of, private spheres of conduct and choice with
respect to the use or nonuse of tobacco
products in certain designated public areas
and in private places.... [T]he purpose of
this |Smoking Ban]... is to preserve and
improve the health, comfort, and environment
App. 46
of the people of this state by limiting
exposure to tobacco smoke.
§ 25-14-202, C.R.S. 2007.
In the 1970s, states, such as Arizona and
Minnesota, enacted the first state-wide smoking
bans. See Jordan Raphael, The Calabasas Smoking
Ban: A Local Ordinance Points the Way for the Future
of Environmental Tobacco Smoke Regulation, 80 S.
Cal. L. Rev. 393, 399 (Jan. 2007). As the anti-smoking
movement advanced, local ordinances predominated.
Id. at 400. Such statutes and ordinances typically
prohibit smoking indoors, but they may also forbid
smoking in a few specified outdoor areas. See
Calabasas, Cal., Mun. Code § 8.12.010 to 8.12.080
(2007).
More recently, a large number of states have
enacted state-wide smoking bans, relying on their
traditional police power to provide for the public
health and safety as the authority to enact such
legislation. See In re Moyer, 35 Colo. 159, 222, 85 P.
190, 211 (1904) (the legislature has a duty to protect
the state’s citizens).
The United States Supreme Court has recognized
that the power to pass such laws
extends ... to the protection of the lives,
limbs, health, comfort, and quiet of all
persons, and the protection of all property
within the State; ... and persons and
property are subject to all kinds of restraints
and burdens in order to secure the general
App. 47
comfort, health, and prosperity of the State.
Of the perfect right of the legislature to do
this no question ever was, or, upon acknow!l-
edged general principles, ever can be made,
so far as natural persons are concerned.
Slaughter-House Cases, 83 U.S. 36, 62 (1872) (quoting
Thorpe v. Rutland & Burlington R.R. Co., 27 Vt. 140,
149 (1854)); see also Barnes v. Glen Theatre, Inc., 501
U.S. 560, 569 (1991).
Smoking bans have been uniformly upheld
against a variety of challenges to their validity. See
Elliott v. Bd. of Weld County Comm’rs, 796 P.2d 71
(Colo. App. 1990) (due process, equal protection); see
also City of Tucson v. Grezaffi, 23 P.3d 675 (Ariz. Ct.
App. 2001) (Fifth Amendment taking, prohibition on
special legislation, freedom of association, equal
protection, government’s ability to regulate health
matters); Lexington Fayette County Food & Beverage
Ass’n v. Lexington-Fayette Urban County Govt, 131
S.W.3d 745 (Ky. 2004) (impermissible government
interference with business, vagueness); Traditions
Tavern v. City of Columbus, 870 N.E.2d 1197 (Ohio
Ct. App. 2006) (vagueness, substantive due process,
equal protection); see also Thiel v. Nelson, 422
F. Supp. 2d 1024, 1029-30 (W.D. Wis. 2006) (due
process, equal protection challenges to smoking ban
in prisons) (collecting cases).
Currently, more than half the states and the
District of Columbia have some form of smoking ban.
See Ariz. Rev. Stat. § 36-601.01 (2007); Cal. Lab. Code
§ 6404.5 (2007); §§ 25-14-201 to -209, C.R.S. 2007:
App. 48
Conn. Gen. Stat. § 19a-342 (2007); Del. Code Ann. tit.
16, §§ 2901 to 2908 (2007); D.C. Code §§ 7-1701 to
-1710 (2007); Fla. Stat. §§ 386.201 to .2125 (2007);
Haw. Rev. Stat. §§ 328J-1 to -17 (2007); Idaho Code
Ann. §§ 39-5501 to -5511 (2007); 410 Ill. Comp. Stat.
82/1 to /75 (2007); La. Rev. Stat. Ann. §§ 40:1300.251
to .263 (2007); Me. Rev. Stat. Ann. tit. 22, §§ 1541 to
1548 (2007); Md. Code Ann., Health-Gen. §§ 24-501 to
-511 (2007); Mass. Gen. Laws ch. 270, § 22 (2007);
Minn. Stat. § 144.414 (2007); Mont. Code Ann. §§ 50-
40-101 to -115 (2007); Nev. Rev. Stat. §§ 202.2485 to
.2492 (2007); N.H. Rev. Stat. Ann. §§ 155:64 to :77
(2007); N.J. Stat. Ann. §§ 26:3D-55 to -64 (2007); N.M.
Stat. §§ 24-16-1 to -4 (as amended by H.B. 283,
effective June 15, 2007); N.Y. Pub. Health Law
§ 1399-n to -x (2007); N.D. Cent. Code §§ 23-12-09 to -
11 (2007); Ohio Rev. Code Ann. §§ 3794.01 to .09
(2007); Or. Rev. Stat. §§ 433.835 to .875 (2007); R_I.
Gen. Laws § 23-20.10-1 to -16 (2007); S.D. Codified
Laws § 22-36-2 (2007); Utah Code Ann. §§ 26-38-1 to -
9 (2007); Vt. Stat. Ann. tit. 18, §§ 1741 to 1746 (2007);
Wash. Rev. Code §§ 70.160.010 to .100 (2007).
Smoking bans are not exclusive to the United
States, but are becoming more prevalent throughout
the world. See Jessica Niezgoda, Note, Kicking
Ash(trays): Smoking Bans in Public Workplaces, Bars,
and Restaurants Curreni Laws, Constitutional Chal-
lenges, and Proposed Federal Regulation, 33 J. Legis.
99, 100-01 (2006); Eric A. Feldman, The Culture of
Legal Change: A Case Study of Tobacco Control in
App. 49
Twenty-First Century Japan, 27 Mich. J. Intl L. 743,
784-86 (2006).
Nevertheless, some jurisdictions have included
exceptions for theatrical performances. See Ariz. Rev.
Stat. § 36-601.01(B\7) (2007) (ban not applicable to
“la] theatrical performance upon a stage or in the
course of a film or television production if the
smoking is part of the performance or production”);
Cal. Lab. Code § 6404.5(d)(9) (2007) (ban does not
aprly to “[t}heatrical production sites, if smoking is
an integral part of the story in the theatrical
production”); D.C. Code § 7-1708(3) (2007) (does not
prohibit smoking “[u]Jpon the stage by performers
during the course of any theatrical performance if
smoking is part of the theatrical production”); Idaho
Code Ann. § 39-5503(1)(e) (2007) (ban does not apply
to “|t|heatrical production sites, if smoking is an
integral part of the story in the theatrical produc-
tion”); Me. Rev. Stat. Ann. tit. 22, § 1542(2)(B) (2007)
(“Smoking is not prohibited in theaters ... if the
smoking is solely by a performer and the smoking is
part of the performance.”); Mass. Gen. Laws ch. 270,
§ 22(c\6) (2007) (theatrical performer may smoke
during a performance if permission first granted by
appropriate local authorities); Minn. Stat. § 144.4167(9)
(2007) (smoking permitted “as part of a theatrical
performance” as long as advance notice of smoking is
given to theater patrons); N.M. Stat. § 24-16-4(N) (as
amended by H.B. 283) (smoking is permitted on a
“theatrical stage ... when it is necessary for per-
formers to smoke as part of the production”); R.I.
App. 50
Gen. Laws § 23-20.10-6(b) (2007) (“this chapter shall
not apply to any stage performance provided that
smoking is part of a theatrical production”); N.Y.C.
Admin. Code § 17-503(a)(8) (2007) (“except that smok-
ing may be part of a theatrical production”); cf. Haw.
Rev. Stat. § 328J-7(6) (2007) (exception only covers
areas where “smoking is part of a production being
filmed”). At least one state’s smoking ban does not
encompass theaters by definition. Nev. Rev. Stat.
§ 202.2491 (2007). Some jurisdictions grant exemp-
tions on a case-by-case basis. N.Y. Pub. Health Law
§ 1399-u (2007).
The Colorado legislature, along with those of
nineteen other states, has rejected a proposed amend-
ment that would have created an exception to the
Smoking Ban for theatrical productions. Second
Reading of H.B. 1175, 65th Gen. Assemb., 2d Sess.
(floor debate on Amendment L.030, Feb. 10, 2006).
The legislature included other exceptions, such as an
airport smoking area. § 25-14-205(1\f), C.R.S. 2007.
Enforcement of the Smoking Ban is assigned to the
Health Department. § 25-1-109(1)(a), C-R.S. 2007.
Ill. Standard of Review
The purpose of a preliminary injunction is to
protect against irreparable injury and to maintain a
trial court’s ability to render a “meaningful decision”
after a trial on the merits. Bloom v. Nat'l Collegiate
Athletic Ass’n, 93 P.3d 621, 623 (Colo. App. 2004).
Requests for preliminary injunctions to prevent the
App. 51
enforcement of criminal statutes are “extraordinary,”
and are “not justified except in the most exceptional
circumstances.” Rathke v. MacFarlane, 648 P.2d 648,
653 (Colo. 1982). The party seeking to enjoin the
enforcement of a criminal law must, as a threshold
matter, make a “clear showing that injunctive relief is
necessary to protect existing legitimate property
rights or fundamental constitutional rights.” Jd.
Generally, statutes passed to protect the public’s
health, safety, and welfare, are presumed to be rea-
sonable. U.S. Disposal Sys., Inc. v. City of Northglenn,
193 Colo. 277, 281, 567 P.2d 365, 367 (1977); Risen v.
Cucharas Sanitation & Water Dist., 32 P.3d 596, 601
(Colo. App. 2001). However, in certain situations
involving First Amendment rights, statutes are pre-
sumed to be unconstitutional, and the burden is upon
the government to establish the statute’s constitu-
tionality. See People ex rel. Tooley v. Seven Thirty-Five
E. Colfax, Inc., 697 P.2d 348, 370 (Colo. 1985) (system
of prior restraint).
Here, the Theaters only argue that the Smoking
Ban is unconstitutional as applied to them, and that
it should only be invalidated in future similar appli-
cations. See generally People v. Shepard, 983 P.2d 1, 3
n.3 (Colo. 1999). Thus, they bear the initial burden of
making a threshold showing that the Smoking Ban
adversely affects their fundamental constitutional
rights under the First Amendment and Colorado
Constitution article II, section 10.
App. 52
The Theaters must, therefore, show that smoking
in a play is expressive conduct protected by the First
Amendment, and that the Smoking Ban incidentally
affects this expressive conduct. See Texas v. Johnson,
491 U.S. 397, 403 (1989) (as-applied challenge);
Denver Publ’g Co. v. City of Aurora, 896 P.2d 306,
318-19 (Colo. 1995). The Theaters must “advance
more than a mere ‘plausible contention’ that [their]
conduct is expressive.” Church of Am. Knights of Ku
Klux Klan v. Kerik, 356 F.3d 197, 205 (2d Cir. 2004)
(citing Clark v. Cmty. for Creative Non-Violence, 468
U.S. 288, 293 n.5 (1984)).
As the Supreme Court explained in Clark, 468
U.S. at 293 n.5:
Although it is common to place the burden
upon the Government to justify impinge-
ments on First Amendment interests, it is
the obligation of the person desiring to
engage in assertedly expressive conduct to
demonstrate that the First Amendment even
applies. To hold otherwise would be to create
a rule that all conduct is presumptively
expressive. In the absence of a showing that
such a rule is necessary to protect vital First
Amendment interests, we decline to deviate
from the general rule that one seeking relief
bears the burden of demonstrating that he is
entitled to it.
Whether the Theaters have made such a thresh-
old showing here is a question of law we review de
novo. Lewis v. Colo. Rockies Baseball Club, Ltd., 941
App. 53
P.2d 266, 271 (Colo. 1997); Holliday v. Reg’l Transp.
Dist., 43 P.3d 676, 681 (Colo. App. 2001).
If the Theaters establish that smoking in a play
is expressive conduct, the burden then shifts to the
state to show that the Smoking Ban “furthers a
sufficiently important governmental interest” under
7250 Corp. v. Bd. of County Comm’rs, 799 P.2d 917,
924 (Colo. 1990), which adopted the four-factor test
set forth in United States v. O’Brien, 391 U.S. 367,
377 (1968) (as-applied challenge). See Essence, Inc. v.
City of Federal Heights, 285 F.3d 1272, 1283-84 (10th
Cir. 2002); Denver Publ’g Co., 896 P.2d at 319.
Courts normally employ two forms of scrutiny
when evaluating whether statutes or ordinances
violate the First Amendment. Courts subject statutes
and ordinances that “suppress, disadvantage, or
impose differential burdens upon speech because of
its content” to the exacting standard of strict scrutiny
to determine their constitutionality. Turner Broad.
Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994). To survive
this level of scrutiny, the government must show that
the law is “supported by a compelling governmental
interest and is narrowly drawn to achieve that inter-
est by the least restrictive means possible.” Sanger v.
Dennis, 148 P.3d 404, 415 (Colo. App. 2006).
Content-neutral statutes or ordinances are sub-
ject to an intermediate level of scrutiny, “because
in most cases they pose a less substantial risk of
excising certain ideas or viewpoints from the public
dialogue.” Turner Broad., 512 U.S. at 642; see Ward v.
App. 54
Rock Against Racism, 491 U.S. 781, 798 n.6 (1989);
Johnson, 491 U.S. at 403 (“If the State’s regulation [of
expressive conduct] is not related to expression, then
the less stringent standard we announced in United
States v. O’Brien for regulations of noncommunicative
conduct controls.”); Porter v. Bowen, 496 F.3d 1009,
1021 (9th Cir. 2007).
Thus, we must decide the following issues:
¢ Whether the Theaters have established
that smoking by an actor in the course of
a theatrical performance is expressive
conduct for the purposes of the First
Amendment, and, if so, whether this ex-
pressive conduct is incidentally bur-
dened by the Smoking Ban?
¢ If so, whether the Smoking Ban is
content neutral and its constitutionality
under the First Amendment is therefore
evaluated under the intermediate scru-
tiny of the four-part O’Brien test, as
opposed to the more exacting strict
scrutiny test?
¢ If so, whether the Smoking Ban is con-
stitutional for purposes of the First
Amendment under the O’Brien test?
¢ If so, because the Colorado Constitution
provides greater protection of speech
than the First Amendment in certain
situations, does the Smoking Ban never-
theless violate Colorado Constitution
App. 55
article II, section 10 as applied to these
circumstances?
IV. Analysis
The First Amendment of the United States Con-
stitution provides that “Congress shall make no law
.. abridging the freedom of speech.”
Article II, section 10 of the Colorado Constitution
states:
No law shall be passed impairing the
freedom of speech; every person shall be free
to speak, write or publish whatever he will
on any subject, being responsible for all
abuse of that liberty; and in all suits and
prosecutions for libel the truth thereof may
be given in evidence, and the jury, under the
direction of the court, shall determine the
law and the fact.
A. First Amendment
1. General Protections of Theatrical Per-
formances
We conclude that the Theaters established that
smoking by an actor as part of a theatrical production
is expressive conduct for purposes of the First Amend-
ment.
Plays and theatrical productions receive substan-
tial and necessary constitutional protection because
of their important communicative content.
App. 56
Long before the advent of printing and
motion pictures the theater constituted “a
significant medium for the communication of
ideas” which affected “public attitudes and
behavior in a variety of ways, ranging from
direct espousal of a political or social doc-
trine to the subtle shaping of thought which
characterizes all artistic expression.”
Barrows v. Mun. Court, 1 Cal. 3d 821, 824, 464 P.2d
483, 485 (1970) (quoting Joseph Burstyn, Inc. v.
Wilson, 343 U.S. 495, 501 (1952)).
“(T]he Constitution protects the right to receive
information and ideas.” Stanley v. Georgia, 394 U.S.
557, 564 (1969).
A municipal theater is no less a forum for the
expression of ideas than is a public park, or a
sidewalk; the forms of expression adopted in
such a forum may be more expensive and
more structured than those typically seen in
our parks and streets, but they are surely no
less entitled to the shelter of the First
Amendment.
Southeastern Promotions, Ltd. v. Conrad, 420 U.S.
546, 563 (1975) (Douglas, J., concurring) (Conrad).
The nonverbal elements in a theatrical pro-
duction are the very ones which distinguish
this form of art from literature. It may be
true that First Amendment protections vary
in different media, but a musical play must
be deemed a unitary form of constitutionally
protected expression.
App. 57
Southeastern Promotions, Ltd. v. City of Atlanta, 334
F. Supp. 634, 639 (N.D. Ga. 1971).
“Each medium of expression ... must be assessed
for First Amendment purposes by standards suited to
it, for each may present its own problems.” Conrad,
420 U.S. at 557 (majority opinion). Theaters are
“public forums designed for and dedicated to expres-
sive activities.” 7d. at 555. “By its nature, theater
usually is the acting out — or singing out — of the
written word, and frequently mixes speech with live
action or conduct.” Jd. at 557-58. However, the Su-
preme Court has rejected “the view that an appar-
ently limitless variety of conduct can be labeled
‘speech’ whenever the person engaging in the conduct
intends thereby to express an idea.” O’Brien, 391 U.S.
at 376.
2. Expressive Conduct in Theatrica! Per-
formances
Conduct can be “sufficiently imbued with ele-
ments of communication to fall within the scope of
the First and Fourteenth Amendments.” Johnson,
491 U.S. at 404 (quoting Spence v. Washington, 418
U.S. 405, 409 (1974)); see also O’Brien, 391 U.S. at
376. To determine if conduct is expressive, we look to
whether (1) “[aln intent to convey a particularized
message was present” and (2) “the likelihood was
great that the message would be understood by those
who viewed it.” Johnson, 491 U.S. at 404 (quoting
Spence, 418 U.S. at 410-11). Hence, we analyze the
App. 58
conduct from the perspective of both the actor and the
viewer.
“The |-Johnson] threshold [for the first prong of
the test] is not a difficult one, as ‘a narrow, succinctly
articulable message is not a condition of constitu-
tional protection.’” Blau v. Fort Thomas Pub. Sch.
Dist., 401 F.3d 381, 388 (6th Cir. 2005) (quoting
Hurley v. Irish-American Gay, Lesbian & Bisexual
Group, 515 U.S. 557, 569 (1995)) (concluding a school
dress code did not violate the First Amendment under
Johnson).
To satisfy the second prong, the likelihood must
be great that at least some of those who viewed the
conduct understood there was some message, even
where a number of viewers did not comprehend its
intended point. Egolf v. Witmer, 421 F. Supp. 2d 858,
868 (E.D. Pa. 2006).
The Supreme Court has found many instances
where conduct falls under First Amendment protec-
tions. E.g., Hurley, 515 U.S. 557 (marching in a
parade); United States v. Eichman, 496 U.S. 310
(1990) (burning the flag of the United States); Cohen
v. California, 403 U.S. 15 (1971) (wearing a jacket dis-
playing vulgar language in protest of war); Stanley,
394 U.S. 557 (obtaining or possessing obscene mate-
rials in one’s home); Tinker v. Des Moines Indep.
Cmty. Sch. Dist., 393 U.S. 503 (1969) (wearing an
armband in protest of war); W. Va. State Bd. of Educ.
v. Barnette, 319 U.S. 624 (1943) (saluting the flag or
not saluting the flag). These cases provide guidance
App. 59
as to what constitutes expressive conduct and the
protections it is afforded.
Smoking, by itself, is not sufficiently expressive
to qualify for First Amendment protection. See Rohde
v. Cily of Austin, 124 Fed. Appx. 246 (5th Cir. 2005)
(unpublished per curiam); NYC C.L.A.S.H., 315
F. Supp. 2d at 476; Taverns for Tots, Inc. v. City of
Toledo, 341 F. Supp. 2d 844, 853 (N.D. Ohio 2004).
Nevertheless, we are not persuaded by the Health
Department’s reliance on Arcara v. Cloud Books, Inc.,
478 U.S. 697, 704-05 (1986), for the proposition that
smoking in the course of a play cannot be expressive
conduct. The activity in Arcara was prostitution and
open sexual conduct. It was not communicative, even
from the perspective of the person prosecuted.
Contrary to the Health Department’s contention,
smoking may be used to give insight into a char-
acter’s personality, set the mood, or evoke an era.
A play might use smoking to communicate specific
plot twists, such as a character being diagnosed with
cancer after a lifetime of smoking. Smoking could
be used to make political statements about smoking
itself. k.g., David Cornue, Sam Holtzapple, Warren
Loy, 86 Chris Todd, Smoking Bloomberg (2006)
(Broadway play).
The Theaters list a number of plays that require
smoking as critical elements of their performance,
including such classics as Edward Albee’s Who’s
Afratd of Virginia Woolf?, Jez. Butterworth’s Mojo,
John Osborne’s Look Back in Anger, Julianne
App. 60
Shepherd’s Buicks, John Patrick Shanley’s Sailor
Song, Tennessee Williams’s Vieux Carre, Eugene
O’Neill’s A Moon for the Misbegotten, Harold Pinter’s
The Caretaker, John Pielmeier’s Agnes of God, Nilo
Cruz’s Anna in the Tropics, and Calder Willingham’s
The Graduate. The Theaters also note the insistence
of certain playwrights that their plays be performed
exactly as written, and contend the Smoking Ban will
preclude them from presenting these plays in
Colorado’s indoor theaters.
The Theaters maintain that smoking is critical to
the plot of their current work, tempOdyssey, because
the plot entails a character who initially smokes
during his life, and later realizes he has died because
he can no longer smoke. His inability to inhale or
exhale is demonstrated through the act of smoking,
and his failed attempts to smoke express a “funda-
mental, dramatic plot point.”
Moreover, the Constitution does not require that
the exact intended message be conveyed to every
viewer. Egolf, 421 F. Supp. 2d at 868. In fact, it is only
required that some viewers understand that some
message is being conveyed, and they need not agree
on the interpretation of the message. Holloman uv.
Harland, 370 F.3d 1252, 1270 (11th Cir. 2004); see
Hurley, 515 U.S. at 569 (requiring expressions to con-
vey a “particularized message” to each viewer would
prevent the “painting of Jackson Pollock, music of
Arnold Schoenberg, or Jabberwocky verse of Lewis
Carroll” from First Amendment protections); White v.
City of Sparks, 500 F.3d 953, 956 (9th Cir. 2007)
App. 61
(artistic expression accomplishes its aims by “spur-
ring thoughtful reflection in and discussion among its
viewers”).
We conclude that the Theaters met their initial
burden by showing that (1) the act of smoking on
stage in the course of a play is expressive conduct,
allowing the Theaters to invoke the protections of the
First Amendment; and (2) the Smoking Ban places an
incidental burden on this expressive conduct by
prohibiting it. We must, therefore, next determine
whether the Smoking Ban is content based and
subject to strict scrutiny, or content neutral and
subject to intermediate scrutiny under O’Brien.
3. Level of Scrutiny
To determine whether a statute is content
neutral, we focus on the legislature’s purpose for
enacting it. Ward, 491 U.S. at 791. If the statute
“serves purposes unrelated to the content of expres-
sion [it] is deemed neutral, even if it has an incidental
effect on some speakers or messages but not others.”
Id.
We conclude the Smoking Ban is content neutral
because it focuses on the adverse health effects of
tobacco smoke, not on expression. It does not address
ideas or communication, and does not attempt to
regulate speech. There is no indication it was de-
signed to suppress any subject matter, opinion, or
concept. It does not express disagreement with any
particular message, theatrical or otherwise. See [tll
App. 62
vu. Colorado, 530 U.S. 703, 719 (2000); Am. Life
League, Inc. v. Reno, 47 F.3d 642, 649 (4th Cir. 1995).
The Smoking Ban was not intended to prevent actors
from expressing emotion, setting a mood, illustrating
a character trait, emphasizing a plot twist, or making
a political statement. Instead, the Smoking Ban pro-
hibits certain conduct because of its harmful health
effects. See Am. Life League, 47 F.3d at 652.
Accordingly, we apply the intermediate level of
scrutiny prescribed by O’Brien. Under that test, we
ask whether (1) the statute is within the constitu-
tional power of the government; (2) it furthers an
important or substantial governmental interest; (3)
the government’s interest in establishing the regula-
tion is unrelated to the suppression of free expres-
sion; and (4) the incidental restriction is no greater
than is necessary to further that interest. O’Brien,
391 U.S. at 381 (finding the nation’s “vital interest in
having a system for raising armies that functions
with maximum efficiency and is capable of easily and
quickly responding to continually changing circum-
stances” sufficiently justified prohibiting the burning
of selective service cards).
We conclude all four of the O’Brien factors were
satisfied in this case. See Denver Publ’g Co., 896 P.2d
at 319 n.20 (burden of proof is not quantified as pre-
ponderance of the evidence or as beyond a reasonable
doubt; rather, government must show that “the legis-
lation complies with constitutional requirements”).
App. 63
a. Government’s Constitutional Power
The first O’Brien factor is satisfied because
Colorado's legislature has the authority to enact stat-
utes designed to promote the public health. Colo.
Const. art. V, § 1(4) (the General Assembly has the
power to “enact any measure”). The government,
through its police power, may promulgate ordinances
to promote the health, safety, morals, and general
welfare of its citizens. Hill, 530 U.S. at 715; City
of Erie v. Pap’s A.M., 529 U.S. 277, 296 (2000);
Slaughter-House Cases, 83 U.S. at 62; 7250 Corp.,
799 P2d at 917 (zoning of nude entertainment
establishments); HKachus v. People, 124 Colo. 454, 468,
238 P.2d 885, 892 (1951).
b. Important Governmental Interest
The General Assembly declared the purpose of
the Smoking Ban to be “to preserve and improve the
health, comfort, and environment of the peuple of this
state by limiting exposure to tobacco smoke.” § 25-14-
202. Thus, the Smoking Ban serves an important
governmental interest by protecting the health of
Colorado’s citizens. Barnes, 501 U.S. at 582; City of
Penton v. Playtime Theatres, Inc., 475 U.S. 41, 48
(1986) (government’s interest in preserving quality of
life must be granted high respect); see Hill v. Thomas,
973 P.2d 1246, 1258 (Colo. 1999) (“it has long been
acknowledged that government ‘may properly assert
important interests in safeguarding health’” (quoting
App. 64
Roe v. Wade, 410 U.S. 113, 150 (1973))), aff’d, 530
U.S. 703.
The dangers and health care costs attributed to
smoking and its effects are well documented. See
generally NYC C.L.A.S.H., 315 F. Supp. 2d at 487. We
defer to the legislature’s determination that the
Smoking Ban is needed, because the General Assem-
bly “is far better equipped than the judiciary to
‘amass and evaluate the vast amounts of data’
bearing upon an issue as complex and dynamic as
that presented here.” See Turner Broad., 512 U.S. at
665-66 (quoting Walters v. Natl Ass’n of Radiation
Survivors, 473 U.S. 305, 331 n.12 (1985)).
c. Interest Unrelated to Free Expres-
sion
We have already concluded that the Smoking
Ban is content neutral, because it is justified by
health concerns unrelated to expression. Hence, the
third O’Brien factor has been satisfied. See Am. Life
League, 47 F.3d at 652; 7250 Corp., 799 P.2d at 925
(adult business zoning ordinance focused on pre-
venting “adverse secondary effects” rather than the
dissemination of “offensive” speech). The legislature
has enacted a statute designed to regulate the
adverse health effects of smoke on nonsmokers, and
has written it in such as way as to accomplish that
goal. See 7250 Corp., 799 P.2d at 925.
With narrow exceptions not relevant here, the
Smoking Ban is applied uniformly to indoor areas
App. 65
where members of the public may congregate, in-
cluding public meeting places, courtrooms, hospitals,
restaurants, restrooms, libraries, and theaters. § 25-
14-204. It applies to everyone in these places.
d. Scope of Incidental Restriction
The fourth prong of O’Brien requires that we
investigate the breadth of the restriction. “[E]ven
regulations aimed at proper governmental concerns
can restrict unduly the exercise of rights protected
by the First Amendment.” Simon & Schuster, Inc. v.
Members of N.Y. State Crime Victims Bd., 502 U.S.
105, 117 (1991) (quoting Minneapolis Star & Tribune
Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 592
(1983)). Regulations on expressive conduct
must be narrowly tailored to serve the gov-
ernment’s legitimate, content-neutral inter-
ests but ... it need not be the least
restrictive or least intrusive means of doing
so. Rather, the requirement of narrow
tailoring is satisfied “so long as the
regulation promotes a substantial govern-
ment interest that would be achieved less
effectively absent the regulation.”
Ward, 491 U.S. at 798-99 (footnote omitted) (quoting
United States v. Albertini, 472 U.S. 675, 689 (1985))
(employing “time, place, or manner” test to evaluate
restrictions on expression in a public forum); see
Barnes, 501 U.S. at 566 (“time, place, or manner” test
and O’Brien test “embody much the same stan-
dards”).
App. 66
“Government may not regulate expression in
such a manner that a substantial portion of the
burden on speech does not serve to advance its goals.”
Ward, 491 U.S. at 799 (citing Frisby v. Schultz, 487
U.S. 474, 485 (1988)).
So long as the means chosen are not sub-
stantially broader than necessary to achieve
the government’s interest ... the regulation
will not be invalid simply because a court
concludes that the government’s interest
could be adequately served by some less-
speech-restrictive alternative. “The validity
of [time, place, or manner] regulations does
not turn on a judge’s agreement with the
responsible decisionmaker concerning the
most appropriate method for promoting sig-
nificant government interests” or the degree
to which those interests should be promoted.
Ward, 491 U.S. at 800 (quoting Albertini, 472 U.S. at
689). The requirement that the means be narrowly
tailored is aided where a statute leaves open “ample
alternative channels for communication of the infor-
mation.” Clark, 468 U.S. at 293; see also Denver
Publ’g Co., 896 P.2d at 313-16.
We conclude the Smoking Ban is narrowly tai-
lored, because it focuses directly on the one form of
conduct, smoking, upon which the state’s announced
interest in protecting public health depends. See
State v. Ball, 260 Conn. 275, 294, 796 A.2d 542, 554
(2002) (statute banning interference with hunters
narrowly tailored because it only furthered the
App. 67
government interest prompting the ban, “the actual
taking of wildlife”).
Further, the Smoking Ban allows other channels
of expression, such as outdoor theatrical perform-
ances. See Gun Owners’ Action League, Inc. v. Swift,
284 F.3d 198, 212 (1st Cir. 2002) (restriction on
shooting at targets ‘depicting human figures at one
class of gun clubs allowed ample alternatives because
shooters could lawfully fire at targets at other places).
There are alternative channels for expression
within indoor theaters. The communication of mood,
emotion, attitude, and expression can take various
forms. Concepts can be conveyed in different ways,
and by different conduct.
Contrary to the Theaters’ arguments, reasonable
alternatives to smoking real cigarettes and pipes are
available. Theater audiences exercise what Samuel
Taylor Coleridge called a “willing suspension of dis-
belief for the moment.” Samuel Taylor Coleridge,
Biographia Literaria, in Selected Critical Essays 28,
29 (T. Raysor ed., 1958). By doing so, the members
of the audience allow themselves to experience the
play’s emotions and messages as if they were real.
But the audience is aware that the scenes are not
real. Murders are not committed, actors do not fire
live bullets at each other or at the audience, the
theater is not set afire to illustrate the burning of
Rome in Julius Caesar, an actor in a play about the
effects of heroin does not inject the drug, and an actor
depicting suicide does not hook a hose to the tailpipe
App. 68
of a running automobile on stage. Rather, these
activities are simulated, because, although the First
Amendment protects the actor’s right to express the
ideas of murder, arson, drug use, and suicide, actually
murdering, setting conflagrations, ingesting con-
trolled substances, or flooding the theater with car-
bon monoxide would be illegal and dangerous con-
duct.
The trial court concluded there were reasonable
alternatives to smoking, such as fake and prop ciga-
rettes, that can, and are, being used by theaters in
jurisdictions with smoking bans. Although the
Theaters view these substitutes as inadequate, they
did not demonstrate that the use of substitutes is so
inadequate as to outweigh the state’s strong interest
in protecting the health of its citizens. See Clark, 468
U.S. at 293; Denver Publ’g Co., 896 P.2d at 316-18.
The Theaters suggest ways to avoid exposing
nonsmokers to involuntary exposure to indoor tobacco
smoke, such as providing prior notice to the public
that actors will smoke during the production, or by
employing ventilation systems. However, the exis-
tence of such alternatives does not compel a different
result. As the Supreme Court recognized in Ward, 491
U.S. at 800, and Albertini, 472 U.S. at 689, content-
neutral regulations that incidentally burden speech
are not invalid simply because an alternative might
be less burdensome on speech.
Here, we need not decide whether the legislature
reached the best solution in enacting the Smoking
App. 69
Ban. That is not the court’s role. We need only
conclude that it was reasonable for the legislature to
have determined that preventing involuntary expo-
sure to tobacco smoke is achieved most effectively by
banning all smoking in indoor locations, including
theaters. See Ward, 491 U.S. at 801; Clark, 468 U.S.
at 297 (“if the parks would be more exposed to harm
without the ... prohibition than with it, the ban is
safe from invalidation under the First Amendment”);
Denver Publ’g Co., 896 P.2d at 315-16.
We therefore conclude that, although the Smoking
Ban is not the least restrictive means, it is narrowly
tailored to achieve a legitimate state interest.
For these reasons, we conclude that the Smoking
Ban, as applied to the Theaters, does not violate their
First Amendment right to freedom of expression.
B. The Colorado Constitution
The Smoking Ban, as applied to the Theaters,
must also comport with our state constitution, and we
conclude that it does. Bock v. Westminster Mall Co.,
819 P.2d 55, 59-60 (Colo. 1991) (collecting cases);
Seven Thirty-Five E. Colfax, Inc., 697 P.2d at 356.
In a few instances, the supreme court has rec-
ognized the broader scope of the Colorado Constitu-
tion in the area of free expression. E.g., Tattered
Cover, Inc. v. City of Thornton, 44 P.3d 1044, 1056
(Colo. 2002) (concluding the Colorado Constitution
required a more substantial justification from the
App. 70
government than is required by the Fourth Amend-
ment for a search warrant seeking customer purchase
records); Bock, 819 P.2d at 59-60 (expanding the scope
of those private businesses required to permit free
speech within their walls beyond those entities de-
scribed by the United States Supreme Court): People
v. Ford, 773 P.2d 1059, 1066 (Colo. 1989) (establishing
the “tolerance standard” as the proper way to
measure which obscene materials are protected by
the Colorado Constitution); Marco Lounge, Inc. v. City
of Federal Heights, 625 P.2d 982, 985 (Colo. 1981)
(finding nude dancing constitutes protected expres-
sion in Colorado).
However, none of these cases involved a state
interest connected with public health, particularly a
health concern so damaging and well known. Further,
the supreme court has recognized that speech
protections may sometimes yield to greater policy
interests. Pierce v. St. Vrain Valley Sch. Dist. RE-12J,
981 P.2d 600, 606 n.8 (Colo. 1999).
We therefore decline to interpret Colorado Con-
stitution article II, section 10 more expansively than
the First Amendment in this context. See CF&I Steel,
L.P. v. United Steel Workers, 23 P.3d 1197, 1200 (Colo.
2001) (residential picketing arising from labor dis-
putes); Pierce v. St. Vrain Valley Sch. Dist., 981 P.2d
at 606 (confidentiality provisions of a settlement
agreement); Colo. Rockies Baseball, 941 P.2d at 271-
72, n.8 (sidewalks as a public forum); Lorenz v. State,
928 P.2d 1274, 1285, n.17 (Colo. 1996) (ballot access
and right to hold public office; rules of standing);
App. 71
Denver Publ’g Co., 896 P.2d at 311 (solicitation of
occupants in vehicles to buy newspapers); Parrish v.
Lamm, 758 P.2d 1356, 1365-66 (Colo. 1988) (chiro-
practors’ advertising policy to waive patient obliga-
tions to pay deductibles and copayments); MacGutre
vu. Houston, 717 P.2d 948, 954-55 (Colo. 1986) (polit-
ical affiliation prohibiting ability to serve as an
election judge); Pankratz v. Dist. Court, 199 Colo. 411,
413-14, 609 P.2d 1101, 1102-03 (1980) (requirement
that members of the media comply with subpoenas).
V. Conclusion
The party seeking a preliminary injunction must
demonstrate (1) the party has a reasonable prob-
ability of success on the merits; (2) a danger of real,
immediate, and irreparable injury exists that injunc-
tive relief would prevent; (3) the party lacks a plain,
speedy, and adequate remedy at law; (4) granting the
preliminary injunction would not disserve the public
interest; (5) the balance of equities favors granting
the injunction; and (6) the injunction will preserve
the status quo until a trial upon the merits occurs.
C.R.C.P. 65(a); Rathke, 648 P.2d at 653-54.
Given our conclusion that the Smoking Ban is a
content-neutral statute and is constitutional under
the intermediate scrutiny standard established hy
O’Brien as applied to the Theaters, we conclude the
trial court did not abuse its discretion in determining
that the Theaters did not show they had a reasonable
App. 72
probability of success on the merits. Accordingly, they
were not entitled to a preliminary injunction.
The judgment denying the Theaters’ request for a
preliminary injunction and declaratory relief is
affirmed.
JUDGE ROTHENBERG and JUDGE CARPA-
RELLI concur.
App. 73
Colorado Revised Statutes, Title 25,
Article 14, Part 2
Colorado Clean Indoor Air Act
§ 25-14-201. Short title.
This part 2 shall be known and may be cited as the
“Colorado Clean Indoor Air Act”.
§ 25-14-202. Legislative declaration.
The general assembly hereby finds and determines
that it is in the best interest of the people of this state
to protect nonsmokers from involuntary exposure to
environmental tobacco smoke in most indoor areas
open to the public, public meetings, food service
establishments, and places of employment. The gen-
eral assembly further finds and determines that a
balance should be struck between the health concerns
of nonconsumers of tobacco products and the need to
minimize unwarranted governmental intrusion into,
and regulation of, private spheres of conduct and
choice with respect to the use or nonuse of tobacco
products in certain designated public areas and
in private places. Therefore, the general assembly
hereby declares that the purpose of this part 2 is to
preserve and improve the health, comfort, and
environment of the people of this state by limiting
exposure to tobacco smoke.
App. 74
§ 25-14-203. Definitions.
As used in this part 2, unless the context otherwise
requires:
(1) “Airport smoking concession” means a bar or
restaurant, or both, in a public airport with regularly
scheduled domestic and international commercial
passenger flights, in which bar or restaurant smoking
is allowed in a fully enclosed and independently
ventilated area by the terms of the concession.
(2) “Auditorium” means the part of a public building
where an audience gathers to attend a performance,
and includes any corridors, hallways, or lobbies
adjacent thereto.
(3) “Bar” means any indoor area that is operated
and licensed under article 47 of title 12, C.R.S., pri-
marily for the sale and service of alcohol beverages
for on-premises consumption and where the service
of food is secondary to the consumption of such
beverages.
(4) “Cigar-tobacco bar” means a bar that, in the
calendar year ending December 31, 2005, generated
at least five percent or more of its total annual gross
income or fifty thousand dollars in annual sales from
the on-site sale of tobacco products and the rental of
on-site humidors, not including any sales from vend-
ing machines. In any calendar year after December
31, 2005, a bar that fails to generate at least five
percent of its total annual gross income or fifty thou-
sand dollars in annual sales from the on-site sale of
App. 75
tobacco products and the rental of on-site humidors
shall not be defined as a “cigar-tobacco bar” and shall
not thereafter be included in the definition regardless
of sales figures.
(54a) “Employee” means any person who:
(I) Performs any type of work for benefit of another
in consideration of direct or indirect wages or profit;
or
(IJ) Provides uncompensated work or services to a
business or nonprofit entity.
(b) “Employee” includes every person described in
paragraph (a) of this subsection (5), regardless of
whether such person is referred to as an employee,
contractor, independent contractor, or volunteer or by
any other designation or title.
(6) “Employer” means any person, partnership,
association, corporation, or nonprofit entity that
employs one or more persons. “Employer” includes,
without limitation, the legislative, executive, and
judicial branches of state government; any county,
city and county, city, or town, or instrumentality
thereof, or any other political subdivision of the state,
special district, authority, commission, or agency; or
any other separate corporate instrumentality or unit
of state or local government.
(7) “Entryway” means the outside of the front or
main doorway leading into a building or facility that
is not exempted from this part 2 under section 25-14-
205. “Entryway” also includes the area of public or
App. 76
private property within a specified radius outside of
the doorway. The specified radius shall be determined
by the local authority or, if the local authority has not
acted, the specified radius shall be fifteen feet.
(8) “Environmental tobacco smoke”, “ETS”, or
“secondhand smoke” means the complex mixture
formed from the escaping smoke of a burning tobacco
product, also known as “sidestream smoke”, and
smoke exhaled by the smoker.
(9) “Food service establishment” means any indoor
area or portion thereof in which the principal busi-
ess is the sale of food for on-premises consumption.
The term includes, without limitation, restaurants,
cafeterias, coffee shops, diners, sandwich shops, and
short-order cafes.
(10) “Indoor area” means any enclosed area or
portion thereof. The opening of windows or doors, or
the temporary removal of wall panels, does not
convert an indoor area into an outdoor area.
(11) “Local authority” means a county, city and
county, city, or town.
(12) “Place of employment” means any indoor area
or portion thereof under the control of an employer in
which employees of the employer perform services for,
or on behalf of, the employer.
(13) “Public building” means any building owned or
operated by:
App. 77
(a) The state, including the legislative, executive,
and judicial branches of state government;
(b) Any county, city and county, city, or town, or
instrumentality thereof, or any other political sub-
division of the state, a special district, an authority, a
commission, or an agency; or
(c) Any other separate corporate instrumentality or
unit of state or local government.
(14) “Public meeting” means any mecting open to
the public pursuant to part 4 of article 6 of title 24,
C.R.S., or any other law of this state.
(15) “Smoke-free work area” means an indoor area
in a place of employment where smoking is prohibited
under this part 2.
(16) “Smoking” means the burning of a lighted ciga-
rette, cigar, pipe, or any other matter or substance
that contains tobacco.
(17) “Tobacco” means cigarettes, cigars, cheroots,
stogies, and periques; granulated, plug cut, crimp cut,
ready rubbed, and other smoking tobacco; snuff and
snuff flour; cavendish; plug and twist tobacco; fine-cut
and other chewing tobacco; shorts, refuse scraps,
clippings, cuttings, and sweepings of tobacco; and
other kinds and forms of toh :co, prepared in such
manner as to be suitable for chewing or for smoking
in a cigarette, pipe, or otherwise, or both for chewing
and smoking. “Tobacco” also includes cloves and any
other plant matter or product that is packaged for
smoking.
App. 78
(18) “Tobacco business” means a sole proprietorship,
corporation, partnership, or other enterprise engaged
primarily in the sale, manufacture, or promotion of
tobacco, tobacco products, or smoking devices or
accessories, either at wholesale or retail, and in
which the sale, manufacture, or promotion of other
products is merely incidental.
(19) “Work area” means an area in a place of em-
ployment where one or more employees are routinely
assigned and perform services for or on behalf of their
employer.
§ 25-14-204. General smoking restrictions.
(1) Except as provided in section 25-14-205, and in
order to reduce the levels of exposure to environmen-
tal tobacco smoke, smoking shall not be permitted
and no person shall smoke in any indoor area,
including, but not limited to:
(a) Public meeting places;
(b) Elevators;
(c) Government-owned or -operated means of mass
transportation, including, but not limited to, buses,
vans, and trains;
(d) Taxicabs and limousines;
(e) Grocery stores;
(f) Gymnasiums;
App. 79
(g) Jury waiting and deliberation rooms;
(h) Courtrooms;
(i) Child day care facilities;
(j) Health care facilities including hospitals, health
care clinics, doctor’s offices, and other health care
related facilities;
(k\(1) Any place of employment that is not ex-
empted.
(II) In the case of employers who own facilities
otherwise exempted from this part 2, each such
employer shall provide a smoke-free work area for
each employee requesting not to have to breathe
environmental tobacco smoke. Every employee shall
have a right to work in an area free of environmental
tobacco smoke.
(1) Food service establishments;
(m) Bars;
(n) Limited gaming facilities and any other facilities
in which any gaming or gambling activity is con-
ducted;
(0) Indoor sports arenas;
(p) Restrooms, lobbies, hallways, and other common
areas in public and private buildings, condominiums,
and other multiple-unit residential facilities;
App. 80
(q) Restrooms, lobbies, hallways, and other common
areas in hotels and motels, and in at least seventy-
five percent of the sleeping quarters within a hotel or
mote] that are rented to guests;
(r) Bowling alleys;
(s) Billiard or pool halls;
(t) Facilities in which games of chance are con-
ducted;
(ul) The common areas of retirement facilities,
publicly owned housing facilities, and, except as spec-
ified in section 25-14-205(1)k). nursing homes, but
not including any resident’s private residential quar-
ters or areas oi assisted living facilities specified in
section 25-14-205(1)(k).
(II} Nothing in this part 2 affects the validity or
enforceability of a contract, whether entered into
before, on, or after July 1, 2006, that specifies that a
part or all of a facility or home specified in this
paragraph (u) is a smoke-free area.
(v) Public buildings;
(w) Auditoria;
(x) Theaters;
(y) Museums;
(z) Librames;
(aa) To the extent not otherwise provided in section
25-14-103.5, public and nonpublic schools;
App. 81
(bb) Other educational and vocational institutions;
and
(cc) The entryways of all buildings and facilities
listed in paragraphs (a) to (bb) of this subsection (1).
(2) A cigar-tobacco bar shall not expand its size or
change its location from the size and location in
which it existed as of December 31, 2005. A cigar-
tobacco bar shall display signage in at least one
conspicuous place and at least four inches by six
inches in size stating: “Smoking allowed. Children
under eighteen years of age must be accompanied by
a parent or guardian.”
§ 25-14-205. Exceptions to smoking restrictions.
(1) This part 2 shall not apply to:
(a) Private homes, private residences, and private
automobiles; except that this part 2 shall apply if any
such home, residence, or vehicle is being used for
child care or day care or if a private vehicle is being
used for the public transportation of children or as
part of health care or day care transportation;
{b) Limousines under private hire;
{c) A hotel or motel room rented to one or more
guests if the total percentage of such hotel or motel
rooms in such hotel or motel does not exceed twenty-
five percent;
App. 82
(d) Any retail tobacco business;
(e) Acigar-tobacco bar;
(f) An airport smoking concession;
(g) The outdoor area of any business;
(h) A place of employment that is not open to the
public and that is under the control of an employer
that employs three or fewer employees;
(i) A private, nonresidential building on a farm or
ranch, as defined in section 39-1-102, C.R.S., that has
annual gross income of less than five hundred
thousand dollars; or
(j) Repealed.
(k)1) The areas of assisted living facilities:
(A) That are designated for smoking for residents;
(B) That are fully enclosed and ventilated; and
(C) To which access is restricted to the residents or
their guests.
(II) As used in this paragraph (k), “assisted living
facility” means a nursing facility, as that term is de-
fined in section 25.5-4-103, C.R.S., and an assisted
living residence, as that term is defined in section
25-27-102.
App. 83
§ 25-14-206. Optional prohibitions.
(1) The owner or manager of any place not speci-
fically listed in 25-14-204, including a place otherwise
exempted under section 25-14-205, may post signs
prohibiting smoking or providing smoking and non-
smoking areas. Such posting shall have the effect of
including such place, or the designated nonsmoking
portion thereof, in the places where smoking is pro-
hibited or restricted pursuant to this part 2.
(2) If the owner or manager of a place not specific-
ally listed in section 25-14-204, including a place
otherwise exempted under section 25-14-205, is an
employer and receives a request from an employce to
create a smoke-free work area as contemplated by
section 25-14-204(1)(kxII), the owner or manager
shall post a sign or signs in the smoke-free work area
as provided in subsection (1) of this section.
§ 25-14-207. Other applicable regulations of
smoking - local counterpart regulations au-
thorized.
(1) This part 2 shall not be interpreted or construed
to permit smoking where it is otherwise restricted by
any other applicable law.
(2)a) A local authority may, pursuant to article 16
of title 31, C.R.S., a municipal home rule charter, or
article 15 of title 30, C.R.S., enact, adopt, and enforce
smoking regulations that cover the same subject mat-
ter as the various provisions of this part 2. No local
App. 84
authority may adopt any local regulation of smoking
that is less stringent than the provisions of this part
2; except that a local authority may specify a radius
of less than fifteen feet for the area included within
an entryway.
(b) The municipal courts or their equivalent in any
city, city and county, or town have jurisdiction over
violations of smoking regulations enacted by any city,
city and county, or town under this section.
§ 25-14-208. Unlawful acts - penalty - disposi-
tion of fines and surcharges.
(1) It is unlawful for a person who owns, manages,
operates, or otherwise controls the use of a premises
subject to this part 2 to violate any provision of this
part 2.
(2) It is unlawful for a person to smoke in an area
where smoking is prohibited pursuant to this part 2.
(3) A person who violates this part 2 is guilty of a
class 2 petty offense and, upon conviction thereof,
shall be punished by a fine not to exceed two hundred
dollars for a first violation within a calendar year, a
fine not to exceed three hundred dollars for a second
violation within a calendar year, and a fine not to
exceed five hundred dollars for each additional viola-
tion within a calendar year. Each day of a continuing
violation shall be deemed a separate violation.
App. 85
(4) All judges, clerks of a court of record, or other
officers imposing or receiving fines collected pursuant
to or as a result of a conviction of any persons for a
violation of any provision of this part 2 shall transmit
all such moneys so collected in the following manner:
(a) Seventy-five percent of any such fine for a viola-
tion occurring within the corporate limits of a city,
town, or city and county shall be transmitted to the
treasurer or chief financial officer of said city, town,
or city and county, and the remaining twenty-five
percent shall be transmitted to the state treasurer,
who shall credit the same to the general fund.
(b) Seventy-five percent of any fine for a violation
occurring outside the corporate limits of a city or
town shall be transmitted to the treasurer of the
county in which the city or town is located, and the
remaining twenty-five percent shall be transmitted to
the state treasurer, who shall credit the same to the
general fund.
§ 25-14-209. Severability.
If any provision of this part 2 or the application
thereof to any person or circumstance is held invalid,
such invalidity shall not affect other provisions or
applications of this part 2 that can be given effect
without the invalid provision or application, and to
this end the provisions of this part 2 are declared to
be severable.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.