# Petition for Writ of Certiorari — Curious Theatre Co. v. Colorado Department of Public Health & Environment > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1741%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2010 - **Citation:** 560 U.S. 906 ## Text reme Court, U.S. ns FILED No. 991118 HAR 15 2010 In The OFFICE OF THE CLERK Supreme Court of the Anited States + 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 POA Ee AD OF EPEE NEED, ore cncerevnvasveccecsvernestcseienes ii TABLE OF AUTHIORE Be oeccccccccsccccccccseccescccecees Vv PETITION FOR A WRIT OF CERTIORARI ....... 1 Ys easauiebuesbeauanenimaan 1 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. ¢ 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1741%3A1. Public record. Not legal advice.