Amicus Curiae Brief — Curious Theatre Co. v. Colorado Department of Public Health & Environment

Supreme Court, U_S.

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Ww | APR 16 2010

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No. 09-1118 =m

IN THE

Supreme Court of the United States

CURIOUS THEATRE COMPANY, et al.,

Petitioners,

Ve

COLORADO DEPARTMENT OF PUBLIC HEALTH AND

ENVIRONMENT, et al.,

Respondents.

On Petition for a Writ of Certiorari

to the Supreme Court of Colorado

BRIEF AMICUS CURIAE OF

THEATRE COMMUNICATIONS GROUP

IN SUPPORT OF PETITIONERS

BRUCE E.H. JOHNSON* STEVEN D. ZANSBERG

NOELLE H. KVASNOSKY ADAM M. PLATT

DAVIS WRIGHT TREMAINE LEVINE SULLIVAN KOCH &

LLP SCHULZ, L.L.P.

1201 Third Avenue 1888 Sherman Street

Suite 2200 Suite 370

Seattle, WA 98101 Denver, CO 80203

(206) 757-8069 (303) 376-2409

brucejohnson@dwt.com SZansberg@lskslaw.com

Counsel for Amicus Curae

*Counsel of Record

April 16, 2010

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE..............0...0.02....... 1

REASONS FOR GRANTING THE WRIT.................. 1

A. Theatrical smoking has been a part of free

expression in America since the First

Amendment’s ratification in 1791.................... 3

States need this Court’s guidance on whether

theatrical smoking indoors is protected by the

ETE SESE TET 8

Some states have informal policies to

enforce indoor smoking bans against

theaters only after complaints. .................... 9

The inconsistent approach of states in

enforcing their indoor smoking bans against

theaters suggests awareness their smoking

bans are inadequately tailored to

accommodate First Amendment rights...... 11

Indoor smoking bans with conditional

exemptions for theatrical smoking have

inadequate due process safeguards, which is

invalid prior restraint of protected

I inkcudilinidgunamaiqnintetonentinatetiesteosenes 13

The Colorado Supreme Court failed to

balance eviden’: of any legitimate state

interests against First Amendment rights in

I I i laid scoemcinincbenbenebinewedneee 17

ll

5. Without certainty as to the legality of indoor

theatrical smoking, theaters may forgo

producing certain plays because of license

constraints

CON CLUGIUIES csercersn te eeeaiatatentereressrecceeseene ces 20

iil

TABLE OF AUTHORITIES

FEDERAL CASES

Bantam Books, Inc. v. Sullivan,

BIZ U.S. 5B (19GB) .....-.-0--0ceeceocecsecceccecsenseccercereseees 15

Forsyth County, Ga. v. The Nationalist Movement,

De Ges. Rae CD entviecencotechinucinnictenmnaiabnnnad: 16

Franken Equities, L.L.C. v. City of Evanston,

967 F. Supp. 1233 (D. Wyo. 1997)....................... 16

Inge v. Twentieth Century-Fox Film Corp.,

143 F. Supp. 294 (S.D.N.Y. 1956)...................200+ 19

Keyishian v. Bd. of Regents,

Re AF i ee ee Mercenaries 16

NAACP v. Button,

Ek Bee MAI IIS. victiedccctutinsegtenccatninchonacesndine 16

Near v. Minnesota,

I Rs Ce Me cies cenetincnisetunisonndesamudbiiaaruens 16

Southeastern Promotions, Ltd. v. Conrad,

a Se a i ckakhs~ eeteatidanicoiiiaines tae 16

United States v. O’Brien,

eS ee ee ik clncnidddocinseccensdndiscuimenaine siesta 2 20

Ward v. Rock Against Racism,

BF Rs Se Ee EE 2,17, 18

lV

STATE CASES

Curious Theatre Co. v. Colo. Dep’t of Pub.

Health & Env’,

Be FT ee Bo) anne 1, 18, 20

STATE STATUTES

Ariz. Rev. Stat. § 36-601.01(B)(7) (2010)............ 14, 15

Cal. Lab. Code § 6404.5(d)(9) (2009).....................22.. 14

Colo. Rev. Stat. §§ 25-14-201-209 (2009).............. 8,12

Conn. Gen. Stat. § 19a-342 (2010) ..............-..scscecccevees 8

D.C. Code § 7-1708(3) (2010) ................ceecccrerseees 14, 15

Del. Code Ann. tit. 16, §§ 2901-2907 (2010)........ 8, 14

Fla. Stat. §§ 386.201—2125 (2010) ............0. cece 9

Haw. Rev. Stat. §§ 328J-1—-17 (2009)........0000..000.. 9,12

Idaho Code Ann. § 39-5503(1)(e) (2010) ................... 14

410 Ill. Comp. Stat. 82/1-/75 (2010) ............0.....00.02.... 9

La. Rev. Stat. Ann. §§ 40:1300.251—263 (2010) ......... 9

Mass. Gen. Laws ch. 270, § 22(c)(6) (2010) .............. 14

Md. Code Ann., Health-Gen. §§ 24-501—511 (2010)...9

Me. Rev. Stat. Ann. tit. 22, § 1542(2)(B) (2009) .14, 15

Minn. Stat. § 144.4167(9) (2009) .....0............ 14, 15

Mont. Code Ann. §§ 50-40-101—104, 108, 110

SPINE Uh ueiairentiisetioricnecammncidetiabvertecnttatestmechaaniyadaieneant 9

N.D. Cent. Code §§ 23-12-09—-11 (2010)...................... 9

N.H. Rev. Stat. Ann. §§ 155:64-77 (2010)........ passim

N.J. Stat. Ann. §§ 26:3D-55 64 (2010)..........0............ 9

N.M. Stat. § 24-16-12(N) (2009)...........000 0 eee eee ee 14

N.Y. Pub. Health Law § 1399-u (2010)..................... 14

Ohio Rev. Code Ann. §§ 3794.01—09 (2010)................ 9

Or. Rev. Stat. §§ 433.835—-860, 870—875 (2009) ......... 9

35 Pa. Stat. Ann. §§ 637.1—11 (2009)......................000. 9

R.I. Gen. Laws § 23-20.10-6(b) (2010) ................ 14,15

Utah Code Ann. §§ 26-38-1—3, 7—9 (2009).................. 9

Vt. Stat. Ann. tit. 18, §§ 1741-1743, 1745-1746

GEE ARMA a, te ON teen BF 9

Wash. Rev. Code §§ 70.160.011-—.030, .050—.100

SIE sab vukabeddontexcdsdicdisestedcisctmeaemedpuannssareemecieantal 9

RULES

SINS TRIE TI TET csi niinsics cucininondetmwnetenuansseevenpmieialsaaaaae 1

OTHER AUTHORITIES

EDWARD ALBEE, WHO’S AFRAID OF VIRGINIA

WOOLF? (Scribner, 2003) (1962) ..............c cece eeeeee ees 6

GEORGES BIZET, CARMEN (Sonya Friedman trans.,

Random House 1996) (1875)................2..22 22202000 7,8

NILO CRUZ, ANNA IN THE TROPICS (Dramatists

EE I, EE 1 aes carn waeennadavnnenivincesuceens 7

DAVID HERBERT DONALD, LINCOLN 593

is enniioeiunnennenntes 4

GEORGE FARQUHAR, THE BEAUX-STRATAGEM

(H. Macaulay Fitzgibbon ed., London, J. M.

ey) ea 3, 4

JOHN GAY, THE BEGGAR’S OPERA (B.W. Huebsch,

ES 4

HAL HOLBROOK, MARK TWAIN TONIGHT! (IVES

WASHBURN 1959)........................ i ailaeanhs tate ieeiieaiialadingtacts 7

ARTHUR HORNBLOW, HISTORY OF THE THEATRE IN

AMERICA (J.B. Lippincott Co. 1919) .................. 3,4

Linda Hutcheon & Michael Hutcheon, Smoking in

Opera, in SMOKE (Sander L. Gilman & Zhou

Xun, eds., Reaction Books 2004) .................00000000.. 8

John Drew tn a New Play, N.Y. TIMES, Sept. 24,

ai oo peennmncenenne 6

JAMES P. JORDAN & CHRISTOPHER SHORR, THE PAN

SHOW (unpublished 2010)..................cccceeceeseeeeee es 13

Brendan Kiley, First Amendment v. Smoking

Ban, THE STRANGER (Seattle, Wash.), Mar. 1,

iE (iio 2/2 saepuivmbeebassonentonsdueovecnss g

vl

Jennifer Meyers, Stage set for smoking ban,

LOWELL SUN (Lowell, Mass.), Oct. 7, 2009 .......... 14

JOHN OSBORNE, LOOK BACK IN ANGER (Penguin

I a aacialinl 6

Plays and Shows in June, N.Y. TIMES, June 12,

I a 6

Bruce Ramsey, Editonal, Smoking ban

hamstrings stage production, SEATTLE TIMES,

IN iihinciecadatilceiaiseinlsgoniiinnaammniuaidinaneds 9,10

Alex Ross, Count Down (nuclear weapons), THE

i mit ee | | ene 8

WILLIAM SAROYAN, THE TIME OF YOUR LIFE

CFERSOOUE, ETROO Ge VO. TGDSOD ccceccccvccseccecccescceccoces 11

(ZEORGE BERNARD SHAW, MRS. WARREN’S

PROFESSION: A PLAY IN FOUR ACTS (Archibald

CN Ge GA, EAE Bee cee occ ccncccncsducccceeces 11,12

TOM TAYLOR, OUR AMERICAN COUSIN (Toronto,

Samuel French (printed but not published)

Sb RRR ERS RE ee ae Rd Cea ek 4.5

The Theatrical Week, N.Y. TIMES, Jan. 15, 1893....5, 6

Anthony Tommasini, Tweaking a Definitive

Moment in History, N. Y. TIMES, Dec 17, 2007 ..... 8

‘TENNESSEE WILLIAMS, A STREETCAR NAMED

DESIRE (Dramatists Play Service Inc. 1947)....... 11

Richard Zoglin, Break out the cigars, TIME,

Es Saks ME chcweiieal condecescaseubaudessenmukcdnseunmuasemanadasdecs 7

INTEREST OF AMICUS CURIAE!

Theatre Communications Group (“TCG”) is a

not-for-profit service organization with a mission of

strengthening and promoting the professional not-

for-profit American theater. TCG’s membership

comprises 476 theaters, including seven in Colorado,?

and approximately 13,000 individual members. TCG

awards grants to theaters and theater artists

(approximately $1.3 million in the 2009 fiscal year),

facilitates professional development opportunities for

theater leaders, and advocates on behalf of American

not-for-profit theater organizations, including filing

amicus curiae briefs in support of its mission. TCG’s

members rely on _ actors’ expressive conduct,

including smoking, to convey meaning in tandem

with a plays dialogue, movement, and other

symbolic expression.

REASONS FOR GRANTING THE WRIT

In deciding this case, the Colorado Supreme

Court found it “unnecessary” to determine if

theatrical smoking is expressive conduct.? In doing

' Counsel of record received timely notice of TCG’s intent to file

this amicus curiae brief under Supreme Court Rule 37 and

letters of consent have been filed with the Clerk No counsel for

a party authored this brief in whole or in part, and no person or

entity other than TCG and its counsel made a monetary

contribution to the preparation or submission of this brief.

2 These include Arvada Center for the Arts & Humanities,

Colorado Springs Fine Arts Center Theatre Company, Creede

Repertory Theatre, petitioner Curious Theatre Company,

Denver Center Theatre Company, OpenStage Theatre &

Company, and Theatre Aspen

3 Curious Theatre Co. v. Colo Dep't of Pub. Health & Env't, 220

P 3d 544, 548 (Col. 2009)

so, Colorado failed to consider that theatrical

smoking has been a component of free expression in

America since the framing of the Constitution. Any

incidental negative second-hand effects of theatrical

smoking—no evidence of which was presented by the

respondents at trial—cannot outweigh = the

paramount importance of free expression. To

determine the constitutionality of content-neutral

regulations of expression, the evaluation of evidence

from both sides balance First Amendment nights

against competing public interests.‘ Colorado refused

to undertake such a balancing analysis here.

Eighteen states have indoor smoking bans

which prohibit theatrical smoking (or allow only

conditional exemptions), but only Colorado’s highest

court has considered whether such a ban is

constitutional under the First Amendment. Those

remaining states interpret and enforce how their

laws apply to theatrical smoking inconsistently (both

individually and collectively), with the result that

theaters, playwrights and actors are uncertain

whether they may legally incorporate smoking in

theatrical productions. TCG seeks to apprise this

Court of how this uncertainty negatively impacts

American theater and millions of theater patrons

nationwide, and increasingly leads to theater artists

self-censoring. Because playwrights, as copyright

holders, have the right to insist on how their plays

are licensed, a complete ban on any form of

theatrical smoking will preclude theaters from

4 See, t.e, Ward v. Rock Against Racism, 491 US. 781 (1989)

(balancing the government’s interest in protecting citizens from

unwanted noise against the First Amendment right to musical

expression at an outdoor concert).

presenting a broad swath of America’s theatncal

oeuvre; or, if they may license the plays to be

modified to remove smoking (which is by no means

certain), the richness and nuance of expression that

theatmcal smoking adds will be lost. If theatrical

smoking is banned or criminalized, given the dearth

of acceptable alternative avenues of expression,

theaters will be faced with a Hobson’s choice:

produce the play without the expressive smoking, or

do not produce the play at all. This Court’s opinion

will resolve whether an outright ban on all theatrical]

smoking—even the smoking’ of i wnon-tobacco

alternatives—violates the First Amendment, as well

as guiding states and cities without indoor smoking

bans that may consider such legislation.

A. Theatrical smoking has been a part of free

expression in America since the _ First

Amendment’s ratification in 1791.

Theatrical smoking has been omnipresent on

the American stage from our nation’s inception to the

present day. At the time of the adoption of the First

Amendment, theatrical smoking was already an

integral part of plays produced on American stages.

In George Farquhar’s Beaux-Stratagem, performed

in America by 1732 (and for many years thereafter),®

the downtrodden character of Squire Sullen entreats

his companion to smoke a pipe with him, and the

derisive comment that Squire Sullen’s son is a “man

of pleasure” is corroborated because he smokes his

5 ARTHUR HORNBLOW, HISTORY OF THE THEATRE IN AMERICA 49

(J B. Lappincott Co. 1919).

pipe “eight-and-forty hours together.”* Likewise, in

John Gay’s The Beggar’s Opera, performed in New

York by 1750,’ the playwright directed male

characters to sit at a table with tobacco and pipes,

intended to portray an evening of leisure and

decadence, with one character remarking “To-day

shall be for Pleasure—To-morrow for Business.”

Eighteenth-century playwrights drew on smoking to

express a play’s mood and tone and to display

character’s personalities, just as contemporary

playwrights do today.

By 1868, when the Fourteenth Amendment

was adopted, smoking remained deeply entrenched

as expressive conduct in plays performed on

American stages. Indeed, the play President Lincoln

watched the night he was assassinated in 1865, Our

American Cousin, used theatrical smoking as an

integral plot component.’ At one point, the character

Asa recounts how his Grandfather asked him: “Will

you excuse my lighting a cigar?’ The stage

directions prompt Asa to strike a match." Shortly

thereafter, the audience realizes that Asa, in

reenacting his Grandfather lighting his cigar, had

himself burned his Grandfather’s will, thwarting

6 GEORGE FARQUHAR, THE BEAUX-STRATAGEM 9, 100 (H

Macaulay Fitzgibbon ed., London, J. M Dent & Co. 1898)

(1707).

7 Hornblow, supra note 5, at 61.

®& JOHN GAY, THE BEGGAR’S OPERA 66-67 (B.W. Huebsch, Inc.

1920) (1728).

* DAVID HERBERT DONALD, LINCOLN 593 (Touchstone 1995).

10 TOM TAYLOR, OUR AMERICAN COUSIN 34 (Toronto, Samuel

French (printed but not published) 1869) (1858).

11 Jd.

receipt of a large inheritance.'? This plot element

cannot be convincingly portrayed without a lit cigar,

which, if used in a contemporary production in a

Colorado theater would be a criminal act under

Colorado’s Clean Indoor Air Act.

In later decades, theatrical smoking remained

a much-employed way of expressing characters’

personalities and to set a play’s mood and tone. A

New York Times article from 1893 notes the

“importance of the use of tobacco on the stage”:

A glance at the New-York stage at any

time in the season will show how

prominent in the action of current plays

the pipe, cigar, and cigarette are. At

present the formidable cigar that

Mr. Wilton chews with so much

dramatic expression in the forcible third

act of “Aristocracy” holds the foremost

place in the admiration of playgoers,

but Ms. E. J. Ratcliffe’s saucy, and at

first seemingly irrelevant, cigarette in

the last act of “Americans Abroad” at

the Lyceum has positive dramatic

value; and so has Mr. Kelcey’s well-

mannered refusal to smoke a brother to

a.

Mr. Harry Davenport as the

diffident physician in the “The New

South” enjoys a very few pulls at a

comfortable-looking pipe with a long

cherry stem, and has some graphic and

understandable “business” afterward in

—

12 Td. at 34-35.

fanning away the smoke pending the

arrival of a pretty woman, that go

further to show the importance of the

use of tobacco on the stage.”

In The Vandykes, performed in New York in 1892,

smoking was equated with villainy, where a

character “incessantly smoking an _ill-looking

cigar ...is seen to be a demoniac institution indeed,

and one that cannot be too quickly sneered out of

existence.”'* Smoking was also used to show the

consequences of over indulgence: in That imprudent

Young Couple, staged in New York in 1895, the

audience “laughed when Mr. Ferguson, who played

the tempter’s role, was made ill by the smoking of a

long cigar.”}5

The tradition of employing theatrical smoking

to express mood and tenor, as a plot device, and to

typify a character’s personality continues to the

present day, in historical and contemporary works

both well-known and as-yet obscure. In Edward

Albee’s Who's Afraid of Virginia Woolf?, smoking is

an integral behavior of the character Martha, whose

persistent nervous smoking conveys her neurosis to

the audience.'* John Osborne’s classic Look Back in

Anger evokes the 1950s, and the desperation of its

characters, as layers of cigarette smoke filter

through the main characters’ cramped apartment.!7

13 The Theatrical Week, N Y. TIMES, Jan. 15, 1893, at 13

14 Plays and Shows in June, N.Y. TIMES, June 12, 1892, at 13

18 John Drew tn a New Play, N.Y TIMES, Sept. 24, 1895, at 5

16 EDWARD ALBEE, WHO’S AFRAID OF VIRGINIA WOOLF? 50, 164

(Scribner 2003) (1962)

17 JOHN OSBORNE, LOOK BACK IN ANGER (Penguin Books 1957).

Historical context can be lost without

theatrical smoking. Hal Holbrook’s one-man show

Mark Twain Tonight! includes a_ cigar-puffing

portrayal of Mark Twain, whose gruff, boisterous

personality would be unrecognizable without a lit

cigar in hand.'* For the McCarter Theatre’s

production of the Pulitzer prize-winning play Anna

in the Tropics, the ethos of the play’s locale, a Tampa

cigar factory in the late 1920s, came alive with the

visual element that wreaths of cigar smoke imbue to

a darkened stage.'* Cigars are central to the

characters’ livelihood and culture, and a pivotal

moment comes as the characters share celebratory

puffs of the new cigar they created.» “Cigar smoke,”

a Time magazine review said, “is only one of the

sweet and strange aromas that waft from Anna in

the Tropics.”21

Theatrical smoking takes center stage in

opera, as well. Perhaps best known is the smoking in

Georges Bizet’s Carmen, which revolves around a

gypsy girl who works in a tobacco factory in Seville.”

In many productions, Carmen enters on stage with a

18 HAL HOLBROOK, MARK TWAIN TONIGHT' (Ives Washburn

1959)

18 NiLoO CRUZ, ANNA IN THF TROPICS (Dramatists Play Service

Inc 2003) The McCarter Theatre’s production of Anna in the

Tropics took place in 203, prior to New Jersey’s indoor

smoking ban going into efiect.

2 Id. at 52-53.

21 Richard Zoglin, Breal: out the cigars, TIME, Nov. 3, 2003, at

73.

22 GEORGES BIZET, CARMEN (Sonya Fnedman trans , Random

House 1996) (1875).

cigarette in her mouth.22 A chorus of smoking

cigarette-factory girls fills Seville’s town square,

setting the scene.2* In contemporary opera, John

Adams’s and Peter Sellars’s Dr. Atomic conveys the

unbearable tension and high anxiety surrounding

the first testing of the atomic bomb with chain-

smoking throughout, including having the singer

portraying Dr. Oppenheimer wield an ever present

cigarette.2> One critic described how “Oppenheimer’s

chain-smoking is a leitmotif of the opera.”26 Each of

these works, along with innumerable others in the

canon of the American stage, would be markedly

diminished without the expressive elements that

actual smoking—including the exhaling or puffs of

clouds or smoke—adds.

B. States need this Court’s guidance on

whether theatrical smoking indoors is

protected by the First Amendment.

More than half the states and the District of

Columbia have indoor smoking bans; eighteen of

these states do not provide for an absolute exception

for indoor theatrical smoking.?? Without guidance on

23 [anda Hutcheon & Michael Hutcheon, Smoking tn Opera, in

SMOKE 231, 233 (Sander L Gilman & Zhou Xun, eds , Reaction

Books 2004)

24 Bizet, supra note 22, at 7 (“The cigarette-factory girls appear,

smoking cigarettes ”)

25 See Anthony Tommasim, Tweaking a Definittve Moment in

History, N. Y. TIMES, Dec. 17, 2007, at E1 (“Puffing away on

cigarettes, his suit forever rumpled, full of bravado yet plagued

with doubts, Mr. Finley’s Oppenheimer 1s tragically flawed.”)

26 Alex Ross, Count Down (nuclear weapons), THE NEW YORKER,

Oct 3, 2005, at 60, 63

27 Colo. Rev. Stat §§ 25-14-201—209 (2009), Conn. Gen Stat.

§ 19a-342 (2010), Del. Code Ann. tit. 16, §§ 2901-2907 (2010),

whether and how this pastiche of indoor smoking

laws will be enforced, many theaters exercise—or

forego—their First Amendment rights to expression

through theatrical smoking in an atmosphere of

uncertainty. A view from the field suggests that

theaters react differently to the uncertainty of how

states enforce indoor smoking bans, and that

frequently this uncertainty leads theaters to self-

censor.

1. Some states have informal policies to

enforce indoor smoking bans against

theaters only after complaints.

Oregon, Washington and Illinois appear to

enforce the state smoking ban only after receiving

complaints. Reportedly, Washington’s smoking ban

is not enforced against a theater unless a complaint

is received.22 Seattle Repertory Theatre used

smoking in its production of Noel Coward’s Private

Lives, a play whose quick-witted elitist characters

are rarely without a lit cigarette dangling from their

hands, after the local prosecutor agreed to “let [the

Fla Stat. §§ 386 201—2125 (2010); Haw. Rev Stot. §§ 328J-1-17

(2009), 410 111 Comp. Stat 82/1-/75 (2010); La. Nev. Stat Ann.

§§ 40 1300 251-263 (2010), Md Code Ann., Health-Gen §§ 24-

501-511 (2010), Mont. Code Ann §§ 50-40-101—104, 108, 110

(2009); NH. Rev. Stat. Ann. §§ 155 64—77 (2010), N.J. Stat.

Ann. §§ 26 3D-55-64 (2010); N.D Cent. Code §§ 23-12-09-11

(2010), Ohio Rev Code Ann. §§ 3794.01-09 (2010); Or. Rev

Stat. §§ 433.835-860, 870-875 (2009), 35 Pa. Stat. Ann. §§

637.1~-11 (2009), Utah Code Ann §§ 26-38-1-3, 7-9 (2009), Vt.

Stat. Ann tit. 18, §§ 1741-1743, 1745-1746 (2010), Wash. Rev.

Code §§ 70.160 011— 030, .050—-.100 (2010)

28 Brendan Kiley, First Amendment v. Smoking Ban, THE

STRANGER (Seattle, Wash.), Mar. 1, 2006, at 27

smoking] go”.2 Oregon’s’ enforcing authorities

relayed to Portland’s Third Rail Theatre that

enforcement of Oregon’s smoking ban against

theaters is complaint driven. Without assurances

that it would not be fined, Third Rail resorted to self-

censorship, entirely removing smoking from its

production of Martin McDonagh’s A Skull in

Connemara. This eroded the effectiveness of the

modified scene and the nature of the character who

was to have smoked.

In Chicago, Illinois, it appears the Department

of Public Health and the City of Chicago Public

Health Department do not enforce the state and city

smoking bans against theaters unless a complaint is

made. Chicago’s Steppenwolf Theatre has been

warned twice under Chicago’s ban for smoking in its

theatrical productions, but has received no fines. In

2010, the Goodman Theatre received its first citation

of Chicago’s indoor smoking ban following a patron’s

complaint about smoking onstage in The Goodman

Theatre’s production of Brett C. Leonard’s The Long

Red Road. The Goodman Theatre had previously

used smoking in productions since Illinois’s and

Chicago’s smoking bans went into effect without

censure. These informal policies are inadequate

assurance that theaters can exercise their right to

free expression without incurring sanctions or

having the law capriciously and inconsistently

applied against them.

28 Bruce Ramsey, Editorial, Smoking ban hamstrings stage

production, SEATTLE TIMES, April 2, 2008, at B6

11

2. The inconsistent approach of states in

enforcing their indoor smoking bans

against theaters suggests awareness

their smoking bans are inadequately

tailored to accommodate ‘irst

Amendment rights.

Many states inconsistently enforce their

indoor smoking laws against theaters (if enforced at

all), which suggests they realize these bans may

violate the First Amendment. In New Jersey, both -

the McCarter Theatre and the Shakespeare Theatre

of New Jersey have recently used smoking in

productions and New Jersey’s indoor smoking ban

has not been enforced against them. Like the Seattle

Repertory Theatre, the Shakespeare Theatre of New

Jersey determined that the spirit of Noel Coward’s

Private Lives could not be conveyed without actual

smoking, so it used herbal cigarettes in its 2008

production, along with ample signage alerting its

audience that herbal cigarettes would be smoked. It

also used smoking to convey the ethos and mood of a

1930s San Francisco bar in its production of William

Saroyan’s The Time of Your Life, and to portray the

complex, despairing and conflicted character of

Stanley Kowalski in Tennessee Williams’s American

classic A Streetcar Named Desire.»

The McCarter Theatre likewise used real

smoking (of herbal cigarettes) in its production of

George Bernard Shaw’s Mrs. Warren’s Profession.

There, the character Vivie’s smoking challenges

30 WILLIAM SAROYAN, THE TIME OF YOUR LIFE (Harcourt, Brace

& Co. 1939); TENNESSEE WILLIAMS, A STREETCAR NAMED

DESIRE (Dramatists Play Service Inc. 1947).

12

Victorian notions of gender roles and explores the

sexual double standard, one of the play’s themes.

The stage directions regarding smoking are specific,

and require Vivie, while engaged in dialogue, to “nod

. . placidly with one eye on a wreath of smoke,”

before “blowing the wreath decisively away and

sitting straight up.”*! The Pioneer Theatre Company

in Salt Lake City, Utah, Stageworks Theatre

Company in Tampa, Florida and the Cleveland

Public Theatre in Cleveland, Ohio have all employed

smoking in theatrical productions since their

respective state instituted an indoor smoking ban,

thus far without state reprimand.

Some theaters in states without exemptions

for theatrical smoking have switched to using lighted

cigarettes made of herbs, cloves, or lettuce, rather

than tobacco. However, this alternative may fall

outside the strict letter of indoor smoking laws that

define smoking to include the carrying of lhghted

plant material? or any device designed to produce

the effect of smoking. Colorado alone defines

“tobacco” to include “any other plant matter or

product that is packaged for smoking.”* Prior to its

state’s smoking ban, the Touchstone Theatre in

Bethlehem, Pennsylvania used both tobacco and

clove cigarettes 1n its productions. Now, with no

guidance on how Pennsylvania’s ban will be

enforced, Touchstone is uncertain whether it will use

smoking or a smoking alternative in its upcoming

31 GEORGE BERNARD SHAW, MRS WARREN’S PROFESSION: A PLAY

IN FouR Acts (Archibald Constable & Co. Ltd 1907).

32 F.g., Haw Rev Stat. § 328J-1 (2009).

33 F g., NH. Rev Stat Ann. § 155:65 (2010).

34 Colo. Rev. Stat. § 25-14-203 (2009).

13

production of The Pan Show, a bacchanal of drugs

and rock n’ roll whose mood requires a smoky haze.

The Know Theatre of Cincinnati, Ohio has used non-

tobacco cigarettes in its plays, without Ohio’s indoor

smoking ban being enforced against it.

3. Indoor smoking bans with conditional

exemptions for theatrical smoking have

inadequate due process’ safeguards,

which is invalid prior restraint of

protected expression.

Some state indoor smoking bans allow narrow

exceptions for theatrical smoking (or broader

exceptions for smoking that a theater may apply for)

or provide conditional exemptions for theatrical

smoking. However, none of these laws specifies how

these exemptions and exceptions are granted or

denied, or provides any review or oversight of those

processes. Additionally, the process to obtain an

exemption can be time-consuming and complicated,

with the result that an exemption is constructively

impractical to obtain. For instance, the Merrimack

Repertory Theatre in Lowell, MA is doubtful it will

ever be issued an exemption again after political

fallout from its use of theatrical smoking under

Massachusetts’s exemption. In response to the

Merrimack Theatre’s having used smoking in

Eugene O’Neill’s Moon for the Misbegotten under an

exemption, the Lowell city council unanimously

3 JAMES P. JORDAN & CHRISTOPHER SHORR, THE PAN SHOW

(unpublished 2010).

14

approved petitioning the city’s Statehouse delegation

to repeal the theatrical smoking exemption.*

The language of the laws in those states that

ostensibly provide an absolute exception for

theatrical smoking is vague, frequently requiring

that smoking be “necessary” or “integral” to the

theatrical production without further explanation of

how that standard is met.37 The language in the

statutes of those states with conditional exemptions

for theatrical smoking (or broader exemptions that

might comprise theatrical smoking) is _ similarly

vague.* This is in sharp contrast with those states

that provide for absolute exceptions for theatrical

smoking, which manage to accommodate First

3% Jennifer Meyers, Stage set for smoking ban, LOWELL SUN

(Lowell, Mass.), Oct 7, 2009, at “News”.

37 E.g., Cal Lab Code § 6404 5(d)(9) (2009) (ban does not apply

‘sf smoking 1s an integral part of the story in the theatrical

production”), Idaho Code Ann § 39-5503(1)(e) (2010) (ban does

not apply to “[t]heatncal production sites, if smoking 1s an

integral part of the story 1n the theatrical production”), N.M

Stat § 24-16-12(N) (2009) (smoking is permitted on a

“theatrical stage .. when it 1s necessary for performers to

smoke as part of the production ”)

38 Del. Code Ann. tit. 16 § 2906(c) (2010) (waiver may issue if

“there are compelling reasons to do so, and such waiver will not

significantly affect the health and comfort of nonconsumers of

tobacco products”), Mass. Gen. Laws ch 270, § 22(c)(6) (2010)

(theatrical performer may smoke during a performance if

permission first granted by appropriate local authorities); N.Y

Pub Health Law § 1399-u (2010) (waiver may be granted if

apphrant establishes “(a) compliance . . . would cause undue

financiei hardship; or (b) other factors exist which would render

comphance unreasonable.”).

15

Amendment rights while achieving their regulatory

goals.

This Court has previously determined that

states must provide adequate safeguards to ensure

that protected expression is not incidentally censored

in the regulation of other state interests. This

principle applies with special force to statutes that

regulate activities that touch on First Amendment

rights, as “freedoms of expression must be ringed

about with adequate bulwarks.”41 Under the

Fourteenth Amendment, a “[s]tate is not free to

adopt whatever procedures it pleases . . . without

regard to the’ possible consequences for

constitutionally protected speech.”42 Additionally,

where there is uncertainty surrounding how a

potential criminal sanction will be enforced and

applicd—such as theaters in Colorado face with

39 Ariz Rev. Stat § 36-601 01(B)(7) (2010) (ban not applicable

to a “theatrical performance upon a stage or 1n the course of a

film or television production if the smoking 1s part of the

performance or production”), D.C. Code § 7-1708(3) (2010) (does

not prohibit smoking “[u]pon the stage by performers during

the course of any theatrical performance if smoking 1s part of

the theatrical production”); Me Rev Stat. Ann tit. 22, §

1542(2)(B) (2009) (“Smoking 1s not prohibited 1n theaters... . if

the smoking is solely by a performer and the smoking 1s part of

the performance.”), Minn Stat. § 144 4167(9) (2009) (smoking

permitted “as part of a theatrical performance” as long as

advance notice of smoking 1s given to theater patrons), RI Gen.

Laws § 23-20.10-6(b) (2010) (“this chapter shall not apply to any

stage performance provided that smoking 1s part of a theatrical

production.”)

# EF g., Bantam Books, Inc. v Sullivan, 372 U S. 58 (1963).

41 Td. at 66.

42 Jd. at 71 (finding Rhode Island’s “informal censorship” was

“radically deficient” in its process and unconstitutionally

infringed protected expression).

16

Colorado’s Clean Indoor Air Act—‘“the threat of

sanctions may deter . . . almost as potently as the

actual application of sanctions.”

Government regulation constitutes prior

restraint if it makes enjoyment of protected

expression contingent upon government permission.“

To avoid invalid prior restraint, states must not over-

broadly delegate licensing discretion to a government

authority.“ Indeed, “[p]recision of regulation must

be the touchstone 1n an area so closely touching our

most precious freedoms.”44 Courts have found

unconstitutional prior restraint where government

officials were granted “unfettered discretion” in

granting or denying permits, similar to the facts here

with regard to conditional exemptions for theatrical

smoking.‘7 Since those states with a conditional

exemption for theatrical smoking do not provide any

43 Keyishian v. Bd. of Regents, 385 US. 589 (1967) (quoting

NAACP v. Button, 371 US 415 (1962))

44 Near v Minnesota, 283 U.S 697, 713 (1931)

4 Eg, Forsyth County, Ga v. The Nationalist Movement, 505

US 123, 130 (1992) (county ordinance allowing vanable fee for

parade permits was facially unconstitutional absent narrowly

drawn, reasonable, and definite standards to guide fee

determination), Southeastern Promotions, Lid. v. Conrad, 420

U.S. 546, 554 (1975) (striking down as unconstitutional pnor

restraint a permitting system for performance of theatncal

productions and “condemn{ing] systems 1n which the exercise of

such authority [is] not bounded by precise and clear

standards ”), Franken Equities, L.L.C v City of Evanston, 967

F Supp. 1233, 1237 (D. Wyo 1997) (icensing scheme to operate

indoor amusement and video establishment an invahd pnor

restraint where inadequate safeguards were 1n place for permit

process).

46 NAACP v. Button, 371 U.S 415, 438 (1963)

47 Franken Equtties, 967 F. Supp. at 1237 (D. Wyo 1997).

17

safeguards to protect ex, ression through theatrical

smoking—such as notice or hearing before denying

an exemption—there is a viable risk of prior

restraint impinging theater artists’ First

Amendment rights.

4. The Colorado Supreme Court failed to

balance evidence of any legitimate state

interests against First Amendment rights

in theatrical smoking.

When determining the constitutionality of

content-neutral regulations of expression, this Court

assesses the evidence from both sides to balance

First Amendment rights against competing

interests.4® Colorado refused to undertake any such

balancing analysis here. The record in this case is

devoid of any evidence that the incidental effects of

second-hand smoke from _ theatrical smoking

negatively impacts health, or indeed that there have

been any complaints or concerns in Colorado about

theatrical smoking at all.

In Ward v. Rock Against Racism, when

weighing First Amendment rights in playing music

against the state’s interest in controlling noise

pollution, this Court noted that New York City had

in fact received numerous complaints about excessive

noise at Rock Against Racism’s concerts in Central

Park from both users of Central park and residents

48 See, .e., Ward v. Rock Against Racism, 491 U.S 781 (1989)

(balancing the government’s interest 1n protecting citizens from |

unwanted noise against the First Amendment nght to musical

expression at an outdoor public concert).

of adjacent areas.4° No such showing of any

complaints has been made here, whether by theater

patrons, health officials, or the general public. And,

as Justice Hobbs noted, the State made no showing

of any purported adverse health effects from second-

hand non-tobacco smoke to justify the criminal ban

on use of tobacco alternatives.*° Colorado has

stopped free expression in this instance without

offering any evidence of complaints or problems with

theatrical smoking. Unlike Ward, where after

balancing the evidence on both sides this Court

found that New York City’s sound-amplification

regulations were narrowly tailored to accommodate

First Amendment interests 1n musical expression,

here, the Colorado Supreme Court abridged

petitioners’ free expression without ever considering

the weight of evidence on both sides. Rather than

addressing the constitutionality of theatrical

smoking with a_ sensitivity to the facts and

circumstances surrounding such expression, as the

New York City authorities did in Ward, Colorado has

instead made a Procrustean bed, and Colorado’s

theaters are forced to sleep on it.

5. Without certainty as to the legality of

indoor theatrical smoking, theaters may

forgo producing certain plays because of

license constraints.

Playwrights traditionally require their plays

to be produced only as_ licensed, without

unauthorized modifications such as removing or

49 Jd at 785.

5° Curious Theatre Co. v. Colo. Dep't of Pub. Health & Env’t, 220

P.3d 544, 556 (Col 2009) (Hobbs, J., dissenting).

19

replacing smoking. Courts have found that “[a]ny

limitation or conditions which the parties see fit to

insert will be binding and may be enforced except

where they are contrary to public policy or in

violation of law.”51 As such, a playwright is unlikely

to grant a license for a play in a state that does not

allow theatrical smoking if he wants to insure his

play is produced as he intended. In Chicago, Theatre

Seven’s production of Killing Women, a play infused

with smoky atmospherics that are integral to the

play's overall feel, was jeopardized when the

playwright insisted the play not be produced without

smoking, which was well within her rights as the

play’s copyright owner. Theatre Seven affirmed that

in the future, without a right to theatrical smoking,

there are countless plays it will not consider if it does

not have the right to incorporate smoking. Other

contemporary playwrights who have previously not

allowed their plays to be produced without smoking

include Luis Alfaro, Octavio Solis, and Richard

Montoya.

Even if allowed under license, playwrights and

theaters are hesitant to use smoking alternatives

because they are inadequate substitutes. Some

alternatives include electric cigarettes, electronic

vapor cigarettes, or talcum powder cigarettes.®2 At

times, audiences have reacted negatively to these

51 Inge v. Twentieth Century-Fox Film Corp., 143 F Supp 294

(S.D.N Y. 1956) (citing Buck v. Hillsgrove Country Club Inc., 17

F Supp 643 (D. R.L. 1937), Manners v. Morosco, 252 U.S. 317

(1920))

52 These alternatives are not allowed in all states, as some

states prohibit inhaling or exhaling from a “smoking device”

E g., N.H Rev. Stat Ann § 155 65 (2010).

substitutes, perceiving thew use as parodic or

humorous, rather than as developing the character,

plot, or mood, as intended. Justice Hobbs noted in

his dissent below that “[o]ne of the witnesses at trial

testified that the audience had responded to a fake

cigarette with laughter, though the author intended

no comedy.”5s3 For example, a porcelain electronic

misting cigarette will clink obviously when placed in

an astray, making a noise a cigarette would not

make. Additionally, TCG’s members have cited the

prohibitive cost of procuring tobacco-free or smoke-

free alternatives as untenable given their limited

prop budgets.

CONCLUSION

Because theatrical smoking has been a vital

component of free expression for as long as the First

Amendment has been in force, this Court should

stringently examine whether Colorado’s Clean

Indoor Air Act is actually “narrowly drawn to further

a substantial governmental interest.” Currently,

the disparity among state indoor smoking laws

leaves theaters, playwrights and theater artists

unsure whether there will be criminal or civil

consequences for incorporating theatrical smoking

into their productions. By deciding this case, this

Court will guide the states in properly weighing

freedom of expression as they balance competing

interests when legislating indoor smoking or

interpreting existing legislation.

53 Curious Theatre, 220 P 3d at 559 (Hobbs, J., dissenting).

54 United States v. O’Brien, 391 U.S 367 (1968).

21

For the foregoing reasons, the petition for a

writ of certiorari should be granted.

Respecifully submitted,

BRUCE E.H. JOHNSON*

NOELLE H. KVASNOSKY

DAVIS WRIGHT TREMAINE LLP

1201 Third Avenue

Suite 2200

Seattle, WA 98101

(206) 622-3150

brucejohnson@dwt.com

STEVEN D. ZANSBERG

ADAM M. PLATT

Levine Sullivan Koch & Schulz, L.L.P.

1888 Sherman Street

Suite 370

Denver, Colorado 80203

(303) 376-2409

SZansberg@lskslaw.com

Counse] for Amicus Curiae

*Counsel of Record