The New York State smoking prohibition law permits only non-tobacco products to be smoked indoors but it allows for a waiver of the ban in individual circumstances. So, for example, Broadway shows that use clove cigarettes are not subject to the ban, and a waiver can be requested in order to use tobacco for a particular production. However, other states (states not nearly as dependent on theatrical productions for their revenues) have not taken the same approach. Currently, for example, there is no exemption for theatrical performances in the city of Lincoln, Nebraska (which prohibits the burning of anything in a pipe, cigarette, or smoking implement) nor in the states of Colorado,
Louisiana, and North Dakota (which define smoking as the burning of tobacco and any other plant matter).
The states of Arkansas, Illinois, Iowa, Kansas, Michigan, New Hampshire, and New Jersey also have no exemption for theatrical performance, and they define smoking so vaguely and broadly that it could conceivably be stretched to include the burning of pretty much anything.
States can certainly claim a legitimate public interest in protecting its citizens from exposure to known carcinogens. As a result, smoking bans are constitutional when limited to regulating such behavior in public places, like restaurants and office buildings. But when a government goes beyond regulating behavior to regulating the content of expressive speech, such laws are subject to the much stricter scrutiny required of limitations on the First Amendment. These laws must be narrowly tailored in order to be constitutional.
To the extent a local or state government claims their smoking ban is in place to prevent the glorification of cigarette smoking or that smoking creates bad models of behavior, such a ban is likely to be held an unconstitutional limitation on expressive speech. Therefore, governmental claims tend to deny that smoking by a character in a play constitutes "expressive conduct" in the first place, to avoid First Amendment implications.
The Colorado statute is currently the subject of a lawsuit before the Court of Appeals. Three theaters there are appealing a district court judge's ruling that "the plaintiffs have failed to demonstrate that smoking in the theater constitutes expressive conduct." The parties are scheduling oral arguments before the court of appeals on this issue.
Clearly, anyone denying the expressiveness of smoking as part of a play has never watched the works of Edward Albee, David Mamet or Tennessee Williams. Smoking can help define a character, establish a mood, or sometimes be an important element of a plot. To present such plays without allowing the characters to smoke is to alter the meaning of the work.
Since the Dramatists Guild was formed 80 years ago to support the rights of playwrights, composers, and lyricists writing for the theater to express themselves freely through their art, our position on this issue would seem clear. To the extent that the antismoking ordinances around the country inhibit the free expression of playwrights to create the characters they choose and to tell the stories that they wish, those statutes has the effect of censoring their work.
Such laws can be more narrowly tailored by legislatures to either have a waiver for theatrical productions, or require notification to the audience of the use of smoking during the performance, or to at least allow the smoking of tobacco substitutes. But unless the law employs such safeguards, we condemn the attempted enforcement of such legislation as a vague and overbroad attempt to redefine expressive speech as criminal conduct, thus narrowing the range of "acceptable" artistic statements available to writers everywhere.
SMOKING BAN [July 2007]
On May 1, Illinois passed a statewide smoking ban in all public places, which Gov. Rod Blagojevich said he will sign into law, to take effect Jan. 2008. In Mar. 2007, Cook Co. passed a countywide ban, from which municipalities could opt out and enact less restrictive bans. However, Chicago had already passed a citywide ban, effective Jan. 2006. A City Council panel did consider but then voted 4-2 against a proposal from Ald. Burton Natarus (42nd) for an ordinance granting exemption for actors who smoke onstage.
NO SMOKING [Nov 2006]
Three Denver theaters Curious Theater, Paragon Theater, and Theater 13 filed suit in district court against Colo.’s Dept. of Health & Environment, seeking exemption to the state’s recent smoking ban, citing the First Amendment right to free expression. State Sen. Dan Grossman (D-Denver), co-author of the Clean Indoor Air Act, told the Denver Post, “It certainly wasn’t the intent of the new law to ban the freedom of expression in live performances. It was an attempt to protect workers who are forced to work in an environment where smoking occurs.” Yet, Judge Michael A. Martinez ruled that smoking “is not inherently an expressive behavior” and refused any exemption. The theaters plan to appeal.
BRITISH BAN [May 2005]
Legislation is pending in London and Liverpool to ban smoking in all “enclosed places of work,” including stages, something theaters say would compromise artistic integrity. Society of London Theaters chief exec Richard Pulford told The Guardian, “Plays sometimes require the characters to smoke. In [Simon Gray’s] The Old Masters, for example, the plot to a certain extent turns on the smoking of a cigar.” Mike Storey of Liverpool’s council said, “Places where people work should be nonsmoking that includes theaters. … "lays in which people smoke promote bad role models anyway.”