A first-of-its-kind Colorado Supreme Court decision upholding the state's ban on theatrical smoking has inspired a dramatic dissent from a justice who disputed that a fake or prop cigarette is an adequate substitute for real smoking.

Anne Archer as Mrs. Robinson in production of "The Graduate"

“A single puff of talcum powder, or a prop cigarette with a reflective tip or light placed at the tip, can hardly depict the 'boozy veil of smoke' necessary to 'Who’s Afraid of Virginia Woolf?'” fumed Justice Gregory J. Hobbs. Blowing into a talcum cigarette causes a puff of talcum powder to be emitted.

“Neither prop nor talcum cigarettes allow an actor to dramatically exhale a puff of smoke, as Mrs. Robinson does in 'The Graduate,'” Hobbs added.

Both “Who's Afraid of Virginia Woolf?” and “The Graduate” were cited by three non-profit theaters in their First Amendment challenge to the Colorado Clean Air Act, which prohibits smoking in any indoor area, including a theater. They argued that theatrical smoking is expressive conduct and the law leaves them without adequate alternate channels for their expression.

Colorado’s ban on indoor smoking, as Hobbs noted, is among the most restrictive in the country. Of the 24 states that have such bans, at least twelve have exemptions for theatrical performances or grant exemptions on a case-by-case basis.

The Supreme Court's Dec. 14 decision is the first involving a free-speech challenge to a state smoking ban. Writing for a 6-1 majority, Justice Nathan B. Coats concluded that “the state’s legitimate interest in preserving and improving the health, comfort, and environment of the public is furthered by limiting the public’s exposure to environmental smoke, even from tobacco-free alternatives.”

As far as whether the use of a fake or prop cigarette has the same dramatic impact “as an actual, burning, smoke-producing cigarette,” Coats said,

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 message is typically conveyed by imitation rather than by scientific demonstration, some resultant lack of realism cannot be considered fatal to the regulation of conduct.

In his dissent, Hobbs eloquently expressed his sensitivity to thespian interests:

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." 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.

He also chastised the majority for finding that the state also has “'a weighty, essentially [a]esthetic interest in proscribing intrusive and unpleasant formats for expression' sufficient to justify a content-neutral restriction on expression.”

“[T]he majority’s use of aesthetic grounds to totally ban on-stage smoking constitutes censorship in violation of the First Amendment,” Hobbs said. “What other aspects of Mrs. Robinson’s dress, speech, or actions might be considered unacceptable on aesthetic grounds?”

The plaintiffs are considering an appeal to the U.S. Supreme Court. "Obviously, we're very disappointed and don't agree with the decision," the artistic director of the Curious Theater Company said. "It doesn't appear that the court recognizes the negative impact this smoking ban has on live theater."

By Matthew Heller
12/15/09