“Let’s smoke on it”

Okay, I have no problems at all with indoor, public place smoking bans. A fine, healthy, aesthetically pleasing idea, and if I’m stomping all over someone’s freedoms, I offer my humble apologies and then clap with glee.

That said … there ought to be limits, and perhaps it is the thespian in me that resents this particular application of the law:

Actors don`t have a First Amendment right to light up on stage, a state judge ruled Monday, striking an initial blow against a bid to exempt theater companies from Colorado`s new statewide smoking ban.

Denver District Judge Michael A. Martinez denied a request for a preliminary injunction — sought by Boulder`s Theatre 13 and Denver`s Curious and Paragon theaters — against the Colorado Department of Health over its enforcement of the Colorado Clean Indoor Air Act, which became law in July.

“From the testimony I`ve heard, the plaintiffs have failed to demonstrate that smoking in the theater constitutes expressive conduct,” Martinez said in his ruling, which he issued without requiring the state to present evidence in support of the smoking ban.

The judge also said he opposed crafting an exemption to the ban, which bars smoking in most public places, for health reasons: “It would disserve the public health and the public interest.”

Cigarettes and smoking are very expressive, and have a long history in theater and film to that end. If the concern is about public health, I would have no apprehension about an exemption that required notification in publicity for a theatrical production.

Although Boulder theater companies had been exempted from the city`s 1995 smoking ban, the new statewide law superseded that. Theatre 13`s producers chose to have three actors smoke an herbal cigarette on stage in its most recent production, but no audience members complained to the authorities, and the theater incurred no fines for breaking the law.

The most pressing issue is for Curious Theatre, which is scheduled to open the play “tempOdyssey” on Saturday. The play calls for a character to smoke part of a cigarette. Curious` producers had hoped to use an herbal, non-tobacco cigarette in the production. But the Clean Indoor Air Act bans “cloves and any other plant matter or product that is packaged for smoking.”

According to Curious Theatre Producing Artistic Director Chip Walton, the smoking in “tempOdyssey” is fundamental to the audience`s understanding of the play.

During his testimony Monday, Walton noted that Curious is under contract with the literary agent for Dan Dietz, the playwright who wrote “tempOdyssey,” to perform the piece as written.

“I believe that it should be our right as artists to faithfully produce our art as a playwright intended it,” Walton testified.

I do find it amusing that the state-wide band is more restrictive than what Boulder put in place.