Could the protection lines of the First Amendment be any blurrier? Consider these two examples:
- In Albuquerque, N.M., a federal judge has ruled that five police officers and one firefighter have a First Amendment right to fight in a charity boxing tournament that will include excessive drinking and "scantily clad ring girls," Associated Press reports via the First Amendment Center. Although the fight may offend some city officials, the judge said, "the fundamental right of all citizens to form their own sensibilities is really the essence of the First Amendment."
- In Denver, Colo., a judge held that actors have no First Amendment right to smoke on stage despite a statewide smoking ban, the Daily Camera reports. "[P]laintiffs have failed to demonstrate that smoking in the theater constitutes expressive conduct," the judge said. The theater's artistic director maintained that smoking was "fundamental to the audience's understanding."
Clear now? You have a constitutional right to box and cavort on stage, just don't light up afterwards.
7 comments:
While the state of Colorado is admirable for trying to protect the public from second-hand smoke, the Colorado Clean Indoor Air Act is too broad and violates the performers’ First Amendment rights. The act of smoking during the course of the theatrical performance was not done arbitrarily. It was done in an artistic manner to evoke images and insight into the character. There is no evidence that anyone was harmed by the actor smoking a cigarette and it’s hard to believe that much, if any at all, of the smoke even reached the audience in a large theater. In fact, they weren’t even smoking real cigarettes. As was reported, none of the audience members even complained about it. In order to ban the performer from smoking during the performance, it seems that the authorities would have to prove that there was real harm done. Take Southeastern Promotions v. Conrad as an example of a possible precedent in this matter. In Southeastern, the Supreme Court ruled that denying the use of a theater for a performance constituted prior restraint. The Court stated in part, “Only if we were to conclude that live drama is unprotected by the First Amendment - or subject to a totally different standard from that applied to other forms of expression - could we possibly find no prior restraint here…[b]y its nature, theater usually is the acting out - or singing out of the written word, and frequently mixes speech with live action or conduct. But that is no reason to hold theater subject to a drastically different standard.”
While the state of Colorado is admirable for trying to protect the public from second-hand smoke, the Colorado Clean Indoor Air Act is too broad and violates the performers’ First Amendment rights. The act of smoking during the course of the theatrical performance was not done arbitrarily. It was done in an artistic manner to evoke images and insight into the character. There is no evidence that anyone was harmed by the actor smoking a cigarette and it’s hard to believe that much, if any at all, of the smoke even reached the audience in a large theater. In fact, they weren’t even smoking real cigarettes. As was reported, none of the audience members even complained about it. In order to ban the performer from smoking during the performance, it seems that the authorities would have to prove that there was real harm done. Take Southeastern Promotions v. Conrad as an example of a possible precedent in this matter. In Southeastern, the Supreme Court ruled that denying the use of a theater for a performance constituted prior restraint. The Court stated in part, “Only if we were to conclude that live drama is unprotected by the First Amendment - or subject to a totally different standard from that applied to other forms of expression - could we possibly find no prior restraint here…[b]y its nature, theater usually is the acting out - or singing out of the written word, and frequently mixes speech with live action or conduct. But that is no reason to hold theater subject to a drastically different standard.”
While the state of Colorado is admirable for trying to protect the public from second-hand smoke, the Colorado Clean Indoor Air Act is too broad and violates the performers’ First Amendment rights. The act of smoking during the course of the theatrical performance was not done arbitrarily. It was done in an artistic manner to evoke images and insight into the character. There is no evidence that anyone was harmed by the actor smoking a cigarette and it’s hard to believe that much, if any at all, of the smoke even reached the audience in a large theater. In fact, they weren’t even smoking real cigarettes. As was reported, none of the audience members even complained about it. In order to ban the performer from smoking during the performance, it seems that the authorities would have to prove that there was real harm done. Take Southeastern Promotions v. Conrad as an example of a possible precedent in this matter. In Southeastern, the Supreme Court ruled that denying the use of a theater for a performance constituted prior restraint. The Court stated in part, “Only if we were to conclude that live drama is unprotected by the First Amendment - or subject to a totally different standard from that applied to other forms of expression - could we possibly find no prior restraint here…[b]y its nature, theater usually is the acting out - or singing out of the written word, and frequently mixes speech with live action or conduct. But that is no reason to hold theater subject to a drastically different standard.”
The details of the First Amendment are blurry in some situations. The First Amendment states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
A Denver, CO judge held that actors have no First Amendment right to smoke onstage. In Colorado, there is a statewide ban on smoking in theatres. The judge says that the plaintiffs have failed to demonstrate that smoking in the theater constitutes expressive conduct.
In another case in Albuquerque, NM, a federal judge ruled that five police officers and one firefighter have a First Amendment right to fight in a charity-boxing tournament that included excessive drinking and “scantily clad girls”.
In the Albuquerque case, the judge ruled that all citizens have the fundamental rights to form their own sensibilities. While this is true, would this also not be true for the Denver case? Smoking in theatres was banned because of the health risk. However, actors have been smoking herbal cigarettes and other non-tobacco substances for years. The main concern here is that letting the actors smoke onstage will give the audience the wrong idea and say it is okay to smoke. Smoking onstage is a form of expression. Many characters in plays/movies smoke to give off a certain persona or feeling that might have. However, banning smoking in theatres takes away this constitutional right.
The details of the First Amendment are blurry in some situations. The First Amendment states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
A Denver, CO judge held that actors have no First Amendment right to smoke onstage. In Colorado, there is a statewide ban on smoking in theatres. The judge says that the plaintiffs have failed to demonstrate that smoking in the theater constitutes expressive conduct.
In another case in Albuquerque, NM, a federal judge ruled that five police officers and one firefighter have a First Amendment right to fight in a charity-boxing tournament that included excessive drinking and “scantily clad girls”.
In the Albuquerque case, the judge ruled that all citizens have the fundamental rights to form their own sensibilities. While this is true, would this also not be true for the Denver case? Smoking in theatres was banned because of the health risk. However, actors have been smoking herbal cigarettes and other non-tobacco substances for years. The main concern here is that letting the actors smoke onstage will give the audience the wrong idea and say it is okay to smoke. Smoking onstage is a form of expression. Many characters in plays/movies smoke to give off a certain persona or feeling that might have. However, banning smoking in theatres takes away this constitutional right.
I think these two articles are interesting and bring up some controversial issues. Smoking itself has always been a touchy subject, and these two articles reminded me of a story I was looking at a while ago that had to do with tobacco advertising and the First Amendment. Essentially, it dealt with ads that major tobacco companies, such as R.J. Reynolds, had in magazines that children would be likely to read. Two examples were Sports Illustrated and Spin. A Superior Court judge fined the tobacco giant $20 million for violating a prior agreement the tobacco companies agreed upon. Some of the terms of this agreement said that they could not use cartoon characters (i.e. Joe Camel), and that the companies cannot specifically target youth in any of their advertising campaigns. Currently the case is being appealed to a higher court. It will be interesting to see what will become of this particular case, as it seems that tobacco companies are finding themselves the target of more and more of these lawsuits. It seems that their own First Amendment rights are getting more limited as time passes.
The State of Colorado is abiding by the State-wide ban on smoking, by not allowing the actors to smoke on stage after performance. The First Amendment rights were violated with the first attempt at stoping smoking in public areas.
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