Law Week Colorado reports that it's now illegal to smoke in character on a Colorado stage (HT: Don't Tase Me, Bro!):
Public health concerns trumped freedom of expression in a Colorado Supreme Court ruling this morning. In a 6-1 decision in Curious Theatre v. Colorado Department of Public Health and Environment, the high court held that the state’s indoor smoking ban, enacted in 2006, bars actors from smoking onstage as part of plays.
The plaintiffs, a group of local theaters, had argued that smoking onstage is protected expression under the First Amendment. The court ruled that even assuming smoking can sometimes be protected conduct, the smoking ban can’t be called unconstitutional because it is narrowly tailored for a specific purpose.
Does this mean that the state can ban hate speech in theatrical productions? Sure, if a character uses threatening or violence-inducing language based on racism, sexism, or homophobia, it doesn't mean that the actor or the theater company endorses it. But it's not "simulated" hate speech; it's as real as the cigarettes smoked onstage by an actor who does necessarily condone smoking.
