The court said that performances typically convey their message “by imitation rather than by scientific demonstration’’ and that there are alternatives to smoking on stage.
It also agreed with Attorney General John Suthers’s argument that the state Legislature passed a narrowly tailored law to protect public welfare, not to limit speech.
Colorado’s law bans using alternatives to tobacco cigarettes, such as cigarettes filled with cloves or tea leaves.
Theater companies argued smoke that lingers on stage is crucial to set a mood, develop character, or establish a time period. In a 20-page dissent, Justice Gregory Hobbs said allowing only prop cigarettes, including those filled with talcum powder, would be “untenable and laughable.’’
“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,’’ Hobbs wrote.
Hobbs pointed to several scenes in plays where smoking is crucial, including a seduction scene in the stage adaptation of “The Graduate’’ where Mrs. Robinson establishes her dominance over her younger lover partly with a strategic puff of smoke.
Curious Theatre Co. challenged the law when it staged a play, “tempODESSEY,’’ shortly after the smoking ban took effect in July 2006.
The company said it was considering appealing the decision to the US Supreme Court.
“The ruling goes beyond the pale. It allows the government to impose their aesthetics on speech. It’s mind boggling,’’ said Ralph Sevush, executive director of the New York City-based Dramatists Guild of America, which filed a brief in court opposing Colorado’s ban.
