Now, this is a truly interesting twist in the smoking-ban debate:
After a hearing that was at times as theatrical as any play, a Denver District judge refused Monday to exempt Colorado's theater companies from the statewide smoking ban.
But Judge Michael A. Martinez's ruling in favor of the Colorado Department of Health could open the door for a larger battle over what constitutes freedom of expression.
"It sounds to me like we could be back here for a constitutional argument," said retired Colorado Shakespeare artistic director Richard Devin, who testified in the case brought by the Curious, Paragon and Theatre 13 companies.
Martinez ruled the act of smoking, even in performance, "is not inherently an expressive behavior," and therefore does not qualify for free-speech protections under the U.S. constitution.
The plaintiffs had argued that any action performed on a stage - from a gesture to body language to smoking - communicates a meaningful artistic expression that must be protected.
Since courts started ruling that the First Amendment covers symbolic expression as well as actual expression, almost anything you can think of -- from flag burning to smearing chocolate on one's naked body to immersing a crucifix in urine -- has been dragged under its umbrella. So why not smoking? "Your honor, I was not just smoking. I was making a statement about the rights of the individual and the oppressiveness of the collective culture. I demand my First Amendment right to free speech." You think I jest, but in today's culture, I think it might have a shot.
