Theater Smoking Ban Violates Free Expression

The January 10 Denver Post published my letter under the title, "Why smoking ban shouldn’t apply on stage." The letter replied to a January 4 editorial.

The Post argues that, because actors can use fake cigarettes on stage, the state smoking ban should apply. But just because The Post is capable of publishing fake news and commentary doesn't mean it should be forbidden from publishing the real thing. The owners should decide policy, and patrons should decide which plays to see. It is a matter of property rights as well as free expression. By inviting politicians to set policy in the playhouse, The Post invites them to do the same in the newsroom.

Free association is also a critical right under assault by the smoking ban, in the theater as well as other private establishments. Actors too have a right to reach mutually agreeable terms for working. A play properly involves the mutual consent of theater owners, actors, and patrons. Politicians violate the rights of all those parties by interfering.

The Post is schizophrenic regarding the First Amendment (which is odd given that free expression is what enables newspapers to do business). Thankfully on January 22 the Post stood with free speech by declaring that individuals retain their rights when they join an association to promote ideas with their financial resources.

American Lung Association Earns "F" in Liberty

Dear American Lung Association,

I am sorry to learn that your organization deserves an "F" in its understanding of liberty.

I was shocked to read in today's Denver Post that the ALA has endorsed the violation of property rights (via the smoking ban), higher taxes, and more state spending in Colorado.

While I approve of your organization's work to persuade people to quit smoking, in this case you are substituting the force of the state for rational argument. The ends do not justify the means, and you are promoting unjust policies that violate people's rights.

As harmful as smoking is, it is not nearly as harmful as a government that systematically violates property rights and economic liberty. By seeking to forcibly limit people's choices, you are preventing them from acting on their own judgment. The freedom to act on one's judgment, consistent with rights of property and person, is the bedrock of liberty and prosperity. If you take away people's ability to make mistakes, you necessarily undercut their ability to take responsibility for their lives and reach the heights of human potential.

The ALA should mind its proper business of persuading people to improve their health, not promote state policies that violate rights. It should go without saying that I do not donate to organizations that promote the violation of property rights and economic liberty.

Sincerely,
Ari Armstrong

Smoking Ban in Theaters Under Review

If you're performing a play in which smoking is an integral part of the character, you have the right to smoke on stage, right? It's part of your rights to property, contract, and free speech, right? Wrong. Colorado's smoking ban makes no exceptions for this.

Thankfully, the Denver Post reports:

The Colorado Supreme Court has agreed to review the constitutionality of the statewide smoking ban as it is applied to live theater performances.

This is the first victory in a two-year legal battle between three local theater companies and the Colorado Department of Health.

Curious Theatre, Paragon Theatre and Boulder's Theatre 13 argue that smoking onstage is expressive behavior protected by the First Amendment. A Denver district judge rejected that argument in October 2006, and a three-member appellate court followed suit last March.

The review will begin in March.

It is a tragedy and an injustice, however, that the entire smoking ban is not up for review, for the smoking ban is thoroughly unjust. It violates not only the right of free speech but the right of property and contract.

Article II of the Colorado Constitution contains these provisions:

Section 3. Inalienable rights.

All persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness.

Section 10. Freedom of speech and press.

No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty...

Section 28. Rights reserved not disparaged.

The enumeration in this constitution of certain rights shall not be construed to deny, impair or disparage others retained by the people.

The smoking ban clearly is a violation of some people's liberty and rights, and it should be overturned or repealed. Whether owners of establishments ban smoking on their property, and whether customers choose to enter certain establishments based on their policies, is properly up to them.

Smoking Ban (Still) Violates Rights

The Denver Post reported on March 22:

A Colorado appeals court ruled last week that smoking by an actor on stage, while possibly important to character and theatrical message, is still banned by the state's 2-year-old indoor smoking law.

"The smoking ban was not intended to prevent actors from expressing emotion, setting a mood, illustrating a character trait, emphasizing a plot twist or making a political statement," a three-member panel of the Colorado Court of Appeals said in its unanimous ruling, upholding a lower court's verdict.

However, the court added, "smoking, by itself, is not sufficiently expressive to qualify for First Amendment protection."

The smoking ban does violate the right of free speech, but more fundamentally it violates the right to property. (See my earlier comments about the smoking ban.)

Colorado's Bill of Rights (Article II, Section 3) states: "All persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness."

If Colorado's courts took seriously Colorado's Constitution, they would reject the smoking ban before even getting to the federal Bill of Rights.

Court Upholds Smoking Ban

This just in:

Appeals Court upholds smoking ban, DIA exemption
By Felisa Cardona
The Denver Post
Article Last Updated: 01/29/2008 11:55:10 AM MST

Colorado's smoking ban was upheld today by the 10th Circuit Court of Appeals.

A three-judge panel decided that the state's Clean Indoor Air Act did not violate the equal protection clause of the constitution by providing exemptions to airport smoking areas. ...

"The district court concluded, and we agree, that the State of Colorado has offered a rational basis for its distinction between airport smoking concessions and the establishments owned, operated and or serviced by plaintiffs," the opinion says. DIA smokers "...have no options as to where they can smoke because they have no real opportunity or ability to travel to a location outside the DIA area."

That's too bad. However, the fundamental issue is not whether the smoking ban is applied equally, but that the smoking ban violates people's rights to control their own property and associate voluntarily. Subjecting everyone to injustice "equally" is hardly superior to subjecting only some people to injustice.

Smoking Ban Violates Rights

Colorado's smoking ban has created a number of problems. Stage performers tried to fight to ban because it prohibits them from smoking as part of a dramatic act. (What happened to the First Amendment?) Various venues fought for exceptions, and the now-infamous "cigar bar" exception has proved particularly difficult to define. The Rocky Mountain News offers the latest example with an AP article by Ivan Moreno:

State gambling regulators are at a loss about what to do with a Black Hawk casino that claims it's exempt from the statewide smoking ban.

The Colorado Limited Gaming Control Commission said Thursday it wants to hear from its attorney on whether it has any authority to enforce the smoking ban, and whether the Wild Card Casino is violating the law. The casino claims it qualifies as a cigar bar, making it exempt from the smoking ban.

Critics claim the casino is exploiting a legal loophole. They told commissioners they have the power to enforce the ban and should revoke or suspend the casino's gaming license.

"We're not sure why this has continued to go on," said Stephanie Steinberg of Smoke-Free Gaming of Colorado. "It's your duty and responsibility to enforce this law."

Okay: there's a group called "Smoke-Free Gaming of Colorado?" I wonder if the founders and staff of the organization are among those who actually frequent the casinos. And why in the hell does Stephanie Steinberg care so much whether other people smoke on private property that she is free to avoid? Is it really her job to impose her will on everybody else?

I don't know whether the casino in question technically meets the definition of a "cigar bar" as defined by the statute; I don't even know whether the matter has a real answer. But that's not really the point. (See my previous commentary on the issue.)

The owners of the Wild Card Casino have the right to allow smoking within the casino, or to ban smoking there. Properly, it's none of Stephanie Steinberg's business. If she doesn't wish to see other people smoking in the Wild Card Casino or breath their smoke, nobody is forcing her to walk through the doors. Alternately, she could lawfully purchase the establishment on an open market, and then set whatever smoking policy she pleases. But leaving other people alone to control their own property is not good enough for Stephanie Steinberg of Smoke-Free Gaming of Colorado. She wants to send in the men with guns to "enforce this law" in violation of the rights of the property owners.