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On-stage actors can't smoke 'em if they got 'em, says Colorado Supreme Court

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Update, 4:09 p.m.: Attorney Bruce Jones, who represented Curious Theatre in this case, has just shared his comments on the opinion. Look below to read his views.

Since 2006, the Colorado Clear Indoor Air Act has extended to actors required to look like they're smoking onstage. And the alternatives for coffin nails -- plastic tubes, with talcum powder substituting as smoke -- don't exactly pass the smell test.

The Curious Theatre took on the Colorado Department of Health and Public Environment over this particular aspect of the act's enforcement, with the case getting all the way to the Colorado Supreme Court.

Today, the decision came down -- in favor of the state, and against Curious Theatre.

In the lengthy opinion, which can be read in its entirety here, the majority of the court concluded:

... Even assuming that theatrical smoking actually can amount to protected expressive conduct under some circumstances, the statutory ban does not impermissibly infringe on the plaintiffs' constitutionally protected freedom of expression because it is content neutral and narrowly tailored to serve the state's substantial interest in protecting the public health and welfare.

The decision wasn't unanimous. Justice Gregory Hobbs dissented, stating:

I would reverse the court of appeals judgment and hold that the smoking ban contained in the Colorado Clean Indoor Air Act, as applied to theatrical performances when the script of a play calls for smoking, is unconstitutional because theatrical smoking constitutes expressive conduct protected by the First Amendment. Under the applicable constitutional standard, the state must carry its burden of demonstrating that its prohibition of expressive conduct is narrowly tailored to meet a significant governmental interest.

Where do things go from there? At this writing, Bruce Jones, the attorney for Curious Theatre, is still reviewing the opinion, but he says he should be able to comment later today. When he does, this item will be updated.

In the meantime, stage actors should stock up on talcum powder, whether they're chafing or not.

Update, 4:09 p.m.: Bruce Jones has now had a chance to thoroughly read over the opinion in this matter, and predictably, he is more in tune with the dissent than the majority decision.

"I really thought Justice Hobbs had a great take on it," Jones says. "His view of the case is absolutely in line with our view. It very much tracks with what we had argued. I think it appreciates the importance of being able to realistically portray smoking in a great number of plays, whereas the majority either didn't seem to appreciate it or gave it a lot less weight than what we think it deserves."

At this point, Jones goes on, "we are in the process of considering whether to challenge the opinion -- and the only place that we could go is to the U.S. Supreme Court."

If a decision is made to go forward, Jones believes the dissent could provide a framework for an appeal, as well as a justification for one.

"It lays out in a very persuasive and detailed way what we think is the better legal analysis," Jones says. "And I would hope the fact that there is a dissent would be of some significance to the Supreme Court if we do decide to ask them to review it."

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