Curious Theatre Co. v. Colorado Department of Public Health and Environment

Three non-profit theater companies sought a declaratory judgment against the Colorado Department of Public Health and Environment and its executive director to declare the unconstitutionality of a state law that prohibits smoking in any indoor area, including theaters, unless an exception applies. The theater companies argued that the law violated the constitutional right to freedom of expression.  The Supreme Court found that the statutory ban against smoking in indoor areas was constitutional and did not violate the freedom of expression guaranteed by both the federal or state constitutions. 

Curious Theatre Co., et. al. v. Colorado Department of Public Health and Environment, et. al, No. 08SC351, Colorado Supreme Court (2009).

  • United States
  • Dec 14, 2009
  • Colorado Supreme Court
Download Document

Parties

Plaintiff

  • Curious Theatre Company
  • Paragon Theatre
  • Theatre12, Inc.

Defendant

  • Colorado Department of Public Health and Environment
  • James Martin, Executive Director

Legislation Cited

Colorado Clean Indoor Air Act, §§25-14-201 to -209, C.R.S. (2009)

Related Documents

Type of Litigation

Tobacco Control Topics

Substantive Issues

Type of Tobacco Product

None

"Accepting that there may exist certain kinds of expressive conduct for which actual speech could not provide an adequate substitute, such as, erotic dancing, the Supreme Court has made clear that regulations limiting the full expressive impact of such conduct can nevertheless comport with the First Amendment. See Erie, 529 U.S. at 301, 120 S.Ct. 1382 (plurality opinion) (although prohibiting full nudity, a law permitting dancers wearing "pasties" and "G-strings" leaves open ample alternative channels of expressing the message of erotic dancing). Whether or not the use of a fake or prop cigarette can have precisely the same dramatic impact or convey the same degree of realism as an actual, burning, smoke-producing cigarette, it, like the theatrical use of substitutes for virtually every other type of dangerous or illegal conduct, is capable of amply communicating to an audience an intended message. Especially in the context of a theatrical performance, where the message is typically conveyed by imitation rather than by scientific demonstration, some resultant lack of realism cannot be considered fatal to the regulation of conduct. Because it is clear, without further evidentiary support, that the state has a significant interest in protecting the health and welfare of its citizens and that the welfare of those citizens would be more exposed to harm without the smoking ban than with it, the ban is adequately tailored for purposes of the First Amendment to the United States Constitution."
"Perhaps more to the point, however, the legislative declaration in this case expressly states that the Act's purpose is "to preserve and improve the health, comfort, and environment of the people of this state by limiting exposure to tobacco smoke." § 25-14-203. The determination of the General Assembly that "it is in the best interest of the people of this state to protect nonsmokers from involuntary exposure to environmental tobacco smoke in most indoor areas open to the public," when read in context, evidences the balance struck "between the health concerns of nonconsumers of tobacco products and the need to minimize unwarranted governmental intrusion into" private choices — not its purpose or interest. Id. Rather than contradicting itself or obtusely failing to grasp that its regulatory scheme was wholly unnecessary to its purpose, it seems abundantly clear that the General Assembly's purpose was to protect its citizens from exposure to the smoking of others without at the same time forcing them to choose between their comfort or health, on the one hand, and the benefits offered by regulated, public accommodations, on the other."