06-Nov-2006
CLEAN AIR ACTS vs. ARTISTIC EXPRESSION
A judge in Denver, Colorado, has ruled that smoking onstage during a production is not protected free speech, even if the playwright's stage directions specifically call for a character to smoke. The ruling, by Denver District Judge Michael Martinez, came down on October 30, 2006, in response to a lawsuit by three theater companies who contended that Colorado's ban on indoor smoking violates their constitutional rights to free expression.
In July of this year, Colorado followed the lead of many states and individual communities and banned smoking inside buildings open to the public. However, although California, New York, and a few other states have carved out exceptions for smoking onstage during theatrical performances, Colorado did not. Therefore the state's performing arts community may not light up during a production, regardless of the requirements of the script.
The matter was especially urgent for the Curious Theatre Company, one of the companies which filed the lawsuit, since it was presenting the world premiere of Dan Dietz's tempOdyssey on November 4. In the script, smoking is pivotal to a character.
Many theater companies now use cigarettes made out of herbs, talcum powder or tea leaves, in order to avoid carcinogenic materials. But substitutes often look like - well, substitutes, and therefore spoil the illusion for the audience.
Ironically, the two authors of Colorado's indoor clean air act took the side of the theater companies, claiming they never intended the law to affect theatrical performances.
However, Judge Martinez pointed out that, in passing the ban, state lawmakers rejected exempting theatrical performances. Martinez also rejected the freedom of expression argument.
There are many scripts in which smoking is essential either to the character or the action. One of the funniest bits in Neil Simon's Sweet Charityhas Charity holed up in a closet, lighting up, and blowing the smoke into a garment bag. Similarly William Gibson's Golda's Balcony chronicles the life of Israeli Prime Minister Golda Meir, who died of lung cancer after chain smoking most of her adult life.
When I produced the Chicago premiere of Alan Bowne's Beirut, the lead character chain smokes throughout most of the play, as he is dying of an unnamed sexually transmitted disease (think HIV).
In such an environment, how do you present Sweet Charity, Golda's Balcony, Beirut or countless other shows which require characters to light up?
Besides freedom of artistic expression, theater companies are also contractually obligated to present their scripts as written. If a show calls for smoking, the characters must smoke.
However, if a producer can figure out a way to present such a script without the called for smoking (so as to comply with his local law), his defense is simple: any provision in the contract which calls for an illegal action is, in itself, unenforceable.
This tension between indoor clear air legislation, artistic freedom, and script requirements is so new it has not yet resulted in any significant litigation. However, as time goes on and this kind of legislation spreads to more communities, I am confident we'll see more challenges and requests for variances from theater companies. I am personally aware of a few instances in which authorities have cited producers for violating local anti smoking bans. But I am also aware of other health officials who have simply chosen to look the other way.
I am also aware of producers who have simply bit the bullet, presented the show as written, and taken their chances.
The most sensible solution is for the lawmakers to carve out a narrow, yet effective exemption for theatrical performances. In most instances, the amount of smoking - even when the character is a chain smoker - does not produce enough smoke to be a health hazard. I am allergic to second hand smoke, but I have never had a problem, as an audience member, with onstage smoking.
I would like your thoughts on the subject. Post your comments at the "Forum" section of my website.
