Smoke-Free Theater

An A.P. story notes that New York State's smoking ban, which took effect on Thursday, prohibits cigarettes in plays and other live performances as well as bars and restaurants.

Stage performances where cigarettes were props, from the gritty play…"Twelve Angry Men" about a tense jury room to the standup comedy of Denis Leary, would have to be smoke-free under the law, said state Health Department spokesman William Van Slyke. Cities and counties could, however, seek waivers for specific shows and theaters, he said.

…curbing such public displays of smoking could go a long way to the kind of societal change advocates of the smoking ban say is needed to get more smokers to stop and more nonsmokers not to start.

"Now, the image we have of a smoker is the person standing in the rain having a cigarette, and that is hardly the glamorous image we had in the '40s and '50s," said Russell Sciandra, head of the Center for a Tobacco-Free New York. "That's going to have a tremendous impact on children's perception of smoking."

Hence the ban protects the public not only from secondhand smoke but from pernicious ideas, such as the notion that there is anything "glamorous" about smoking. In this light, the criticism offered by anti-ban activist Audrey Silk seems, if anything, understated. "When a law infringes one of the arts," she said, "it's almost like denying people their free speech. It's like censorship."

[Thanks to Linda Stewart for the link.]

Comments

[Cheez]

"Cities and counties could, however, seek waivers for specific shows and theaters..."

This should be jumped on by some bars in NY. If theaters are able to get waivers, then they need to reclassify their bar as a drinking-theater (similar to dinner-theater). Be sketching out a loose script of "Night in a Bar" or something like that, they could turn the actions of their patrons into free speech. The production could be largely improvisational, with a rotating collection of actors. Any non-regulars that come in could be included by having written in interactive audience participation.

Sure, it's pretty ridiculous. But why not give it a try. Sometimes the best way to fight silly legislation is to go deeper into the silliness of it.

Plus, as an added bonus, all those bartenders and waiters can finally call home and tell them they landed an acting job.

[Neb Okla]

Cheez, the best way to eliminate silly legislation is to illustrate to the public how silly it is and have it repealed - not to hunker down and play along.

[Tim Stich]

Neb sez:

"If smoking on stage is free speech (as is implied by saying smoking bans are censorship), then shooting up with heroin on stage should also be protected speech."

Pretty poor analogy there. Comparing heroin to ciggies. Lame-o.

[Cheez]

Neb,

Exactly, turning every bar in Manhattan into a theater, thereby allowing people to smoke once again is a way of illustrating the silliness of the legislation. There are countless other ways of illustrating things to the public, but I think this would be one that got notice.

As for the heroin analogy, it would only hold if you were currently allowed to buy sell, buy, and possess heroin, but that you were limited to using it in certain places.

[Neb Okla]

Tim Stitch, pro-drug Libertarians often portray cigarettes as more addictive than Heroin - and about as dangerous overall.

So if you think it's a poor analogy, maybe you've been drinking too much Tobacco industry Kool-aid. Or maybe you think heroin is more dangerous than it really is?

[Eric Pobirs]

That is avoiding the issue, Neb. Heroin is illegal in all but a very narrow set of circumstances. Tobacco is not. Instead they've engaged in a campaign of harassment against tobacco users.

I'm not a smoker and greatly dislike being subjected to it. I've certainly have never been forced to aquire in passing the stench from a bunch of heroin junkies huddled in a doorway.

But that does nothing to alter the nature of right and wrong. The Health Nazis are becoming increasingly bold and there is no doubt in my mind that they will eventually try to legislate some behavior of my own that affects nobody else but all the while insisting it's for my own good. The smokers are just the first targets. They're already trying to place restrictions on the type and volume of food I can conveniently purhase. (Not to mention the utterly evil Meathead Tax that has been imposed here in California.)

Infringing on the freedom of smokers sets a very bad precedent. I'm not waiting around for them to notice me.

[Neb Okla]

Eric Pobirs, you are avoiding the issue.

The question was, if you can cry "Free Speech" when someone won't let you smoke on stage, why can't you do the same for other drugs?

And I also asked, if fake drugs are used on stage - why can't fake cigarettes (which do exist) be used on stage as well.

In other words, why is it a censorship issue when an actor can't use a real cigarette - but why is it not a censorship issue when someone has to smoke a fake doobie - or use special effects instead of actually stabbing someone on stage.

[Neil Block]

I believe the argument against stabbing someone onstage would be the basic libertarian tenet that one can do as he pleases so long as he does not violate the rights of another -- i.e., the right to life.

[CItizen]

Ok Neil, but I believe it can be and has been shown (certainly not by me) that second hand smoke is physcially hazardous to those who breathe it. If that were true, couldn't it be said that by smoking in bars, theatres, etc. that the smoker is indangering the life of other patrons, the audience, etc? Yes, and that's exactly the arguement being made.

So why can't anybody give objections to Neb's suggestion of using fake cigarettes?

[Cheez]

Citizen,

I gave no objection to the use of fake cigarettes because I have no objection. If they are an acceptable substitute (I don't know anything about them), then they should be fine. However, if they can be spotted as obvious fakes by folks in the audience, then they aren't an acceptable substitutes, given that the product and activity are not in and of themselves illegal.

As for the harm to other factors, there are studies on second hand smoke that swing both ways. But accepting that it is a risk to others as a legitimate excuse for banning the activity, wouldn't it make more sense to attack something that can cause immediate death, from one exposure, on public property rather than something that takes repeated exposure over years on private property? Traffic deaths kill people of all ages on public property, suddenly with no warning. Many traffic deaths could be stopped if no one were to drive over 12mph. Making driving over 12mph punishable by car forfeiture would allow for quick compliance and save many lives

But it's not about saving lives, it's about everyone knowing what's best for you.

[Amy Phillips]

Have any of you actually smoked stage cigarettes? They're non addictive and don't cause cancer, etc., but they're hell on the throat. I once had to smoke them in a musical I was in, and for the run of the show, I perpetually had a sore throat and a bad taste in my mouth. For several of the days I was performing, I didn't speak except onstage to avoid straining my voice so that I could save it for the play. I can't imagine having to smoke them every night for years onstage. So while real cigarettes may cause more adverse health effects, stage cigarettes are far, far less pleasant for the actors, especially if you have to sing. I can definitely understand why they would find it an imposition to be told that they have to sacrifice their comfort (and possibly their ability to lead normal, speaking lives offstage) because a few audience members are paranoid about inhaling a few smoke particles.

Citizen: As far as I know, the "danger" posed by secondhand smoke has been demonstrated only in a single EPA study which has been discredited and ruled invalid by a federal judge. But even if it were dangerous, so long as theaters didn't lie about whether there was smoking in a given play, you could choose not to see it if you're that afraid of breathing in smoke.

[Neil Block]

No one's stopping performers from crying "free speech" when they're not allowed to use real drugs on stage -- they just don't because the drugs are illegal. Tobacco isn't (at least, in most places).

The coercive force of government shouldn't be used to ban smoking in private establishment -- if people don't want to be around smoke, they don't have to enter establishments that allow smoking. This could, however, be extended to murder -- for instance, if a restaurant murdered patrons randomly, one could make the argument that, if they don't want to be murdered, then they should not enter that establishment. There's a good working paper on this construct of libertarianism here. However, this seems just a tad flawed to me. Can anyone explain to me why the private property argument can't be extended to a "voluntary slaughterhouse"? Am I a crackpot?

[Neb Okla]

Cheez, you said "if they can be spotted as obvious fakes by folks in the audience, then they aren't an acceptable substitutes".

Go to the theatre much? Just about every prop they have can be spotted as a fake. I recently saw a production featuring a pot smoker who didn't have a joint at all. Just inched his fingers together and acted out the stereotype.

It worked quite well - and get this - they were able to convincing smoke effects with lighting alone! Nobody confused it with real smoke (as from a smoke machine), but we all knew what it represented.

So I guess we all agree that they should just use fake cigarettes and get over it. No censorship involved.

Now it would be amusing to get some fake cigarettes and use them in bars and such. It depends on how the law is written. Anyone have a link to the NYC law text?

[Neb Okla]

Neil Block, you said "Can anyone explain to me why the private property argument can't be extended to a 'voluntary slaughterhouse'?"

Interesting case. What do you do about people who accidentally go in? There has to be some kind of protection for the innocent.

One problem with the "if you don't like it, go somewhere else" solution is that most people just don't care.

If you have a list of restaurants in my area that do not allow smoking, then I would prefer to dine there (since non-smoking sections often are smoke free in name only). But I'm not out to have smoking banned.

Most restaurants don't advertise a ban on smoking (though I've been in a number of places where nobody was smoking).

The crazy thing is that with all of the inconvenience and bad PR surrounding smoking, just about everyone I know smokes (at least occasionally). They all agree that it is bad for them, but they keep doing it and have no interest in stopping.

...one friend mused that he should make a pros/cons list of smoking and make an analytical decision as to wether or not he should continue.

He's a pretty bright guy, and only started smoking within the past 5 years or so (he's in his late 20's).

The claim was that smoking helped him concentrate on his writing.

[Cheez]

Neb,

Sorry, looks like Amy has a bit more insight. As for the props in general, sure, some productions will even faking drinking from cups. But it's up to the discretion of those in the production.

I think you probably realize your pot/cig analogy doesn't work any better than the heroin/cig one you abandoned earlier.

[Glen]

I just avoid NY. Go to NJ instead.

[Rick Mave]

Did you see that Indiana Jones movie where all four walls, including the ceiling, slowly inch in toward the hero? (I believe it was ?The Temple of Doom," but I'm not sure.

In any event, it seems as if suddenly (well, actually, gradually) the ?ceiling and walls? in this country are caving in on us.

-- The metaphoric ceiling is economic oppression -- taxation, unemployment, and general market destruction.

-- The metaphoric left wall is political correctness.

-- The metaphoric right wall is behavior modification attempts (smoking, eating, etc.)

-- The metaphoric front wall is racism victimology and general anti-discrimination guilt trips (see Abercrombie-Fitch story here:) http://www.mises.org/fullstory.asp?control=1278

-- And the metaphoric back wall is environmentalism scare tactics and the general damage EPA-types are causing.

The question is, at what point will "the hero" (that's you) free himself from these slowly encroaching constraints?

Personally, I'm looking for that metaphorical escape hatch before the metaphorical bottom falls out.

[Andrew Lynch]

Neil Block,

Sorry to go off topic, but I had to respond to your posting of the Chandran Kukathas paper on libertarian constructs. Thanks, by the way, for posting it. It was juicy, although I think it's far from fully realized. I though it was interesting enough to blog.

Kukathas, as provocative as he may be, fails to score on four points. First, he hints at but does not illuminate the constitutional framework any libertarian society would require. A libertarian's view of limited government does not mean no government at all. The operation of government, through constitutional enumerations and restrictions, would quite naturally have to account for the complexity and diversity Kukathas seems to believe are in conflict with the theoretical magnitude of personal liberty.

Second, he pays a relatively large amount of time in his society models using slavery as an easy foil for libertarianism. But he doesn't account for a simple constitutional article or amendment (such as our own Amendment XIII) that would render his argument irrelevant. When individual liberties are clearly protected in plain constitutional language, many of the conflicts Kukathas explores evaporate. Quite simply, he sees complexity where there is none. A capital L libertarian world would outlaw the suppression of individual rights. If that creates a problem for groups bent on suppressing individual rights, they would be in violation of the law. If these groups want to establish a paradise where suppression reigns, great, go someplace else or foment a revolution. Kukathas minimizes the value inherent in individual liberty by conflating it with an overestimation of the "diversity" that creates groups dedicated to authoritarianism.

Third, Kukathas doesn't seem to realize that a confluence of the Federation and Union he describes is the United States of America. On the Federation side, we have strong political and religious disagreements, all held in check by the authority of the constitution and untold deviations from it. On the Union side, at the federal level, we absolutely have a central authority -- representative as it claims to be -- of a few hundred elected officials plus 9 justices. In the perverse world of modern American politics, one could argue that the composition of the "few hundred" consists of a large mix of non-government agents and only a few dozen elected officials, the rest of them muted by process and bloat.

Fourth, Kukathas gives no merit to the theoretical power of the contract, which, as we know it today, is often a response to regulation and intrusive legislation rather than a refinement and reinforcement of the elementary agreement.

[Stephen Fetchet]

Ironically enough, you can smoke cigars anywhere in Cuba.

[Anonymous]

I smoke after sex. Is the whorehouse I visit considered a public or private building?

[Tim Stich]

"When a law infringes one of the arts," she said, "it's almost like denying people their free speech. It's like censorship.""

It's not like censorship;
it is censorship

[Croesus]

In France there have been similar efforts, and people just ignore them.

[Croesus]

In fact, France remains a smoker's paradise. You can smoke in restaurants, on trains and even (get this!) in bars.

[Neb Okla]

If smoking on stage is free speech (as is implied by saying smoking bans are censorship), then shooting up with heroin on stage should also be protected speech.

Of course, there are plays where people pretend to smoke marijuana, do lines of coke, and inject themselves with heroin - all without breaking the law.

I seem to remember fake cigarettes (which are used frequently in drama) that make a visible "smoke" - and can even be inhaled and exhaled like real cigarette smoke, so why not use this to make ones artistic statement - or is it more fun to whine?

[Croesus]

Neb Okla,

The CSM smokes cigarettes with herbs in them.

[Jim]

I'm opposed to the smoking ban on private property rights grounds anyway, but this brings up some interesting problems nonetheless. The courts have upheld laws that effectively diminish freedom of speech and/or religion, as long as the law is a 'legitimate state purpose' and is generally applicable, not targeted to some minority based on their beliefs or the content of their speech. It's the reason why you cannot smoke pot on 'religous' grounds and expect state protection, because the rule applies to everyone, not just to Rastafarians (for example). And you cannot murders someone and defend it as an act of speech, because even though it may be intended as such, the state has a legitimate purpose in preventing murder.

Nonetheless, if supporters of the ban are advocating it partly because it will have an effect on limiting speech, that would seem to run afoul of the 'content neutral' speech restrictions that have been allowed in the past by the courts. Of course, it was not the stated intent of the law, so just because antismoking activists are deriving joy from this isn't necessarily meaningful either. I would like someone to take this to court on first amendment grounds, just to raise public awareness about it.

Movies often show drug use, and presumably the actors and actresses aren't actually using drugs, or else they'd be arrested (we got'em on film even!). The drug use is simulated. Perhaps they can get around the legal and practical issues by using some type of 'simulated' cigarettes and smoke? This doesn't in my opinion correct the moral wrongs of this whole situation, but I can see someone bringing that up as a defense against the notion that the law is invalid on freedom of expression grounds.

[J Canuck]

When governments finally wean themselves off the tax dollars generated by this legal/lethal weed, I will begin to pay attention to their opinions on this issue. Until then, back the hell off. And no, I do not smoke, but I may start, just to piss some people off.

[Neil Block]

Thanks for your input, Andrew. I've been trying to find ways to refute that piece for a while now. Nice blog, by the way.

[martin]

I'm not even going to discuss the merits or demerits of any type of legislation like that.
I get too angry at the bleepin' condescension and arrogance of these do-good activists and their politicians. Get the hell off my back! I can decide for myself and I do not need those types to regulate my life in detail and to reeducate me.
- end of rant -
In Germany they have a cute term for these people: Gutmensch, literally translated Goodperson.
Anyone have a better English term?

[martin]

I'm not even going to discuss the merits or demerits of any type of legislation like that.
I get too angry at the bleepin' condescension and arrogance of these do-good activists and their politicians. Get the hell off my back! I can decide for myself and I do not need those types to regulate my life in detail and to reeducate me.
- end of rant -
In Germany they have a cute term for these people: Gutmensch, literally translated Goodperson.
Anyone have a better English term?

[Kevin Carson]

Andrew and Neil, re libertarian constructs:

I'll have to read the Kukathas article--sounds fascinating.

Benjamin Tucker argued that the rights of collective self-defense were governed by the same principles as individual self-defense. An individual was the ultimate judge of what he regarded as an imminent threat to his safety, and of the necessary means of responding; at the same time, he was responsible for the consequences and subject to the judgment of other individuals about the validity of his actions.

Likewise, any voluntary mutual defense association (or security agency, for you anarcho-caps) would have to use its own prudential judgment as to what constituted a sufficient threat to justify action. And to the extent that such associations and federations of associations used common law methods to adjudicate these issues, the definition of threat would vary with the "libertarian law code" (Rothbard's term, actually) of a particular area.

Tucker expressed the hope, however, that in a free society these rules would define "threat" very narrowly, and refrain from the use of force in all but cases of the most "clear and present" dangers.

In a sense, the neolibertarians who defend preemption from a position of "methodological individualism" agree with Tucker. But they adopt a collective threshold for defining a "threat" and acting on it that, were it adopted by an individual, would probably get that individual iced as a menace to society. One of the Monty Python alums, I forget which, wrote a spoof piece by a guy adopting Bush's preemption policy as a guide for his personal behavior: "so-and-so's been looking at me funny, and is probably up to no good...."