Tobacco

Smoking and the First Amendment

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The Denver Post reports on an interesting case of artistic expression versus the nanny state:

New York's Theatre Communications Group filed a brief with the U.S. Supreme Court on Friday asking it to rule in favor of a consortium of three Colorado theater companies that smoking within the context of a theatrical production is a First Amendment right of free expression

Curious Theater, Paragon Theatre and the now defunct Theatre 13 have engaged in an ongoing, four-year legal battle to win an exemption from Colorado's statewide indoor smoking ban that would allow smoking during theatrical performances.

As Theatre Communications Group Executive Director Teresa Eyring put it:

"TCG has supported the original petitioning theaters since their first appeal. As the national service organization for professional not-for-profit theater, our responsibility is to advocate for our member theaters and our collective, strong belief in freedom of expression.

"Theatrical smoking has been a part of free expression in America since the First Amendment's ratification in 1791. Theaters rely on actors' expressive conduct, including smoking, to convey meaning in tandem with a play's dialogue, movement, mood and tone."

NEXT: The Supreme Court's 'Robustly Libertarian View' of Free Speech

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  1. My wife’s niece and nephew were here this weekend. They were watching an old Tom and Jerry cartoon. It was about a box that allowed anyone to get into the “lucrative world of animation”. It contained

    1. stupid mean cat
    2. an assortment of deadly weapons
    and get this

    a pack of cigarettes and a cup of coffee for the animator.

    I could not believe they hadn’t banished this cartoon like they did Speedy Gonzalez. I am sure it was just an oversight and not any commitment to free speech or anything.

    1. There are quite a few banned or edited cartoons — like Bugs Bunny in blackface or a “mammy” (edited to be white).

      Google “banned cartoons” and you’ll find plenty of information.

    2. How odd. This was a Final Jeopardy question within the last week. The activity that has been cut out of vintage Tom and Jerry cartoons. The answer was smoking. I guess they missed this one.

      1. It was on Boomerang. Maybe Boomerang has gone rogue or something.

        1. Did it show smoking, or just a pack of cigarettes?

          1. Just the pack. But still.

            1. You know what really makes me feel old? Watching The Shining, which I first saw in college, and seeing the scene where Shelley Duvall offers the pediatrician who comes to see Danny a cigarette.

              At that point, I wouldn’t have been surprised if the doctor had brought out leeches to get Danny’s humours back in balance.

    3. Speedy gozalez is banished? What the fuck is wrong with people. Why is it offensive to portray Mexican characters speaking with a Mexican accent?

      1. I imagine it was more of a problem with his super-lazy sidekick.

        1. That would be Slowpoke Rodriguez. Also, all of the other Mexican mice in the cartoons are portrayed as slow and lazy. A bunch of the Speedy Gonzalez cartoons are on some of the Looney Tunes Golden Collection sets, so they’re definitely not “banned.”

          1. Oh. And there’s the running joke of Speedy Gonzalez fucking all of the other mice’s sisters.

            Off topic, in one of the cartoons, you can hear him singing La Cucaracha in the background, including the line about not having any marijuana left to smoke.

            Yeah, I still watch cartoons.

            1. “Oh. And there’s the running joke of Speedy Gonzalez fucking all of the other mice’s sisters.”

              That was no joke, my friend.

              1. Let me tell ya, “Speedy” is no joke either.

          2. I didn’t say they were “banned” just banished meaning they never get broadcast on TV anymore.

            And those cartoons are some of the greatest short films in history. For my money One Froggy Evening and What’s Opera Doc are the two greatest short films ever made. There is nothing wrong with watching those cartoons.

      2. It is funny. They banished it from the US version of the Cartoon Network. But, they kept it and it is wildly popular on the South American version. South Americans generally hate Mexicans and have no problem making fun of them.

        1. Is that true? If so, I find that hilarious. I don’t really know why though.

          1. Don’t ever call a hispanic person Mexican unless they’re from Mexico, in which case, don’t call them a Puerto Rican.

            1. I get so sick of that PC crap. It’s just popular vernacular based upon statistical probability. In the south, at least, most Hispanics are of Mexican descent. I’m an atheist, but you won’t see me getting all pissy when someone calls me a WASP. And that one, unlike Mexican, is almost always used as a pejorative.

          2. From wikipedia

            n 1999, the Cartoon Network ceased to air Speedy Gonzales. In an interview she gave to Fox News on March 28, 2002, Cartoon Network spokeswoman Laurie Goldberg commented, “It hasn’t been on the air for years because of its ethnic stereotypes.” This is widely believed to refer to Speedy’s fellow mice, who are all shown as being very slow and lazy, and sometimes even appear intoxicated. This is particularly true of Speedy’s cousin, Slowpoke Rodriguez, who is exceptionally slow and lazy.[2]

            In Gonzales’ Tamales, the town mice instigate a feud between Speedy and Sylvester the Cat because Speedy has been stealing the hearts of all the females. Much of the dialogue between Mexican characters is in English and the small amount of Spanish that peppers the dialogue consists of basic greetings, goodbyes, exclamations, and misplaced references to popular Mexican foods. This criticism prompted Cartoon Network to largely shelve Speedy’s films when it gained exclusive rights to broadcast them in 1999. However, fan campaigns to put Speedy back on the air and lobbying by the League of United Latin American Citizens saw the shorts return to air from 2002.[3] Despite the controversy in the USA, Speedy Gonzales remains a very popular character in Latin America.

    4. I guess this is why I don’t see much Popeye on Boomerang anymore. Bastards.

  2. Theatrical smoking has been a part of free expression in America since the First Amendment’s ratification in 1791.

    We all know that the theatrical smoking ban in the Articles of Confederation was undone by the Constitution. However, it wasn’t repealed by the First Amendment, but by Article I, Section 9, because it was a Bill of Attainder against Marlene Dietrich.

    Learn some history!

  3. Well, if “theatrical” smoking is free expression, then why wouldn’t regular old smoking by real people also be expressive? Don’t real people also rely on “expressive conduct, including smoking, to convey meaning”?

    1. Yes, which is why a state/city wide smoking ban is just another nanny effort to chip away our freedom.

    2. Yeah, but don’t you know? Smokers aren’t really people.

    3. Smoking is behavior and entails some sort of commerce, therefore it can be banned under the Commerce Clause, or something. Anyway, that’s our story, and we’re sticking to it.

      1. Funny, I thought you’d say you were going to mandate, not ban, smoking under the commerce clause.

    4. “Smoking is my performance art. I’m not smoking, I’m commenting on smoking.”

      1. “You’re both alcoholic, whore-mongering, chain-smoking gamblers?”

  4. Don’t real people also rely on “expressive conduct, including smoking, to convey meaning”?

    Nah. Now, they mostly just text.

    1. Sexting!

      1. Good sexting would be incomplete without the post-sexting cigarette (“e-” or otherwise).

        1. I’d love to be in high school now.

          1. What’s stopping you, LandoFree? This could be an opportunity for us all to learn a valuable lesson about date rape or something.

            1. Hey, I’m not proposing some sort of John Cryer situation. Just that if I could do it all over again, I’d like to have been born in about 1996.

          2. Don’t worry, you still are developmentally.

  5. This is a very novel approach… I wonder if doing some performance art involving smoking on the street would allow the bans on public smoking to be overturned on First Amendment grounds.

    1. Why don’t you give that a shot and let me know how it turns out?

  6. “Theatrical smoking has been a part of free expression in America since the First Amendment’s ratification in 1791. Theaters rely on actors’ expressive conduct, including smoking, to convey meaning in tandem with a play’s dialogue, movement, mood and tone.”

    *gouges eyes out*

    1. Smoking has nothing to do with speech or expression or whatever theater people do instead of getting real jobs. Advocates of freedom undermine their own arguments when they call smoking “speech.” Smoking is a behavior, like walking funny, not showering as often as you should, listening to death metal. It should be protected from government intrusion as such.

      1. Actors love smoking because it gives them something to do with their hands. That said, can’t they just hold a cigarette and not actually light it up?

        1. If I had to perform, I’d want the damn nicotine.

          1. Oh, it’s a scene!

  7. There was a bar in Minnesota gthat tried to circumvent the state’s indoor smoking ban, by claiming that the entire bar was a stage and all of the patrons were actors.

    Didn’t work:

    http://isanticountynews.com/in…..mp;id=3511

    1. The science is settled on that issue.

      1. biatch

  8. “I’m gonna cry me a river”….

  9. Damn it, getting old isn’t worth a shit. I got Julie London mixed up with Lauren Bacall. Sorry, Bogie

    1. At least you didn’t say Julian Lennon.

  10. If you can pretend to be someone you aren’t, you can pretend to be smoking when you aren’t.

    1. Only real smokers should be able to play the role of smokers on stage and in film.

  11. I was at a Doug Stanhope performance at a bar a couple years back. Apparently my city has a “performance” exception for its smoking ban. Stanhope lit up on stage and invited everyone to join him in the “performance.” Dozens did, and sat on the edge of the stage, smoking, while he did his bit.
    Very cool. One of the few times I wished I smoked.

  12. What kind of worthless actors do they have in Colorado that they can’t pretend to smoke instead of really smoke? Do they really murder someone on stage when they put on mysteries?

  13. Ridiculous. The 1st Amendment protects POLITICAL speech, period. It says nothing about plays and artistic speech.

    In addition, smoking is a public health issue which the states have a right to legislate, not a speech issue.

    Or do you want to argue here that the Federal government should boss the states around ?

    1. Exactly!
      Congress shall make no law…abridging the freedom of political speech.
      Why can’t they fucking read the Constitution!

  14. In addition, smoking is a public health issue which the states have a right to legislate, not a speech issue.

    Its only a public health issue if second hand smoke poses a significant risk. Which is, at best, not established.

    1. It’s inconclusive at best RC.

      1. imho, the link between smoking and cancer itself is tenuous. I’m not talking about other ailments and diseases that it would very logically map to like emphysema, etc., but cancer specifically. As far as I am aware, that link is still fundamentally a statistical one, and the signal to noise ratio in measuring it stretches the limits of credibility, given the fact that you cannot establish any kind of test group. I am specifically not saying that the two cannot be related, but I do think it’s rather simple-minded and myopic to state that there exists a definite causal relationship, when so many other genetic, societal, hereditical, etc., factors are also in play.

        Anecdotally speaking, the fact is that absolutely nobody I’ve ever known who smoked, got or died from any kind of diagnosed cancer, while on the other hand, absolutely every person I’ve known who did get or die from diagnosed cancer was a non-smoker. As I say, that’s completely anecdotal, but nevertheless, it certainly does not help me to subscribe to the contention that a definite link exists.

        GM — if I am not mistaken, you’re a physician of some sort; if so, what’s your opinion? I cannot recall ever having seen this seriously discussed.

  15. Why don’t we legalize murder on stage too. That’s an expressive act too.

    1. If it was a planned part of the performance, then how would it be murder?

      1. If the ACTOR, not just the character, dies. And, that is the dumbest question ever. Were you trying for this?

  16. Seems like Barnes v. Glen Theatre, 501 U.S. 560 (1991) would control here.

  17. “Theatrical smoking has been a part of free expression in America since the First Amendment’s ratification in 1791. Theaters rely on actors’ expressive conduct, including smoking, to convey meaning in tandem with a play’s dialogue, movement, mood and tone.”

    Really it is not necessary to enter an interdiction for smoking. At theatres show not only the thought up stories, but also life, and our life it is strongly connected with smoking

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