By 1995, former Denver Post theater critic Alan Stern was one of the attorneys who took on the city of Boulder over its ordinance banning indoor smoking. When the law was applied to Boulder’s Dinner Theatre production of “Grand Hotel,” Stern and Holland & Hart partner Bruce Jones successfully argued a violation of the First Amendment right to free expression.
“The case was picked up by every major news organization in the country, and some international wire services,” said Stern, now an attorney for Sun Microsystems in the San Francisco Bay Area. “Grand Hotel” cast member Deborah Persoff said the media circus was eye-opening. “It was much to do with so little,” she said. “I tell you, there could be no crime anywhere, all the attention we were getting.”
The city was getting beaten up in the media, so when the judge in a preliminary hearing indicated Holland & Hart had a solid argument, the city added an exception for stage performances, and the issue died quietly.
Until July 1, when a statewide ban went into effect that does not exempt theater companies from smoking any substance – tobacco or not – on a stage.And Stern, for one, isn’t all that surprised it’s back.
“I’m not, because the political climate has changed, the anti-
smoking sentiment has increased and we never really tried the issues of this case in a court of law,” Stern said. “Perhaps if the city of Boulder had put up a harder fight 10 years ago, we wouldn’t be having this conversation now because there would be some established law on the books. But that didn’t happen, so all of these issues are still open.”
The problem with the new statewide smoking ban lies in its ambiguous wording. Because an amendment excepting live performances was considered and rejected by legislators, the final law doesn’t specifically address stage smoking at all. Instead, it simply stipulates that smoking “tobacco of any kind – or any plant matter or product that is packaged for smoking” – is now illegal indoors.
But the law does not distinguish between who’s packaging the substance for smoking – the manufacturer or the consumer – so the state says that until a judge says otherwise, the presumption must be that smoking any substance on an indoor stage violates the law.
“I find the statute to be vague as to what the definition of smoking is,” said Jones. “If you have something that looks like a cigarette and you put fire to it, the statute precludes that. I think such a broad interpretation as applied to theater companies does raise freedom of expression issues akin to what happened in Boulder.”
What’s next? Stern says his advice is to smoke on – “but get a good lawyer to fight the fight for you and with you.”
Jones said theaters have two options – fight now or fight later. Under most circumstances, one challenges the constitutionality of a state law after breaking it and being fined for it. But, “When it becomes apparent the law is potentially inhibiting expression, you might be able to challenge it in advance of having broken the law,” said Jones.
“If state regulators make it clear the law will be applied this way, you might be able to get a judge to consider the constitutionality of the law before you are forced to violate it. This is a doctrine virtually unique to issues of free expression and First Amendment rights.”
If anyone is going to force the issue, it likely will be Curious Theatre Company. Board president Steve Choquette happens to be a partner at Holland & Hart. That means Jones may be called on to take up the fight he started a decade ago. He’s ready.
Stern said Jones is one of the leading First Amendment attorneys in Colorado. “But they will have a lot of smart attorneys on the other side, too,” he said.
Briefly …
PHAMALy, Denver’s handicapped theater company, reports that its just completed 17th annual musical was its most successful. In just 12 performances, “The Wiz” sold 5,029 tickets in the Denver Center’s Space Theatre. That’s an increase of 658 over 2005’s “Joseph …” and 2,406 more than ’04’s “Guys & Dolls.” “The Wiz” total is just 95 tickets shy of 100 percent capacity …
PHAMALy also announced its first play, “Our Town” in February, will be co-directed by Steve Wilson and Nick Sugar …
Colorado’s two entrants in the American High School Theatre Festival return this week from Edinburgh, Scotland. North High took 15 students to perform “Simply Maria,” and Douglas County High had a 41-student contingent to perform Moliere’s “Scapin.” …
And finally, a tribute to actor Duane Black, who died last week, is posted at denverpost
.com/theater.
Theater critic John Moore can be reached at 303-820-1056 or jmoore@denverpost.com.
This week’s theater openings
THU-SEPT. 2|Theatre Aspen’s “Seemed Like a Good Idea at the Time …”
FRI-SEPT. 30|Creede Repertory Theatre’s “cowboyily”
FRI-SEPT. 23|Victorian’s “Lysistrata”
FRI-AUG. 20|Lake Dillon’s “Gypsy” (at Dillon Amphitheatre)
FRI-SEPT. 30|Carousel Dinner Theatre’s “Jesus Christ Superstar”|FORT COLLINS
SAT-SEPT. 19|OpenStage’s “Italian-
American Reconciliation”|FORT COLLINS
This week’s theater closings
MON|Theatre Aspen’s “Dinner With Friends”
THU|Rocky Mountain Rep’s “You’re a Good Man, Charlie Brown”|GRAND LAKE
THU|Lake Dillon’s “I Love You, You’re Perfect, Now Change” (Thursdays only at the Pavilion)|KEYSTONE
THU|So. Colorado Rep’s “I Love You, You’re Perfect, Now Change”|TRINIDAD
FRI|Rocky Mountain Rep’s “Singin’ in the Rain”|GRAND LAKE
FRI|Colorado Shakespeare Festival’s “The Tempest” and “The Merchant of Venice”|BOULDER
SAT|Boulder’s Dinner Theatre’s “The Music Man”
SAT|Colorado Shakespeare Festival’s “As You Like It” and “Unexpected Shaxpere!- Shax Strikes Back”|BOULDER
SAT|Bas Bleu’s “A Tale of the Tiger” and “The Man Himself”|FORT COLLINS
SAT|So. Colorado Rep’s “Rumors”|TRINIDAD
SAT|Rocky Mountain Rep’s “Joseph …”|GRAND LAKE