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Originally published April 2, 2008 at 12:00 AM | Page modified April 2, 2008 at 2:46 PM

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Bruce Ramsey / Times editorial columnist

Smoking ban hamstrings stage productions

The progressive state can be doggedly illiberal in shielding every citizen from risk. Consider what happened when Colorado applied its ban...

The progressive state can be doggedly illiberal in shielding every citizen from risk. Consider what happened when Colorado applied its ban on smoking to actors on a stage.

Certain plays, such as Edward Albee's "Who's Afraid of Virginia Woolf," call for actors to smoke. The Colorado case came up in regard to a less famous play, Dan Dietz's "tempOdyssey," which is about an office temp. In the play, smoking is an indicator of life: When one of the characters exhales and no smoke issues forth, the character realizes he is dead.

In Colorado, the right of a business to permit smoking expired on July 1, 2006. The law makes no exception for public entertainments. Some other states' laws do, but Colorado's doesn't. And so in October 2006, the Curious Theatre Co. and two other theater companies filed a lawsuit against the Colorado Department of Health and Environment. The anti-smoking law, they said, violated their free-speech rights under the First Amendment.

The judge ruled against the theaters. A theater's business is make-believe, he said. When they want to portray gunfire, they fake it. They can fake smoking, he said, by blowing talcum powder.

The theaters appealed. In the appeal, attorney Bruce Johnson of Seattle's Davis Wright Tremaine argued on behalf of 444 theaters across America that playwrights include smoking in a script in order "to better convey a sense of character" and "to establish a mood or state of mind." There are even plays about smoking, such as Bill Russell's "The Last Smoker in America." And because playwrights have the right to prohibit groups from performing altered versions of their plays, Johnson argued, the Colorado smoking ban might mean certain plays could not be performed at all.

On March 20 this year, the Colorado Court of Appeals ruled against the theaters. Smoking, the judges said, "is not sufficiently expressive" to be afforded First Amendment protection. Public health trumps freedom.

The same could have happened here. Washington's anti-smoking law, passed by ballot initiative in 2005, has no exception for performances on stage. In March 2006, the Seattle Repertory Theatre put on Noel Coward's "Private Lives," which is set in the 1920s and calls for actors to smoke. "Smoking is a significant part of the story," recalls Ben Moore, the theater's managing director.

Johnson, the attorney, called the King County Prosecutor's Office. Prosecutor Dan Satterberg says there was a conference with County Executive Ron Sims and an agreement to let it go. The anti-smoking law had just been passed, and officials did not want a fight with the arts people.

I thought of Hal Holbrook, who for more than 50 years has put on the one-man show, "Mark Twain Tonight." I took my son to see him a couple of years ago at the Moore Theatre. Holbrook was on the stage denouncing politicians and war, puffing a cigar. He was magnificent.

Twain's most famous characters, Tom Sawyer and Huck Finn, were underage smokers, and Twain himself reveled in smoking.

Talking to The Denver Post, Holbrook said the cigar was "an essential prop," and was "as much a part of Mark Twain as his wonderful head of white hair and his eagle eyes." And in 2007, when the Colorado Department of Health and Environment would not allow him to light it, Holbrook canceled his performance there. This year, he decided to give in and do it without the lit cigar, though the Post said he was none too happy about it.

"I figure the audience is going to get in their cars and inhale more pollution from the drive home than they ever would from whatever little smoke comes from a cigar," Holbrook said. Under the old way, the choice would have been the audience's to make. Under the new way, at least in Colorado, it is not.

Bruce Ramsey's column appears regularly on editorial pages of The Times. His e-mail address is bramsey@seattletimes.com; for a podcast Q&A with the author, go to Opinion at seattletimes.com

Copyright © 2008 The Seattle Times Company

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