It’s Curtains on Free Speech in Colorado

Maybe the air is a little too thin out in Colorado and the supreme court justices aren’t getting enough oxygen to their brains. Perhaps that is why they made the inexplicable decision to uphold a ban on smoking in stage-performances based on the premise that promotion of public health comes before an individual’s right to free expression.

Six justices found that regardless of whether onstage smoking is a form of expression, the ban on smoking in public places is constitutional because it aims to promote public health rather than stifle free speech.

This is obviously unconstitutional. The public (aka a collection of individuals) is by no means improved when free speech is disregarded. Almost anyone looking at this case can see that such action is clearly in violation of our fundamental rights.

However, even more dangerous than the CO supreme court’s violation of fundamental rights is the more subtle surrender of rights on the part of supposed free-speech advocates:

The defense, led by state Attorney General John Suthers, argued that actors can and do use fake cigarettes as an adequate alternative.

Suthers, for example, attended a Rat Pack homage recently and found the bad-boy musicians all puffed mechanical stand-ins.

“You can accomplish the expressive content by using (a) fake cigarette,” Suthers said. “A lot of people are.”

With this kind of defense of free speech, it’s no wonder the justices thought they could get away with this kind of blatant injustice. It shouldn’t matter if the cigarettes are real or fake. It should NOT be up to some government agent to determine what is or is not acceptable in a performance.

…lawmakers intended [the ban] to extend to artistic performances, said former state Rep. Mark Larson, who carried a similar bill in 2005 and supported it in 2006, the year it passed.

A theater exemption was briefly amended into the bill but taken out of later versions, Larson said.

“Acting is acting,” Larson said. “Why not having a fake cigarette? What . . . difference does it make? Come on.”

If free speech advocates want to have any hope of defending their rights they will have to answer the fundamental claim: can individual rights be set aside for the “public good” or not? If the answer is ‘no’ then it is unconditional. The courts can’t kind of hamper free speech by forcing stage producers to use fake cigarettes–it’s an outright violation of rights. If advocates give bureaucrats that ground it gives them the ground to legislate any number of artistic choices (the music is offensive, the lights aren’t environmentally friendly, the costumes are too salacious). Under no circumstances should the government be able to extinguish the unconditional right of individuals to express themselves.