The Denver Post reported on March 22:
A Colorado appeals court ruled last week that smoking by an actor on stage, while possibly important to character and theatrical message, is still banned by the state’s 2-year-old indoor smoking law.
“The smoking ban was not intended to prevent actors from expressing emotion, setting a mood, illustrating a character trait, emphasizing a plot twist or making a political statement,” a three-member panel of the Colorado Court of Appeals said in its unanimous ruling, upholding a lower court’s verdict.
However, the court added, “smoking, by itself, is not sufficiently expressive to qualify for First Amendment protection.”
The smoking ban does violate the right of free speech, but more fundamentally it violates the right to property. (See my earlier comments about the smoking ban.)
Colorado’s Bill of Rights (Article II, Section 3) states: “All persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness.”
If Colorado’s courts took seriously Colorado’s Constitution, they would reject the smoking ban before even getting to the federal Bill of Rights.