Curious Theater Company v. Colorado Department of Public Health and Environment

Several nonprofit theater companies challenged the Colorado ban on indoor smoking as it applies to theater productions in which the script requires a character to smoke. The indoor smoking bans in a number of other states make an exception for such theatrical productions.

The plaintiffs filed suit in state court and the district court denied a preliminary injunction. The Colorado Court of Appeals affirmed. The Colorado Supreme Court granted certiorari, and the first issue the court identified for briefing is:

Whether the Court of Appeals erred in concluding that the Colorado Constitution, Article II, Section 10 provided no greater protection to free speech than the First Amendment to the United States Constitution.

The ACLU of Colorado filed an amicus brief collecting cases in which courts have held that the state constitution protects expression more strongly than the First Amendment. The brief also suggests a legal test for analyzing claims under the state constitutional right of free expression.

"Colorado Supreme Court Bans Smoking in Plays," AllGov, December 17, 2009

"Colorado Supreme Court upholds ban of smoking on stage," The Denver Post, December 15, 2009

"No Smoking in the Theater, Especially Onstage," New York Times, January 28, 2007