Justice Oliver Wendell Holmes declared that the First Amendment does not allow us to shout fire in a crowded theater—but will it let us smoke in one? The Seattle Repertory Theatre thinks so and will open a play on March 2 with rampant onstage smoking, contrary to 901 (AKA the smoking ban), citing the First Amendment as its justification.
The play in question is Noel Coward's Private Lives, a romantic farce written in 1930 and adorned with three indispensable upper-class accessories: booze, wit, and tobacco. "A Noel Coward play without a cigarette is like a Restoration comedy without a fan," said director Gabriel Barre. "The characters use cigarettes to dialogue—along with a glass of something-or-other."
"This is a play and a play is an expressive activity," said Bruce Johnson, chair of the Rep's board and a First Amendment lawyer. "State and county laws prohibiting freedom of expression are not enforceable if they are contrary to the First Amendment." The anti-smoking law, broadly written to prohibit "any lighted smoking equipment" in a public place, appears to ban incense in churches and temples as well as the odd stage cigarette.
But if the First Amendment protects smoking onstage, wouldn't it protect chain smokers as, perhaps, "life artists," whose habits are a form of personal expression? "That's very far-fetched," Johnson said. "It's the same difference as whether a state law can prohibit the nudity in Hair [it can't] and whether it can outlaw me walking down the street naked [it can]." Cynthia Fuhrman of the Rep said that the stage is well ventilated and some actors will smoke tobacco and some will smoke herbal cigarettes (both are prohibited by the ban).
The Capitol Hill Arts Center recently staged God's Country by Steven Dietz, which features a vitriolic left-wing talk radio DJ who smokes like a diesel. "We started with herbal cigarettes," said artistic director Matthew Kwatinetz, "but they smelled so damn bad that the actors and crew complained and requested actual cigarettes. It didn't seem like we were breaking the law at the time." Incredibly, they were, though nobody in their audience—decidedly younger and less fusty than the Rep's—snitched.
Seattle/King County Public Health is primarily responsible for enforcing the ban but does not approach an institution unless someone complains about it. Hundreds of citizen reports about smoking violations have poured into the office, but it has yet to issue a single $100 fine. "We help businesses come into compliance," said Public Education Coordinator Matías Valenzeula. "A fine is a last resort."
Johnson doesn't want to go to court over the issue, "but you've always got to be prepared," he declared. "The law is poorly drafted and cannot encroach on the First Amendment."
"The play's the thing," he continued, "wherein we'll catch the conscience of, uh... the people."