Curious Theatre Co. v. Dept. of Pub. Health

• Decision Date: 14 December 2009
• Docket Number: No. 08SC351.,08SC351.
• Parties: CURIOUS THEATRE COMPANY, a Colorado non-profit corporation; Paragon Theatre, a Colorado non-profit corporation; and Theatre13, Inc., a Colorado non-profit corporation, Petitioners v. COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT and James Martin, its Executive Director, Respondents.
• Court: Colorado Supreme Court

220 P.3d 544

CURIOUS THEATRE COMPANY, a Colorado non-profit corporation; Paragon Theatre, a Colorado non-profit corporation; and Theatre13, Inc., a Colorado non-profit corporation, Petitioners v. COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT and James Martin, its Executive Director, Respondents.

No. 08SC351.

Supreme Court of Colorado, En Banc.

December 14, 2009.

A. Bruce Jones, Stephen G. Masciocchi, Daniel R. Pabon, Holland and Hart L.L.P., Denver, Colorado, Attorneys for Petitioners.

James W. Hubbell, Kelly Garnsey Hubbell & Lass L.L.C., Denver, Colorado, Attorneys for Amicus Curiae The Thomas Jefferson Center for the Protection of Free Expression.

John W. Suthers, Attorney General, Daniel D. Domenico, Solicitor General, Robert C. Douglas, First Assistant Attorney General, Lisa Brenner Freimann, Assistant Attorney General, Josh Urquhart, Assistant Attorney General, Denver, Colorado, Attorneys for Respondents.

Edward T. Ramey, Isaacson Rosenbaum P.C., Denver, Colorado, Attorneys for the Dramatists Guild of America and the National Coalition Against Censorship.

Adam M. Platt, Steven D. Zansberg, Levine Sullivan Koch & Schulz, L.L.P., Denver, Colorado, Bruce E.H. Johnson, Noelle H. Kvasnosky, Davis Wright Tremaine L.L.P., Seattle, Washington, Attorneys for Amicus Curiae Theatre Communications Group.

Christopher P. Beall, Levine Sullivan Koch & Schultz, L.L.P., Denver, Colorado, Mark Silverstein, ACLU Foundation of Colorado, Denver, Colorado, Attorneys for Amicus Curiae American Civil Liberties Union of Colorado.

John R. Mann, Kennedy Childs & Fogg P.C., Denver, Colorado, Kurt S. Lewis, Lewis Law Firm, L.L.C., Denver, Colorado, Attorneys for Amicus Curiae Crossroads Theater at Five Points, L.L.C.

Justice COATS delivered the Opinion of the Court.

The non-profit theaters that were plaintiffs below petitioned for review of the court of appeals' judgment affirming the denial of their motion for preliminary injunction. See Curious Theater Co. v. Colo. Dep't of Pub. Health & Env't, 216 P.3d 71 (Colo.App.2008). Their action against the Colorado Department of Public Health and Environment seeks both a judgment declaring Colorado's ban on theatrical smoking to be an unconstitutional infringement on their freedom of speech and an order enjoining its enforcement. The district court denied their motion for preliminary injunction on the grounds that smoking, even in the theatrical context, does not amount to expressive conduct of a type that would be subject to either state or federal constitutional protections for speech. The court of appeals concluded that theatrical smoking was expressive conduct but affirmed the district court on the alternative grounds that the ban was nevertheless constitutional.

Even assuming that theatrical smoking actually can amount to protected expressive conduct under some circumstances, the statutory ban does not impermissibly infringe on the plaintiffs' constitutionally protected freedom of expression because it is content neutral and narrowly tailored to serve the state's substantial interest in protecting the public health and welfare. The judgment of the court of appeals is therefore affirmed.

I.

Three non-profit theater companies, Curious Theatre Company, Paragon Theatre, and Theatre13, Inc., brought a declaratory judgment action against the Colorado Department of Public Health and Environment and its executive director, challenging the constitutionality of the Colorado Clean Indoor Air Act¹ and seeking to enjoin its enforcement against theatrical smoking. The Act prohibits smoking in any indoor area, including a theater, unless the smoking falls within an express statutory exception. The plaintiff-theaters asserted that theatrical smoking can include expressive conduct and that the Act's blanket prohibition against indoor smoking therefore amounts to an impermissible infringement on their freedom of speech, as guaranteed by both the federal and state constitutions.

The district court entertained evidence and the arguments of counsel before denying the plaintiffs' motion for preliminary injunction. At the hearing, the theaters presented the testimony of four witnesses with lengthy and varied professional theatrical experience, to the effect that smoking has been a part of theatrical expression in numerous plays; that the theaters provide advance notice to their audiences if smoking will occur onstage; and that prop or fake cigarettes are inadequate substitutes for real smoking. At the conclusion of this testimony, and without finding any need to receive evidence from the defendant-Department, the district court concluded that the plaintiffs had failed to make a number of the showings required for a preliminary injunction, including, most notably, a showing that they were likely to succeed on the merits of their claim. More specifically, it found that the plaintiffs had failed to prove that smoking, even in a theatrical context, can amount to expressive conduct to which either federal or state constitutional protections would extend.

The plaintiffs immediately appealed the denial of their motion for preliminary injunction to the intermediate appellate court. Although it disagreed with the district court's conclusion that theatrical smoking is not expressive conduct, the court of appeals nevertheless affirmed the district court's refusal to grant a preliminary injunction, finding that the smoking ban is content neutral and is adequately tailored to meet constitutional requirements for a content-neutral, incidental restriction on expressive conduct.

We granted the plaintiffs' petition for a writ of certiorari challenging the court of appeals' determination that the smoking ban is constitutional.

II.

First Amendment protections notwithstanding, "expression, whether oral or written or symbolized by conduct, is subject to reasonable time, place, or manner restrictions." Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). The United States Supreme Court has "often noted that restrictions of this kind are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." Id. Although the "time, place, or manner" test was developed for evaluating restrictions on expression taking place on public property that had been dedicated as a public forum, it has also been applied to conduct occurring in what are essentially places of public accommodation. See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (plurality opinion) (also noting previous application of "time, place, or manner" test to conduct occurring on private property in Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986)).

The delivery of messages by conduct that is intended to be, and in context would reasonably be understood to be, communicative has received particular attention in the jurisprudence of the Supreme Court. "Symbolic expression of this kind may be forbidden or regulated if the conduct itself may constitutionally be regulated, if the regulation is narrowly drawn to further a substantial governmental interest, and if the interest is unrelated to the suppression of free speech." Clark, 468 U.S. at 294, 104 S.Ct. 3065 (citing United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)). While each focuses on slightly different aspects of the inquiry, these two articulations of constitutionally permissible limitations on protected expression have nevertheless been interpreted to embody much the same standards, see Clark, 468 U.S. at 298, 104 S.Ct. 3065; see also City of Colorado Springs v. 2354 Inc., 896 P.2d 272, 297 n. 19 (Colo.1995), and have been applied accordingly, Clark, 468 U.S. at 299 n. 8, 104 S.Ct. 3065 ("We note that only recently, in a case dealing with the regulation of signs, the Court framed the issue under O'Brien and then based a crucial part of its analysis on the time, place, or manner cases.").

Unlike conduct that is regulated or prohibited precisely because of the message it symbolically conveys, see, e.g., Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (flag burning), it is often unclear whether conduct that is regulated without regard to any message it may convey is in fact "expressive" in a way that would be constitutionally protected. Although the Supreme Court has clearly rejected "the view that an apparently limitless variety of conduct can be labeled `speech' whenever the person engaging in the conduct intends thereby to express an idea," O'Brien, 391 U.S. at 376, 88 S.Ct. 1673; see also City of Dallas v. Stanglin, 490 U.S. 19, 25, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989) ("It is possible to find some kernel of expression in almost every activity a person undertakes — for example, walking down the street or meeting one's friends at a shopping mall — but such a kernel is not sufficient to bring the activity within the protection of the First Amendment."), the Court has more than once chosen to simply assume a sufficient "communicative element" in regulated conduct where the regulation in question would pass constitutional muster in any event, see, e.g., Clark, 468 U.S. at 296, 104 S.Ct. 3065 ("we have assumed for present purposes that the sleeping in a national park banned in this case would have an expressive element"); O'Brien, 391 U.S. at 376, 88 S.Ct. 1673 ("even on the assumption that the alleged communicative element in draft card burning is sufficient to bring into play the First Amendment"); cf. Barnes, 501 U.S. at 565, 111 S.Ct. 2456 (plurality opinion) ("`Although the customary "barroom" type of nude dancing may involve only the barest minimum of protected expression, we recognized in California v. LaRue, ...