The Supreme Court and the Minnesota smoking ban

The Minnesota Court of Appeals has said “nice try” to bars that tried to get around the state’s smoking ban by claiming they were a “theatrical performance” and the customers were actors in a play. The smoking ban exempts actors in theatrical productions.

Ruling in the case of Tank’s Bar in Babbitt, the Appeals Court confirmed that without scripts — or patrons who knew when the play started — a bar is just a bar.

But on this second day of the confirmation hearings for Supreme Court nominee Sonia Sotomayor, the ruling also emphasized the extent to which the decisions of the high court reach all the way to tiny Babbitt.

The attorney for bars owner Tom Marinaro cited Schacht v. United States, a 1970 case in which a man who was arrested for unauthorized wearing of a military uniform. The man was participating in an anti-war skit outside a military recruiting center in Houston and said the law had a “theatrical production” exemption.

The U.S. Supreme Court overturned the conviction, making clear that a theatrical performance need not take place in a theater:


It may be that the performances were crude and amateurish and perhaps unappealing, but the same thing can be said about many theatrical performances. We cannot believe that when Congress wrote out a special exception for theatrical productions it intended to protect only a narrow and limited category of professionally produced plays.

But the Minnesota court today refused to define what is and isn’t a theatrical performance. Instead it basically said that — as the Supreme Court did with obscenity — it knows it when it sees it:


The Supreme Court appears to have evaluated whether Schacht‟s skit reflected traditional notions of a theatrical performance, and the Supreme Court appears to have concluded that the skit did satisfy that test because it included a script of defined length that was recited by actors with the intent of conveying a message to an audience…

But the reasoning employed in Schacht does not benefit Marinaro because the facts of this case are materially different. The district court in this case did not reject Gun SMOKE Monologues on the ground that it lacked “preparation and repeated presentation,” was not intended to convey a message to an audience, or was too “crude and amateurish.”

The district court essentially determined that Gun SMOKE Monologues was not real but, rather, was a sham.

Here’s the court’s decision.

  • http://www.lungmn.org Bob Moffitt

    This decision does not come as a surprise. The “smoking plays” where a sham, and now it is official.

    Case closed.

  • Bob Moffitt

    Opps! were a sham, rather

  • Dave U

    Actually, Bob, the smoking ban ITSELF is a sham. How do you propose to close THAT case? Since the idea first started gaining momentum in the mid-2000′s the economy has taken a further nose dive into the toilet.

    Yes, I know anti-smokers try to say that it can’t be because of the laws passed in the interests of their draconian mentality that no one should ever do anything they don’t approve of, even if it’s nowhere near them at the time. But take a good look….the toll is clear to anyone who refuses to be intimidated by hard-nosed liberal bullies who refuse to accept any other view point.

    The bans themselves were passed deceptively and unconstitutionally, not even allowing business owners who would be most directly affected by them to even have a say. Is it any big surprise then, that such “shams” come to light?

    Ever heard of “fighting fire with fire”?

  • Bob Moffitt

    “Hard-nosed liberal bullies?” You better man up, son, if you are going to go toe-to-toe with me on this issue.

    “Deceptively and unconstitutionally?” Huh?

    FAIL. Try again, Dave U.

  • Duke of New York

    My suggestion – hand out a script to patrons when they walk in the door. Have the dialogue consist of the following: – “Bartender – may I please have a …..(at this point the actor should ad-lib and choose a beverage of their choice)…….

    Actors should feel free to repeat as often as deemed necessary to advance the momentum of the performance.

    That should do it

  • Heather

    Look out — Dave U is getting ready to burn down the smoking ban!

  • Bob Moffitt

    Update: the MN Supreme Court has refused to hear an appeal of this case. The smoking light is out.