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.