Curious Theatre Co. v. Colorado Department of Public Health & Environment

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.

*546Even assuming that theatrical smoking actually can amount to protected expressive conduct under some cireumstances, 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.

L.

Three non-profit theater companies, Curious Theatre Company, Paragon Theatre, and Theatre183, 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 Act 1 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 injunetion 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.

IL.

First Amendment protections notwithstanding, "[elxpression, 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 *547in 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 onee chosen to simply assume a sufficient "communicative element" in regulated conduct where the regulation in question would pass constitutional muster in any event, see, eg., 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) (" '[Allthough the customary "barroom" type of nude dane-ing may involve only the barest minimum of protected expression, we recognized in California v. LaRue, 409 U.S. 109, 118, 93 S.Ct. 390, 34 L.Ed.2d 342 ... (1972), that this form of entertainment might be entitled to First and Fourteenth Amendment protection under some cireumstances.'" (quoting Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975)).

The plaintiffs readily concede that the regulation of smoking in public is within the constitutional power of the government; that it furthers an important governmental interest; and that the governmental interest it furthers is unrelated to the suppression of free expression. They assert only that the ban is not tailored adequately to serve the purpose for which it was adopted, bringing into question not only the extent to which tailoring to the service of a significant governmental interest is required by the First Amendment but also the precise nature of the governmental interest the ban was meant to serve.

Unlike a law directed at the content of speech or the communicative nature of conduct, it is not necessary for a content-neutral time, place, or manner restriction, much less the regulation of conduct for reasons completely unrelated to the suppression of free expression, to be justified by "a substantial showing of need," or compelling state interest. Johnson, 491 U.S. at 406-07, 109 S.Ct. 2533. Nor must the content-neutral *548regulation of expression be limited to the least restrictive or least intrusive means of serving the government's interest. Ward v. Rock Against Racism, 491 U.S. 781, 798-99, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). In fact, O'Brien's "relatively lenient standard" requires only that any incidental restriction on expressive conduct be no greater than is essential to the governmental interest in regulating the conduct at issue. Johnson, 491 U.S. at 407, 109 S.Ct. 2533; O'Brien, 391 U.S. at 377, 88 S.Ct. 1673.

Expressed otherwise, such content-neutral regulation is valid with regard to any requirement of narrow tailoring so long as the government could reasonably have determined that its interests overall would be served less effectively without that regulation. Ward, 491 U.S. at 799, 109 S.Ct. 2746. If the government has a legitimate interest in protecting the welfare of its citizens, and if the welfare of those citizens would be more exposed to harm without a particular regulation of conduct than with it, the regulation is safe from invalidation under the First Amendment. See Clark, 468 U.S. at 297, 104 S.Ct. 3065 ("If the Government has a legitimate interest in ensuring that the National Parks are adequately protected, which we think it has, and if the parks would be more exposed to harm without the sleeping prohibition than with it, the ban is safe from invalidation under the First Amendment as a reasonable regulation of the manner in which a demonstration may be carried out.").

Although the Supreme Court has on occasion required some demonstration of an evi-dentiary basis to connect the government's asserted rationale for regulating expressive conduct with the particular regulation itself, see, e.g., Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997), it has also made clear that this connection may be apparent, plain, or beyond doubt, without specific evidentiary support, see, e.g., Clark, 468 U.S. at 299, 104 S.Ct. 3065 (acknowledging that a substantial governmental interest in conserving park property is plainly served by preventing overnight sleeping); O'Brien, 391 U.S. at 381, 88 S.Ct. 1673 (finding "apparent" the governmental interest in maintaining the continued availability of draft cards and "equally clear" that the prohibition against draft-card destruction protects this interest); see also Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 391, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000) ("The quantum of empirical evidence needed to satisfy heightened judicial serutiny of legislative judgments will vary up or down with the novelty and plausibility of the justification raised."). In City of Erie v. Pap's A.M., this issue was brought into focus by Justice Souter's partial dissent, which questioned whether establishments featuring dancers forced to wear "pasties" and "G-strings" would have a markedly different ef-feet on neighborhoods from establishments whose dancers were completely nude. 529 U.S. 277, 314-17, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (Souter, J., concurring in part and dissenting in part). The judgment of a four-justice plurality, rejecting Justice Souter's call for a firmer evidentiary connection, was joined by two additional justices who would not subject "a general law regulating conduct and not specifically directed at expression" to any First Amendment serutiny at all. Erie, 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265; id. at 307-08, 120 S.Ct. 1382 (Scalia, J., joined by Thomas, J., concurring in the judgment).

We consider it unnecessary to determine whether smoking in the theatrical context might in some cases contain an expressive element because we think it clear that, in any event, the statutory smoking ban at issue here withstands the plaintiffs' assertions that it is insufficiently tailored. The plaintiffs assert that the smoking ban is insufficiently tailored to satisfy the requirements of the Supreme Court's First Amendment jurisprudence for three distinct, but related, reasons. They contend that: 1) the declared governmental interest in banning indoor smoking is more limited than was appreciated by the appellate court when it found the ban to be adequately tailored to the government's interest; 2) the record is devoid of any factual justification for a ban on theatrical smoking; and 8) the record does not support the appellate court's determination that the ban leaves open adequate alternate means of expression. .

*549With regard to the government's interest, the plaintiffs assert that the General Assembly's use of the words "involuntary exposure" in its declaration 2 evidences its limited purpose of protecting only those who would choose to avoid places of public accommodation if forewarned that smoking would occur on the premises and, consequently, the General Assembly's failure to tailor its own regulatory scheme to that end. Apart from the fact that this interpretation of the term "involuntary" is, as a matter of statutory construction, simply untenable, the argument itself confounds the governmental interest to be served by regulating particular conduct with the method or approach chosen by the legislature to further that interest.

In the abstract, the term "involuntary," could have a number of different meanings. It could refer to a choice subject to any variety of external or internal pressures or, for that matter, to action devoid of any conscious choice whatsoever. Therefore, its precise meaning must be derived from the context, or statutory scheme, in which it appears. See Walgreen Co. v. Charnes, 819 P.2d 1039, 1043 & n. 6 (Colo.1991) (applying the rule that statutes relating to the same subject matter be construed in pari materia, gathering the legislative intent from the whole of the enactments). Were the term "involuntary exposure" restricted to exposure that could not be avoided by merely avoiding places where smoking is known to oceur, as the plaintiffs propose, rather than encompassing any exposure to the smoking of others that must be endured as a cost of enjoying the benefits of places of public accommodation, the purpose would be met in all cases by the mere posting of warnings, which would render the legislative ban on indoor smoking entirely superfluous. While the intended meaning of an ambiguous statute might be clarified by reference to an unambiguous declaration of legislative purpose, see, e.g., Vensor v. People, 151 P.3d 1274, 1277 (Colo.2007), it would make little sense to construe an ambiguous declaration of purpose as having a meaning that renders the legislature's specific proseriptive provisions themselves superfluous and, in this case, unconstitutional, see Catholic Health Initiatives Colo. v. City of Pueblo, 207 P.3d 812, 822 (Colo.2009) (the court has an obligation to avoid statutory interpretations that invoke constitutional deficiencies).

Perhaps more to the point, however, the legislative declaration in this case expressly states that the Act's purpose is "to preserve and improve the health, comfort, and environment of the people of this state by limiting exposure to tobacco smoke." § 25-14-208. The determination of the General Assembly that "it is in the best interest of the people of this state to protect nonsmokers from involuntary exposure to environmental tobacco smoke in most indoor areas open to the public," when read in context, evidences the balance struck "between the health concerns of nonconsumers of tobacco products and the need to minimize unwarranted governmental intrusion into" private choices-not its purpose or interest. Id. Rather than contradicting itself or obtusely failing to grasp that its regulatory scheme was wholly unnecessary to its purpose, it seems abundantly clear that the General Assembly's purpose was to protect its citizens from exposure to the smoking of others without at the same time forcing them to choose between their comfort or health, on the one hand, and the benefits offered by regulated, public accommodations, on the other.

With regard to the demonstration of an evidentiary connection between the government's rationale for regulating this conduct *550and its chosen means of doing so, there can simply be no question but that the state's legitimate interest in preserving and improving the health, comfort, and environment of the public is furthered by limiting the pub-lies exposure to environmental smoke, even from tobacco-free alternatives.3 This is apparent without reliance on empirical studies detailing particular health risks associated with breathing second-hand smoke. Apart from its interest in the public's physical health, the State has "a weighty, essentially esthetic interest in proscribing intrusive and unpleasant formats for expression" sufficient to justify a content-neutral restriction on expression. Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 805-07, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984); see also Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 99 L.Ed. 27 (1954) ("The concept of the public welfare is broad and inclusive. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled." (citation omitted)). As was the case with maintaining the availability of draft cards by prohibiting their destruction, see O'Brien, 391 U.S. at 381, 88 S.Ct. 1673, and conserving park property by banning overnight camping, see Clark, 468 U.S. at 299, 104 S.Ct. 3065, the connection between limiting exposure to environmental smoke and banning indoor public smoking in places of public accommodation is apparent without further evidentiary support.

Finally, with regard to their contention that the smoking ban permits no ample alternative channels of expression, the plaintiffs' argument fails to appreciate that a general law regulating only conduct, no matter how symbolically expressive that conduct may be, by definition leaves unregulated the communication of any intended message by actual speech, writing, or publication. Perhaps for this reason, the Supreme Court has never included a separate requirement for alternate channels of communication in its standard for regulating expressive conduct, as it has in its standard for time, place, or manner restrictions generally. See, eg., Clark, 468 U.S. at 293-94, 104 S.Ct. 3065. Even with respect to time, place, or manner restrictions on constitutionally protected speech itself, however, the Supreme Court has required only that otherwise narrowly-tailored, content-neutral restrictions also leave open "ample alternative channels for communication of the information," see id. at 293, 104 S.Ct. 3065, not alternative channels with equivalent dramatic impact.

Accepting that there may exist certain kinds of expressive conduct for which actual speech could not provide an adequate substitute, such as erotic dancing, the Supreme Court has made clear that regulations limiting the full expressive impact of such conduct can nevertheless comport with the First Amendment. See Erie, 529 U.S. at 301, 120 S.Ct. 1382 (plurality opinion) (although prohibiting full nudity, a law permitting dancers wearing "pasties" and "G-strings" leaves open ample alternative channels of expressing the message of erotic dancing). Whether or not the use of a fake or prop cigarette can have precisely the same dramatic impact or convey the same degree of realism as an actual, burning, smoke-producing cigarette, it, like the theatrical use of substitutes for virtually every other type of dangerous or illegal conduct, is capable of amply communicating to an audience an intended message. Especially in the context of a theatrical performance, where the message is typically conveyed by imitation rather than by scientific demonstration, some resultant lack of realism cannot be considered fatal to the regulation of conduct.

Because it is clear, without further eviden-tiary support, that the state has a significant interest in protecting the health and welfare of its citizens and that the welfare of those citizens would be more exposed to harm without the smoking ban than with it, the ban is adequately tailored for purposes of the First Amendment to the United States Constitution.

*551IIL.

The guarantees of the First Amendment are applicable to the states through the Due Process Clause of the Fourteenth Amendment, Douglas v. City of Jeannette, 319 U.S. 157, 162, 63 S.Ct. 877, 87 L.Ed. 1324 (1943); Marco Lounge, Inc. v. City of Federal Heights, 625 P.2d 982, 983 n. 1 (Colo.1981), and the Supremacy Clause of the Federal Constitution establishes their precedence over conflicting state constitutional provisions. Like other protections of the Bill of Rights, however, the First Amendment limits the power of the federal and state governments to abridge individual freedoms, not the power of states to even further restrict governmental impairment of those individual freedoms. See PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 80-81, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980); Bock v. Westminster Mall Co., 819 P.2d 55, 59 (Colo.1991). The plaintiffs assert that article II, section 10 of the Colorado Constitution is more restrictive of the enactment of laws regulating expressive conduct than the First Amendment.

This court is the final arbiter of the meaning of the Colorado Constitution, and as such, it is clearly within its power to determine that the state constitution places restrictions on legislative action even greater than those imposed by the Federal Constitution. In the past, we have, however, generally declined to construe the state constitution as imposing such greater restrictions in the absence of textual differences or some local cireum-stance or historical justification for doing so. Simply disagreeing with the United States Supreme Court about the meaning of the same or similar constitutional provisions, even though we may have the power to do so, risks undermining confidence in the judicial process and the objective interpretation of constitutional and legislative enactments.

With regard to constitutional guarantees of freedom of speech, the text of article II, section 10 actually differs from that of the First Amendment. In addition to prohibit, ing, in very similar terms, the enactment of laws "abridging" or "impairing" the freedom of speech, the state constitution goes on to affirmatively guarantee the freedom of every person "to speak, write, or publish whatsoever he will on any subject," without prior approval or restraint, subject only to being held accountable for any abuse of that liberty. See generally Thomas M. Cooley & Walter Carrington, 2 Cooley's Constitutional Limitations 876-98 (8th ed.1927) (collecting numerous similar state constitutional provisions and emphasizing their departure from the wide-spread acceptance of prior restraints on publication that existed at common law). Noting this textual difference, we have at times characterized the state constitution as providing greater protection for individual freedom of expression than the Federal Constitution. See eg., Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044, 1054 (Colo.2002); Bock, 819 P.2d at 58. We have, however, rarely, if ever, construed article II, section 10 to cireumseribe more narrowly than the First Amendment the regulatory powers of government.

Although we may not have initially intended to interpret article II, section 10 as deviating from First Amendment mandates on the issue, we have continued to demand proof by clear and convincing evidence of actual malice before a private individual may recover under the law of libel in all matters of public interest, even after learning that the Federal Constitution would extend this evi-dentiary requirement no further than allegations of libel by public figures. See Walker v. Colo. Springs Sun, Inc., 188 Colo. 86, 98, 538 P.2d 450, 457 (1975) (adopting greater protections without reference to the Colorado Constitution and specifically qualifying its reliance on another court that reached the same result by noting that the other court "relied in some part upon a state constitutional provision"); Diversified Mgmt., Inc. v. Denver Post, Inc., 653 P.2d 1103, 1109 (Colo.1982) (concluding that Walker must have been based on article II, section 10, and conforming the Walker protections for statements related to public issues to the federal standard for statements about public officials). We have also enforced the protections of article II, section 10 against certain nongovernmental entities by interpreting the concept of "state action" more generously than would the Supreme Court with respect *552to the First Amendment. Bock, 819 P.2d at 60. And although we expressly rejected an invitation to follow the lead of at least one other jurisdiction with similarly broad protections for freedom of speech and to find obscenity to be a form of constitutionally protected speech, we nevertheless held that "obscenity" must be limited to materials that cannot be "tolerated" by the community, whether or not a community standard of "acceptance" might ultimately be found adequate to satisfy the requirements of the First Amendment. People v. Ford, 773 P.2d 1059, 1066 (Colo.1989).

Finally, we have relied on the broader protections of both sections 7 and 10 of article II to impose a more onerous burden on law enforcement investigations seeking specific customer purchase records from innocent, third-party bookstores than would be required by the Fourth Amendment of the Federal Constitution. Tattered Cover, 44 P.3d at 1056. In doing so, however, we made clear that we considered the imposition of a "strict serutiny" or "compelling need" requirement on this kind of "search" to be justified by the state constitution only because the purchase records were sought specifically to discover the content or ideas contained in a particular customer's reading material. Id. at 1057 n. 23, 1059. Contra Pap's A.M. v. City of Erie, 571 Pa. 375, 812 A.2d 591, 612 (2002) (requiring strict seruti-ny whenever protected expression is involved, even if the regulation is content neutral).

With respect to content-neutral time, place, or manner regulations and the regulation of conduct incidentally affecting symbolic expression, by contrast, we have applied the four-part test of O'Brien to uphold legislation against challenges under both the First Amendment and article II, section 10, without suggesting any distinction between the two. See 7250 Corp. v. Bd. of County Comm'rs, 799 P.2d 917, 924-28 (Colo.1990) (regulation of conduct); Williams v. City and County of Denver, 622 P.2d 542, 546 (Colo.1981) (time, place, and manner regulations). And we see no basis in the text of article II, section 10, or in local cireumstance or history, for departing from this precedent.

IV.

Because the Colorado Clean Indoor Air Act is content neutral and narrowly drawn to further the state's substantial interest in protecting the public health and welfare, its prohibition of smoking, even in the theatrical context, does not impermissibly infringe on the plaintiffs' constitutionally protected freedom of expression, as guaranteed by either the federal or state constitution. The judgment of the court of appeals is therefore affirmed.