The misdemeanor trial over Theatre Night performances at Tom Marinaro’s Tank’s Bar in Babbitt Village, Minnesota, was heard on Friday 23 May 2008.
The judge’s ruling is expected within a week. Should the judge rule against Marinaro, his defense lawyer, Mark Benjamin, has already stated that he will appeal. Attorney Benjamin wrote us on Saturday:
Yesterday was the first court trial involving an alleged violation of Minnesota’s Smoking Ban. Tom Marinaro was charged with violating the state-wide smoking ban by allowing patrons to smoke in his bar on March 14th. His affirmative defense was that he was directing an improvisational "theatrical performance". Under Minnesota law, actors and actresses are allowed to smoke real tobacco cigarettes indoors as long as it is a part of a theatrical performance — but the legislature did not define the term.
Across the state, Minnesota bar owners have been staging these protest plays and educating the public about the very real economic and mental health issues associated with a blanket smoking ban that grants favor to the performing arts but gives no quarter to our blue-collar bar owners or Minnesota’s veterans and their VFW and American Legion clubs.
At the trial, the law enforcement officers complained that there were no scripts or costumes and the "acting" was not on the bar’s stage. The prosecutor argued to the judge that this was not a "recognizable" theatrical performance. We argued that these improvisational plays, and the smoking associated with them, stimulated the public into talking about civil liberties, injustice, and the need to communicate with our legislators.
We also argued that Art connects with our emotions and transforms something inside of us. Our performers often have been heard to say how they had forgotten how much they missed smoking indoors with their friends in the warm confines of a neighborhood bar and how good it "felt" to once again enjoy that freedom. By participating in these performances, they have been moved to action. Hence, our "Act Now" buttons are being worn outside of the bars and our message and energy is being spread on a grassroots level.
We will continue to protest Minnesota’s smoking ban by burning real tobacco cigarettes indoors — all as part of a theatrical performance. We take our cue from the 1989 U.S. Supreme Court case — Johnson v. Texas — where Mr. Johnson burned the national flag as part of a protest. He argued that burning the flag evoked powerful emotions in onlookers and brought attention to the message he was trying to convey. The Court agreed and ruled that burning the flag was "expressive conduct" and therefore was protected by the First Amendment.
Our theatrical performances — which include the burning of tobacco cigarettes indoors — have obviously evoked powerful emotions as well. We continue to draw attention to our message, namely that a comprehensive public health policy must include mental health considerations — financial stress and social isolation — brought on by an unforgiving state-wide smoking ban that destroys businesses, loses jobs, and forces once-regular customers to smoke and drink alone.
— Mark W. Benjamin