World first at Supreme Court: No smoking on stage

Justices rule tobacco smoke as "freedom of expression" on theater stages in Israel is superseded by right to health.

By JUDY SIEGEL-ITZKOVICH
Smoking on stage 370 (photo credit: Haifa Theater)
Smoking on stage 370
(photo credit: Haifa Theater)
To smoke or not to smoke on theater stages in Israel? The Supreme Court ruled on Monday that despite claims that puffing away is part of “freedom of expression,” it does not justify violating the laws that prohibit smoking in public places, which must be observed to protect the public health.
It was reportedly the first time in the world that such a precedent-setting ruling had been taken. A three-justice panel of Elyakim Rubinstein, Yoram Danziger and Zvi Zilbertal voted unanimously in the case of lawyer Einav Avrahami against the Haifa Municipal Theater and its owner, the Haifa Municipality.
Last spring, a request to certify a class-action suit was submitted to the Haifa District Court against a theater for instructing an actress to smoke as part of her role. The request was filed by lawyer Amos Hausner, chairman of the National Council for the Prevention of Smoking, on behalf of fellow lawyer and frequent theatergoer Avrahami, who objected to famous actress Orly Zilbershatz-Banai smoking for about five-and-a-half minutes onstage in the play.
Highly praised by Israeli critics, the play is based on the work of American playwright David Mamet. Titled in Hebrew Hamakom Mimenu Bati, it tells the story of an American-Jewish man named Bobby Gold, who abandons his wife and home to return to the old Jewish neighborhood where he was raised. Zilbershatz-Banai played his long-suffering sister and delivered a long monologue during which she smoked.
The Haifa Municipal Theater used a large photo of Zilbershatz- Banai smoking a lit cigarette and talking to a fellow actor at the top of the play’s website. The theater did not deny any of the allegations, but claimed that it should be exempted from observing the no-smoking provision due to its claim of “freedom of expression.”
The theater, as a public place, is legally responsible for enforcing no-smoking laws in the city. This is a conflict of interest, argued Hausner in his application in the lower court, and asked to set compensation for damages to the theater audience at NIS 1,000 each, or a total of NIS 3.8 million, as he calculated that some 3,800 spectators had seen the play.
Avrahami said she was fighting for a principle – that smoking in theaters has been illegal since 1983, and that the health of not only the audience but the actors who performed several times a day was at risk, as they would be exposed to toxins. Because she was standing on principle, she said she personally was not asking for monetary compensation.
When Hausner took the case case to the Supreme Court as an appeal, the justices said that the principle of prohibiting smoking in public supersedes freedom of expression – even if the actual smoking was relevant to the theme of the play, which it was not in this case.
The court did not set a fine but did set down the principle; the justices thought that substitutes that did not violate the law could be found but that the prohibition of smoking still superseded it.