According to Theatre Communications Group (TCG), the advocacy organization for not-for-profit theatres, three Colorado theatres have engaged in an ongoing legal battle to win an exemption from their state's smoking ban for theatrical smoking. Denver's Curious Theatre Company, Paragon Theatre and Boulder's Theatre 13 (no longer a petitioner) argued that allowing actors to smoke in stage productions was a First Amendment freedom of expression issue. A Denver District judge rejected that argument in October 2006, and a three-member appellate court followed suit in March 2008. The theatres then took the case to the Colorado Supreme Court, which agreed to hear the case. On Dec. 14, 2009, the Colorado Supreme Court upheld earlier Colorado court decisions, and denied an exemption for theatrical smoking. The highest court is now letting that stand.

TCG has supported the original petitioning theatres since their first appeal. The Amicus Brief was filed by TCG in April 2010 with the U. S. Supreme Court. "As the national service organization for professional not-for-profit theatre, our responsibility is to advocate for our member theatres and our collective, strong belief in freedom of expression," stated Teresa Eyring, TCG executive director, earlier this spring.

According to TCG, 18 states have indoor smoking bans which prohibit theatrical smoking.