Dissenting.
I would reverse the court of appeals' judgment and hold that the smoking ban contained in the Colorado Clean Indoor Air Act, as applied to theatrical performances when the seript of a play calls for smoking, is unconstitutional because theatrical smoking constitutes expressive conduct protected by the First Amendment. Under the applicable constitutional standard, the state must carry its burden of demonstrating that its prohibition of expressive conduct is narrowly tailored to meet a significant governmental interest. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 298, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (applying the United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) test); Denver Publ'g Co. v. City of Aurora, 896 P.2d 306, 312-17, 319 (Colo.1995).
In this case, the state has failed to meet its burden because the smoking ban leaves the theaters without adequate alternate channels for their expression. See Denver Publ'g, 896 P.2d at 316-17. The majority finds the fourth O'Brien factor, requiring that the ban be narrowly tailored, has been satisfied because adequate alternatives exist for the expressive conduct under Clark, 468 U.S. at 293, 296-99, 104 S.Ct. 3065, and Denver Publishing, 896 P.2d at 313-17. I respectfully disagree.
Colorado's smoking ban is not narrowly tailored as applied to theatrical performances that call for smoking because the statutory ban bars the use of any plant matter in *553addition to products of the tobacco plant, fails to take into account measures that limit exposure to patrons of the theater to demonstrably harmful tobacco products, and renders alternative means of the protected First Amendment expression untenable and even laughable.
A. Theatrical Smoking Is Expressive Conduct
Live drama, no less than written or spoken word, can communicate "pungent social and political commentary." See Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 563-64, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) (Douglas, J., dissenting in part and concurring in part). Thus, theater as a medium is afforded First Amendment protection. See id. at 557-58, 95 S.Ct. 1239 (majority opinion).
In order to determine whether smoking within theatrical performances is conduct that is sufficiently expressive to be protected under the First Amendment, the court must determine whether (1) "an intent to convey a particularized message was present" and (2) "the likelihood was great that the message would be understood by those who viewed it." Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (quotations and citations omitted). Smoking by itself is not expressive conduct NYC C.L.A.S.H., Inc. v. City of New York, 315 F.Supp.2d 461, 476 (S.D.N.Y.2004). However, smoking by performers in a play when a seript calls for it meets the Johnson test.
With respect to the first prong of the Johnson test, witnesses with extensive theatrical experience testified before the trial court that smoking is included by playwrights to develop character and plot. One witness testified that "Ismokingl's at the very, very core of character development and storytelling.... [Ilt's as necessary as if a character is a soldier and is supposed to have a gun in their hand."
The theaters point to a specific upcoming production of tempODYSSHY, a play in which a character initially smokes, then realizes he has died because he can no longer smoke. The script describes this dramatic moment:
[CHARACTER]: It's over. All over.
([CHARACTER] pulls out his smokes, still crying, sticks one in his mouth and tries to light up. Nothing. He inhales harder. Nothing. He throws it to the ground, pulls out another, lights up, nothing.... He squashes his cigarettes one by one)
[CHARACTER]: No smoke. No air. No breath. No scream. No sound.
Dan Dictz, tempODYSSHY 49 (Dramatists Play Service, Inc.) (2007).
The theaters also point to other plays that utilize smoking as a tool for expressing character and story, such as Who's Afraid of Virginia Woolf? by Edward Albee, The Graduate adapted for theater by Terry Johnson, A Moon for the Misbegotten by Eugene O'Neill, Mojo by Jez Butterworth, and Vieux Carre by Tennessee Williams. For example, in Who's Afraid of Virginia Woolf?, a main character, George, uses the cloud of cigarette smoke on stage as a descriptive tool:
GEORGE: I'm forty-something. (Waits for reaction ... gets none.) Aren't you surprised? I mean ... don't I look older? Doesn't this gray quality suggest the fifties? Don't I sort of fade into backgrounds ... get lost in cigarette smoke?
Edward Albee, Who's Afraid of Virginia Woolf? 19 (Dramatists Play Service, Inc., Rev. Ed.2004) (1962).
In The Graduate, the exhale of smoke shows the character Mrs. Robinson's power over young Benjamin:
MRS. ROBINSON: now. Is that alright? ... I'll get undressed
BENJAMIN: Sure. Fine.
([MRS. ROBINSON] stands up, takes a last pull on her cigarette and turns to put it out. BENJAMIN moves closer and kisses her. When their lips part she exhales her cigarette smoke. She takes off her jewelry then begins to unbutton her blouse.)
Terry Johnson, The Graduate 32 (Samuel French, Inc.20083) (2000).
As the court of appeals points out, theatrical smoking can be used to make political statements about smoking itself. Curious Theater Co. v. Colo. Dep't of Pub. Health & *554Env't, 216 P.3d 71, 79 (Colo.App.2008); see David Conrue, Sam Holtzapple, Warren Loy, & Chris Todd, Smoking Bloomberg, http:// www.smokingbloomberg.com (last visited Dec. 9, 2009) (a Broadway musical comedy about New York City Mayor Michael Bloom-berg's ban on smoking tobacco in public places, which has been described as "ex-plor[ing] the loss of personal freedoms in modern-day America, targeting the Left, the Right, and everyone in between." Kenneth Jones, Smoking Bloomberg, the Musical, Gets Transport Group Reading in NYC April 22, Playbill, Apr. 22, 2009, http://www. playbill.com/news/article/128495-Smoking.. Bloomberg_the_Musica LGets_Transport_ Group_Reading_in_NYC_April_22 (last visited Dec. 9, 2009)).
In a play's performance, smoking becomes a form of expression that is distinct from the act of smoking itself; it is used to communicate meaning and thus "to convey a particularized message." See Johnson, 491 U.S. at 404, 109 S.Ct. 2533. The characters and plots would lack depth and expressive force without the hovering smoke on stage, the poignant exhale of a puff of smoke, and even the ability or inability to smoke.
"Would Mrs. Robinson be as much of a smoldering voleano in 'The Graduate if she could not wave her cigarette so suggestively? Would George and Martha's living room broadsides in 'Who's Afraid of Virginia Woolf? be equally vicious without their boozy veil of smoke?" Kirk Johnson, Colorado Court Rules "No Smoking" Means Exactly That, Even on Stage, N.Y. Times, Mar. 21, 2008, available at http://www.nytimes.com/ 2008/03/21/us/21smoke.html.
The second prong of the Johnson test requires that at least some of the audience perceive that theatrical smoking has some message, even if the audience does not comprehend its intended point. See Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1270 (11th Cir.2004); see also Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 569, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) ("[A] narrow, sue-cinetly articulable message is not a condition of constitutional protection," and i#f First Amendment protection were so defined, it "would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schéenberg, or Jabberwocky verse of Lewis Carroll.").
It is reasonable that some audience members would perceive a message from the use of cigarette, cigar, or pipe smoking in such plays as described above. See Holloman, 370 F.3d at 1270. Therefore, the Johnson test is satisfied; theatrical smoking is expressive conduct for First Amendment purposes.
Once the conduct is proven to be expressive, O'Brien applies. See 391 U.S. at 377, 88 S.Ct. 1673. Here, the theaters agree with the state that O'Brien's first three factors are met: (1) Colorado's legislature has the authority to enact statutes, such as the smoking ban, that promote public health; (2) the legislature's purpose in enacting the smoking ban, to protect the health of the state's citizens, § 25-14-202, C.R.S. (2009), serves an important governmental interest; and (8) the smoking ban is content neutral.
In this case, the majority finds the fourth O'Brien factor, requiring that the ban be narrowly tailored, has been met and adequate alternatives exist for the expressive conduct under Clark, 468 U.S. at 293, 296-99, 104 S.Ct. 3065, and Denver Publishing, 896 P.2d at 313-17. I disagree. A closer analysis of the statute and an assessment of the available alternatives to theatrical smoking reveal that the majority's conclusion is untenable.
B. Colorado's Smoking Ban Is Not Narrowly Tailored
The Colorado Clean Indoor Air Act bans all smoking of tobacco in any indoor area, including theaters. § 25-14-204(1)(x), C.R.S. (2009). The legislative declaration states the statute is meant to effectuate a balance to protect nonsmokers from involuntary exposure to tobaceo smoke and unwarranted governmental intrusion:
The general assembly hereby finds and determines that it is in the best interest of the people of this state to protect nonsmokers from imvoluntary exposure to environmental tobacco smoke in most indoor ar*555eas open to the public, public meetings, food service establishments, and places of employment. The general assembly further finds and determines that a balance should be struck between the health concerns of nonconsumers of tobacco products and the need to minimize unwarranted governmental intrusion into, and regulation of, private spheres of conduct and choice with respect to the use or nonuse of tobacco products in certain designated public areas and in private places. Therefore, the general assembly hereby declares that the purpose of this part [] is to preserve and improve the health, comfort, and environment of the people of this state by limiting exposure to tobacco smoke.
§ 25-14-202 (emphasis added). However, the statute goes on to broadly define "tobacco" to include any "plant matter or product that is packaged for smoking." § 25-14-208(17), CRS. (2009) (" 'Tobaceo' also includes cloves and any other plant matter or product that is packaged for smoking."). The state has failed in this case to prove that the ban is narrowly tailored to allow adequate alternative means of expression for theatrical performances.
Colorado's ban on indoor smoking is among the most restrictive in the country. Of the twenty-four states that have indoor smoking bans, at least twelve have exemptions for theatrical performances or grant exemptions on a case-by-case basis. See Curious Theater, 216 P.3d at 75-76. Only three states, in addition to Colorado, ban theatrical smoking and also ban smoking of cigarettes made from cloves, tea leaves, or other tobacco alternatives. See eg., N.J.Rev.Stat. §§ 26:3D-57, -59 (2009); Mont.Code Ann. §§ 50-40-103(8), -104 (2009); Wash. Rev. Code § 70.160.020 (2009).
Despite the especially broad ban on smoking in Colorado, airport smoking concessions are exempted. § 25-14-205(1)(Ff), CRS. (2009). This exemption is not justified by the stated legislative purpose of the smoking ban and, in fact, works against this stated purpose. See § 25-14-202 ("the purpose of [the ban] is to preserve and improve the health, comfort, and environment of the people of this state by limiting exposure to to-baceo smoke"). In contrast, other exemptions, such as the exemption for hotel rooms, § 25-14-205(1)(c), clearly work towards the legislature's goal of striking a balance "between the health concerns of nonconsumers of tobacco products and the need to minimize unwarranted governmental intrusion into, and regulation of, private spheres of conduct," § 25-14-202.
To be narrowly tailored to serve a content-neutral purpose, the state's regulation "need not be the least restrictive or least intrusive means of doing so." Ward v. Rock Against Racism, 491 U.S. 781, 798, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). The state must prove that the regulation promotes a government interest that would be achieved less effectively absent the restriction. Id. at 799, 109 S.Ct. 2746; Denver Publ'g, 896 P.2d at 314, 319. Nonetheless, "[glovernment may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals." Ward, 491 U.S. at 799, 109 S.Ct. 2746. "A complete ban can be narrowly tailored, but only if each activity within the proseription's scope is an appropriately targeted evil." Frisby v. Schultz, 487 U.S. 474, 485, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988).
The state bears the burden of proving that the smoking ban's incidental burden on expressive theatrical conduct is narrowly tailored. See Denver Publ'g, 896 P.2d at 319. Contrary to the majority's contention that no specific evidentiary support is necessary to justify the statute here, maj. op. at 548, we have held that the quantum of evidence required for a statute to withstand constitutional review is necessarily included within the constitutional test. Denver Publ'g, 896 P.2d at 319 n. 20; see also City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 416, 416 n. 12, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993) ("[Slinee the State bears the burden of justifying its restrictions, it must affirmatively establish the reasonable fit we require."). Thus, the state must demonstrate that its prohibition against smoking tobacco-free alternatives is narrowly tailored to the state's interest in the public's health, safety, and *556comfort. See Denver Publ'g, 896 P.2d at 319. The state has not carried this burden.
The state presented several exhibits to the trial court dealing with the health consequences of smoking; however, the state provided no support for the claim that the smoking of or secondhand smoke from tobaceo-free alternatives poses a public health risk. The state's exhibits included the Surgeon General's 2006 report on the health consequences of tobacco smoke. Def's Ex. D. However, this highly reputable report considered only the effects of secondhand smoke from tobacco cigarettes and not their tobacco-free counterparts. Id.
The state also provided three exhibits touting the health hazards of herbal or "alternative" cigarettes. The first is a press release from the Federal Trade Commission ("FTC") regarding a settlement reached between the FTC and companies selling tobacco-free herbal cigarettes. Def's Ex. G. The FTC alleged that the companies "falsely implied that smoking [] herbal cigarettes did not pose the health risks associated with smoking tobaceo cigarettes." Id. In response to this claim, the companies agreed to disclose that herbal cigarettes are dangerous to health in future advertising. Id. Not only did this news release not cite any studies or scientific information relating to the health risks of herbal cigarettes, but a settlement agreement can hardly be used as evidence supporting the government's position that the secondhand smoke from tobacco-free alternatives poses a risk to the public health.1
The second exhibit is from the website http://www.yourhealthconnection.com and relies heavily on the FTC's settlement order; however, the exhibit cites no scientific studies in support of the state's claims. Def's Ex. F.
The final exhibit dealing with herbal cigarettes is a briefing by an advocacy group, ASH Scotland, to the Health Minister of Scotland advocating the inclusion of non-tobacco products in legislation banning environmental tobacco smoke. Def's Ex. H. ASH Scotland admits in its briefing that peer-reviewed, published evidence on non-tobacco cigarettes is sparse, but goes on to rely on a 1990 Australian study that found some similarities between tobacco and non-tobacco cigarettes. Id. However, evidence of non-tobaceo products' connection to adverse public health effects is lacking.
The majority asserts that "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 public's exposure to environmental smoke, even from tobacco-free alternatives." Maj. op. at 550. Dispensing with any requirement for a factual showing, the majority posits that the state has an "aesthetic interest" in banning the onstage smoking of non-tobaceo products, even "without reliance on empirical studies detailing particular health risks associated with breathing second-hand smoke." Id. at 549-50. The majority goes on to state that the legitimacy of this aesthetic interest is "apparent." Id. at 550.
However, the state in this case has not claimed an aesthetic interest in banning actors from smoking non-tobaceo plant matter; rather, it contends that smoking the available alternatives adversely affects the public's health, safety, and comfort. In my view, in the absence of evidentiary support, the majority's use of aesthetic grounds to totally ban on-stage smoking constitutes censorship in violation of the First Amendment. What other aspects of Mrs. Robinson's dress, speech, or actions might be considered unacceptable on aesthetic grounds? See Se. Promotions, 420 U.S. at 563, 95 S.Ct. 1239 (Douglas, J., dissenting in part and concurring in part) ("As soon as [the government is] permitted to pick and choose ... between those productions which are 'clean and healthful and uplifting' in content and those which are not, the path is cleared for a regime of censorship under which full voice can be given only to those views which meet with the approval of the powers that be.").
Our cases require evidentiary support to justify the regulation of expressive conduct. See Denver Publ'g, 896 P.2d at 319. This *557requirement protects First Amendment expression by imposing a burden of proof involving a convincing factual presentation. The authority cited by the majority does not support the claim that an aesthetic interest, by itself, is sufficient to justify a ban on expressive conduct. Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 805, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984), stands only for the proposition that a state has a legitimate interest in advancing aesthetic values. Such an interest does not relieve the state from proving that its regulation is narrowly tailored to that interest. The majority also relies on Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954), in which the U.S. Supreme Court evaluated the state's interest in the public welfare in the completely unrelated context of an eminent domain proceeding.
Taken together, the state's exhibits provide only conjectural support for its claim that the ban of tobacco-free cigarettes in theatrical performances is narrowly tailored to the government's interest in protecting the public. Thus, I would hold that the state has not met its burden of proving that any plant matter in addition to tobaceo "is an appropriately targeted evil." See Frisby, 487 U.S. at 485, 108 S.Ct. 2495. Moreover, Colorado's smoking ban is not narrowly tailored because the burden it places on theatrical smoking does not further the state's goal of "protect[ing] nonsmokers from involuntary exposure to environmental tobacco smoke." § 25-14-202 (emphasis added).
The theaters proved to the trial court that no audience member would be forced involuntarily to attend a play or inhale secondhand smoke. Patrons of the theaters typically buy tickets in advance rather than showing up on a given night, and advertisements for the plays generally make clear when smoking will occur on stage. The theaters offer warnings about the smoking at the time the ticket is sold and directly prior to the performance, and they offer refunds to any person choosing to forego viewing the play after being notified of the theatrical smoking. Additionally, when advertising to the acting community for roles that may require smoking on stage, directors disclose this requirement, leaving it up to the actor to decide whether or not to audition.2
The argument that such a scheme "forc[es] [citizens] to choose between their comfort or health, on the one hand, and the benefits offered by regulated, public accommodations, on the other," maj. op. at 549, fails to account for the unique nature of theatrical productions. Exposure to smoke during theatrical productions is by performers engaged in expression, while exposure to smoke from fellow patrons at places of public accommodation involves no expression whatsoever.
Moreover, exposure to smoke during theatrical performances is limited because the onstage smoking takes place at a distance from the audience and seripts usually require the smoking of one cigarette or less.3 A ban on smoking by theater patrons would strike the balance the legislature intended between protecting public health and avoiding overly intrusive governmental regulation, see § 25-14-202, while allowing expressive conduct by the actors in theatrical performances.
In Ward, the U.S. Supreme Court held New York City's requirement that performers at an outdoor amphitheatre in Central Park use the city's sound equipment and the city's sound technician to be narrowly tailored to the city's substantial interest in noise control. 491 U.S. at 800, 109 S.Ct. 2746. The sponsors of a rock concert contended that this requirement "targets more than the exact source of the 'evil' it seeks to remedy." Id. at 801, 109 S.Ct. 2746. The Court disagreed. Id. at 801-02, 109 S.Ct. 2746.
However, the Court distinguished the following situation from the one at issue in that case: "If the city's regulatory scheme had a substantial deleterious effect on the ability of bandshell performers to achieve the quality of sound they desired, [the rock concert *558sponsor]'s concerns would have considerable force." Id. at 801, 109 S.Ct. 2746. Thus, if the quality of a performance is substantially affected by the state's regulation, the argument that the regulation is narrowly tailored loses credibility.
In this case, the state's ban on theatrical smoking presents the situation the Court distinguished in Ward. Here, the smoking ban has a substantial effect on the ability of the theaters to achieve the intended effect of theatrical performances that include smoking, so much so that the theaters would choose not to present those performances where smoking was integral to the characters or plot.
The theaters demonstrated that they would be contractually precluded from presenting theatrical performances that include smoking where the playwrights require strict adherence to the script. This chilling effect on theatrical expression is unacceptable under the First Amendment. Permitting smoking in theatrical performances would achieve the government's interest in public health no less effectively because citizens could choose to forego plays that include smoking, actors could refrain from auditioning for smoking roles if they prefer, and, in any event, the exposure to secondhand smoke from theatrical smoking is minimal.
The substantial effect on the ability of the theaters to present some plays at all and, otherwise, on their ability to present authentic theatrical performances according to the playwrights' intent demonstrate that Colorado's smoking ban "targets more than the exact source of the 'evil' it seeks to remedy." See Frisby, 487 U.S. at 485, 108 S.Ct. 2495.
Other states have avoided a First Amendment violation by narrowly tailoring their smoking bans to ensure that expressive conduct during theatrical performances is not prohibited or by allowing alternatives to smoking tobacco. Colorado's ban does not exempt theaters, and it prohibits the smoking of tobacco alternatives, such as cloves or tea leaves, which are often used instead of tobaceo products during theatrical perform-ancesA4 See § 25-14-203(17); see also Zachary Pincus-Roth, No Smoking in the Theater, Especially Onstage, N.Y. Times, Jan. 28, 2007, available at http://www. ny-times.com/2007/01/28/theater/28pine.html?_r=1 & sep=1 & sq=pin-cus-rothfogmoking & st=ese.
In contradiction to Colorado's theatrical smoking ban is the unjustified exemption for airport smoking concessions. See § 25-14-205(1)(f). There is no constitutional right at stake in the airport context, yet smoking is allowed. See id.; see also NYC C.L.A.S.H., 315 F.Supp.2d at 478-79 (holding that smoking in a public indoor establishment such as a bar or restaurant does not constitute expressive speech under the First Amendment because a smoker's motivation in that context is generally not to convey a message).
Despite the majority's confusion about whether an analysis of alternate channels of communication is appropriate when the law in question regulates only conduct, maj. op. at 550, the Supreme Court has expressly applied the alternate channels of communication analysis to cases involving expressive conduct. Clark, 468 U.S. at 295, 104 S.Ct. 3065 (assessing the alternatives to the symbolic expression of individuals sleeping overnight in a national park to demonstrate the plight of homelessness); Ward, 491 U.S. at 802, 109 S.Ct. 2746 (applying the alternatives analysis to a city regulation that allowed city control of a rock concert's sound mix). Where sufficient alternatives to the prohibited expressive conduct are available, the regulation can withstand constitutional serutiny. See Denver Publ'g, 896 P.2d at 316-17.
The majority opinion fails to appreciate the communicative nature of smoking during theatrical performances. It holds that a fake or prop cigarette "is capable of amply communicating to an audience an intended message." Maj. op. at 550. Talcum cigarettes work by the actor blowing into the cigarette to cause a puff of talcum powder to be excreted. There is some debate whether talcum cigarettes can be used for more than the first *559puff of smoke. In any event, talcum cigarettes do not allow the actor to exhale smoke, since no smoke is actually inhaled. Prop cigarettes emit no smoke at all.
A single puff of taleum powder, or a prop cigarette with a reflective tip or light placed at the tip, can hardly depict the "boozy veil of smoke" necessary to Who's Afraid of Virginia Woolf?. See Kirk Johnson, Colorado Court Rules "No Smoking" Means Exactly That, Even on Stage, N.Y. Times, Mar. 21, 2008, available at http://www.nytimes.com/ 2008/03/21/us/21smoke.html. Neither prop nor talcum cigarettes allow an actor to dramatically exhale a puff of smoke, as Mrs. Robinson does in The Graduate. One of the witnesses at trial testified that the audience had responded to a fake cigarette with laughter, though the author intended no comedy.
The ability of a theatrical performance to communicate a plot, depict characters, and evoke an era according to the playwright's intent is severely limited by the inability to light a cigarette, pipe, or cigar on stage. Colorado's smoking ban lacks an exemption for the expressive conduct of theatrical smoking, allows no adequate alternative to theatrical smoking, and prohibits the smoking of tobaceo alternatives. Thus, it is not narrowly tailored to meet the state's legitimate interest in protection of the public's health, safety, and comfort.
Accordingly, I respectfully dissent.
. The press release included a disclaimer that "lal consent agreement is for settlement purposes only and does not constitute an admission of a law violation." Id.
. The theaters contend that these practices were common prior to the smoking ban and are how they would manage theatrical smoking in the future.
. The theaters' witnesses testified before the trial court that the maximum amount of smoking for any play was fifteen to twenty minutes spread out over two hours.
. Actors that do not smoke often prefer tobacco-free cigarettes because they lack the addicting chemical nicotine, and the theaters testified that they also use tobacco-free cigarettes for the comfort of their patrons.