The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Sinatra, Music, the Texas Guitar Army, the First Amendment, and Coronavirus

That's Judge John Sinatra (W.D.N.Y.), holding that a N.Y. restriction on live music was unconstitutional.


From Friday's Hund v. Cuomo (Hund is musician Michael Hund, who brings the Texas Guitar Army connection):

New York State has responded to the COVID-19 pandemic with numerous restrictions. This case involves one such restriction, set forth in the New York State Liquor Authority's Phase 3/4 Guidelines for Licensed On-Premises Establishments. The Court must decide if the incidental-music rule contained in these guidelines—which allows licensed establishments to provide live music that is incidental to the dining experience but not advertised, ticketed live music—comports with the United States Constitution. Because it does not, the Court grants Plaintiff's motion for a preliminary injunction, as set forth in detail below, and grants in part and denies in part Defendants' motion to dismiss the complaint….

[T]he incidental-music rule affects Hund's ability to perform live music as part of advertised, ticketed events at licensed on-premises establishments, implicating his First Amendment rights…. The United States Constitution permits state officials to take necessary, rational, and temporary measures to meet an emergency…. [M]ore than a century of caselaw illustrates that, in extreme times, like when a pandemic or epidemic threatens to impose a heavy toll on public health, this equipoise will flex—without breaking—to tolerate state impositions that are moderate in severity, short in duration, and tailored to the disease. Jacobson v. Massachusetts (1905) (holding that "in every well-ordered society charged with the duty of conserving the safety of its members[,] the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand").

Even in a pandemic, state police powers are subject to limitations, and state action taken to protect public health cannot infringe constitutional rights…. "[J]ust as constitutional rights have limits, so too does a state's power to issue executive orders limiting such rights in times of emergency." …

In particular: "if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution." … State action deviates from having a "real or substantial relation" to the public health if "exercised in particular circumstances and in reference to particular persons" in "an arbitrary, unreasonable manner." …

The incidental-music rule prohibits one kind of live music and permits another. This distinction is arbitrary. With either type of live music, table-spacing, social-distancing, and face-covering requirements remain the same. [Defendant Vincent G. Bradley, the Chairman of the State Liquor Authority,] allows incidental music. And he allows trivia night at the same establishments. Plus, New York movie theaters may open, subject to certain restrictions. Those activities pose the same exposure concerns that [Dr. Elizabeth Dufort, the state officials' expert witness,] highlights regarding live, advertised, ticketed musical performances.

In fact, trivia nights and attending movies at a theater would seem to trigger the same common arrival and departure time concern that Bradley cites regarding advertised, ticketed musical performances. Similarly, Bradley cites concerns about ticketed, advertised musical performances resulting in more time spent at tables compared to a quick dinner over incidental music—for example, 3 hours versus 90 minutes. But many restaurants often accommodate a slower-paced dinner. And if Bradley's goal is a 90-minute turnaround, twice as many patrons would seem to result, which would increase—not decrease—the risk of COVID-19 spread.

The distinctions drawn here have no real or substantial relation to public health. They are arbitrary. Because there is no difference in logic—under any standard—for these distinctions, the incidental-music rule does not pass muster under Jacobson….

For similar reasons, the court also held that the law would be unconstitutional under the normal intermediate scrutiny applicable to content-neutral restrictions. And the court concluded that, because the rule was "arbitrary," Hund could also go forward with his substantive due process claim based on his "liberty interest" in "[t]he right to pursue a profession." The court ordered:

Bradley, and all other governmental and/or law enforcement authorities under his control, are enjoined from enforcing the incidental-music rule portion of the New York State Liquor Authority's Phase 3/4 Guidelines for Licensed On-Premises Establishments, which provides: "Additionally, please note that only incidental music is permissible at this time. This means that advertised and/or ticketed shows are not permissible. Music should be incidental to the dining experience and not the draw itself." …

Bradley may continue to enforce the unaffected portion of the SLA Guidelines: … "Restaurants and other on premises food and beverage establishments that have a license through the SLA are only allowed to offer on-premise music if their license certificate specifically allows for such activity (i.e., live music, D J, recorded, etc.). A manufacturer that has an on premises license also must assure that its on premises license certificate specifically allows for the type of music it is offering. A manufacturer without a separate on premises license may offer music unless its license certificate specifically prohibits such music.

"If offering music, indoors or out, al l relevant aspects of the respective Department of Health guidance dining must be followed, e.g., patrons should not be standing except for necessary reasons (e.g., restroom, entering/exiting), standing patrons should wear face coverings, etc. Performers should be at least 12 feet from patrons.

"All other forms of live entertainment, such as exotic dancing, comedy shows, karaoke etc., are not permissible currently regardless of phase."