The Volokh Conspiracy

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

Free Speech

Court Considering Whether Theaters May Reopen in N.Y. Alongside Churches

"Both religion and theatre implicate the exercise of First Amendment rights, and the prioritization of religious events over secular artistic events that enjoy First Amendment free speech protection raises potentially thorny questions."

|The Volokh Conspiracy |

From The Clementine Company LLC v. Cuomo, filed Friday by Chief Judge Colleen McMahon (S.D.N.Y.):

[E]ight individually-owned "small venue theaters" {which have a median capacity of 144 seats} located in Manhattan seek preliminary and permanent injunctive relief preventing the defendants—Governor Cuomo, the New York Attorney General, and Mayor de Blasio—from enforcing Executive Order ("EO") 202.3, which compelled New York's theaters, among other enterprises, to cease operations indefinitely to hall the transmission of Covid-19. The plaintiffs argue that their equal protection rights are being violated because these artistic venues must remain closed, while EO 202.45 now permits "restaurants, catering halls, gyms, casinos, and shopping malls" to open subject to limited capacity and other social distancing requirements….

Presently before this Court is the plaintiffs' motion for a mandatory preliminary injunction that would enjoin enforcement of EO 202.3 as against the small venue theaters and allow them to reopen. The moving and opposition briefs were filed before the United States Supreme Court entered an injunction pendente lite in the case of Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, Governor of New York (2020), which is presently pending before the Second Circuit….

As Justice Kavanaugh said in his concurrence in Diocese, "judicial deference in an emergency or a crisis does not mean wholesale judicial abdication, especially when important questions of religious discrimination, racial discrimination, free speech, or the like are raised." … The arts have long been recognized to embody expressive speech and are thus protected from governmental overreach by the First Amendment. The public performance of artistic works represents an exercise of First Amendment rights.

While scientists tell us that such performances bear an increased risk of spreading Covid-19—an issue of legitimate concern to our government, which is doing its level best to decrease the spread of a deadly disease—scientists also tell us that large gatherings of persons at religious assemblies, where people engage in communal acts like singing and praying aloud, are potential super-spreader events. Like the Roman Catholic churches in Diocese, which held services in compliance with social distancing and masking protocols, the plaintiff theaters in this case have been hard at work to find ways to make the arts available to the public safely and in accordance with social distancing guidelines. {This past summer, the Berkshire Theater Group presented a month-long run of the musical "Godspell" (albeit outdoors), complete with thrice-weekly Covid-19 tests for the actors, mask and partitions on stage, temperature checks, social distancing, and a front row that was 25-feet from the stage. Musical productions are arguably the most dangerous to the public health during the pandemic.}

This court accords great deference to the government's exercise of its police powers during a public health crisis of unprecedented proportions. However, if the Governor of New York is not permitted to issue carefully targeted restrictions barring more than a certain number of worshippers from gathering together and engaging in behavior that scientists tell us is inimical to public health, then he may also be unable to issue restrictions that have as their effect the suppression of the free speech of artists and the right of members of the public to assemble for enjoyment of the arts—both of which, under the Executive Order, are not simply limited, but are barred altogether. Both religion and theatre implicate the exercise of First Amendment rights, and the prioritization of religious events over secular artistic events that enjoy First Amendment free speech protection raises potentially thorny questions.

Since Diocese has been raised by plaintiffs, the First Amendment implications of that case for this one (if indeed there are any, given the procedural posture of Diocese) need to be fully aired before the court rules on the plaintiffs' application for a preliminary injunction. The City and State have had no opportunity to respond to plaintiffs' argument based on Diocese, either substantively or procedurally. They need to have that opportunity; and the plaintiffs in turn need to respond to the City and State. Moreover, because of the novelty and importance of these issues, it may be that there are amici out there who wish to weigh in.

The Attorney General and Corporation Counsel may have until December 22, 2020 to brief the implications of Diocese for the pending application. In light of the holidays, Plaintiffs have until January 8, 2021 to file an additional reply brief, again limited to that single issue. Any amici who might wish to weigh in arc welcome to submit a motion together with a proposed brief by January 8, 2021. The court will turn to this matter promptly in the new year.

Illinois Republican Party v. Pritzker (7th Cir. 2020), generally rejected the argument that, if churches are open, secular speech events (there, political gatherings) have to be treated as well; but I do think the question hasn't been conclusively settled, and is indeed "thorny."