ROBERT B. SPAWN reports on a recent case initiated in the United States District Court for the District of New Jersey.
On July 6, 2020, several major movie theater companies (the “Theaters”), which have been forced to cease business due to the ongoing COVID-19 pandemic, filed suit against the State of New Jersey. In their Complaint, the Theaters allege that the State acted unconstitutionally and unlawfully in allowing certain places of public assembly to reopen while simultaneously requiring that movie theaters remain closed. The Theaters further allege that the continued government-mandated closure of their businesses is a violation of their First Amendment rights of freedom of speech and freedom of expression; a violation of the Equal Protection under the law; a violation of Due Process under the law; and a Taking of property without just compensation.
More specifically, the Theaters cite numerous examples of certain types of businesses that have been allowed to reopen—subject to face covering and social distancing requirements—in June or July of 2020, such as retail stores, indoor shopping malls, places of worship, libraries, aquariums, and museums. Given that these types of public assembly establishments (with seemingly similar risk levels regarding COVID-19) have been allowed to reopen, the Theaters are perplexed as to why their movie businesses have not been allowed to reopen as well. Indeed, the Theaters point out that the State has a legal obligation to treat like entities in a like manner, and not to create arbitrary or irrational distinctions, particularly where First Amendment rights are at stake. The State has yet to serve an Answer to the Theaters’ Complaint.
This case serves as a prime example of the inherent tension between the State’s public health orders regarding the COVID-19 crisis and the ability to operate (and survive) as a business in New Jersey. To be sure, as the pandemic situation persists, more challenges to the government’s restrictions on the ability to conduct business are bound to arise, and this case will likely serve as an early indicator of how local courts will address COVID-related issues.
Please contact Robert B. Spawn if you have any questions or need assistance in connection with this subject.