New Jersey Movie Theaters Denied Reopening in Judge’s New Ruling

Movie theaters in New Jersey, led by NATO, initially sued the East Coast state over claims of First Amendment violations

A New Jersey judge has denied the state’s movie theaters’ motion to reopen, citing continued health concerns in the wake of the novel coronavirus pandemic.

Judge Brian Martinotti has declared in a 33-page ruling that theaters still pose a high risk as potential infection sites. Martinotti ruled that mask mandates are difficult to enforce in theaters’ dark settings, and would be exacerbated via food consumption and their general high traffic. He also argued that there are “ample alternatives” to indoor movie theaters that would allow for safer public viewing.

“By closing only indoor movie theaters, Defendants are leaving open ‘ample alternative methods of communication’ in the form of outdoor movie theaters and at-home streaming options,” ruled Martinotti.

A group of theater chains, spearheaded by the National Association of Theatre Owners, sued New Jersey back in early July claiming a violation of their First Amendment rights. NATO argued against the state’s placement of theaters within Phase Three of their reopening process, while other public spaces such as libraries, museums, and shopping centers were allowed to open in Phase Two. The lawsuit also named Governor Phil Murphy and the acting Commissioner of Health Judith Persichilli, alleging that they ignored the industry’s proposed health and safety guidelines outright.

A Secular Bent?

Houses of worship in New Jersey were also allowed to reopen under Phase Two guidelines, much to the ire of NATO. In court arguments back in early August, the organization cited anti-secular bias in the state’s allowance of such locations to reopen while keeping movie theaters shuttered.

“To be clear: Plaintiffs never disputed that a State has authority to impose emergency public health measures,” NATO said in a briefing back on July 31. “But the very cases on which Defendants rely most make it abundantly clear that Defendants’ emergency powers must be exercised in a constitutional manner. Equal protection under the law and the right to free speech do not vanish during a public health emergency…. This case is not about special treatment, this case is about equal treatment.”

New Jersey countered by citing a 2005 Supreme Court case Cutter v. Wilkinson, stating that the government can grant greater protections to religious activity over “secular equivalents”. (New Jersey used that case’s example of a state being required to allow prison inmates access to religious personnel such as chaplains, but not having to allow access to people like political consultants if they so chose.)

NATO countered by accusing the state of misinterpreting that case’s ruling, saying that it’s not so much that movie theaters are claiming a violation of the Establishment Clause as much as they are claiming a violation of Equal Protection.

“New Jersey’s movie theatres are not prisons and Governor Murphy is not their warden,” NATO said in their brief. “Cutter has no application here.”

For a more detailed analysis of this case’s secular bias angle, check out Eriq Gardner’s write-up in the Hollywood Reporter.

Novel Coronavirus Update

Movie theaters throughout the U.S. have mostly remained shuttered since mid-March. Some chains such as Cinemark and AMC are planning staggered openings in areas of the country that will allow such businesses to open. However, large theatrical markets like New York City and Los Angeles are still closed with an undetermined reopening date set.

As of this writing, New Jersey has seen over 188,000 total COVID-19 cases and over 14,000 confirmed deaths. The number of daily new cases have plateaued in the mid-hundreds, but the state currently has a transmission rate of 1.05 – slightly above the 1.0 benchmark.

The Center for Disease Control and Prevention currently reports over 5.4 million cases within the United States, and just shy of 170,000 related deaths. The World Health Organization reports  21.7 million cases of the virus worldwide and more than 771,000 deaths. The United States currently leads the world in the number of COVID-19 cases, followed by Brazil, India, Russia, and South Africa.

Keep abreast on our reporting of the outbreak as it pertains to the entertainment industry here. Stay inside if you can, stay healthy, and stay safe.

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