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 Jonathan Corbett, Civil Rights Attorney

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Corbett Files Petition for U.S. Supreme Court to Consider TSA Mask Mandate

Petition for CertiorariOn April 20th, 2022, TSA stopped enforcement of its travel mask mandate after a federal district court decided the CDC’s similar mandate was unlawfully issued. But, TSA has never publicly, formally rescinded its mandate, and so it could be immediately reinstated whenever the next strain or virus crosses some arbitrary threshold. I asked attorneys for TSA to indicate whether rescission was forthcoming, and they refused to answer (which, to me, is a pretty clear answer).

So, I’ve asked the U.S. Supreme Court to review the decision of the U.S. Court of Appeals for the D.C. Circuit allowing TSA authority to regulate anything that affects the “operational viability” of the transportation system. TSA’s mandate from Congress is security, not “operational viability,” a term which to me would include basically anything: the price of jet fuel, the hours pilots are allowed to work, the routes which airlines are allowed to fly… what doesn’t affect “operational viability?”

The Supreme Court (at least of recent) has been clear that agencies may not deviate from the normal boundaries of their authority based on creative interpretation of their enabling statutes. In the last year, OSHA was prevented from issuing vaccination mandates because corona is not an “occupational” hazard, the CDC was not allowed to maintain an eviction moratorium because housing is far from disease control, and the EPA was prevented from forcing power plants to switch from coal because the law gave them powers to set standards for coal, not eliminate it. Regardless of whether you agree with these decisions, and regardless of whether you agree that a mask mandate is a “good idea,” it clearly follows that TSA should be prevented from issuing mandates on communicable diseases when their mandate was to stop terrorism.

My case was assigned number 22-33, and the high court will be able to hear it, refuse it, ask the government to weigh in, or immediately send it back to the D.C. Circuit for further consideration. This was my first petition for certiorari as an attorney after having been admitted to the court’s Bar last month, and shockingly only the tenth time anyone has ever asked the court to hear a TSA-related case (3 of the other 9 were also mine over the last decade). Interestingly, filing is actually made more difficult when you’re an attorney: in addition to still needing to send in 40 paper copies in funny booklet format and pay by old-school check, you also need to submit the documents electronically through a buggy and, frankly, insecure-seeming custom platform.

Corbett v. TSA – Docket | Petition (.pdf)

Supreme Court petitions are expensive! If this work seems valuable to you, donate!

Is It *Really* Impossible To Get A Gun License in NYC? (Part XIV — Supreme Court Strikes Down Proper Cause)

This is the fourteenth installment of a series documenting an ordinary New Yorker attempting to exercise his Second Amendment rights: Part I (license application), Part II (application rejected), Part III (the lawsuit), Part IV (appeal filed), Part V (appellate briefing complete), Part VI (N.Y. Appeals Court Not Interested in Ending NYPD Corruption), Part VII (Corruption? You Can’t Prove It!), Part VIII (appeal to N.Y. high court), Part IX (N.Y. Court of Appeals won’t hear), Part X (Federal Lawsuit Filed), Part XI (Federal Court Refuses Challenge), Part XII (U.S. Court of Appeals), Part XIII (No Help from Second Circuit). 

Total Time Spent So Far: 88 hours
Total Money Spent So Far: $2,744

Before the pandemic, I published 13 parts of a series on what it is like for an ordinary, law-abiding citizen to obtain a permit to carry a gun in New York City, in light of state law that requires one to demonstrate “proper cause” (in other words, a reason you need a gun greater than that of the average citizen) before such a license will issue. We left off with the U.S. Court of Appeals for the Second Circuit declining to reach the merits of my case because, they wrote, that a state court had already adjudicated the matter so they didn’t have to.

I had planned to re-apply and then re-file in federal court without starting in state court, but coronavirus happened and pandemic-related cases ended up dominating my time. In the meantime, however, I looked at how one could qualify for “proper cause.” Regularly carrying around large amounts of money was one way, so I started documenting whenever I had large amounts of cash. Running or working for a security company was another way, so I took and passed New York’s exam required as a prerequisite to starting such a company. I ended up re-filing my application earlier this year, but it appears we’ll never find out if I reached a level that would be sufficiently “proper” in the eyes of the NYPD Licensing Division, as today, the U.S. Supreme Court struck down the proper cause requirement in NYSPRA v. Bruen. The high court held, as was obvious, that you cannot parse the word “bear” in “the right to keep and bear arms” without concluding that the amendment provides for outside-of-home rights.

New York officials are predictably apoplectic. Gov. Kathy Hochul took to Twitter to call the decision “reckless.” Manhattan Borough President Mark Levine took to Twitter to flat-out lie, alleging that the decision struck down the requirement to get a permit. I’ve corrected Mark several times when he has made this statement in the past, and he continues to repeat it, possibly not understanding that if a citizen reasonably relies on that statement and carries a gun without a license, they may be able to use his post in defense of a gun charge. But the fact of the matter is that all of the criminals already have their guns, and law-abiding citizens with carry licenses are among the most crime-free group in the country, so there is no reason to expect an increase in violence.

I was told when I submitted my new app earlier this year that it would take 9 months (!!) to even assign my app to an officer. I will certainly update this series when I hear back.

D.C. Circuit Asked to Re-Hear TSA Mask Mandate Challenge After Supreme Court Rejects OSHA’s Mandate

In December, a 3-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit emphatically tossed my challenge to whether TSA has the authority to create public health regulations. Two of the judges ruled that TSA has authority over both “security and safety” while the third judge would have held that I had no standing to even make the challenge.

I intended to chalk up my loses and leave the case at rest, but on January 13th, 2022, with 11 days left for me to ask the D.C. Circuit to change their minds, the U.S. Supreme Court decided NFIB v. OSHA, 595 U.S. __ (2022) (Case No. 21A244), in which they were asked to consider a challenge to the Occupational Safety and Health Administration’s rule requiring all employers across the country who have at least 100 employees to force their employees to either vaccinate or wear a mask and test weekly. The Supreme Court enjoined OSHA from enforcing the rule:

The Solicitor General does not dispute that OSHA is limited to regulating “work-related dangers.” She instead argues that the risk of contracting COVID–19 qualifies as such a danger. We cannot agree. Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.

I had argued in my case that the Transportation Security Administration was limited to security matters (terrorists, criminals, and the like) and that regulating safety matters (accidents, natural disasters) is outside of their powers. But the OSHA case made clear that even if an agency has authority over safety, they still do not have authority over matters of general public health. That is, OSHA has authority over occupational safety, and so it follows that TSA, if it has any authority over safety at all, has authority over transportation safety. In other words, just as TSA obviously doesn’t control whether a sidewalk at the airport is slippery, or whether the terminal is painted with lead paint, or whether exposure to UV rays at 35,000 feet should be limited to reduce cancer risks, they do not get to address coronavirus absent a special risk to transportation.

Could they create a regulation that requires masks at security checkpoints due to the special transportation-related risk created by the close proximity required to search travelers? Could be. Could they possibly do a study and conclude that the density of travelers on airplanes creates a special transportation-related risk, and thus require masks on airplanes? Maybe (although the advanced air filtration systems on passenger planes may mitigate that risk). But can they possibly continue to defend a regulation requiring me to wear a mask while shopping at the duty free or eating at the food court? It seems to me that the OSHA case forecloses that possibility.

My petition for re-hearing or re-hearing en banc was filed late Monday night. It is likely that the court will respond in a few weeks.

Corbett v. TSA – Petition for Re-Hearing (.pdf)

PS – Court clerks apparently read this blog last month and bunched their panties due to the name of the blog. I do detail the rationale behind the “Professional Troublemaker” name. It would be nice if the law were decided not based on whether one is pro- or anti-mask/vax/mandate/whatever or by trying to judge the attorney who filed a petition and instead decided strictly based on what the law says. Trying to stretch the powers of the agency created to prevent the next 9/11 to cover public health matters is foolish and entirely unnecessary: even if you like a mask mandate, let the agencies which actually do have authority make it.

D.C. Circuit: TSA Charged with “Safety and Security,” Not Just Security; Mask Mandate Petition Denied

There is no dispute that the Transportation Security Administration was created by Congress after the 9/11 attacks in order to prevent future acts of air terrorism. The Aviation & Transportation Security Act of 2002 (“ATSA”), TSA’s enabling statute, makes clear that it was created to address “security in all modes of transportation.” 49 U.S.C. § 114(d). Virtually every section of ATSA discusses issues such as passenger screening, cargo screening, sterile areas, and the like.

TSA is not a public health agency, nor do they have general police powers, so when they issued a mask mandate for basically the entirety of the nation’s transportation system, I sued. My challenge has nothing to do with whether masks work or what coronavirus policy should be: it solely raised the issue of whether TSA should be allowed to create those policies.

Today, unfortunately the U.S. Court of Appeals for the D.C. Circuit disagreed. In a 2-1 decision (linked below), the court held that TSA was created to deal with “safety and security” and denied my petition. The court held that “Corbett plainly has standing to pursue his claims in this case,” a point which the government disputed in an argument that “borders on frivolous,” which was a small victory for anyone challenging TSA policies in the future. But the court then continued to conclude that Congress used “capacious terms” in ATSA in order to give TSA “broad authority.” Respectfully, I disagree that when Congress says “security” they really meant “safety and security,” I am disappointed with the ruling, and I will consider my options from here.

The dissenting opinion, penned by U.S. Circuit Judge Karen Henderson unfortunately “dissented” to personally attack me for a “waste of judicial resources” because it found the gripes within my petition to amount to mere “trifles” and that my alleged injury was insufficient to demonstrate standing. With all due respect, two federal judges just agreed that I demonstrated standing, so clearly raising that issue was not an indefensible claim. I consoled myself after reading her harsh words with the knowledge that Judge Henderson also wrote that illegal aliens are not “persons” under the Fifth Amendment in 2017 (seriously), that the Second Amendment doesn’t apply in D.C. (also seriously), and recently sided with controversial Trump appointee Neomi Rao to force a lower court to dismiss the case against retired U.S. General Michael Flynn, who lied to investigators about being an unregistered agent of a foreign country, in a ruling that was aptly described as “astonishingly bad.”

Coronavirus litigation is hard. It is few courts that have had the courage to draw a line in the sand — anywhere in the sand — and attorneys who fight that fight certainly do not deserve to be talked down to by federal judges. We can all disagree on exactly how coronavirus policy should be shaped and by whom, and indeed we are doing a disservice if we are not testing these society-altering policies in the courtroom. I’ll try not to be too discouraged, and I hope my readers will not be either.

Corbett v. TSA – Petition Denied (.pdf)

Class Action Lawsuit Against United Airlines for Flight 328 Disaster

I usually focus my blog (and my law practice) on civil rights issues, but sometimes big corporations can step on human rights just as well as the government. United Airlines is one of those companies, missing no opportunity over the past several years to demonstrate that it simply does not care about anything but profit. From beating up its passengers, to killing the family dog, to refusing to block middle seats throughout the pandemic — all while taking $15 billion in federal coronavirus aid (and demanding $15 billion more) — it almost seemed like every time something went wrong with domestic plane flights, you could count on United to be involved.

So two weeks ago, when a Boeing 777-200 flying from Denver to Honolulu lost chunks of its engine a few minutes after takeoff, treating the passengers to an uncontrolled engine fire and an emergency landing, it wasn’t particularly a surprise to hear that United was the carrier.

A passenger’s view from UA328 on February 20th, 2021.

The ATC recording from the cockpit demonstrates that the plane was piloted by two calm and collected crewmembers, who thankfully were able to land the plane without any serious physical injuries, but were unable to extinguish the fire in-air (despite cutting fuel) and left the 231 passengers on board in fear for their lives for a total of 18 minutes.

Airplane engines don’t simply explode mid-air unless something was done wrong. The NTSB has preliminarily opined that “metal fatigue” caused one of the fan blades to separate (taking a second blade with it) and flew off into the fuselage, possibly further damaging the controls that would have been able to put out the fire. But how would United know that the metal was fatigued? Perhaps because the plane is 25 years old (making it one of the oldest 777s in service in the world), because there are straight-forward tests available to check for metal fatigue (and, early reports show that was last done five years ago), but most importantly, because the plane in question — tail number N772UA — has a sister plane — N773UA — that lost a fan blade for this reason in 2018!

To add insult to injury, the passengers on UA328 were rebooked on a “new plane” to get to their destination, but you won’t need 3 guesses as to which plane United chose: none other than N773UA. You can’t make this up.

It is time United stop playing games with safety. I was retained by a passenger on UA328 and today I filed a class-action lawsuit on behalf of all passengers on the plane who were subject to the intense emotional distress that comes along with watching your airplane on fire for 18 minutes, wondering if you’re going to make it safely to the ground or end up in a fiery crash. No one should have to live through that as a result of an airline’s refusal to take proper care of its planes and its customers, and I look forward to forcing United to make it right as best is possible.

Case is Schnell v. United Airlines, No. 21-CV-683, in the United States District Court for the District of Colorado.

Schnell v. United Airlines – Class Action Complaint (.pdf)

Lawsuit Challenges TSA Authority to Implement Mask Policy

Lawsuit CoverIt seems that masks reduce transmission of coronavirus: some studies showing reduction of as low as 20%, while others claim as high as 85%. I don’t really have a problem with mask requirements in crowded, confined spaces at the moment. They are not the cure-all that some make them out to be, but they provide some reduction and are a relatively small burden compared to some of the coronavirus measures imposed by the government.

What I do have a problem with is any expansion of the authority of one of the most abusive, inept, and inefficient agencies in the nation: the Transportation Security Administration. Transportation security involves passenger screening, cargo screening, managing intelligence relating to threats to civil aviation, technology to detect weapons and explosives, federal air marshals, and the like. This is clear just by looking at the index of law that Congress passed to assign duties to the TSA, 49 U.S.C., Subchapter I. Transportation security is not transportation safety. Transportation safety is the responsibility of the U.S. Department of Transportation, and when it comes to airplanes, their subagency, the Federal Aviation Administration (F.A.A.).

Despite it being completely out of their jurisdiction — or what lawyers call “ultra vires” (Latin: beyond power) — on January 31st, 2021, TSA issued several “security” directives to air carriers, airport operators, and even bus and train station operators, ordering them to enforce strict mask rules and to report passengers who do not comply to TSA (over the next few days, TSA Twitter accounts informed the public that it would issue fines of up to $1,200 against non-compliant passengers). TSA’s mask rules apply anywhere within the transportation system: from the curb outside of check-in, to TSA’s checkpoints, to the gate, lounge, bathroom, on the airplane, and even while seated in the food court (“the mask must be worn between bites and sips”):

Security Directive

It is unclear why this was necessary at all, given that all airlines and airports in the country require masks anyway. And, in fairness, TSA did not get the idea to implement a mask policy on its own. The day after inauguration day, new President Biden issued an executive order “promoting COVID-19 safety in domestic and international travel” that asked an alphabet soup of agencies to enforce mask regulations, and he made the mistake of including TSA on that list. He could have just named the FAA and CDC and been done with it; if you suggest to TSA that they assert more power, they will not hesitate to accept your invitation.

Notwithstanding, an executive order cannot increase the jurisdiction of an agency beyond Congress’ mandate, and if we do not stop them now, you can expect TSA will continue to issue more and more mandates for general public health and safety concerns. Therefore, after a 2-week process of getting myself admitted to the bar of the U.S. Court of Appeals for the D.C. Circuit, I filed a petition for review of these orders and asked for an emergency stay pending the resolution of the case. (The Court of Appeals, rather than a district court, is the appropriate court because of a jurisdictional statute that says so.) Case is Corbett v. TSA, 21-1074, and I think it is likely the court will in some way address the emergency motion next week. Documents below.

Corbett v. TSA – Petition for Review (.pdf)

Corbett v. TSA – Emergency Motion for Stay (.pdf)


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Second Circuit to Consider N.Y. Music Advertising Ban; Amicus Brief Filed

In response to the coronavirus pandemic, New York Gov. Andrew Cuomo has already banned concerts by prohibiting any indoor food service establishment from any method of operation other than seated dining, and at sharply reduced capacity limits (35% in New York City, 50% elsewhere in the state). But, never content to be minimally invasive, the state also felt that it must prohibit advertising of any musical performances at restaurants, as well as the charging of admission to enter.

I was the first attorney to file suit against these advertising and ticketing restrictions as entirely arbitrary and lacking any relationship with stopping the pandemic — not to mention a restriction on free speech (yep, advertising is speech!). The state argued that the restrictions only apply to illegal events, rather than restaurants with incidental music, and so the court in my case accepted that and declined to grant a preliminary injunction. That case was New York Indep. Venue Ass’n v. Bradley, 20-CV-6870 (S.D.N.Y.).

This would be fair enough except for the fact that the government continues to publish this advertising and ticketing ban without any mention that it applies only to “illegal events,” so two more attorneys sued, and they won. Those cases were one in state court, Sportsmen’s Tavern LLC v. N.Y. State Liquor Auth., Index No. 809297/2020 (N.Y. Sup. Ct. Erie Co., Oct. 15th, 2020) (permanent injunction issued), and one in federal court, Hund v. Bradley, 20-CV- 1176 (W.D.N.Y., Nov. 13th, 2020) (preliminary injunction issued).

The government has appealed in both cases, and while state court appeals move at a snail’s pace, the federal appeal in the U.S. Court of Appeals for the Second Circuit is almost ripe for review. Both sides have filed their opening briefs and the government’s reply brief is due this week. And, of course, I submitted an amicus (friend of the court) brief to make sure the Court understands that the government is engaged in misleading the courts:

[New York Independent Venue Association’s] position in the district court was, and still is, that the [N.Y. State Liquor Authority] intended a broader scope than it represented in court, and its lawyers “creatively” narrowed the scope post hoc in order to survive judicial review. The government’s opening brief in this case makes it painfully clear that NYIVA was correct and the attorneys for the government in the NYIVA case misled that court. Appellant’s Brief, p. 3 (“Holding advertised, ticketed shows is still prohibited by executive orders”), p. 10 (“bars and restaurants are prohibited from hosting ‘advertised and/or ticketed shows’”). In other words, the SLA here argues that the mere act of advertising or ticketing turns an otherwise lawful event into an unlawful one.

The government knows, or should know, that the Constitution prohibits it from banning advertisements of lawful goods and services absent exceptionally compelling reasons. Given that concerts are already prohibited as a result of the seated table service requirement, those reasons are utterly absent here. So why is Cuomo wasting time and taxpayer dollars on this? Probably just to distract from his nursing home scandal, wherein the state ordered nursing homes to accept its residents back from hospitals without regards to whether they were still infected in coronavirus, resulting in 13,000 seniors dead and a massive cover-up.

Let’s hope the Second Circuit affirms the glimmer of sanity provided by the district court in the Hund case.

Hund v. Bradley – Appellant’s (Cuomo’s) Brief (.pdf)

Hund v. Bradley – Appellee’s (Hund’s) Brief (public version available shortly)

Hund v. Bradley – Amicus NYIVA’s Brief (.pdf)

Cuomo to Court Considering NYC Midnight Food Curfew: “The Government Is Not Required to Justify an Executive Order”

One by one, New York Governor Cuomo’s arbitrary, irrational rules are coming down. Last week, I wrote that challenges to a ban on advertising or ticketing music at restaurants was destroyed as a result of a pair of court challenges (one of which I argued). This week, a federal court in Brooklyn will hear arguments on another challenge I’m working on: the midnight food curfew.

What’s that? New York City finally just got the blessing of the Governor to resume indoor dining last week — well over 6 months after closing mid-March and likely last in the nation — with massive restrictions: 25% max capacity, air filtration upgrades, and a midnight closing time. Yes, for some reason, the Governor decided that it is only safe to be in a restaurant until the clock strikes 12, after which your risk of corona becomes excessively high. To clarify, this rule applies to restaurants — even those serving no alcohol — and applies even though only seated dining is allowed with full social distancing (no mingling, no dancing, no fun).

I filed suit on behalf of a Brooklyn restaurant to challenge this rule (which received some media attention, and a hearing on our motion for a preliminary injunction is tomorrow at 12:30 PM, public audio: (571) 353-2300, access code 188465608#. The written briefing on the motion went pretty normally… tl;dr: I argued that there’s no reason to subject NYC to restrictions that aren’t used elsewhere in the state or country, they argued that NYC is special because of it’s population, I replied that they failed to demonstrate why higher population means restaurants must turn into a pumpkin when the clock strikes 12. If you want the long version of that:

Columbus Ale House v. Cuomo – Motion for Preliminary Injunction (.pdf)

Columbus Ale House v. Cuomo – Motion for Preliminary Injunction, Opposition (.pdf)

Columbus Ale House v. Cuomo – Motion for Preliminary Injunction, Reply (.pdf)

It gets more interesting: the state included a declaration by Dr. Elizabeth Dufort, Director of Epidemiology for the NYS Department of Health, and the judge ordered her to appear at the hearing for questioning. This is perhaps the first time I’ve seen a judge take serious interest in examining the facts, seemingly triggered by Dr. Dufort’s apparent expertise in everything from how people behave in bars, to how restaurants handle arriving and departing guests, to the details of state law, to medicine (the latter of which I concede she may be qualified to discuss).

The government apparently did not like that order, and filed a motion for reconsideration, noting that Dr. Dufort was not available and that her testimony does not matter because “the government is not required to justify an executive order.” After a scathing opposition, they “found” the Dr. and withdrew their motion.

I very much look forward to asking Dr. Dufort some difficult questions tomorrow.

Two Courts Destroy NY SLA’s Ban on Advertising and Ticketing Music

Four weeks ago, I filed a lawsuit on behalf of an industry association and several restaurants against New York’s State Liquor Authority for a curious new coronavirus-related rule that appeared on their Web site: a ban on advertising music offerings or charging admission at liquor-licensed establishments that sell food (i.e., restaurants). Licensees called the SLA to clarify, and were told in no uncertain terms that any advertising of any music whatsoever, or any attempt to charge an entrance fee — including table minimums — could result in a license suspension. The suit was filed in the U.S. District Court for the Southern District of New York, and a motion for a preliminary injunction (asking the judge to temporarily put a hold on the rule) was set for expedited briefing.

The state already allows only restaurants — not bars or clubs without a full menu — to operate, and only with seated dining, strict capacity limits, social distancing requirements, and other limitations. Dance parties, concerts, etc., were already prohibited, so what’s the difference for coronavirus mitigation purposes if your favorite eatery has a band playing while you have dinner? Or if you have to pay to enter?

It seems the state’s attorney’s couldn’t come up with an answer to that question, and so, contradicting the phone guidance from the SLA issued pre-lawsuit — surely developed at the demand of Governor Cuomo — the state conceded that the advertising and ticketing bans apply only to “performance events” — not to legal “incidental music” at restaurants. A federal judge today accepted that limitation and denied our motion for a preliminary injunction since the issue is essentially moot.

“And the government has explicitly clarified that advertising for incidental music is permitted. … The State’s representative confirmed that during our argument here.”

Hearing Transcript (.pdf)

The Erie County Supreme Court also heard a challenge to the matter, and on Tuesday took a bit of a different approach: the Court found that the rule did affect legal incidental music and therefore it was unconstitutional. The transcript of these proceedings is not yet published — I’ll seek to update when it is — but the effect of this is roughly similar: to the extent that a restaurant wants to advertise or charge to see its lawful music offerings, it may.

The courtroom drama comes as New York continues to have a “flat” curve, as it has for months. Despite this, upstate New York restaurants have opened only with substantial limits and New York City restaurants reopened indoor dining yesterday — with 25% capacity and a midnight food curfew, after 198 days of closure.

NY Coronavirus Curve
New York’s coronavirus curve has been flat for about 3 months. Source.

The Governor is playing politics with re-opening New York City, whether because of his ongoing feud with Mayor Bill de Blasio, because he does not want to relinquish his emergency authority, or maybe just because of a bias against those who live in the city. Slowly but surely, however, the Governor’s rules (and, let’s be real: there’s no way the SLA made this rule without a demand from Cuomo) are being dismantled.

Temporary Restraining Order Requested Against New York for Music Ban

I shared last week a new lawsuit filed by me on behalf of the food service industry in New York, challenging the state’s ban on advertising music or charging admission to enter any establishment in New York licensed to sell alcohol. As a small update, we filed a motion for a temporary restraining order against the state today…

As continued speculation, perhaps the government believes that people who attend events with advertised music will somehow behave differently at these events. But this fails for two reasons. First, no matter whether there is music or not, the rules require all establishments to keep their guests seated, at tables, and order a meal. Dancing – or any other conduct likely to occur in the presence of music that requires leaving one’s seat – is prohibited. A person sitting a table, eating a meal, and enjoying a live music performance is no more likely to spread coronavirus than one doing the same in silence. Second, whether there is advertising or not, music is still permitted. The advertising of the same does not change a thing about the behavior of the guests. It also would not limit third parties 3 from collecting a list of establishments that feature music and distributing it on social media. This would make the rule futile, and it would be naïve to think that this is not already happening. A futile rule is, obviously, not “reasonably necessary.”

I expect there will likely be a hearing scheduled within a matter of days.  The case has been assigned to U.S. District Judge Gregory H. Woods, an Obama appointee and quite capable jurist.

NYIVA v. Bradley – Motion for Temporary Restraining Order & Preliminary Injunction (.pdf)

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