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 Jonathan Corbett, Civil Rights Attorney

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music ban

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)

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.

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