The Clementine Co. v. Cuomo, The Clementine Co. v. de Blasio

Mayor de Blasio’s unequal COVID restrictions silence New York theaters, comedy clubs

Cases > Freedom of Speech and Association > The Clementine Co. v. Cuomo, The Clementine Co. v. de Blasio
Active: Federal lawsuit filed to restore rule of law and equal treatment

New York City actress and theater manager Catherine Russell began her starring role in Perfect Crime in 1987. Over that time, she missed only four days—to attend family weddings—a record-setting run of more than 12,000 performances that lasted until March 2020 when the pandemic was declared. At that point, Catherine implemented extensive COVID health and safety protocols, but small venues like Catherine’s were forced to shut down, even while the governor allowed other, similar businesses to reopen with varying capacity restrictions. When the governor finally relented and allowed theaters to open in April 2021, he limited theaters to 33% capacity, far less than the 50% allowed for other businesses and churches. Those capacity limits were finally lifted in the face of PLF’s lawsuit. But the unequal treatment continues. New York City is imposing a vaccine mandate on theaters, but not churches, schools, or community centers. Led by Catherine, a coalition of small theater and comedy club owners are fighting back with a federal lawsuit to restore the rule of law and equal treatment.

Dubbed the “Cal Ripken of Broadway,” New York City actress and theater manager Catherine Russell began her starring role in Perfect Crime in 1987. Over that time, she missed only four days—to attend family weddings. She scheduled her own wedding for a morning so she could perform that night.

Catherine’s streak of eight performances a week, a stunning accomplishment that still stands in the Guinness Book of World Records, ended in March 2020 when the pandemic was declared. Almost immediately, Gov. Andrew Cuomo issued an order indefinitely shutting down a large swath of businesses throughout the state, including theaters, restaurants, casinos, gyms, and movie theaters.

Catherine initially had no problem shuttering The Theater Center to help fight the pandemic. The Theater Center is located in Times Square, and she manages its two theaters; the Anne L. Bernstein Theater, which is home to Perfect Crime, and the Jerry Orbach Theater, which is currently home to The Office! A Musical Parody.

Catherine and her fellow theater owners used their down-time to implement extensive safety precautions against the spread of COVID-19, such as upgrading air filtration systems, developing plans to stagger the arrival of crowds, and ensuring social distancing. They also arranged for their performers to wear clear masks and undergo frequent, regular COVID testing.

By June 2020, the governor allowed most businesses to reopen with varying capacity restrictions. While catering halls, gyms, bowling centers, and shopping malls could operate once again, small, live-performance theaters like Catherine’s could not. When restaurants reopened, they could even host live music and performances.

Live-performance theaters were not the only category that was treated unfairly by the governor. Churches were also subjected to harsh closure orders that drastically limited attendance. But this changed after the Supreme Court ruled in late November that the governor’s shutdown orders cannot treat religious organizations differently than secular businesses.

Still, theaters were not allowed to reopen. Finally, the governor issued an order that allowed theaters to reopen starting in April 2021. His revised order allowed theaters to open at 33% capacity, with an indoor maximum of 150 people.

At the same time, however, another order allowed indoor food services and dining capacities to jump to 50% with no numerical cap—the same levels permitted for churches. Large, catered events such as weddings were allowed to feature live dancing and musical performance.

Catherine’s own theater space is often rented to churches. So, on any given Sunday, her theater can accommodate a church service at 50% capacity, with no limit on the number of churchgoers, while a play performed just hours later—in the same theater—must limit attendance to 33% and no more than 100 people.

“If I’m next to you singing a hymn or even six feet apart, that’s different than if we’re both sitting there watching The Office with our masks on. It’s safer to be watching a show than to be singing in a church in the same venue. It’s identical,” said Catherine. “This is the point. Why is one content better than the other?”

Pandemic or not, government cannot treat theaters differently just because of what the people on the stage are saying. That is, it shouldn’t matter whether people are listening to a live band perform while having a cocktail or eating dinner, listening to a sermon, or sitting in a theater enjoying a play, comedy performance, or musical.

Off-Broadway theaters are small by definition, and one-third capacity simply isn’t enough to keep them open. Moreover, the state’s unequal treatment has created negative stigma for live theater that will make it more difficult for these businesses to rebound. Catherine wasn’t content to sit by and watch arts and livelihoods continue to suffer under the state’s ongoing unequal treatment.

Though Perfect Crime finally retook the stage in April 2021, Catherine has taken to another stage: the courts. Represented by PLF free of charge, she and a group of other small-venue, live-performance theaters and comedy clubs are fighting for their right to equal treatment—to be treated the same as all the other businesses and churches where people are allowed to gather.

Represented by PLF, a group of small-venue live-performance theaters (with fewer than 200 seats each) in New York City are challenging Gov. Cuomo’s executive orders imposing unequal capacity restrictions in a federal lawsuit.

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What’s at stake?

  • Our right to free speech, including artistic performances, deserves the highest level of constitutional protection, even during a pandemic.
  • The government cannot treat similar businesses differently without good reason. Theaters should not be subject to more onerous restriction than churches and restaurants, absent any public health justification.

Case Timeline

September 17, 2021

First Complaint for Clementine v. de Blasio

United States District Court Southern District of New York

Case Attorneys

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