From million-dollar productions on the Great White Way to shoe-string experimental off-Broadway shows, live theater and performance is the lifeblood of New York City. And yet, for more than a year, productions throughout New York City have been shuttered in response to the COVID-19 pandemic. However, restaurants and bars with live music, bowling alleys, jazz supper clubs, night clubs, event venues and houses of worship have all been allowed to open. Even “Saturday Night Live” can film with a live audience.
One coalition of eight small theaters and comedy clubs has been fighting back. They brought a lawsuit against Gov. Cuomo in October 2020. In early April, theaters were belatedly allowed to reopen, but they are still treated worse than other comparable venues: they’re only allowed to open at 33% capacity when other venues can open at 50%.
For small venue theaters and comedy clubs, those 17 percentage points can mean the difference between breaking even and performing in the red. And, worse still, it shuts dozens of people out of the live theater experience for no good reason. And although the governor recently announced that capacity limits would soon be lifted, the state will continue to impose more burdensome health and safety requirements.
Last week, Pacific Legal Foundation stepped in to carry forward the theaters’ challenge. PLF is a national nonprofit legal organization with extensive experience defending free speech rights, including before the U.S. Supreme Court. PLF and theaters demand that Gov. Cuomo allow theaters to open on equal footing with other similarly situated businesses.
New York’s decision to discriminate against a type of expression that has been described as the essential artform of democracy cannot stand.
The physical venue of a theater is no different from the churches and banquet halls allowed to open at a higher capacity. Many former theaters in New York City have been converted to churches, banquet halls or restaurants. And many theaters that host plays on Saturday night function as churches the following day. The physical form and intended function of theaters and the other more favored venues are often identical.
Many small theaters have been leaders in proposing and adopting innovative measures to protect against COVID-19. For instance, Catherine Russell, a famed actress whose company The Theater Center is leading the lawsuit’s coalition, installed advanced air scrubbing and filtering technology as well as Plexiglas barricades between all employees and patrons. Attending a show at The Theater Center isn’t just as safe as indoor dining or church services, it’s arguably safer.
Indeed, the only thing that sets live theaters apart is the content of the speech they make possible. An actor would be able to perform for more people playing an angel in a church’s nativity than an angel in Tony Kushner’s “Angels in America.” Similarly, a heavy metal band performing Metallica cover songs at a bar would be able to perform before a much larger crowd than a single actor on a stage reading a monologue. Whether you’re giving a sermon or performing Shakespeare, the same rules should apply.
In the last few months, the Supreme Court has repeatedly made clear that its patience is running out with arbitrary shutdown policies that restrict fundamental rights. As Gov. Cuomo and other governors across the country have learned, the Supreme Court will not continue to give them a blank check to regulate without good reasons.
Whatever Cuomo might think justifies his unequal treatment of live theaters, this type of content-based discrimination is contrary to the First Amendment’s protections. Whether he acted with the best of intentions or not, his decision should still be subject to the strictest of judicial scrutiny.
There is no question that the state has a compelling interest in stopping the spread of COVID-19. But that does not justify discriminating against live theaters. Even during a pandemic, the Constitution’s guarantees of free speech and equal protection remain vibrant, and courts must continue to enforce those guarantees evenhandedly.
This op-ed was originally published by New York Daily News on May 12, 2021.