Some theaters claimed nominal damages because they were required to process multiple refunds at every performance and were forced to hire additional staff to check the vaccination status.
In August 2021, the Mayor of the City of New York passed a statute requiring various indoor businesses, including theaters, to check the COVID-19 vaccination status of patrons and staff before permitting entry. These businesses were thus required to refuse access to individuals who could not produce proof of vaccination. According to the statute, failure to check vaccination status would have resulted in a fine for the venue ranging from $1,000 to $5,000; such failure could also have been prosecuted as a criminal misdemeanor. The proclaimed purpose of the statute was that of controlling effectively the spread of dangerous new COVID-19 variants while allowing NYC to continue its economic and social recovery from the pandemic. A number of companies operating theaters filed suit against the NYC Administration claiming that the statute violated their free speech and equal protection rights under the First and Fourteenth Amendments. In this respect, they claimed nominal damages because, on account of the mandate, they were required to process multiple refunds at every performance (as a result of customers who arrived unaware of the need to produce proof of vaccination) and were forced to hire additional staff to check the vaccination status.
By judgment of 20 July 2023, the Second Circuit Court definitively dismissed plaintiffs’ claims. The Court recalled that governmental measures aimed at protecting public health should be upheld unless they (i) bear no real relation or substantial relation to the object of public health; or (ii) are beyond all question a plain, palpable invasion of rights secured by the fundamental law. In the instance case, the Court concluded that, on the one hand, the challenged statute had a real and substantial relation to the City’s public goal to combat the COVID-19 pandemic, on the other hand, it did not invade fundamental rights. Namely, the mandate did not implicate plaintiffs’ free speech rights because it “neither limited what plaintiffs may say nor required them to say anything [... It regulated conduct, not speech [...] affected what indoor theater venues “must do” [...] not what they may or may not say [...] it applied to a wide variety of indoor venues”. Against this background, the Court conclusively held that “the First Amendment protects the right to express one’s viewpoint, but it does not guarantee ideal conditions for doing so, since the individual’s right to speech must always be balanced against the state’s interest in regulating harmful conduct”.
Reference: Clementine Co. v. Adams, Second Circuit Court, 20 July 2023.
