The Clementine Company LLC. v. Cuomo
- Colleen McMahon
- 1:20-cv-08899
- U.S. District Court · Southern District of New York
- 3
In The Clementine Company v. Cuomo, Judge McMahon requested a hearing and focused briefing on theaters’ equal-protection challenge to COVID-19 restrictions, without ruling.
The plaintiffs, including The Clementine Company LLC. doing business as The Theater Center, and the New York state defendants were affected by the court’s request for a hearing, additional briefing, and further factual development. The order did not finally determine either side’s rights.
What happened
In The Clementine Company LLC. v. Cuomo, the plaintiffs challenged New York’s COVID-19 restrictions under the Fourteenth Amendment’s equal-protection guarantee. They argued that the rules treated theaters differently from other activities and businesses, even though theaters could take extensive safety measures.
The court said the case involved expressive activity protected by the First Amendment, although the plaintiffs had not brought a separate First Amendment claim. The court asked the parties to address whether that protected activity required a more demanding legal review and whether the state had rationally distinguished theaters from other permitted activities.
Chief Judge Colleen McMahon requested a hearing, additional evidence, and more focused briefing, and suggested consulting the Solicitor General. The order did not decide the plaintiffs’ claims or rule on the constitutionality of the restrictions.
The detailed version
- The Clementine Company LLC. v. Cuomo · No. 1:20-cv-08899
- Colleen McMahon
- Feb. 10, 2021
Background
The plaintiffs, including The Clementine Company LLC. doing business as The Theater Center, challenged COVID-19 restrictions that required their theaters to remain closed. The opinion states that the plaintiffs brought an equal-protection claim under the Fourteenth Amendment and framed it as a “class-of-one” claim. The plaintiffs did not ask to add a separate First Amendment claim.
The court nevertheless said the plaintiffs’ activities were expressive conduct protected by the First Amendment’s guarantee of free speech. It explained that this fact could matter to the equal-protection analysis because regulations affecting fundamental rights may receive more demanding review than the usual rational-basis review. The court identified questions about whether strict scrutiny or intermediate scrutiny should apply and whether a separate finding of a First Amendment violation was required.
Court’s concerns
The court found the factual record “very sketchy,” particularly concerning why some activities could continue with restrictions while the plaintiffs’ theaters had to remain closed. It questioned the state’s distinctions between indoor theaters and other activities, including television productions, jazz clubs, movie theaters, and other entertainment venues. The court also questioned whether the state’s restrictions were rationally related to its stated interest in limiting the spread of COVID-19, even if rational-basis review applied.
The court discussed the state’s reliance on Jacobson v. Massachusetts and stated that the relevant constitutional rights still mattered during a public-health emergency. The opinion emphasized that the court was not adding a First Amendment claim to the case; it was considering the First Amendment-protected nature of the plaintiffs’ activities as part of the equal-protection analysis.
Action taken
The court requested that the parties arrange a hearing and oral argument. It also requested additional, more focused briefing and factual development. The court suggested that the Solicitor General be consulted because of the importance and difficulty of the constitutional issues.
This order did not grant or deny a dispositive motion, decide whether the restrictions violated the Constitution, or enter a final judgment. It directed further proceedings before a decision on the merits.
Judge
Chief Judge Colleen McMahon issued the order.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.