The Clementine Company, LLC v. De Blasio

Background

The plaintiffs were The Clementine Company LLC, doing business as The Theater Center; West End Artists Company, doing business as The Actors Temple; Soho Playhouse Inc., doing business as Soho Playhouse; and Caral Ltd., doing business as Broadway Comedy Club. They sued Bill de Blasio in his official capacity as Mayor of the City of New York.

The plaintiffs challenged the City’s “Key to the City” vaccine mandate. Beginning August 17, 2021, the mandate required patrons over age 12 and employees, interns, volunteers, and contractors at covered indoor recreational businesses—including theaters and comedy clubs—to provide proof of vaccination. Covered entities that failed to check vaccination status could face escalating fines. The plaintiffs sought a preliminary injunction, an order temporarily stopping enforcement of the mandate against them.

The plaintiffs alleged that the mandate violated the First Amendment’s protection for free speech and the Fourteenth Amendment’s equal-protection guarantee. They argued that theaters and comedy clubs were treated more restrictively than houses of worship, schools, and community centers, and that turning away unvaccinated patrons interfered with their ability to present performances. They also alleged possible fines or criminal misdemeanor charges, lost patrons, and reputational stigma. The Mayor argued that the plaintiffs lacked standing, were unlikely to succeed, and had not satisfied the other requirements for a preliminary injunction.

Standing

The court first considered standing, meaning the requirement that a plaintiff show a concrete injury connected to the challenged conduct that a court can likely remedy. The court held that the plaintiffs had not shown an injury-in-fact to themselves.

The court reasoned that the mandate did not prevent the theaters or comedy clubs from expressing their messages or presenting performances. The venues remained open and continued putting on shows. Although the plaintiffs said they had turned away unvaccinated patrons, the court concluded that any resulting injury from being unable to attend belonged to the patrons, not to the venues. The court also found no credible threat of fines or prosecution because the plaintiffs alleged that they posted and enforced the vaccination requirement, and two of the venues had required vaccination even before the City mandate took effect.

The court rejected the plaintiffs’ stigma theory as speculative. It also found that declarations submitted by some plaintiffs were late and did not provide the specific facts needed to establish standing at the preliminary-injunction stage. The court separately rejected the plaintiffs’ attempt to assert the First Amendment rights of their patrons. It held that the plaintiffs had not shown the requirements for associational standing, including identifying a specific person who wanted to attend a performance but had been denied entry.

Likelihood of Success

The court stated that, even if the plaintiffs had standing, they were unlikely to succeed on their claims. Applying the approach from Jacobson v. Massachusetts, the court concluded that the mandate had a real and substantial relationship to protecting public health. It reasoned that requiring vaccination for participation in indoor recreational activities could encourage vaccination and reduce infection, illness, hospitalization, disability, and death related to COVID-19.

The court also analyzed the First Amendment claim under intermediate scrutiny, a standard requiring a content-neutral regulation to be reasonable, narrowly tailored to serve a significant government interest, and to leave open sufficient alternative ways to communicate. The court held that the mandate was content neutral because it regulated entry based on vaccination status, not on the content of a theater’s performances or a listener’s agreement with a message. It applied broadly to theaters, comedy clubs, and other recreational businesses, including businesses not engaged in expressive activity. The court further concluded that the mandate served significant public-health interests and did not prevent the plaintiffs from presenting their performances.

The court also found that the equal-protection claim was unlikely to succeed under rational-basis review, which generally upholds a classification if it is reasonably related to a legitimate government purpose. The court held that the plaintiffs had not shown they were treated differently from similarly situated businesses because other theaters, comedy clubs, museums, galleries, movie theaters, music halls, and performance venues were also covered by the mandate. Schools, houses of worship, and social-service agencies were not similarly situated because, in the court’s view, they did not combine the same commercial, recreational, and artistic characteristics. The court found a rational public-health basis for applying the mandate to indoor recreational businesses while excluding noncommercial, nonrecreational services.

Other Preliminary-Injunction Factors

Because the plaintiffs had not shown a likelihood of success, the court said it did not need to decide all the remaining preliminary-injunction factors. It nevertheless concluded that those factors also weighed against an injunction. The alleged financial harms could be compensated with money and therefore did not establish irreparable harm. The court also held that the balance of equities and the public interest favored the government because of its strong interest in preventing the spread of COVID-19 and avoiding pressure on the health-care system.

Disposition

The court denied the plaintiffs’ motion for a preliminary injunction and directed the clerk to close the motion at docket number 12. The opinion addressed the request for preliminary relief; it did not state that the underlying case was dismissed or finally resolve the plaintiffs’ claims.