The state of New Jersey issued a lengthy defense on Friday of its order to close movie theaters, arguing that the theaters represent an “unnecessary” danger amid a raging pandemic.
Major theater chains AMC, Regal Cinemas and Cinemark have sued the state, seeking to force a reopening on the grounds of the First Amendment. A federal judge denied theaters’ request for a restraining order last week, but has not yet ruled on its demand for a preliminary injunction.
In a report Friday, the state attorney general’s office argued that Governor Phil Murphy was within his rights to order theaters to remain closed. Deputy Attorney General Daniel M. Vannella argued that theaters present unique risks that make them especially dangerous during the pandemic.
“In fact, movie theaters require customers to sit in an interior locked room for an extended period of time, at the risk of spreading COVID-19 from those prolonged interactions,” Vannella wrote. “And those risks are magnified every time customers take off their masks, what they do to consume the concessions Plaintiffs want to sell, and which would also be difficult to observe and prevent in a dark theater.”
Vannella went on to point out that such risks are “especially unnecessary” since people can still stream movies at home. She urged the court not to guess the state’s actions to protect public health.
“Bluntly, few preliminary motions present such severe risks,” Vannella wrote.
The theater chains, joined by several smaller theater companies and the National Association of Theater Owners, filed a lawsuit on July 6. At the time, the chains hoped to reopen in late July, and New Jersey was one of the few that claims it had not yet established a reopening timeline that would allow it to open. The goal was to obtain a favorable decision that would pressure the few remaining holdouts to back down, allowing a reopening at the national level.
Since then, however, nothing has gone according to plan. Amid a spike in infections, California reversed its decision to allow movie theaters to open in much of the state. Major films, including “Tenet” and “Mulan,” have been postponed. AMC has delayed its reopening until mid to late August.
And in Michigan last week, a federal judge confirmed the closure of the state theater, rejecting a First Amendment claim filed by a theater in the Detroit suburbs. The New Jersey attorney general’s office cited Michigan’s ruling repeatedly in its brief.
Denying New Jersey’s request for a restraining order, US District Judge Brian R. Martinotti also noted that infections are on the rise in other states, causing their theaters to close again.
Theaters argued that there was no good reason to allow churches to remain open while theaters were closed, and said that doing so was a violation of freedom of expression. The state cited distinctions between attending church and going to the movies, noting that in a dark theater it is impossible to know if strangers are wearing masks. In a church, Vannella noted that worshipers can remove their masks only briefly for Holy Communion, while a viewer can eat popcorn throughout a movie.
He argued that the state can also grant greater protection to religious practice.
“Simply put, as a matter of the First Amendment black letter, the state does not have to allow a couple of night outings to watch ‘Tenet’ simply because it is also protecting their right to worship freely,” he wrote.
