New Jersey Makes the Case for Keeping Theaters Closed

An attorney for the state of New Jersey urged a judge on Wednesday to keep theaters closed, arguing that fans are free to watch movies at home without creating a risk to public health.

The National Association of Theatre Owners, and several major theater chains, are seeking an injunction that would allow theaters to reopen in the state. U.S. District Judge Brian Martinotti heard oral arguments on the request via Zoom, and is expected to issue a ruling in the coming days.

NATO’s attorneys have argued that New Jersey Gov. Philip Murphy is violating the First Amendment by allowing churches to remain open while theaters are closed.

But in defending the governor’s order, Assistant Attorney General Jeremy Feigenbaum argued that the restriction is content neutral, and that the state is allowed to make accommodations for religion without extending the same accommodations to other forms of expression.

“This is not a case about speech,” Feigenbaum said. “New Jerseyans can watch any movie. They can do so in their homes, in their cars, or outdoors… Some distributors might not choose to show certain movies, but that’s the economic choice of a third party.”

Robert Corn-Revere, arguing the case for NATO, said the state has not produced scientific evidence showing that theaters are riskier than churches. He noted that one of the theater chains had submitted a declaration that they have not experienced any transmissions in the states where the chain is allowed to operate.

“We are advocating for equal treatment,” Corn-Revere said. “The governor is making distinctions based on content and not based on health risk.”

Feigenbaum countered that there is evidence of risk from person-to-person contact in confined spaces. Noting that relatively few theaters are open across the country, and that COVID-19 is new, there are not yet a lot of scientific studies about particular environments.

Corn-Revere said that theaters would be willing to open without offering concessions, noting that indoor dining is banned in the state. He also argued that allowing viewers to watch movies via streaming does not solve the problem for theaters, and for films that are not available via streaming.

Martinotti asked pointed questions of both attorneys, but did not tip his hand as to how he is likely to rule.

NATO is hoping to get a favorable ruling that could be used to compel theaters to open in other states.

New Jersey has relied on a similar ruling in Michigan, where a judge upheld the state’s closure of theaters on the grounds that it was a content-neutral order.

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