By Bill Wichert

Law360 (August 18, 2020, 6:14 PM EDT) -- A New Jersey federal judge on Tuesday knocked down an effort by cinema owners and their trade groups to unlock theater doors in the Garden State amid the coronavirus pandemic, saying state officials presented valid reasons for keeping them shuttered while allowing similar venues like churches to reopen.

U.S. District Judge Brian R. Martinotti nixed a bid from the AMC theater chain and other plaintiffs for a preliminary injunction lifting the state-ordered shutdown of movie theaters — which have been dark for a little more than five months — finding that the ongoing closure is justified as a means of combating the spread of the virus.

The judge noted that New Jersey has recorded 187,767 COVID-19 cases and 14,077 deaths since early March and, citing Thomas Paine's 1776 "The American Crisis I," said, "These are the times that try men's souls."

By closing indoor cinemas operations, Gov. Phil Murphy and state Health Commissioner Judith Persichilli "are promoting the significant governmental interest of protecting public health by keeping closed areas that present heightened risks for COVID-19 transmission," Judge Martinotti said in his written opinion.

"Indeed, this important interest — protecting the public from the outbreak of disease during a global pandemic — would certainly be achieved less effectively if large groups were permitted to 'congregate together concurrently in one indoor location for an unusually prolonged period of time,'" the judge said, citing language in an executive order from Murphy.

The ruling comes after Judge Martinotti on July 14 denied the plaintiffs' request for a temporary restraining order to immediately block the state officials from enforcing orders to keep theater doors closed during the pandemic.

The plaintiffs also include the National Association of Theatre Owners, the National Association of Theatre Owners of New Jersey, Cinemark USA Inc., Regal Cinemas Inc., BJK Entertainment Inc., Bow Tie Cinemas LLC and Community Theaters LLC.

In their July 6 lawsuit against Murphy and Persichilli, the theater owners and trade associations raised free speech and equal protection claims in challenging how cinemas in the state have been forced to remain closed while places of worship and other facilities have been allowed to open their doors to the public.

The judge reasoned Tuesday that the plaintiffs were unlikely to prevail on either set of claims.

Addressing the equal protection arguments, Judge Martinotti credited the state officials' reasons for treating movie theaters differently from houses of worship and other venues.

Murphy and Persichilli have said that enforcing a mask mandate is easier at a religious service than it would be during a movie in a dark theater, and that it takes worshipers less time to briefly remove masks as part of their service than it does for moviegoers to remove masks to consume food and beverages. They also cited the "prolonged" nature of the moviegoing experience.

The officials "have presented conceivable justification that keeping movie theaters closed while opening churches, shopping malls, and libraries is rationally related to the goal of stopping the transmission of COVID-19," the judge said.

Casting doubt on the plaintiffs' free speech claims, Judge Martinotti stressed that the COVID-19 shutdown orders targeted the indoor operations of such performance-based venues and not the contents of the movies themselves.

Nothing in the governor's executive orders "is directed at limiting the expressive activity of movie theaters (i.e., the showing of movies)," the judge said.

"Rather, the orders are aimed at curtailing the spread of COVID-19 by keeping closed businesses that present a heightened risk of COVID-19 transmission. In other words, the orders focus on the nonexpressive operations of the movie theater," Judge Martinotti said.

Citing the U.S. Supreme Court's 1986 opinion in Arcara v. Cloud Books Inc. , the judge added, "Therefore, while the closure of physical movie theaters inherently limits speech, it is not the expressive conduct itself defendants aimed to restrict when it executed the orders 'in the first place.'"

The state attorney general's office and counsel for the plaintiffs declined to comment Tuesday.

The cinemas are represented by Geoffrey S. Brounell, Robert Corn-Revere, Janet Grumer, Martin L. Fineman and John D. Freed of Davis Wright Tremaine LLP.

Murphy and Persichilli are represented by Daniel M. Vannella, Deborah A. Hay, Bryan Edward Lucas, Robert J. McGuire, Jessica Jannetti Sampoli and Michael R. Sarno of New Jersey's Office of the Attorney General.

The case is National Association of Theatre Owners et al. v. Murphy et al., case number 3:20-cv-08298, in the U.S. District Court for the District of New Jersey.

--Editing by Haylee Pearl.

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