Salem tour operator didn't have a ghost of a chance in its fight against governor's Covid-19 restrictions

A federal judge today dismissed another suit against Gov. Baker's 2020 Covid-19 restrictions, this one by a company that runs supposedly spooky walking tours in Salem.

In a suit filed last year in US District Court in Boston, Zaal Ventures Corp. had argued the governor had some nerve shutting it down altogether last March and then letting it resume tours on July 6 with only 10 people at a time, rather than the 50 it was used to leading around the only city in the state with a statue of Elizabeth Montgomery.

Zaal said this was a violation of its 1st and 14th Amendment rights because during that period, the state did nothing at all to crack down on protests involving hundreds, even thousands of people elsewhere in the state over police murders and set different capacity restrictions for operators of tour buses.

In a ruling today, US District Court Judge Leo Sorokin dissected the company's argument, starting with the 1st Amendment issue:

The First Amendment is not implicated here because Plaintiffs do not plausibly allege that the COVID-19 Orders fall into either category. First, the restriction on the number of participants in a walking tour was imposed to prevent the spread of COVID-19, not to prevent any expressive aspects of guided tours. ... The restriction does not regulate speech or expressive conduct—tour guides are free to speak or not speak, and the content of tour guides’ speech is not subject to sanction. Nowhere do Plaintiffs allege that the specific size of each tour they give is in itself expressive. In fact, they allege that prior to the COVID-19 pandemic, they were subject to other local laws that limited the size of their tour groups, with which they presumably complied.

And, he continued, the order affected a range of other businesses and did not single out tour operators specifically:

The COVID-19 Orders do not disproportionately or exclusively burden the tour industry. In fact, a wide variety of outdoor businesses that involve individuals gathering in close physical proximity are subject to group size restrictions of roughly 10-12 people, including organized hikes, camping, rafting, and hunting classes.

But what about all those protests, which the governor exempted because of their "purpose of political expression" and so was treated differently than other forms of expression?

This argument is not well-founded. Thewalking tour restriction Plaintiffs challenge applies to an entire sector (museums, cultural and historical facilities, and guided tours), and the COVID-19 Orders treat commercial activities with similar characteristics similarly. To the extent that walking tour groups are treated differently from anything else, the distinction is based on conduct—engaging in the activity of going on a tour—and not the content of speech or expression. ... Indeed, here the size limitation imposed on walking tours applies to all walking tours without regard to the speech content of the tour. The exception for political purposes does not apply to the walking tour limitation—rather, it applies to the limitation on outdoor gatherings, and Plaintiffs have never contended that their conduct constitutes an outdoor gathering within the meaning of the COVID-19 Orders. Thus, Plaintiffs have not plausibly alleged a violation of their First Amendment rights based on the COVID-19 Orders.

Sorokin then tore the sheet away from Zaal's 14th-Amendment argument, that it was treated unconstitutionally differently than other entities and activities, such as those protests and vehicle-based tours, for which capacity was set based on the number of seats in the vehicle use, which is also unconstitutional.

Sorokin wrote he didn't need to address the difference with protests, because he covered that in his 1st-Amendment reasoning. But as for tour buses:

The COVID-19 Orders are regulating different activities - walking tours and outdoor gatherings - which have different characteristics not subject to constitutional protection. "A law survives rational basis review so long as the law is rationally related to a legitimate governmental interest." Cook v. Gates, 528 F.3d 42, 55 (1st Cir. 2008). ... It is indisputable that the government has a legitimate interest in reducing the risk of COVID-19 transmission. Limiting guided tours, particularly those that involve speaking and other behavior that may contribute to virus transmission, is rationally related to that interest. To the extent that guided walking tours are treated differently from vehicular tours under the COVID-19 Orders, Defendants point out a rational distinction—on a vehicular tour, the space between guests is fixed for the duration of the tour and a percentage-based cap allows guests to maintain sufficient distance, while a walking tour involves moving through different spaces and is more likely to encourage crowding around a guide.

So no injunction for Zaal. But Sorokin did add:

One last point bears mention. The record indicates that the COVID-19 Orders have created great difficulty for Plaintiffs and their employees. The record also suggests that Plaintiffs have developed substantial measures to protect the safety of tour guides, customers, andpassersby in their entirely outdoor operation, rendering their operation safer in terms of the risk of virus transmission than they were before the onset of the pandemic. The Court’s ruling measures only the constitutionality of the challenged orders. The reasonableness and wisdom of the particular details of the orders is a matter for the Commonwealth.