Federal judge: Whitmer's movie theater closure doesn't violate rights
Lansing — A federal judge ruled Thursday that Gov. Gretchen Whitmer's executive order to close movie theaters during the COVID-19 pandemic doesn't amount to an unconstitutional violation of First Amendment rights.
Emagine Royal Oak, which wanted to hold a Juneteenth Film Festival, sued Whitmer, Attorney General Dana Nessel and Robert Gordon, director of the Michigan Department of Health and Human Services, arguing that the officials' actions suppressed free speech and the right to peaceably assemble.
But U.S. District Judge Paul Maloney disagreed, saying the order was constitutional and denying the theater's motion for a preliminary injunction to halt it.
"It does not matter what kind of event Emagine had planned to throw: a Juneteenth film festival, a Fourth of July festival,or a regular re-opening," Maloney wrote. "They would be subject to the same enforcement action from the Attorney General’s Office, because EO 2020-110 remains in force.
"So, while the Juneteenth film festival certainly has an expressive element, it is not the speech of the festival that Defendants sought to suppress. It is simply the congregation of large crowds, indoors, for hours at a time."
Whitmer touted the ruling Thursday, saying "the court concluded what we already know: that we must continue taking aggressive action against COVID-19, including limiting large gatherings, to protect Michigan families and save lives."
Indoor movie theaters have been closed in much of Michigan since March as Whitmer has issued restrictions to stem the spread of COVID-19. But on June 15, Emagine announced that it would host a Juneteenth film festival of movies that promote racial equality and created a 26-page safety plan to open the theater to moviegoers, according to court documents.
Nessel's office eventually served the theater's chairman, Paul Glantz,with a warning letter, informing him that it would file criminal charges if Emagine proceeded with the Juneteenth film festival. Emagine postponed the film festival and filed a lawsuit.
Maloney of the Western District issued an injunction in June that would have allowed gyms to reopen despite Whitmer's order. But his decision was later overturned.
He cited the ruling from the 6th Circuit U.S. Court of Appeals panel in the gym case in his order on theaters Thursday.
"As the Supreme Court and the Sixth Circuit Court have made clear, the protections guaranteed by the federal constitution are not absolute," Maloney wrote in his theater ruling. "Individual constitutional rights are malleable under these emergency circumstances."
Maloney noted that the federal Centers for Disease Control and Prevention advises that as gatherings grow larger, "so too does the risk each attendee faces of becoming infected with COVID-19."
Movie theaters present large, sustained, indoor gatherings, which are the types of events the CDC cautions against, Maloney wrote.
"The executive order remains constitutional and enforceable," he added.
In a footnote, the judge said that the theater wasn't challenging the governor's authority to issue executive orders related to the pandemic, which he described as a "live issue" that's being considered in the Michigan Court of Appeals.