NYC Theaters Challenge Vaccine Mandate On Free Speech Basis: Suit

NEW YORK CITY — A group of theatre companies want to know why God's flock can gather unvaccinated and unmasked when worshippers of spotlights, stagecraft and spectacle cannot.

"Singing a hymn or singing a song," asked Theatre Center owner Catherine Russell, "how is it different?"

The Theatre Center is among four local companies and a comedy club who filed suit in Manhattan’s federal court Thursday to challenge Mayor Bill de Blasio’s “Key to NYC” vaccination mandate, court records show.

The mandate — which demands businesses check vaccination status of incoming customers as of Sept. 13 — violates the First Amendment by creating different laws for different institutions based on the content of their speech, the suit contends.

The New York City Law Department did not immediately respond to Patch's request for comment.

Religious institutions are exempt from the “Key to NYC,” but theaters can face hundreds of thousands in fines — the first violation costs $1,000, the second $2,000, and subsequent fines $5,000 each — and a possible criminal charge if unable to keep the unvaccinated out.

The exemption baffles Russell, who manages the Jerry Orbach Theater — where she stars in New York's longest running straight play “Perfect Crime" — and which hosts church services Sunday mornings.

Russell — who is vaccinated and asks her staff to be — has repeatedly seen parishioners sit unmasked in the theater during services and the pastor admitted some members are not vaccinated, Russell said.

There's just one venue, but, said Russell, "It’s two sets of rules."

"I’m trying really, really hard to make payroll and keep this theater open. It makes me angry because I’ve had to fight so hard," Russell said. "Theaters are once again being the punching bag."

The mandate may also foster an inaccurate belief that theaters are less safe than indoor restaurants or churches, said attorney Daniel Ortnerl, of the Pacific Legal Foundation.

Few COVID-19 cases have been traced to theater audiences — none have been linked to the Theatre Center — yet they've been forced to limit audiences to 33 percent while restaurants with singers and live bands have been allowed to serve at half-capacity, he noted.

"They’ve been stigmatized, they’ve been treated as more dangerous," Ortnerl said. "That’s never been true."

Reputation has become crucial for survival as theaters struggle to survive in the wake of the pandemic, Russell said.

The Theatre Center can ill-afford to lose audiences, or issue refunds to would-be theatergoers who bought their tickets before the mandate took effect, the lawsuit notes.

Staff members have also quit the theater as they've grown exhausted by and fearful of angry customers who don't want to prove their vaccination status to see a show, according to the suit.

"It’s horrible, somebody was spat on," Russell said. "People scream, and yell, then they plead and beg, 'It’s our night out, we hired a babysitter.'"

Broadway Comedy Club owner, and co-plaintiff, Al Martin said concerns over gatekeeping are the primary reason he joined the suit. The second is that Martin will be represented pro bono, so “It’s free!”

Jokes aside, Martin is fully vaccinated and happy to do what he can to keep patrons safe, but questions the logic of burdening small businesses with the responsibility of confirming vaccine cards.

“We’re not the TSA of vaccine cards, we’re a comedy club,” Martin said. “It’s a mess, it’s really a mess.”

Martin also raised concerns about how the city will enforce its the mandate on his club, adding that one staffer was terrified earlier in the week when two undercover inspectors charged in without showing vaccine cards.

“What is my girl supposed to do, tackle them?” Martin asked. “That’s how you get situations like what happened at Carmines.”

(Martin made this comment — about an alleged attack on a restaurant hostess who denied access to three Texan women — on Friday, before the publication of New York Times article suggesting the fight erupted over a racial slur.)

Ortnerl told Patch will seek a preliminary injunction next week to suspend the mandate until the de Blasio administration can find justification for curtailing his clients'— The Theater Center, SoHo Playhouse, The Actors Temple Theatre and Broadway Comedy Club — freedom of speech.

"The government hasn’t offered a rational for why it treats these different spaces differently," Ortnerl said. "The only difference is what kind of speech is happening there."

Update: The name of a local theater company was removed from this story on Sept. 21 at the request of its manager, who said it appeared erroneously in the lawsuit.