Judge Upholds Michigan Movie Theater Closure, Denying First Amendment Claim

Emagine Theater in Royal Oak
Courtesy of Emagine Theater/Doug Ashley

A federal judge has upheld a state order closing movie theaters in Michigan, rejecting an owner’s claim that it infringed on his First Amendment right to hold a Juneteenth film festival.

Emagine Royal Oak, a theater in the Detroit suburbs, sued Gov. Gretchen Whitmer and two other state officials on June 22, arguing that the state’s order amounted to an unlawful prior restraint on speech.

But in a ruling on Thursday, U.S. District Judge Paul L. Maloney held that the regulation was a “content neutral” response to the COVID-19 pandemic. He denied an injunction that would have suspended the order.

“There is no allowance for theaters to show certain movies but not others distinguished by their content,” Maloney wrote. “The order is a blanket order that keeps theaters and cinemas (and many other buildings and businesses) closed, regardless of what content they wish to disseminate.”

The National Association of Theatre Owners has filed a similar lawsuit in New Jersey, arguing that the state’s order violates the First Amendment by allowing churches and libraries to open, while theaters remain closed. The major theater chains — AMC, Regal and Cinemark — have joined in that suit, as they seek a ruling that would pressure other states to allow theaters to reopen.

A judge denied a temporary restraining order in the New Jersey case on Tuesday, but has yet to rule on the theaters’ request for an injunction.

In the Michigan case, theater owner Paul Glantz announced in June that he would hold a film festival for Juneteenth, including films like “Guess Who’s Coming to Dinner,” “Do the Right Thing,” “American History X,” and “I Am Not Your Negro.” The attorney general’s office issued a warning letter, saying that holding the festival would result in criminal prosecution. The event was canceled, and Glantz went to court.

In the suit, Emagine argued that Michigan officials had criticized protests against the state’s lockdown orders, but had turned around and supported protests in the wake of the death of George Floyd. Therefore, the theater contended that it was seeking to “support the movement for equality” by holding its “cinema protest.”

The theater also accused state officials of having a double standard, allowing restaurants to reopen while keeping theaters closed.

“Restaurants, public swimming pools, and barbershops are open, but a safety-conscious proprietor who has adopted more stringent standards than required for other businesses to reopen must remain closed,” the lawsuit states.

In denying the injunction, Maloney held that the state had a reasonable argument for mandating the closure of theaters, and said it was not his place to second-guess it.

“Movie theaters present large, sustained, indoor gatherings,” the judge wrote. “This is the type of event the CDC cautions against holding.”

The judge also held that Glantz’s First Amendment rights have not been hindered, as state officials have offered alternative modes of expression that would not endanger public health.

“They specifically note that Emagine may host its planned event outside in any outdoor theater, cinema, or performance venue,” Maloney wrote. “Or, Emagine could hold a different outdoor protest or fundraiser to voice its support for Black Lives Matter. While an outdoor event is not Emagine’s preferred form of communication, it is certainly an available method of communication.”

Whitmer allowed theaters and other businesses in the Upper Peninsula and in the area around Traverse City to reopen last month. But a plan to reopen the remainder of the state in July has been put on hold, as coronavirus cases are on the rise.