CH Royal Oak, LLC v. Whitmer

472 F.Supp.3d 410

CH ROYAL OAK, LLC, Plaintiff,

v.Gretchen WHITMER, et al., Defendants.

No. 1:20-cv-570

United States District Court, W.D. Michigan, Southern Division.

Signed July 16, 2020

Joseph E. Richotte, Butzel Long PC, Bloomfield Hills, MI, Daniel J. McCarthy, Butzel Long PC, Detroit, MI, for Plaintiff.

Christopher M. Allen, MI Dept. Attorney General (Solicitor General), John G. Fedynsky, Michigan Department of Attorney General Civil Litigation, Employment & Elections, Joseph T. Froehlich, Kyla Lillian Barranco, MI Dept. Attorney General (State Operations), Joshua O. Booth, MI Dept. Attorney General (Licensing/Regulation), Lansing, MI, for Defendants.

OPINION

Paul L. Maloney, United States District Judge

This matter is before the Court on Plaintiff's motion for a preliminary injunction (ECF No. 4). Plaintiff seeks to enjoin Defendants from enforcing Michigan Executive Order ("EO") 2020-110, and instead allow Plaintiff to hold a film festival honoring the Juneteenth holiday. The Court heard oral argument on the motion on July 8, 2020. For the reasons to be stated, the Court will deny the motion.

I.

This case exists because of the coronavirus pandemic, which needs no introduction. To contain the virus, Governor Gretchen Whitmer has issued over 120 executive orders. As of the time of writing, one of the operative Orders is EO 2020-110, titled "Temporary restrictions on certain events, gatherings, and businesses" (see ECF No. 9-12). That order requires "[i]ndoor theaters, cinemas, and performance venues" to remain closed "to ingress, egress, use, and occupancy by members of the public." (Id. at ¶ 12(a).) Paragraph 15 of that Order states, in relevant part: "nothing in this order shall be taken to abridge protections guaranteed by the state or federal constitution under these emergency circumstances." (Id. at ¶ 15). Paragraph 19 of that Order makes clear that a willful violation of the Order is a misdemeanor (Id. at ¶ 19).

Executive Order 2020-115, titled the same, is also presently in effect (See ECF No. 9-13). This Order repeals EO 2020-110 for the entire upper peninsula and parts of the lower peninsula (Id. at ¶ 3). Thus, movie theaters and cinemas are permitted to open in those parts of the state, subject to certain safety requirements.

CH Royal Oak LLC, d/b/a Emagine Royal Oak ("Emagine"), owns and operates the Emagine movie theater in Royal Oak, Michigan. When Black Lives Matter protests started sweeping the nation around Memorial Day, Emagine sought to participate and honor the Juneteenth holiday with a "socially-distanced film festival." Emagine planned to participate in the protests by showing selected movies to promote racial equality during the week of June 19, 2020. On June 15, 2020, Emagine publicly announced that decision. In preparation for the event, Emagine implemented a 26-page safety plan, trained employees, physically removed seats to ensure social distancing, adopted new cleaning and sanitation protocols, and procured PPE (see ECF No. 4-3).

But on June 18, 2020, the Michigan Attorney General's office hand delivered a warning letter to Emagine's owner, Paul Glantz, threatening to file criminal charges if Emagine proceeded with the Juneteenth film festival (ECF No. 1-1). Emagine characterizes this as an "unconstitutional prior restraint on speech," and focuses its preliminary injunction motion on this alleged violation of its First Amendment rights. Emagine now seeks to enjoin Defendants from enforcing EO 2020-110 such that it can hold the Juneteenth film festival.

II.

A trial court may issue a preliminary injunction under Federal Rule of Civil Procedure 65. A district court has discretion to grant or deny preliminary injunctions. Planet Aid v. City of St. Johns, Michigan , 782 F.3d 318, 323 (6th Cir. 2015). A court must consider each of four factors: (1) whether the moving party demonstrates a strong likelihood of success on the merits; (2) whether the moving party would suffer irreparable injury without the order; (3) whether the order would cause substantial harm to others; and (4) whether the public interest would be served by the order. Ohio Republican Party v. Brunner , 543 F.3d 357, 361 (6th Cir. 2008) (quoting Northeast Ohio Coalition for Homeless & Service Employees Int'l Union v. Blackwell , 467 F.3d 999, 1009 (6th Cir. 2006) ).

The four factors are not prerequisites that must be established at the outset but are interconnected considerations that must be balanced together. Northeast Ohio Coalition , 467 F.3d at 1009 ; Coalition to Defend Affirmative Action v. Granholm , 473 F.3d 237, 244 (6th Cir. 2006). "A preliminary injunction is an extraordinary remedy which should be granted only if the movant carries his or her burden of proving that the circumstances clearly demand it." Overstreet v. Lexington-Fayette Urban County Gov't , 305 F.3d 566, 573 (6th Cir. 2002) (internal citation omitted); see Patio Enclosures, Inc. v. Herbst , 39 F. App'x 964, 967 (6th Cir. 2002) (citing Leary v. Daeschner , 228 F.3d 729, 736 (6th Cir. 2000) ).

The purpose of a preliminary injunction is to preserve the status quo. Smith Wholesale Co., Inc. v. R.J. Reynolds Tobacco Co. , 477 F.3d 854, 873 n. 13 (6th Cir. 2007) (quoting United States v. Edward Rose & Sons , 384 F.3d 258, 261 (6th Cir. 2004) ). The Sixth Circuit has noted that "[a]lthough the four factors must be balanced, the demonstration of some irreparable injury is a sine qua non for issuance of an injunction." Patio Enclosures , 39 F. App'x at 967 (citing Friendship Materials, Inc. v. Michigan Brick, Inc. , 679 F.2d 100, 105 (6th Cir. 1982) ).

III.

First, the Court must consider whether Emagine has demonstrated a likelihood of success on the merits of its claim. But before the Court reaches the merits of the First Amendment claim, an important logical step is missing from Emagine's complaint. Woven throughout the complaint are allegations about violations of the First Amendment, and the entire preliminary injunction motion focuses on the First Amendment, but Emagine has not explicitly pleaded a First Amendment violation. Instead, Emagine alleges that Defendants have violated its rights to I) substantive due process, II) procedural due process, III) equal protection, and IV) that EO 2020-110 is void for vagueness.

The Supreme Court has stated that "[w]here a particular Amendment provides an explicit textual source of constitutional protection' against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims." Albright v. Oliver , 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Graham v. Connor , 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) ). Therefore, Count I (substantive due process) will be treated as if it pleaded a First Amendment claim.

Emagine's alleged irreparable injury is a violation of its First Amendment rights to participate in political speech via a "protest by cinema." It is well settled that movies can constitute speech, and accordingly, that movie theaters have First Amendment rights. See, e.g., Joseph Burstyn, Inc. v. Wilson , 343 U.S. 495, 501-02, 72 S.Ct. 777, 96 L.Ed. 1098 (1952). The First Amendment protects the ability of individuals (and movie theaters) to speak without government control over the content of their messages. Turner Broadcasting System, Inc. v. FCC , 512 U.S. 622, 641, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). Thus, government regulations that "suppress, disadvantage, or impose differential burdens upon speech because of its content" are subject to strict scrutiny. Id. This means, for example, that laws that burden only political speech "are subject to strict scrutiny, which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest." Russell v. Lundergan-Grimes , 784 F.3d 1037, 1050 (6th Cir. 2015) (quoting Citizens United v. FEC , 558 U.S. 310, 340, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) ). Strict scrutiny holds the government to the highest applicable standard of constitutional law, and the government carries the burden of justifying the restrictions and demonstrating that they are narrowly tailored. Id.

By contrast, "regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny."

Turner , 512 U.S. at 642, 114 S.Ct. 2445. Under the intermediate scrutiny test, restrictions are valid if "they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information." Clark v. Community for Creative Non-Violence , 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). Such restrictions are commonly known as time, place, or manner restrictions. Id.

It is not "not always a simple task" to determine whether a regulation is content based or content neutral. Turner , 512 U.S. at 642, 114 S.Ct. 2445. The main inquiry is whether the government adopted the regulation in question because of agreement or disagreement with the message that the restricted speech conveys: "laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based." Id. at 643, 114 S.Ct. 2445. The "mere assertion" of a content-neutral purpose will not be enough to save a law which, on its face, discriminates based on content. Id. at 642-43, 114 S.Ct. 2445.

That said, one type of government action is easily classified as presumptively invalid: a prior restraint. "A ‘prior restraint’ exists when the exercise of a First Amendment right depends on the prior approval of public officials." Deja Vu of Nashville, Inc. v. Metro. Gov't of Nashville , 274 F.3d 377, 400 (6th Cir. 2001). "The essence of the prior restraint doctrine is censorship—a system in which bureaucrats...