By Chris Villani

Law360 (March 9, 2021, 7:32 PM EST) -- A suit challenging capacity limits for ghost tours in Salem, Massachusetts, during the COVID-19 pandemic may be rendered moot if the governor continues to loosen restrictions for businesses, a federal judge said at a hearing Tuesday.

U.S. District Judge Leo T. Sorokin considered the state's motion to dismiss a suit brought by Colonial Ghosts LLC, doing business as Salem Ghosts, and a related entity called Zaal Ventures Corp., as well as the tours' request that he block emergency rules that limit them to just 11 participants on their walking tours.

The tour operators say their First Amendment rights are being violated because their form of speech is being treated differently than gatherings for political speech, which have no capacity limits.

But the state is slated to begin the final phase of its reopening plan on March 22. If the new guidance raises the limit on walking tours to 50 — the maximum allowed in non-pandemic times under a local ordinance — Judge Sorokin did not think there would be anything left for him to do.

"I don't think it's moot at the moment, but why wouldn't it be moot if they changed it to 50?" he asked Daryl Abbas of Upper Charles Law Group LLC, who argued on behalf of the tours.

"It seems like if they hit 50, this case is moot," Judge Sorokin added, mulling whether one course of action would be to wait to see what the new guidance looks like in less than two weeks.

Abbas said that even if an order lifting the cap on his clients' tours were short-lived, it's still necessary because the restriction is an affront to constitutional rights.

"That is not something we should take lightly," Abbas said.

In their complaint, filed in November, the ghost tours compared their plight to large demonstrations and marches protesting police violence and racism. They said it is illegal to allow that type of speech to go on unfettered while limiting their tours to small groups of customers on the same public streets and sidewalks.

Representing Gov. Charlie Baker, Assistant Attorney General Christine Fimognari told Judge Sorokin that the walking tours are not being singled out based on content, but because they present specific challenges to limiting the spread of a potentially deadly virus. The tours often wind through narrow streets or alleyways, making social distancing difficult, she said, and guides need to speak loudly, increasing the risk of droplets being spread into the air.

Additionally, Fimognari argued that past case law shows "it's well established that political expression is granted heightened protection," including not having a cap on the number of people who may participate.

When the final phase of the state's reopening plan commences on March 22, it will raise the gathering limit in public to 150 people outdoors and 100 people indoors, paving the way for the return of larger weddings and similar events. Thousands of people will also be able to watch the Red Sox play at Fenway Park and the Bruins and Celtics play at TD Garden, each of which will cap attendance at 12% of the venues' capacity.

Challenges to Baker's dozens of COVID-19 executive orders have dwindled somewhat as businesses have reopened and been allowed to serve more patrons.

But Abbas told the judge that while some gathering limits were loosened last summer, the cap on the walking tours remained in effect. There is also precedent for the state scaling back its reopening if case counts rise, he said, meaning an injunction that will soon be moot may not stay that way.

Judge Sorokin took the motion under advisement. Before adjourning for the day, he addressed the owner of Zaal Ventures, who spoke up at the end of the videoconference hearing to stress how hard the capacity limits have been on his business and his tour guides, and that they have done everything they can to operate safely.

Judge Sorokin said he sympathized with their situation, but he ultimately has to decide the matter based on the law, not human emotion.

"It's incredibly hard, I have no doubt and I appreciate that," the judge said. "I understand how serious this is and what it means for your livelihoods."

The tour groups are represented by Daryl Abbas and John Koury of Upper Charles Law Group LLC.

The governor is represented by Christine Fimognari and Eric Haskell of the Massachusetts Attorney General's Office.

The case is Zaal Ventures Corp. et al. v. Baker et al., case number 1:20-cv-12054, in the U.S. District Court for the District of Massachusetts.

--Editing by Adam LoBelia.

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