By Chris Villani

Law360 (March 17, 2021, 2:08 PM EDT) -- A Massachusetts federal judge threw out a suit challenging capacity limits on Salem ghost tours during the COVID-19 pandemic, ruling Wednesday that the restrictions are aimed at curbing the spread of the virus, not curbing free speech.

U.S. District Judge Leo T. Sorokin dismissed the case against Gov. Charlie Baker's administration filed by Colonial Ghosts LLC, doing business as Salem Ghosts, and a related entity called Zaal Ventures Corp.

The tour operators claimed the state was singling them out by limiting their tours to 12 people, including the guide, while outdoor political gatherings like protests were not limited at all.

But Judge Sorokin wrote in a 10-page order Wednesday that the argument misses the mark.

"The restriction on the number of participants in a walking tour was imposed to prevent the spread of COVID-19, not to prevent any expressive aspects of guided tours," the judge wrote. "The restriction does not regulate speech or expressive conduct — tour guides are free to speak or not speak, and the content of tour guides' speech is not subject to sanction."

Judge Sorokin made clear in his order that he is ruling only on the constitutionality of the orders imposed by Baker, not whether they are wise or appropriate. He recognized the plight of the tour operators and many other small business owners during the crisis, and acknowledged the mitigation efforts the tours have employed.

"The record indicates that the COVID-19 orders have created great difficulty for plaintiffs and their employees," Judge Sorokin wrote. "The record also suggests that plaintiffs have developed substantial measures to protect the safety of tour guides, customers, and passersby in their entirely outdoor operation, rendering their operation safer in terms of the risk of virus transmission than they were before the onset of the pandemic."

But the First and Fourteenth Amendment claims still come up short, the judge found. The comparison to political speech, he said, "is not well-founded."

"Here the size limitation imposed on walking tours applies to all walking tours without regard to the speech content of the tour," Judge Sorokin wrote. "The exception for political purposes does not apply to the walking tour limitation — rather, it applies to the limitation on outdoor gatherings, and plaintiffs have never contended that their conduct constitutes an outdoor gathering within the meaning of the COVID-19 orders."

Baker's rules apply to an entire sector, including museums, cultural and historical facilities, and guided tours, treating them all similarly, the judge added. He found that any restrictions are based on the conduct — the act of going on a tour — and not the content of the tour itself.

Representatives for Baker and counsel for the ghost tours did not immediately return comment requests Wednesday.

In hearing arguments earlier this month on the state's motion to dismiss and an unsuccessful injunction motion filed by the tours, Judge Sorokin noted that the waning virus numbers and advancement of the state's reopening plan may render the claims moot.

The tours were already subject to a 50 person limit under local ordinances, and if the state raised the capacity limit to 50 in its guidance for the final reopening phase, which begins March 22, the suit would be rendered moot, Judge Sorokin said.

The tours pushed back on that notion, saying that the state has moved backward in its reopening in the past and that any affront to constitutional rights is not to be taken lightly.

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 are dwindling as businesses have reopened and been allowed to serve more patrons.

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 Gemma Horowitz.

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