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Law360 (January 5, 2021, 5:31 PM EST) -- The Second Circuit grappled Tuesday with a quirky dispute over New York's rules that prevent eateries from holding ticketed live music events due to the risk of COVID-19, with one appellate judge lamenting a "bizarre" juxtaposition of state policy and free speech rights.
Michael Hund peforms in a photo provided courtesy of his counsel.
During virtual arguments, Circuit Judges Guido Calabresi, Reena Raggi and Denny Chin mulled whether an injunction blocking New York State Liquor Authority rules that ban "advertised and/or ticketed shows" — but allow for music that is "incidental to the dining experience" — is proper.
"This is a very strange case," said Judge Calabresi. "It's very bizarre."
The injunction was handed down by Buffalo U.S. District Judge John L. Sinatra Jr. in an August lawsuit brought by locally famous guitarist Michael Hund, whose bands include Widow Maker. Hund claims the rule is arbitrary and violates his First Amendment rights.
"The incidental music rule prohibits live ticketed and advertised music events in New York state, devastating the livelihood of my client," Hund's lawyer Peter Speroni told Law360 in an email.
Judge Sinatra agreed, holding in November that the rule "makes arbitrary distinctions unrelated to public health" and that "Hund is likely to succeed on the merits of his First Amendment claim."
But on Tuesday, Judge Calabresi was not so sanguine on the merits of a free-speech challenge to Gov. Andrew Cuomo's ever-changing and complex rules designed to stop the spread of a virus that to date has killed more than 30,000 New Yorkers.
Judge Calabresi pushed back against Speroni's contention that the incidental-music-only rule is "completely absurd," suggesting the state's power to mitigate the coronavirus may also have merit. The Second Circuit so far has been reluctant to push back against Cuomo's COVID-19 directives.
"My general view in these cases is when we try to guess the merits ... we often get it wrong," Judge Calabresi said.
A lawyer for the state, Jeffrey Lang, asserted that Hund's early victory before Judge Sinatra was by no means the end of the case. In the meantime, Lang said, the injunction "has caused confusion" about what is permissible.
"The state's only goal here is to prevent the spread of COVID. The virus is surging," he said. "Now there is a lot of unclarity about whether the [liquor authority] can enforce this rule against live concerts, which can be superspreader events."
Judge Chin said the circuit would attempt to rule as quickly as possible. But a potential complicating factor is an October injunction in a similar case by Erie County Supreme Court Judge Frank A. Sedita III. Judge Sedita blocked the rule in a suit brought by a Buffalo bar and restaurant.
The state ruling is also on appeal, and Lang told the circuit that a time frame for any state-level appellate proceeding was unclear.
"Why do you need an order from this court?" Judge Raggi asked, referencing Judge Sedita's order. "You're not going to be able to enforce this directive in any event."
"The other court could say, well, get the federal injunction lifted — so [that] we're stuck between the two," Lang said. "Every week makes a difference. It's really urgent."
It was unclear if the panel shared the same sense of urgency, with Cuomo in December banning all indoor dining for the second time since the onset of the virus almost a year ago.
The Hund case theoretically still applies to chilly outdoor dining at the moment, and it could affect more performances if vaccines and warmer weather tamp down the disease in the coming months.
Requests for comment from Cuomo's office and from the Liquor Authority were not immediately returned. The state attorney general's office declined comment.
Hund is represented by Peter Speroni of the Parlatore Law Group LLP.
The state is represented by Jeffrey Lang and Sarah Rosenbluth of the New York State Office of the Attorney General.
The case is Hund v. Vincent G. Bradley, in his official capacity as Chairman of the State Liquor Authority, case number 20-3908, in the U.S. Court of Appeals for the Second Circuit.
--Editing by Adam LoBelia.
For a reprint of this article, please contact reprints@law360.com.
