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Law360 (November 18, 2020, 4:41 PM EST) -- A company that operates ghost tours in Salem, Massachusetts, filed suit on Wednesday accusing Gov. Charlie Baker of unfairly limiting such walking tours during the COVID-19 pandemic while allowing larger political protests and religious gatherings to continue.
Colonial Ghosts LLC, doing business as Salem Ghosts, and a related entity, Zaal Ventures Corp., argue in the suit that the state's pandemic restrictions on gatherings violate both the First and 14th amendments by treating historic walking tours differently than other kinds of gatherings.
Citing large demonstrations and marches protesting police violence and racism, the plaintiffs argue that it is illegal to allow that type of speech to go on unfettered while limiting the tours to mere handfuls of customers on the same public streets and sidewalks.
"The defendants have allowed outdoor public gatherings of 25 to 100 people or unlimited in the same location as the walking tour — public sidewalks, streets, and other outdoor public properties — if the gathering is classified as political speech and religious gatherings," the complaint states.
As a result of the limitations, the walking tours have lost business and had to turn customers away, they claim.
The complaint cites a June press conference in which Baker said that "[t]housands of people have been congregating in large groups over the past several weeks to exercise their First Amendment rights," in response to the killing of George Floyd and other police killings nationwide.
But in a state known for its history and tourism industry, the tour groups say their job is just a different form of activity protected by the First Amendment that is being singled out and treated differently.
"The outdoor walking tours plaintiffs provide depend on the expression of speech that is connected to the historical location where the walking tour is performed," the complaint states. "An outdoor guided walking tour on public streets and public sidewalks is a public gathering."
Also problematic, the plaintiffs argue, is the fact that guided tours using a bus are allowed to operate at 50% capacity. So while a duck tour could hold up to 32 people, they are stuck with no more than 10 to 12, the suit claims.
A representative for the governor said that the administration does not comment on pending litigation. Counsel for the tour groups did not immediately respond to a request for comment.
As the number of COVID-19 cases has sharply increased in Massachusetts, the state has tightened some restrictions that had been relaxed over the summer. Restaurants and entertainment venues now must close by 9:30 p.m. and Baker mandated that anyone in public wear a mask, even if they are able to be socially distanced from others.
The tour groups are represented by Daryl Abbas and John Koury of Upper Charles Law Group LLC.
Counsel information for Baker and the other state official defendants was not immediately available.
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 Daniel King.
For a reprint of this article, please contact reprints@law360.com.
