Hund v. Cuomo, 501 F. Supp. 3d 185 (W.D.N.Y. 2020), remanded sub nom. Hund v. Bradley, No. 20-3908-cv,
(2d Cir. Apr. 26, 2021).
The case was appealed to the Second Circuit stated that “At oral argument on April 12, 2021, Bradley’s counsel represented that the Guidance had been amended to permit bars and restaurants to host live, indoor, ticketed performances, thus arguably repealing the Main-Draw Rule.”
Even assuming that the incidental-music rule were not arbitrary as discussed above, and, indeed, mitigated those risks, itdoes so at the expense of burdening Hund’s First Amendment rights. In other words, regardless of any mitigating effect thatbanning advertised, ticketed events has on COVID-19 spread, the ban “significantly restrict[s] a substantial quantity ofspeech that does not create the same evils” Bradley seeks to prevent. See Vincenty, 476 F.3d at 84-85 (quoting Ward, 491U.S. at 799 n.7, 109 S.Ct. 2746). Bradley may impose measures to guard against COVID-19 transmission without undulyrestricting Hund’s First Amendment rights, much like he did with trivia night events at SLA-licensed establishments, whichare allowed under the SLA Guidelines even though they implicate the same coordinated arrival- and departure-time concern,among other similarities.
In sum, because the incidental-music rule fails Jacobson review, as well as intermediate scrutiny review, Hund states a FirstAmendment claim—specifically, for an impermissible time, place, or manner restriction—that survives Bradley’s motion todismiss.[5]
[204]
Hund alleges that the incidental-music rule impermissibly interferes with his right to pursue an economic livelihood byperforming live music. See Dkt. 1 ¶ 12; Dkt. 22, at 26. Because Hund alleges an adverse impact on his ability to pursue hischosen profession, and because this discrete issue is both legally and factually undeveloped by the parties, the Courtconcludes, at this 12(b)(6) juncture, that Hund pleads a liberty interest sufficient to survive Bradley’s motion to dismiss. SeeValmonte, 18 F.3d at 1001.
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202 –
Even assuming that the incidental-music rule were not arbitrary as discussed above, and, indeed, mitigated those risks, itdoes so at the expense of burdening Hund’s First Amendment rights. In other words, regardless of any mitigating effect thatbanning advertised, ticketed events has on COVID-19 spread, the ban “significantly restrict[s] a substantial quantity ofspeech that does not create the same evils” Bradley seeks to prevent. See Vincenty, 476 F.3d at 84-85 (quoting Ward, 491U.S. at 799 n.7, 109 S.Ct. 2746). Bradley may impose measures to guard against COVID-19 transmission without undulyrestricting Hund’s First Amendment rights, much like he did with trivia night events at SLA-licensed establishments, whichare allowed under the SLA Guidelines even though they implicate the same coordinated arrival- and departure-time concern,among other similarities.
In sum, because the incidental-music rule fails Jacobson review, as well as intermediate scrutiny review, Hund states a FirstAmendment claim—specifically, for an impermissible time, place, or manner restriction—that survives Bradley’s motion todismiss.[5]
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