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Screw public health, the First Amendment demands the state allow large spooky walking tours through Salem, tour operators say

Two companies that run walking tours of Salem are suing the state over Covid-19 orders that effectively limit the size of their gatherings to just a dozen people, saying that's an impermissible violation of their free-speech rights under the First Amendment.

Why, Salem Ghosts and Zaal Ventures say, they've had to turn people away when they reached that limit, in an age when the state does nothing to stop far larger Black Lives Matter demonstrations and church services and are asking a judge in US District Court in Boston to issue an injunction to let them resume walking tours with up to 50 people at a time.

Even in the face of the Pandemic, the Commonwealth of Massachusetts cannot set unreasonably restrict and arbitrarily ignore the First Amendment rights of its citizens. ...

Walking tours inherently involve speech protected under the Free Speech Clauseof the First Amendmentas applied to the states and their political subdivision under the Fourteenth Amendment.


Other guided tours that use buses or some form of a motorized vehicle on public streets are permitted to operate at a 50% capacity. Therefore, a guided tour such as a Duck Tour which regularly hold 32 people at a time, is permitted to provide a guided tour to more than 10 to 12 people. ...

Although the governmental restrictions reduced Plaintiffs right to have 50 people participate in an outdoor guided walking tour on public streets and public sidewalks to only 10 to 12 people, an outdoor gathering on the same public streets and public sidewalks for political expression is not subject to any limitation while other outdoor gatherings on public streets and sidewalks allow more than 10 to 12 people at a time.

The Commonwealth's restrictions issued by Governor Baker and Secretary Keneally burden a substantial category of protected speech based on the content of the speech–walking tours.

The latest state Covid-19 statistics show Salem now has a test positivity rate of 4.1%, with an average count of new daily cases per 100,000 people of 41.6 - higher than Boston. Last month, the city ran an ad campaign urging people to stay away from Witch City for Halloween because of Covid-19.

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PDF icon Complete complaint188.45 KB



Trump's rallies were criticized for being held indoors, while the outdoor BLM protests and marches were supposedly fine because they were held outdoors.

There doesn't seem to be a compelling legal reason to apply a different standard for something that is not only outdoors, but also involves fewer people.

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BLM protests and marches involved wearing masks and people distancing.

A BIG DIFFERENCE that shows in the lack of infections related to those events.

Please explain how you lead a walking tour with 50 people and keep them 6 feet apart?

Another thing people miss: this is not the United States' first rodeo with pandemics. Literally nothing that states have done and cities and towns have done is "unprecidented". Nothing.

There is a different legal standard for different types of gatherings due to 200 years of legal precedent that upholds anything states do during epidemics and pandemics so long as it does not conflict with other rights. Assembly to petition for redress is one such conflict, as is restraint of interstate trade. Courts have upheld states doing pretty much anything else - including regulation of businesses - since 1824.

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at the BLM protests got covid? Most may have worn masks but from all the pictures and videos I saw, most were much less than 6 feet away from each other for extended periods of time during the marches and rallies. If none of the thousands at BLM protests got covid then I would imagine 50 masked people, outside on a tour that lasts about an hour, would be fine.

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They tested thousands of people who were urged to seek tests for no other reason than they went to the protests.

Even with all the additional tests, the number of positive tests did not budge.

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as another commenter noted, commercial speech is regulated frequently and without controversy.

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Why are you comparing people protesting out of anger to some guy running a tour business? Protesting is inherently outside of regulation and the government and protected by our constitution. Going on a spooky tour in Salem, not so much.

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Although the governmental restrictions reduced Plaintiffs right to have 50 people participate in an outdoor guided walking tour on public streets and public sidewalks to only 10 to 12 people, an outdoor gathering on the same public streets and public sidewalks for political expression is not subject to any limitation while other outdoor gatherings on public streets and sidewalks allow more than 10 to 12 people at a time.

This is a good way to get stricter restrictions on all outdoor gatherings!

On a more serious note:

There is a deep problem though: we are absolutely failing at supporting people whose livelihood is hurt most by the pandemic. In Massachusetts you are able to opt into paying a higher tax rate to the state. I know Baker isn't going to raise taxes, but I hope there is a coordinated effort to get people who are not financially burdened by the pandemic to opt into the higher tax to help people who are struggling.

Taxing and redistributing wealth is a hot political topic, but optional contributions distributed through the state in a time of emergency shouldn't be political. If you don't trust the state to do it, figure out how much more you would pay and send it to a more trusted charity.

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...privatizing profit while socializing risk? Something like that?

I don't object to your idea, except in the context of a complete failure of national leadership to address the very real problem that you're talking about. We have already paid for our fellow citizens to be cared for. We should not be doing it twice while national "leadership" grifts.

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Duck tours should be 16 people at %50.

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These two companies seem to boil down to just one guy.

An entrepreneur from Virginia is the only name attached to both companies, with Zaal Ventures having been registered in MA just this past August.


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And if you follow the links you see that another of his businesses is US Ghost Adventures, which claims to operate ghost tours in 23 different cities, including both Salem and Boston, and extending to Key West, San Diego, and Seattle.


The City of Salem has some pretty strict regulations and licensing procedures for walking tour guides in general, long preceding the coronavirus. I wonder how he's going to respond when he has to deal with those those rules.

And it's not like Salem doesn't already have a surfeit of ghostly tour operators...

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They make a valid point about restrictions being placed on one activity and not the other.
I think it's easier to get a business to obey rules and this will fail, I am interested in seeing the States reasoning for having different rules though.

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You can hold a protest where people are six feet apart.

You cannot hold a 50 person walking tour with people six feet apart.

Being outdoors is not enough, as shown by numerous outdoor superspreader events, including those at the White House, churches holding Easter services outside, etc.

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But there are no restrictions on protests, they don't have any rules to follow because the Government didn't impose any.
I have seen lots of mask wearing at protests but not people keeping 6 feet apart.
And I'm not saying the tours can be held with 50 people( but they do have restrictions and protests don't)

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That had a large indoor component, just more lies from Trump that it was "outdoors".

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I've been to many of the protest events this summer and fall. People attending them are very assiduous in wearing masks, but social distancing tends to fall by the wayside, especially if a stationary rally turns into a march. Most recently, this happened when a Protect the Results rally became a Biden victory celebration on Saturday, November 7.

The infamous White House Rose Garden event wasn't only outdoors.

I tend to side with the plaintiffs on this one. Is there any solid evidence that limiting the size of a fully masked walking tour group, which stays outdoors throughout, is necessary?

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Civil disobedience, in this case the BLM protests, and a for-profit ghost tour are not operating in the same sphere. The state and city did not give blessings to any of the BLM demonstrations. I imagine if they applied for a permit they would be denied, one factor cited being Covid. But the ghost tour, presumably, needs some sort of business licensing, permits, and tax payments.

If BLM applied for permits and they were granted, it would be a valid point. But the key part of civil disobedience is the disobedience part. There is no instance of “different rules” here because acts of civil disobedience are explicitly undertaken to break rules in order to make a point.

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Courts have repeatedly and consistently found that government has considerably more latitude in regulating commercial speech and commercial assembly that it does in regulating political speech and political assembly. This is not a novel or unexplored area of law.

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Why would you go except for Halloween?

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It is ridiculous that bus and duck tours allow more people than walking tours. Especially bus tours since they’re enclosed.

I think the state should reduce the limit for bus and duck tours.

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in an age when the state does nothing to stop far larger Black Lives Matter demonstrations

Thousands of people who have been tear-gassed, shot with pepper balls and rubber bullets, beaten, hit with cars, and arrested would probably disagree with this. Something tells me that statement wasn't made in good faith though.

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It's obvious from just the way it's written what their opinion on the matter is. "Does nothing" is loaded and implies that something should be done, plus... "stop"? The state isn't stopping these spooky tours, just making them smaller, so it's curious (not really) to suggest the state should halt protests entirely.

Bad faith indeed.

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The state actually restricts any outdoor tour to no more than 10 people total, including guides. Very few tours are actually that small, since operators can’t make money at that scale. It’s sad that this has to go to the courts since walking around outside wearing masks isn’t where we are seeing infections - it’s indoor transmission that’s the problem.

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Having been to plenty of political protests and also having conducted thousands of walking tours over decades, I can attest they are vastly different. At a rally, you stand in one spot and listen to a speaker with a PA system, and it’s easy to distance while holding still. On a walking tour, you proceed down a sidewalk, gather in an alley or small space, and get close to the speaker to listen, unamplified. Impossible to stay Covid safe with 50...and we pros never recommend over 24 for a really good walking tour, no matter what the costumed guides do; over that number sacrifices quality. So this whiner is an amateur with a big mouth and no experience, in my professional opinion, and doomed to fail from his own shortcomings.

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Because we all know that some guy in Virginia making a few more bucks is just as important as protesting racism and praying to God.

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Well, given the fact of all the Thanksgiving travel that's being endorsed . . .

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