Clementine Co. v. Adams, 74 F.4th 77

Background

In August 2021 New York City implemented "Key to NYC," an executive-order program requiring covered indoor venues to check patrons’ and staff vaccination status (fines and possible misdemeanor enforcement for noncompliance).
Plaintiffs are small Manhattan theater operators who alleged Key to NYC forced them to process refunds, hire extra staff to check IDs, and turn away patrons (including visitors from out of state); some uses of the same premises (e.g., worship services) were exempt.
Plaintiffs sued under 42 U.S.C. § 1983 seeking declaratory and injunctive relief and $1 in nominal damages, asserting First Amendment free-speech and Fourteenth Amendment equal-protection violations.
The district court denied a preliminary injunction, Key to NYC later expired, and the district court dismissed the injunctive/declaratory claims as moot and the nominal-damages claim for lack of Article III standing.
On appeal the Second Circuit held plaintiffs plausibly alleged standing to seek nominal damages (Uzuegbunam), but affirmed dismissal on an alternative ground: the complaint failed to state a First Amendment or Equal Protection violation.
The court reasoned Key to NYC regulated non‑expressive conduct (Arcara/FAIR), was content‑neutral and appropriately tailored to public‑health objectives, and its classification bore a rational relation to pandemic control (Jacobson/rational‑basis review).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standing for nominal damages	Plaintiffs alleged economic harms (refunds, added staffing) and seek $1; nominal damages redress completed violations	Key to NYC expiration mooted injunctive claims and plaintiffs failed to plead an injury‑in‑fact	Plaintiffs plausibly alleged Article III standing for nominal damages (Uzuegbunam)
Whether Key to NYC implicated First Amendment free speech	Requiring vaccination checks at theaters impermissibly burdens expressive activity (theatrical productions are speech)	Key to NYC regulated conduct of premises, not speech, and applied generally (Arcara)	Key to NYC did not implicate First Amendment rights because it targeted conduct of premises, not expression
If implicated, level of scrutiny and validity of the regulation	If speech‑implicating, the regulation is unlawful or not narrowly tailored	At most a content‑neutral regulation; intermediate scrutiny applies and the mandate advances important public‑health interests and is reasonably tailored	Even assuming incidental speech burden, Key to NYC is content‑neutral and survives intermediate scrutiny
Equal protection (selective application vs. similarly situated venues)	Theaters were treated differently than similarly situated venues (e.g., houses of worship), so classification is unconstitutional	The classification rationally distinguishes venues by risk (unassociated groups interacting for substantial periods)	Rational‑basis review applies and Key to NYC is rationally related to public‑health goals; equal protection claim fails

Key Cases Cited

Uzuegbunam v. Preczewski, 141 S. Ct. 792 (2021) (nominal damages can provide redress for completed constitutional violations)
Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986) (enforcement of general public‑health regulation against premises does not necessarily implicate First Amendment)
Rumsfeld v. FAIR, 547 U.S. 47 (2006) (regulation that does not limit content or compel speech does not implicate First Amendment in the same way as content regulation)
Jacobson v. Massachusetts, 197 U.S. 11 (1905) (state public‑health authority to impose measures to combat infectious disease)
Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180 (1997) (intermediate scrutiny framework for content‑neutral regulations affecting speech)
Time Warner Cable Inc. v. FCC, 729 F.3d 137 (2d Cir. 2013) (purpose‑based test for content neutrality)
Mastrovincenzo v. City of New York, 435 F.3d 78 (2d Cir. 2006) (content‑neutral burden that leaves alternative channels may survive intermediate scrutiny)