SALEM — A ghost tour operator has filed suit over ongoing COVID-19 restrictions that limit the walking tours to no more than a dozen people at a time — a restriction Salem Ghosts says violates its Constitutional right to free speech and unfairly puts them at a disadvantage over other tour businesses that use vehicles.
The complaint was filed on Wednesday in federal court by Zaal Ventures, the Virginia-based company that owns Colonial Ghosts LLC (the legal name of Salem Ghosts), against Gov. Charlie Baker, state Commissioner of Public Health Monica Bharel and Secretary of Housing and Economic Development Michael Kennealy.
The suit contends that the governor's orders have allowed political and religious gatherings drawing large crowds of people to take place, while placing limits on their walking tours. That, the suit argues, is an infringement on the tour company's First Amendment rights and a violation of the equal protection clause of the 14th Amendment.
The suit says the governor and his administration is "unreasonably and arbitrarily restricting speech in public areas that historically have been open for public speech and expression of ideas by limiting the number of people allowed to be on an outdoor walking tour to ten to 12 people, while allowing other outdoor gatherings on public property to be anywhere from 25 to 100 people or unlimited."
Beyond that, the suit says, the orders have allowed other types of tours — including those on buses or duck boats — to resume operating with potentially larger groups.
"The outdoor walking tours (Salem Ghosts) depend on the expression of speech that is connected to the historical location where the walking tour is performed," the suit says. "An outdoor guided walking tour on public streets and public sidewalks is a public gathering."
"While the defendants have chosen to limit the plaintiffs’ audience ... on public sidewalks, public streets and other outdoor public properties due to the plaintiffs’ classification as a walking tour, 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 suit says.
The company, which prior to the pandemic was allowed to have as many as 50 customers take part in a walking tour, says that it has had to turn away customers multiple times due to the restrictions on the number of people allowed.
Kennealy oversees the agency that set workplace safety standards for "Museums and Cultural and Historical Facilities and Guided Tours." Earlier this month, his agency bumped up the limit on the number of participants from 10 to 12.
But the company says other tour businesses, like the Duck Tours, use vehicles that can hold dozens of passengers, and are being allowed to operate at 50% capacity, meaning that in many instances, those tour operators are allowed to have more customers.
The tour company's lawyers say that the distinction between large political or religious gatherings and their tours is solely based on the content of their speech.
Courts have long held that the First Amendment protects political and religious speech, as well as artistic expression.
A spokeswoman for the Baker administration declined to comment, citing the office's policy against discussing pending litigation.
An attorney for the tour company was not available for comment on Thursday.
The suit is the latest in a series of legal challenges around the state to the Baker administration's orders in response to the pandemic.
A federal judge is currently considering a decision in a lawsuit brought back in June by a Peabody HVAC contractor, Vincent Delaney, over Baker's orders that effectively shut down many businesses and ordered the use of masks inside those that were allowed to open.
In September, the owners of Salem's Bit Bar, a restaurant-arcade, brought suit in federal court over restrictions on the re-opening of the business, which were then rolled back. They went back to court last month over a restriction that would have required them to drop their lawsuit in order to receive small business pandemic relief funds. That was subsequently settled.
Courts reporter Julie Manganis can be reached at 978-338-2521, by email at firstname.lastname@example.org or on Twitter at @SNJulieManganis.