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Salem video arcade tries to continue suit against Charlie Baker over Covid-19 shutdown even after he lifts ban on arcades

Bit Bar Salem is appealing a federal judge's ruling that it no longer has any case against Gov. Baker's Covid-19 bar on video arcades now that the governor has allowed them to re-open, arguing that if he banned them once, he could ban them again.

Bit Bar, represented by attorney Marc Randazza, sued Baker last month after he allowed casinos, but not video arcades, to re-open as he relaxed more of the state's Covid-19 emergency rules in July.

The arcade, which in addition to traditional stand-up games features tabletop games that let players eat as they control a Pac-Man, said the only difference between casino slot machines and its wares is "the content of the expression in the video game console" and so sued Baker for violating both its First Amendment right to free expression and its Fourteenth Amendment right to equal protection under the law.

In a ruling released this morning, US District Court Judge Richard Stearns dismissed the suit, saying that it became a moot question when Baker issued a new order last month that allowed arcades to re-open - about a week after Bit Bar filed its suit.

Randazza argued that the issue wasn't really moot because Baker had rescinded the arcade ban voluntarily, which meant he could just as easily put it back. Stearns countered that:

[T]he court does not believe that there is any reasonable basis to believe that the specific conduct challenged here - the imposition of greater restrictions on the operation of arcades than certain other Phase III enterprises - will recur if it dismisses this case. Plaintiff's suggestions to the contrary rely on an undue degree of speculation regarding the future course of the virus and the measures Governor Baker may opt to take to counteract its spread. As it would be inappropriate for the court to engage in speculation at this juncture, particularly on a matter of public health, it finds the voluntary cessation doctrine inapplicable and therefore dismisses plaintiff's case as moot.

Not long after Stearns filed his dismissal, Randazza paid the $505 fee to appeal his ruling to the US Court of Appeals for the First Circuit in Boston.

Bit Bar's complaint (1.1M PDF).
State's reasoning to have complaint dismissed (39k PDF)

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It seems extremely obvious to me, admittedly not an Arcade Business Genius, that it's very possible - even likely given how Baker is bumbling the second wave - that a restriction on his business is a very reasonable thing to expect in the next 3-6 months.

I have absolutely no comments on the merits of the lawsuit, I'm not a lawyer, but seems like the courts just don't want to touch this nuclear issue right now. Traditionally in the US the Federal & State governments have been granted extremely broad powers during public health emergencies.

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1824 was the first time the SCOTUS clarified that states have the right to impose quarantines, stay at home orders, and business closures during epidemics.

This has been refined, but not negated in the 200 years since. As a nation, we have had a lot of epidemics and a lot of time to get this sorted in terms of constitutionality.

Unless this is a restraint of interstate trade issue, there isn't much chance that rulings will land in favor of the plaintiffs. Just because such things haven't been tested in a long while, doesn't mean that enormous piles of precedent don't exist.

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https://dailyfreepress.com/2020/05/10/massachusetts-gun-stores-reopen-as...

Granted, this was decided on Second Amendment grounds, but there's no reason to believe that a First Amendment case based on commercial speech wouldn't also be successful for a prohibited type of business which is very similar to a permitted type of business. There's absolutely nothing inherently safer about a slot machine versus an arcade machine. There's also nothing that makes casinos more essential than arcades.

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Perhaps.

The reality is that we have been there, done that, and accumulated two entire centuries of case law that give the states (and, by extension, their governors) broad authority to regulate businesses during times of infectious disease emergencies. Many of these challenges to emergency rules are being dismissed out of hand because of that body of case law.

There are very few new arguments/angles to be found here, unless there is a direct conflict with, say, 2nd amendment issues or restraint of interstate trade.

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I'm very much not a lawyer, but isn't this, like, the definition of not having standing?

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If his business was closed, and one similar to it (casino/arcade) was open, he had an argument.
When his business was allowed to open, his case literally disappeared. BUT...

https://constitution.congress.gov/browse/essay/artIII_S2_C1_1_7_3_3_2/

"First, the Supreme Court has held that a party's voluntary cessation of an unlawful practice will usually not moot its opponent's challenge to that practice.1 Thus, "a defendant cannot automatically moot a case by simply ending its unlawful conduct once sued."2 This exception to the mootness doctrine exists because if a litigant could defeat a lawsuit simply by temporarily ceasing its unlawful activities, there would be nothing to stop that litigant from engaging in that unlawful behavior again after the court dismissed the case3—the litigant would effectively "be free to return to [its] old ways."

Looks like the judge here doesn't want to get into the prediction business. If Baker shuts down the arcade again and leaves the casino open, well...

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Laws are all about prediction. A law has to be written before the thing it’s regulating happens.

It’s a little different for court decisions. But a judge could still say, “If the governor does X again, that wouldn’t be lawful.” I don’t see what the problem is with letting everyone know in advance what the rules are.

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And, the law covers this. A simple suit for, say, making Snike Sneakers with a boomerang logo won't get dismissed because you promise to 'not do it any more, pinky swear'. Case can, generally, go forward to a permanent injunction or whatever.

I would think emergency rules promulgated during a pandemic might be a little different. They can evolve.

If the Governor clamps down again, shuts the arcade then keeps the casino open, he may have a legit case.

That might be his reasoning in front of the appellate court.

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Salem Willows?

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From a public health point of view I say, he needs to have full ability to open and close when he likes for our health.

From a business point of view I agree that the case is not closed because we clearly are in the middle of a pandemic and if he closed it once he most likely will close it again. I think it is only fair for the plaintfiff that they get their day in court and the answer is presented one way or the other. At the very least the owner will know they lost if they lose and could possibly use the answer as proof for an insurance company or creditor that not only were they closed for a long time but they could close again at any time.

I agree with closing things and I agree with public health being in the front but for the love of God we need to stop pretending like these closures are not agonizing for small business owners who have their lives sunk into these businesses.

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This is a bar and restaurant located in the old Salem jail building just outside of downtown Salem.

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The Bit Bar is not part of the big arcade in the Willows. It's located in part of the old prison off of Bridge Street next to the cemetery, and a few blocks east of the commuter rail stop.
Think of a bar with some food offerings and an outdoor patio. Inside, there are maybe a dozen arcade type gaming machines.
I live in Salem, around the corner from the place. The Bit Bar is still in operation with a massive outdoor tent.
The place is only a threat when it comes to quality of life. Too many patrons wander away reeling drunk. They often vomit on the street in front of our house. They also use our city as an open urinal/latrine. Not fun.

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Magoo is playing Pac-Man right now. Bee booop bip bip fizzle weeeeee-op. Magoo luvs luvs luvs Pac-man but is in luv with Mrs. Pac-Man. Magoo.

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Everyone knows Walmart and target And Burger King are safe and coronavirus can only exist inside small businesses

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Nice straw man, where'd you get it?

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They have lots of them available right now for Halloween decor.

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https://en.wikipedia.org/wiki/Marc_Randazza

His clients are more often than not attempting to use the law to bully and extort and he has been sanctioned for his shitty attempts to mangle the legal process multiple times and in multiple states.

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Randazza represents multiple far-right figures, including conspiracy theorists Alex Jones, Mike Cernovich, and Chuck Johnson; and neo-Nazi Andrew Anglin. Randazza defended a participant in the planning of the violent Unite the Right rally who used the pseudonym "Kristall.night" (cf. Kristallnacht).

Awesome brand alignment, Bit Bar.

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https://en.wikipedia.org/wiki/Marc_Randazza

Here's my reasoning...he takes on difficult clients and difficult cases. He fights the unpopular cases. He fights the cases where someone needs a fighter.

Remember your Boston history...John Quincy (I hope I got that right) Adams represented British soldiers in the Boston Massacre.

Acquitted.

The story of the Star Trek fan movie is in the link. They did a scene in Klingon. Paramount sued for copyright infringement. Part of his brief was written in Klingon just to prove a point. Paramount pulled the case.
He won. For his clients. By writing a brief in friggin Klingon.

Oh, ya. Hire him. He knows how to fight and win. Remember, the First Amendment is not there to protect popular speech. It's there to protect unpopular speech.

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You are praising a nazi sympathizer and ally.

Sure, nazis need lawyers, too. But there’s no need to make being a nazi lawyer one’s life’s work.

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"But there’s no need to make being a nazi lawyer one’s life’s work."

He didn't.

The Skokie Nazi parade from years ago? The ACLU was there... https://en.wikipedia.org/wiki/National_Socialist_Party_of_America_v._Vil...

https://www.aclu.org/issues/free-speech/rights-protesters/skokie-case-ho...

David Goldberger was the attorney that represented the American Nazi Party. Yup. He represented actual nazis.

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Randazza profiteered from nazis, from white supremacists (he is admittedly close friends with self-confessed white supremacist Cernovich), and from accusing Sandy Hook parents of hoaxing the fact that their grade-school aged children were massacred by an assault rifle-wielding maniac.

Randazza is not John Adams and he is not the ACLU.

He is a nazi sympathizer. He is not noble; he profiteers off of white supremacy. He must not be normalized.

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Uhhh, the First Amendment exists to prevent the government from censoring speech. It says nothing about the content of the speech, only that the right to express it can not be infringed by the laws of the land.

And I agree, everyone is entitled to legal representation.

But if you are looking for a lawyer to hire, or retain, and their client list includes notable bad actors, like Nazis and folks like Alex Jones who peddles conspiracy theories for money (didn't he tell the court that he's just a performance artist in his divorce case?), you are making a choice by hiring that lawyer. You have the freedom to make such a choice, but it is a choice, and you made it freely.

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What you are saying is that you cannot hire David Goldberger, ACLU lawyer because he represented the Illinois nazis.

Think of the choice Atty Goldberger made. I don't know a damn thing about him, except that I respect him greatly because he took that case.

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Narrator: That is not what Brian is saying.

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Wasn't sure about that one.

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Sheesh Bit Bar wtf. There are plenty of lawyers in the world, I'll presume this choice was intentional. Any sympathy for them is gone and I'll make sure to avoid it on any future trips to Salem.

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He approached them and offered to do the lawsuit essentially pro bono. A small business like this could have never afforded an $800+ an hour constitutional lawyer.

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