MSG Entertainment resorted to facial recognition technology to kick out legal foes, but some have undermined the ban using a law passed to protect theater critics in 1941.
The problem with going to battle against thousands of lawyers is that it is likely to lead to lawsuits. And then the battle will inevitably head to their home turf.
Since last summer, MSG Entertainment, which operates Madison Square Garden and Radio City Music Hall, along with other venues and restaurants, has sent letters to adversarial lawyers at around 90 firms: “Neither you, nor any other attorney employed at your firm, may enter the Company’s venues until final resolution of the litigation.” The purpose, according to MSG Entertainment officials, is to prevent the collection of evidence “outside proper litigation discovery channels.”
Benjamin Noren, an employment lawyer, called that “ludicrous.” His firm is representing ticket resellers in a lawsuit against the company, and he is on the banned list though he is not involved in the case. He called the ban “a transparent effort” by MSG Entertainment and its chief executive, James Dolan, “to stop attorneys from suing them.”
A ban based on employment status alone would generally be difficult to enforce, because someone else could always buy the ticket. But MSG has effectively deployed facial recognition, a technology it has been using for security reasons since 2018; over Thanksgiving weekend, MSG’s technology spotted and turned away a lawyer accompanying her daughter’s Girl Scout troop to see the Rockettes at Radio City Music Hall.
And in recent months, lawyers on the watchlist trying to go to Christmas shows, concerts, and Rangers and Knicks games were turned away after they passed through a metal detector where the facial recognition system matched their faces to photos taken from their firms’ websites.
Businesses generally have the right to decide whom they want to do business with, as long as they are not discriminating by ethnicity, sex, religion, disability or another protected class. But affected firms have wielded their most powerful weapon against the ban: complaints.
They say they have filed complaints with the state attorney general’s office; the commissioners of the N.H.L. and N.B.A.; and the State Liquor Authority, which is now investigating whether the ban violates liquor laws, according to a spokesman. An N.B.A. spokesman, Mike Bass, said of the incidents of banned patrons: “There is no leaguewide prohibition on facial recognition security technology unless its use conflicts with local laws.” N.H.L. did not respond to a request for comment.
Three firms, including Mr. Noren’s — Davidoff Hutcher & Citron — have sued in State Supreme Court in Manhattan. So far, these suits have been the most effective legal strategy for getting some lawyers back into some venues: They have led to preliminary injunctions that partially lifted the ban under a state anti-discrimination law that prohibits “wrongful refusal of admission” to “places of public entertainment or amusement.”
MSG Entertainment can still refuse to sell the lawyers tickets, but it cannot refuse entry to the lawyers at those firms if they show up with a valid ticket — though it applies only to concerts and shows, not to sporting events. After a preliminary injunction was granted in November, Mr. Noren tried to go to a Wizkid concert at Madison Square Garden. Despite bringing a printout of the judge’s order granting the preliminary injunction, he was stopped and turned away by security officials, an encounter he recorded on his smartphone.
MSG Entertainment appealed the injunction to a higher court, and Mr. Noren’s firm counter-appealed, in hopes of getting it expanded to include sporting events, a case that is set to be reviewed in March. “To date, the Courts have only afforded narrow and temporary relief to three firms,” Mikyl Cordova, a spokeswoman for MSG Entertainment, said in a statement. “We continue to vigorously defend and enforce our policy, and remain confident the Appellate Division will rule in our favor on our full appeal.”
In court in October, a lawyer for the company, Randy Mastro, told the State Supreme Court judge, Lyle Frank, that “lawyers sometimes alienate people.” Mr. Mastro said he had experienced being on a banned list himself when he cracked down on the mafia as a federal prosecutor. “There are some Italian restaurants I couldn’t get a reservation at,” he said. “I didn’t sue them.”
After Mr. Noren was turned away, Judge Frank reiterated that the injunction meant tickets presented at the time of the event must be honored. Mr. Noren has since been to five shows at MSG venues, including two Phish concerts last month at Madison Square Garden.
On its face, the civil rights law that has allowed him to do so wouldn’t seem to exist to protect people with law degrees, who are generally not a protected class. But when Mr. Noren’s colleague, Joseph Polito, pulled the law’s legislative history, he discovered it was created specifically to protect critics of entertainment barons.
In the early 1900s, New York theater owners had a habit of barring reviewers who had panned their shows. Alexander Woollcott, a drama critic for The New York Times, sued the theater owner Lee Shubert in 1916 for barring him from the theater, saying the ban violated the critic’s livelihood, but Mr. Woollcott lost in court, setting a precedent for the practice to continue.
In the late 1930s, Leonard Lyons, a columnist for the New York Post, was barred from “30-odd theaters,” he said in a column, because he had written nasty things about the Shubert family, including a story about the theater owners charging a playwright $7 to hang curtains in his dressing room, which the playwright spitefully paid in pennies.
Mr. Lyons, who had a law degree himself according to his son Jeffrey, consulted an A.C.L.U. lawyer, Morris Ernst, who informed him that “the Woollcott decision was binding,” as he later wrote in his column, The Lyons Den. “The law’s against you,” Mr. Ernst said, “unless you change the law.”
And so Mr. Ernst drafted a law guaranteeing anyone over the age of 21 admittance to “legitimate theaters, burlesque theaters, music halls, opera houses, concert halls and circuses,” with exceptions for abusive or offensive behavior, and he and Mr. Lyons persuaded a state representative from Manhattan to push it forward. It was signed into law in April 1941 despite Lee Shubert sending a letter to the governor objecting that it was a “one man” bill, intended to protect Mr. Lyons’s ability “to find some additional material which can form the basis of further attacks on Messrs. Shubert.”
One primary sporting venue of that era, racetracks, was excepted from the law, which is why Mr. Noren and his colleagues have been unable to argue their way back into Knicks and Rangers games.
Although Mr. Noren is thankful for a state-protected right to see jam bands, he suggested that legislative action should be taken to prevent the use of facial recognition technology to settle petty grievances. “I’m certainly one of the first victims of this,” he said. “What’s to prevent, you know, a store from doing this to anyone? The application is chilling.”
Mr. Noren is concerned, he said, that when he now goes to events at MSG’s venues, his face is still tracked and his behavior closely monitored.
Woodrow Hartzog, a law professor at Boston University, predicts that as more cases pop up involving businesses face-scanning their customers, people will play “Whac-a-Mole,” searching among old laws for protection. Professor Hartzog said facial recognition technology should be banned, because though it could be used in beneficial ways, to spot security threats, for example, it would also, inevitably, be used in objectionable ways.
“A habitual bad fan can be spotted almost instantaneously,” he said. “But in every world where that’s true, it is also true that those in power can utilize facial recognition to spot anyone that criticizes them or anyone that they don’t like, and so that power can be used indiscriminately against all of us.”
Alan Greenberg is a fan of Jerry Seinfeld. He is also, through his firm Greenberg Law P.C., representing a fan who sued Madison Square Garden after being assaulted at a Rangers game. That meant it could be tricky for him to attend a Seinfeld show at the Beacon Theater, which is owned by MSG Entertainment. He sued, so had a preliminary injunction in hand when he attended the show — but he also grew a beard to try to evade facial recognition.
Lawyers may not be the most sympathetic victims and their need to be entertained may not be the most compelling of causes. But their plight, Mr. Greenberg said, should raise alarms about how the use of this technology could spread. Businesses, for instance, might turn people away based on their political ideology, comments they’d made online or whom they work for.
“Lawyers may not be the most favored class,” he said, “but it could be expanded to any other class of individuals.”