Concert to test whether U.S. is ready to rock again

Being first is often a good thing, but the opening this week of what could be the first major concert in the United States is turning into a fraught affair.

While the world’s big touring acts remain on hiatus or confined to sporadic online performances, Travis McCready, a country-rock singer, is set to take the stage Friday for an intimate acoustic live performance at a venue in Fort Smith, Arkansas.

The performance, though modest, is attracting outsized attention, not only because it’s testing whether people are ready to return in numbers to listen to live music but also because it is challenging the restrictions the governor put on such performances.

Gov. Asa Hutchinson has said indoor venues such as theaters, arenas and stadiums can reopen May 18 as long as they limit audiences to fewer than 50 people. The venue, Temple Live, a former Masonic temple, is saying the show will be held three days earlier, with more than four times that number of fans allowed in — 229 in the 1,100-seat theater.

Promoters have emphasized that masks will be mandatory and social distancing enforced, and they have questioned whether it is discriminatory for the government to have set more lenient restrictions on church gatherings than on concert venues.

“The directive is discriminatory because the virus does not know if it’s in a body in church or high school or a music venue,” Mike Brown, a representative for Temple Live, said in an interview. “Not that I have anything against church, but if you can go to a church and it’s a public assembly, there is no difference. How is it OK for one group to have a public meeting and it’s not OK for a music venue to have the same opportunity?”

The governor, however, is not backing down.

In an emailed statement from his office Thursday, Hutchinson said: “As advertised, this concert does not comply with our Department of Health directives for indoor entertainment venues,” he said. “I appreciate the venue owners’ working to enforce social distancing and the wearing of masks to protect the concertgoers, but the concert remains outside of the state’s pandemic directive.”

Brown said the event was conceived before the governor’s recent announcement, in anticipation that the rules would be relaxed, and that he had been blindsided by the lingering limitations but was still working to negotiate with state officials.

Under the state government’s directive, churches are required to maintain 6 feet between worshippers, but there is no ceiling on how many people may attend a service.

The mayor of Fort Smith, George B. McGill, said the city would support the state’s policy for reopening concerts because the governor’s approach had so far worked well and because he didn’t want to set back the progress the city had made in combating the coronavirus. The county has had less than two dozen cases and no deaths from the virus.

“My hope is that everybody cools off, and let’s be ’60s cool for a minute and work together,” the mayor said in an interview, and at the end there will be “a win-win for all involved.”

He did not say what that

“win-win” might be, though he wondered whether McCready might be prepared to return at a slightly later date.

Some legal experts said Temple Live could face a struggle in the courts if it tried to test its discrimination claim legally, especially if all concert venues were being treated the same way. Whitfield Hyman, a civil rights and criminal defense attorney in Fort Smith, said a commercial business like a music venue is typically given less constitutional protection than a religious gathering in terms of speech.

“I imagine that the courts will find similarly in a case about the right to assemble,” Hyman said. “A person probably has more legal rights to have an assembly at a home or a church than a business.”

Asked what action it could take if the show were to proceed, the governor’s office said it did not want to speculate. “The Department of Health directive,” it said in a statement, “does have authority to legally restrict gatherings that are not in compliance, but the governor remains confident that the issue will be resolved before such action becomes necessary.”