Three Colorado Springs business owners launched a lawsuit Thursday, alleging Colorado’s COVID-19 restrictions violate the First Amendment of the U.S. Constitution, guaranteeing the right to peaceably assemble.

Black Forest Bistro, Mobile Veterinarian Guy and BodyCast Band filed the lawsuit against Gov. Jared Polis and Jill Ryan, the executive director of the Colorado Department of Health and Environment.

The lawsuit also claims the state’s COVID-19 restrictions have not treated all businesses equally, targeting restaurants and bars.

Currently, Colorado Springs and El Paso County fall under the state’s Level Red response level, the second most restrictive level triggered by the highest rates of new COVID-19 cases and positivity percentages.

Under Level Red, indoor dining in restaurants is banned, bars are closed, gyms are limited to 10% capacity and retail services are limited to 50% capacity.

“Many small businesses have closed indefinitely or permanently as a result of restrictions by the Governor and CDPHE attempting to slow the spread of COVID-19,” the lawsuit release said.

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“We have an extremely well intentioned and smart governor who is doing his best … We are confident that Governor Polis, when he sees the lawsuit, will seriously take into account all Coloradans’ first amendment right to assemble, and that he will expedite allowing small businesses to reopen.”

The lawsuit points to the state’s rising unemployment rates and COVID-19 cases despite the increased regulations.

In Colorado, one in 40 people are currently contagious with the coronavirus, according to the CDPHE.

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In addition to reopening small businesses, the lawsuit asks the federal government for injunctive relief to expedite the reopenings and prevent further financial damage.

COVID-19 lawsuits arguing freedom of speech and freedom to assemble have failed in recent months, according to the Free Speech Center at Middle Tennessee State University. 

In September, an Illinois court of appeals struck down an attempt to allow political assemblies in violation of the governor’s ban of public gatherings. In October, a Minnesota case failed that argued not wearing face coverings was protected by freedom of expression.

The governor’s office declined to comment on the pending lawsuit.