Curfews on minors violate First Amendment

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A curfew on minors impermissibly chills the exercise of their First Amendment rights and is unconstitutional, the Seventh Circuit held on Jan. 22.

In Indiana in 1999, shortly after 11 p.m., Colin Hodgkins and three friends left a restaurant after stopping to eat there after a school soccer game. As they left the restaurant, they were arrested for violating Indiana’s curfew regulation.

They were given breathalyzers and required to submit to urine tests for drugs, both of which were negative. After the tests, a community volunteer interviewed Colin, asking him personal questions about his friends and family, including whether his family attended church.

Two and a half hours later, at 1:30 a.m., a sheriff’s deputy went to the Hodgkins residence to inform Nancy Hodgkins that her son had been arrested and had to be picked up at the local high school. When she arrived to pick up her son, she also was questioned by a community volunteer about her family.

In response to the arrest, the Hodgkins family challenged the constitutionality of the state curfew.

At the time of the arrest, the curfew provided for exemptions under certain circumstances, but the district court held it unconstitutional, because it did not contain any exemption for protected First Amendment activity.

The defendants appealed, and while the appeal was pending, the State of Indiana amended the curfew to provide an affirmative defense for those engaged in, or on their way to or from, a protected First Amendment activity.

The plaintiffs, unconvinced that the new affirmative defense cured the deficiency, moved to enjoin enforcement of the new curfew law, asserting that the defense offered no real protection for minors involved in First Amendment activity.

The plaintiffs also asserted that the law violated the Fourteenth Amendment by unlawfully denying parents the autonomy to allow their children to be in public places unaccompanied during curfew hours.

The district court denied the injunction, but the Seventh Circuit reversed in a decision by Judge Ilana D. Rovner, and ordered that the injunction be granted, and that it be permanent.

First Amendment

The court concluded that, notwithstanding the affirmative defense for First Amendment activities, the curfew impermissibly chills the exercise of those rights.

The court noted, “a wide range of First Amendment activities occur during curfew hours, including political events, death penalty protests, late night sessions of the Indiana General Assembly, and neighborhood association meetings or nighttime events. … And it is not unusual for political campaigns, particularly in the whirlwind final hours before an election, to hold rallies in the middle of the night.”

The court rejected the defendants’ argument that the curfew law is a general regulation of conduct and not a regulation of expressive conduct, stating, “the government regulation of nonspeech (the nocturnal activity of minors) is intimately related to the expressive conduct at issue. Being out in public is a necessary precursor to almost all public forums for speech, expression, and political activity. Its relationship to expressive conduct is intimate and profound (citation omitted).”

Unreasonable Restriction

Applying the test of U.S. v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673 (1968), the court acknowledged that the State has an important and substantial interest in providing for the safety and well-being of children and combating juvenile crime. However, the court concluded that the curfew was unreasonably restrictive in furthering that interest.

The court noted that, in some instances, the affirmative defense would protect a minor from arrest, suc
h as if the minor was participating in a protest at the Governor’s residence or leaving a Midnight Mass. The court quoted the district court, “In those cases, the officer would have knowledge of facts and circumstances which would conclusively establish the First Amendment activity affirmative defense; the officer would not have to conduct any investigation into the defense as it would be readily apparent that the children were engaging in protected activity (cite omitted).”

Nevertheless, the court found that the affirmative defense would not shield most minors from arrest. Because a police officer has probable cause to arrest when the facts within his knowledge are sufficient to believe that a crime is being committed, and an officer has no duty to conduct further investigation in the hope of discovering a defense, the curfew would burden any minor who is not patently involved in protected activity.

The court cited curfews that have been upheld in other jurisdictions, but which place the burden on the officer to determine that no defense exists.

Distinguishing those cases, the court observed, “a police officer who actually sees a sixteen-year-old leaving a late-night religious service or political rally could not properly arrest the youth for staying out past curfew. But, … the statute’s affirmative defenses do not compel the officer to look beyond what he already knows in order to decide whether one of the affirmative defenses applies. Thus, if a police officer stops a seventeen-year-old on the road at 1:00 a.m., and the teen informs the officer that she is returning home from a midnight political rally, the officer need not take the teen at her word nor attempt to ascertain whether she is telling the truth. Lacking first-hand knowledge that the juvenile indeed has been participating in First Amendment activity, the officer is free to arrest her and leave assessment of the First Amendment or any other affirmative defense for a judicial officer.”

The court also found that the latter situation is the more likely one to occur, stating, “if an unaccompanied minor comes to the attention of the police at all, it is much more likely that he will do so while traveling the relatively deserted public way to or from the late-night First Amendment activity, not in the midst of the activity itself.”

No Adequate Alternative

The court rejected the defendants’ argument that, because the curfew leaves open protected activity during ample non-curfew hours, it leaves open adequate alternative channels of communication.

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The court stated, “In some instances, the late hour of the activity may be dictated by necessity,” concluding, “to the extent that the curfew prevents a minor from being outside of the home during curfew hours, it does not mean simply that she must shift the exercise of her First Amendment rights to noncurfew hours or to the telephone or internet; it means that she must surrender her right to participate in late-night activities whose context and message are tied to the late hour and the public forum.

There is no internet connection, no telephone call, no television coverage that can compare to attending a political rally in person, praying in the sanctuary of one’s choice side-by-side with other worshipers, feeling the energy of the crowd as a victorious political candidate announces his plans for the new administration, holding hands with other mourners at a candlelight vigil, or standing in front of the seat of state government as a legislative session winds its way into the night.”

The court added, “The First Amendment defense will shield a minor from conviction, … but, … it will not shield her from arrest if the officer who stops her has not actually seen her participating in a religious service, political rally, or other First Amendment event,” noting the extensive burdens placed on Hodgkins and his mother after the arrest.

Accordingly, the court reversed, and remanded the case with instructions to issue the requested injunction and make it permanent, finding no need for further proceedings.

Finding the curfew unconstitutional on First Amendment grounds, the court declined to decide whether it also vi
olates parents’ Fourteenth Amendment rights.

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David Ziemer can be reached by email.