Curfews are government policies that order certain persons — or all persons — to be off the streets by a certain time, usually in the evening, and to remain off the streets until the curfew is lifted, usually in the morning.

Curfews were imposed on racial minorities

During the Jim Crow era and occasionally during the civil rights movement of the 1950s and 1960s, governments in the South imposed curfews on African Americans. And on the West Coast during World War II, Gen. John L. Dewitt of the Western Defense Command imposed them on Japanese Americans. Such policies, aside from being racially discriminatory, are viewed as odious to those who seek to preserve the freedoms and ideals of the First Amendment.

Most curfew laws target juveniles

In the United States, governments legitimately may impose limited curfews only during times of dire emergency.

Most litigation over curfews, however, concerns policies targeted at juveniles. Cities and states have enacted juvenile curfews to address juvenile crime or to protect the safety and well-being of youths. Some juvenile curfew laws have existed since the nineteenth century. President Benjamin Harrison referred to them as “the most important municipal regulation for the protection of the children of American homes, from the vices of the street” (Harvard Law Review 2005: 2402).

Courts say curfews must have exception for First Amendment-protected activities

Many times, juveniles and their parents challenge restrictive curfew policies, alleging violations of due process, equal protection, and the First Amendment.

In Nunuz v. City of San Diego (1997), the Ninth U.S. Circuit Court of Appeals ruled that to survive judicial scrutiny, a curfew law generally must contain an exception for minors who are engaged in First Amendment–protected activities, such as political events, death penalty protests, or religious services.

The lower courts have been divided over the constitutionality of curfews, even in the face of a First Amendment defense.

In Hodgkins v. Peterson (2004), the Seventh U.S. Circuit Court of Appeals struck down Indiana’s curfew law although the law provided minors an affirmative defense if they were participating in activity protected by the First Amendment. The court reasoned that the defense did not save the ordinance because it “does not significantly reduce the chance that a minor might be arrested for exercising his First Amendment rights.”

Many courts will, however, uphold curfew ordinances if they provide for a First Amendment defense, whether specifically for the right of assembly or the free exercise of religion or for expressive activities in general.

The D.C. Circuit Court of Appeals, in Hutchins v. District of Columbia (1999), upheld a curfew from a challenge that the law’s First Amendment exception was too vague. The appeals court reasoned that the ordinance’s First Amendment defense was “no more vague than the First Amendment itself.”

Earlier, the Fourth Circuit Court of Appeals had upheld a city curfew for juveniles in Schleifer v. City of Charlottesville (1998): “We decline to punish the City for its laudable effort to respect the First Amendment. A broad exception from the curfew for such activities fortifies, rather than weakens, First Amendment values.”

Supreme Court has yet to examine juvenile curfew laws

Confusion on this issue in the lower courts likely will continue until the Supreme Court examines the constitutionality of a juvenile curfew law.

In Bykofsky v. Middleton (1976), the Court denied certiorari. Justice Thurgood Marshall dissented, writing that the Court should take the case to examine whether “the due process rights of juveniles are entitled to lesser protection than that of adults.”

David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics.  He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018).  He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2009.‚Äč

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