First Amendment Implications of Curfews During Black Lives Matter Protests

By: Elizabeth Ernest, Staff Member, Vol. 19

Since last May, protests have taken place across the country in response to police brutality against Black Americans. In response, many cities implemented city-wide curfews. In Raleigh, North Carolina, Mayor Mary-Ann Baldwin implemented a preventive curfew in anticipation of the response to the shooting of Jacob Blake. Although Baldwin said that she wanted to “provide a ‘safe environment for those who want to protest peacefully, while still protecting our downtown residents and businesses from the threat of harm[,]’” many have raised concerns that such blanket curfews impinge on protestors’ First Amendment rights to free speech and assembly. Los Angeles Mayor Eric Garcetti also implemented citywide curfews, which have been challenged on multiple grounds, including the First Amendment.

Using curfews as riot control minimizes confusion by providing a bright-line rule that is easy for both police and civilians to follow: no one may be out on the streets. Yet, while other antiriot measures can only be lawfully used against those who commit a crime, curfews give police the authority to target individuals who are otherwise behaving lawfully. This can include individuals attempting to peacefully exercise their First Amendment rights.

Although First Amendment rights of free speech and free assembly are fundamental, they are not absolute. In certain circumstances, the importance of other interests such as public safety may allow the government to impinge on these rights. For example, cities may prohibit protests in the street because they block traffic. However, governments may not prohibit protests in traditional venues for speech and may not discriminate against protestors based on their message.

Overview of Constitutional Analysis

Laws that restrict speech are most often subject to either intermediate or strict scrutiny. Content-based speech restrictions are subject to strict scrutiny. In order to pass strict scrutiny, a law must be narrowly tailored to serve a compelling government interest. Content-neutral restrictions, which restrict all expression equally regardless of topic or message, must pass a form of intermediate scrutiny. This test, laid out in United States v. O’Brien, requires that the restriction serve a substantial government interest, unrelated to restricting free expression, and that there are sufficient alternative channels of expression remaining.

Citywide curfews appear facially content-neutral because they apply to everyone equally – no one may be out on the streets, whether to attend a protest, no matter a person’s viewpoint, or go to the store. Cases such as Dakota Rural Action v. Noem have established that preventing riots is not only a substantial government interest, but a compelling one with the goal of maintaining public safety. Therefore, if a curfew implemented as a riot control measure is a content-neutral restriction, whether it is constitutional likely depends on whether the court finds that it leaves sufficient alternative methods of communication available.

Curfews as Content-Based Restrictions

Some laws must be scrutinized more strictly as content-based restrictions, because whether they prohibit certain speech turns on the communicative impact of that speech. For example, in Terminiello v. Chicago, the City of Chicago prohibited speech “which ‘stirs the public to anger . . . or creates a disturbance . . . .’” Applying this law required a judgment that certain speech was more likely to trigger an angry response. The petitioner’s criticism of certain groups – in other words, his speech’s content – was what made the speech likely to create a disturbance. Such a content-based restriction was unconstitutional.

It is therefore necessary to determine whether a curfew is truly indifferent to the content of the expression it prohibits. Curfews implemented in response to police brutality and in anticipation of the public reaction, such as the curfew in Raleigh, appear to be aimed at a specific group of people spreading a specific message. In Terminiello, the law at issue was a content-based restriction because it required analyzing the content of the speech to determine whether it was likely to cause a hostile audience response. Similarly, implementing a curfew in anticipation of protests against police brutality involves a judgment that the content of protestors’ speech makes it likely to lead to violence. These curfews should therefore be analyzed as content-based restrictions. This would subject them to strict scrutiny.

Analogy to Juvenile Curfew Laws

Although there is very little precedent on the constitutionality of curfews, the majority of litigation in this area has dealt with juvenile curfew laws. Some courts have upheld juvenile curfews that have any exception for First Amendment activities, such as those at issue in Schleifer v. City of Charlottesville and Hutchins v. District of Columbia. More recently, the Seventh Circuit held that even a broad exception for First Amendment activities was insufficient to pass constitutional scrutiny if it did not require police to inquire whether a minor had a First Amendment reason for being out past curfew before arresting them. The court reasoned that the fear of being arrested would have an unconstitutional chilling effect on minors’ exercise of their First Amendment rights.

The circuit split on these laws hinges on whether to apply strict or intermediate scrutiny. Some circuits apply strict scrutiny “because fundamental rights such as speech and assembly are implicated . . . .” Courts that have applied only intermediate scrutiny have done so because of minors’ unique status under the constitution. Although minors have the same constitutional rights as adults, the government may exercise more control over their activities. This reasoning suggests that city-wide curfews targeting adult protestors should be subject to strict scrutiny.

Conclusion

The outcome of First Amendment challenges to this summer’s curfew laws will hinge on the level of scrutiny applied. Although not a perfect analogy, precedent addressing juvenile curfew laws indicates that strict scrutiny should be applied to any curfew that applies to adults and does not offer an exception for First Amendment activities. Additionally, under Terminiello, the curfews should be analyzed as content-based laws, which would require strict scrutiny. This would make it very difficult for the curfews to be upheld.