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Because Freedom Can't Protect Itself |
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ACLU American Civil Liberties Union of Idaho P.O. Box 1897, Boise, ID 83701 phone (208) 344-9750 fax (208) 344-7201
TO: Anna Eckhart, Deputy City Attorney FROM: Marty Durand, Legislative Counsel DATE: May 12, 2004 RE: Proposed Ordinance No. 3170, Amending Juvenile Curfew Introduction Thank you for allowing us to submit our comments concerning Proposed Ordinance No. 3170 prior to its consideration by the City Council. The American Civil Liberties Union of Idaho is dedicated to protecting the civil liberties of Idahoans, including the right to travel, free speech, religious freedom and privacy. We have active legal, legislative and educational programs in Idaho and approximately 1,700 current members and supporters. We are affiliated with the national ACLU. Permanent Blanket Curfews in General The American Civil Liberties Union of Idaho opposes any blanket curfew, whether against an entire population or solely against juveniles, as repugnant to fundamental rights. “Freedom of movement is the very essence of our free society, setting us apart. Like the right of assembly and the right of association, it often makes all other rights meaningful – knowing, studying, arguing, exploring, conversing, observing and even thinking. Once the right to travel is curtailed, all other rights suffer.” Aptheker v. Secretary of State, 378 U.S. 500, 520, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964) (Douglas, J., concurring). Many cities in the United States have enacted local ordinances making it illegal for juveniles to be outdoors during specified hours, a trend that increased markedly during the early 1990's. Proponents of juvenile curfews believe that they reduce youth crime, protect juveniles from victimization, and help parents assert control over difficult children. The ACLU believes that there is no evidence that curfews provide any of the promised benefits and that, even if there were, the benefits are outweighed by the curfew's infringements on liberty. The United States Supreme Court has never ruled on the legality of juvenile curfews, and lower courts are divided on their constitutionality. The Idaho Supreme Court has never addressed juvenile curfews. The right to move about is not enumerated in the constitution, but a right to travel and movement has been recognized as arising as a corollary of the First, Fourth, Fifth, Ninth, or Fourteenth Amendments. As the Supreme Court said when striking down a vagrancy statute, the right to walk, stroll, loiter, and loaf as one pleases is "historically part of the amenities of life as we have known them," and denial of this right would result in communities marked by "hushed, suffocating silence." Papachristou v. City of Jacksonville, 405 U.S. 156, 164 (1972). A permanent, non-emergency curfew would therefore violate the constitutional freedom of adults, even if it were shown that the curfew reduced adult crime or prevented victimization of vulnerable adults. Courts have differed over whether the right applies with equal force to juveniles. Even if a law permissibly regulates some area of wrongful conduct, it will be struck down as overbroad if it is so sweeping that it impinges upon a real and substantial amount of constitutionally protected activity. Courts have relied upon the overbreadth doctrine to invalidate juvenile curfews that fail to allow necessary exceptions for participating in activities protected by the First Amendment, such as attending after-hours meetings or rallies. In response to overbreadth concerns, most curfew ordinances that have survived judicial scrutiny include exceptions for various situations. The most typical exceptions allow minors to be outdoors in the presence of an adult escort; while engaged in activity protected by the federal constitution such as First Amendment expression or interstate travel; while commuting to and from work or an activity sponsored by a school, church, or other adult community group; in response to emergency or necessity; or on streets immediately surrounding the home. The ACLU believes that juvenile curfews are overbroad in another sense, namely that they require all minors to remain indoors against their will, based on evidence that some subset of minors have in the past violated the law or were victimized while outdoors at night. The Coeur d’Alene Ordinance Violates the First Amendment Rights of Juveniles The proposed ordinance provides, in part: 9.44.030: EXCEPTIONS The provisions of this Chapter shall not apply in cases where the minor is: (a) Accompanied by the minor’s parent or guardian; (b) On an errand at the direction of the minor’s parent or guardian, without any unauthorized detour, delay or stop; (c) In a motor vehicle involved in interstate travel; (d) Engaged in an employment activity, or going to or returning home from an employment activity, without any unauthorized detour, delay or stop; (e) Involved in an emergency; (f) Attending an official school, religious, recreational, or other activity supervised by adults and sponsored by the City of Coeur d’Alene, a civic organization, or another similar entity that takes responsibility for the minor, or going to or returning home from such activity, without any unauthorized detour, delay or stop; OR (g) Exercising First Amendment rights protected by the United States Constitution, such as the right of free exercise of religion, freedom of speech, and the right of assembly, or going to or returning from such activity, without any unauthorized detour, delay, or stop. The minor shall submit a written bona fide statement to the Coeur d’Alene Police Department prior to the close of the business day preceding the day the minor plans on exercising his/her First Amendment rights. Such statement shall specify when, where, and in what manner the minor intends to exercise such right, and the statement shall be signed and dated by the minor and the minor’s parent or guardian with their home address and telephone number. (Emphasis added). Subsection (g) attempts to protect First Amendment activity in its first sentence, but goes on to effectively eviscerate the First Amendment in the last two sentences which require juveniles to register with the police before engaging in First Amendment activities during curfew hours. In every reported federal case which has upheld curfew laws against various constitutional challenges the curfew has contained a broad exemption for First Amendment activities. Hutchins v. District of Columbia, 188 F.3d 531 (D.C.Cir.1999); Qutb v. Strauss, 11 F.3d 488 (5th Cir. 1993); Schleifer v. City of Charlottsville, 159 F.3d 843 (4th cir.1998), cert.denied, 526 U.S. 1018 (1999); Bykofsy v. Borough of Middletown, 401 F.Supp. 1242 (M.D.Pa.1975), aff’d 535 F.2d 1245 (3d Cir.1976), cert.denied, 429 U.S. 964 (1976). The Seventh Circuit recognized the need for a broad exemption, stating: “ … 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 meeting or nighttime events. A number of religions mark particular days or events with late-night services, prayers, or other activities: many Christians, for example, commemorate the birth of Christ with a midnight service on Christmas Eve and the Last Supper with an all-night vigil on Holy Thursday; Jews observe the first night of Shavout by studying Torah all through the night; and throughout the month of Ramadan, Muslims engage in late-evening prayer. Late-night or all-night marches, rallies and sleepins are often held to protest government action or inaction. 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. … These are but a few examples. The curfew ordinance regulates access to almost every form of public expression during the late night hours. The effect on the speech of the plaintiffs is significant.” Hodgkins v. Peterson, 355 F.3d 1048, 7th Cir.(Ind.), Jan 22, 2004 The Coeur d’Alene ordinance requires that a juvenile register with the police before engaging in First Amendment activity during curfew hours. This registration requirement cannot withstand constitutional scrutiny. The requirement creates both an impermissible “prior restraint” on free speech and has an impermissible “chilling effect” on free speech. It also violates family privacy and places an undue burden on the free exercise of religion. The proposed ordinance requires juveniles to notify police at least one business day in advance if they wish to participate in political protest or religious worship without adult supervision during curfew hours. Does this mean that a juvenile must register by 5:00 p.m. on Friday if he wishes to attend an unsupervised early morning religious service on Sunday … or Monday? What about holidays? What if a juvenile wishes to stop by a church or gather with other youths to offer informal, unsupervised prayers early in the morning or late at night on a regular basis? Must the juvenile register every day to avoid violating the ordinance? What if a juvenile stops during curfew hours to pay her respects at a temporary memorial honoring classmates recently and tragically killed in an accident? Is the juvenile violating the law if she does not provide the police at least one day’s notice of her intent to engage in unexpected mourning? The registration requirement is unreasonable as it criminalizes innocent behavior and prohibits spontaneous expression. During curfew hours, youth cannot speak and their voice cannot be heard -- unless, of course, the juvenile and his parents surrender other constitutionally protected rights and register with the police. The ordinance, in essence, requires juveniles and their families to abandon some constitutionally protected rights (privacy and anonymity) in order to exercise other constitutionally protected rights (free speech and religious worship). The United States Supreme Court has long recognized that minors have the same fundamental right of expression as adults. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969). “Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights.” Planned Parenthood v. Danforth, 428 U. S. 52, 74, 96 S. Ct. 2831, 49 L. Ed. 2d 788 (1976). The Supreme Court has made it clear, however, that children’s rights are not coextensive with those of adults. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986). Concluding that minors have First Amendment rights worthy of protection the Seventh Circuit Court of Appeals noted:
The strength of our democracy depends on a citizenry that knows and understands its freedoms, exercises them responsibly, and guards them vigilantly. Young adults, as Judge Tinder pointed out, are not suddenly granted the full panoply of constitutional right on the day they attain the age of majority. We not only permit but expect youths to exercise those liberties – to learn to think for themselves, to give voice to their opinions, to hear and evaluate competing points of view – so that they might attain the right to vote at age eighteen with the tools to exercise that right. Am. Amusement Mach. Assoc v. Kendrick, 244 F.3d 572, 577 (7th Cir.2001). A juvenile’s ability to worship, associate, and speak freely is therefore not simply a privilege that benefits her as an individual, but a necessary means of allowing her to become a fully enfranchised member of a democratic society. Hodgkins v. Peterson, 355 F.3d 1048, 7th Cir.(Ind.), Jan 22, 2004.
Ordinances that infringe upon fundamental rights are given strict scrutiny. Nunez v. City of San Diego, 114 F.3d 935, 945 (9th Cir. 1997). Any limitation on fundamental rights must be narrowly tailored to serve a compelling government interest. Imposing a curfew must be shown to be a meaningful step towards solving a real, not fanciful problem. In the First Amendment context, the government “must do more than simply ‘posit the existence of the disease sought to be cured.’ It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.” Turner Broad Sys., Inc., v. FCC, 512 U.S. 622, 664 (1994). Juveniles are not required to register with the police before engaging in other activities exempted from the ordinance such as going to or from work, attending a sponsored event or running an errand for a parent. The registration requirement creates a burden on the exercise of First Amendment rights as it applies only to First Amendment activity. Prior Restraint In the context of speech, the term “prior restraint” describes orders forbidding certain communications that are issued before the communications occur. See e.g., Near v. Minnesota ex rel. Olson, 283 U.S. 697. According to the United States Supreme Court, prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights. A prior restraint has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication "chills" speech, prior restraint "freezes" it at least for the time. Nebraska Press Assn. v. Stuart, 427 US 539 (1976). Any prior restraint on expression carries a "heavy presumption" against its constitutional validity. Carroll v. Princess Anne, 393 U.S. 175, 181 (1968); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). Exception to the prior restraint rule are narrowly limited, and carefully circumscribed, and are permitted only when the infringement is minimal and there is a compelling governmental interest which cannot be protected by any other means. “First amendment rights constitute the heart of our system of democratic government. The danger that exceptions to the ‘prior restraint’ rule pose to our democracy are all too obvious. Any ‘prior restraint,’ therefore must be held unconstitutional, unless no other choice exists.” Rosen v. Port of Portland, 641 F.2d 1243, 1250 (9th Cir.1980). The United States Supreme Court specifically held that a prior restraint in the form of a registration requirement for labor organizers was unconstitutional Thomas v. Collins, 323 U.S. 516, 520 (1944). The proposed Coeur d’Alene ordinance places an impermissible prior restraint on the First Amendment activities of juveniles and would not likely withstand constitutional scrutiny. Chilling Effect The Coeur d’Alene proposed ordinance restrains juveniles from exercising their First Amendment rights in public during curfew hours unless they are first registered with the police. Failure to register could result in criminal prosecution. The ordinance creates an impermissible “chill” on the First Amendment activities of juveniles. The registration requirement is so burdensome and intrusive that many juveniles will be discouraged from participating in expressive activity during curfew hours. The Supreme Court has often noted that a realistic threat of arrest is enough to chill First Amendment rights. City of Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502 (1987); Steffel v. Thompson, 415 U.S. 452, 462, 94 S.Ct. 1209 (1974); Babbit v. Untied Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct. 2301 (1979). The Ninth Circuit has found advance notice requirements to be unconstitutional as they chill protected speech: “The simple knowledge that one must inform the government of his desire to speak and must fill out appropriate forms and comply with applicable regulations discourages citizens from speaking freely. … By requiring advance notice, the government outlaws spontaneous expression. Immediate speech can no longer respond to immediate issues. The quantity of effective speech is limited. … Where spontaneity is part of the message, dissemination delayed is dissemination denied.” N.A.A.C.P., Western Region v. City of Richmond, 743 F.2d 1346, 1356 (1984).
The United States Supreme Court, holding that persons desiring to exercise their free speech right may not be required to give advance notice, stated: “If the exercise of the rights of free speech and free assembly cannot be made a crime, we do not think this can be accomplished by the device of requiring previous registration as a condition for exercising them and making such a condition the foundation for restraining in advance their exercise and for imposing a penalty for violating such a restraining order. So long as no more is involved than exercise of free speech and free assembly, it is immune to such a restriction. If one who solicits support for the cause of labor may be required to register as a condition to the exercise of his right to make a public speech, so may he who seeks to rally support for any social, business, religious or political cause. We think a requirement that one must register before he undertakes to make a public speech to enlist support for a lawful movement is quite incompatible with the requirements of the First Amendment.” Thomas v. Collins, 323 U.S. 516, 520 (1944). The Ninth Circuit, in striking an ordinance requiring advance notice of First Amendment activities at the Portland airport, found advance registration requirements to be unconstitutional, stating: Advance notice or registration requirements drastically burden free speech. They stifle spontaneous expression. They prevent speech that is intended to deal with immediate issues. In addition, the ordinance before us requires every person who wishes to exercise his or her free speech rights to make a trip to the airport at least one business day in advance; it requires the person to obtain a copy of the regulations and fill out the requisite forms with the Port before the advance notice deadline. The overall effect of the advance notice requirement is seriously to discourage "political, religious, social (and) economic" speech. Rosen v. Port of Portland, 641 F.2d 1243, 1250 (9th Cir.1980). The Ordinance Violates the Privacy of Families The ordinance requires that juveniles register with the police by providing a signed statement including a parent’s signature, home address and telephone number. The juvenile must identify his name, his parent, his home and his political, religious or expressive purpose. This requirement violates privacy and destroys anonymity. Anonymous political speech has long been protected by the First Amendment. In Talley v. California, 362 U.S. 60 (1960), the United States Supreme Court stated the basic rule of law that is applicable here. In that case, the Court invalidated an ordinance that prohibited the distribution of pamphlets unless they contained the names of the persons who prepared, distributed, and sponsored them. The Court held that the identification requirement of the ordinance imposed unjustified burdens on the right of free expression and violated the First Amendment, stating: There can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression .... Anonymous pamphlets have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all. Id at 64. The specific reason which the Court stated for holding the ordinance unconstitutional was "identification and the fear of reprisal might deter perfectly peaceful discussions of public matters of importance.” Id. at 65. The same is true here, requiring juveniles and a parent to identify themselves to the police prior to exercising their First Amendment rights may deter them from participating in any public protest, discussion or religious worship during curfew hours. The anonymity of juveniles and their families cannot be the price that must be paid to lawfully engage in First Amendment activity. Identification requirements impose heavy burdens on the exercise of First Amendment rights. In striking the Portland airport regulation, the Ninth Circuit said: “The right of those expressing political, religious, social or economic views to maintain their anonymity is historic, fundamental, and all too often necessary. The advocacy of unpopular causes may lead to reprisals not only by government, buy by employers, colleagues, or society in general. While many who express their views may be willing to accept these consequences, others not so brave or not so free to do so will be discouraged from engaging in public advocacy. … The “chilling effect” is compounded when registration forms identifying individuals with unpopular causes become governmental records …” Rosen at 1251. The proposed ordinance is disturbing in that it would require law enforcement to compile records related to the First Amendment activities of individuals. The ordinance would require juveniles and their families to disclose their political views as well as their religious practices by providing the required statement. This information is private and should not be collected and retained by law enforcement. What legitimate purpose can this serve? The political views and religious practices of any individual, juvenile or adult, simply are not the police’s business. Furthermore, the ordinance is silent concerning what the Coeur d’Alene Police Department is to do with the required statements. Must they maintain the required statements in a file, available for inspection by any law enforcement officer? Are the statements public records, subject to disclosure to any third party who seeks them? The ordinance does not protect personal privacy and should be rejected as an unnecessary intrusion into the personal lives Coeur d’Alene’s families. The Ordinance Does Not Protect Religious Freedom Guaranteed by Idaho Law Idaho law protects the free exercise of religion. Idaho Code § 73-402. The proposed ordinance substantially burdens the ability of juveniles to publicly engage in religious practice during curfew hours. Unsupervised worship in a public place during curfew hours is a religious practice forbidden to juveniles who have not duly registered with the police. It is doubtful that this prohibition would pass the strict scrutiny test specified in the statute. Conclusion While we appreciate the City of Coeur d’Alene’s interest in protecting public safety, we oppose any juvenile curfew ordinance as repugnant to fundamental rights. Courts that have upheld juvenile curfews recognize that a broad exception must allow juveniles to exercise their First Amendment rights. The proposed Coeur d’Alene ordinance does not protect the First Amendment rights of juveniles, or their families. The registration requirement unduly chills protected speech and completely fails to protect anonymous political speech. The registration requirement also unnecessarily violates the privacy of juveniles and their families. Unfortunately, in its current form, the ordinance does not protect constitutional rights, but violates them.
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