The Constitutionality of Curfew Laws

November 19, 2009

On Monday the town of Emmitsburg, Pennsylvania approved a curfew law, which prohibits kids under 18 from “being on any public place or establishment, or in a motor vehicle, during curfew hours from 11 p.m. through 6 a.m. unless covered by exemptions.”  Read this article in the Gettysburg Times for more details.

As a lawyer and a big fan of the Constitution, these curfew laws strike me as unfair and illegal. As the father of an 8 year old, though, I sometimes secretly wish my town had one, too. Every Wednesday night, my daughter and I are forced to walk through a crowd of sullen, skateboarding teenagers hanging out in the parking lot of our local pizza place and looking (to me, anyway) like they’re up to no good.  My suspicions are aroused because our little hamlet has an increasing reputation as a center of teenage heroin use, but I can see nothing illegal going on.

So, do these little miscreants have Constitutional rights like everyone else in this country? Well, it turns out they do.  The Supreme Court has upheld the constitutional rights of young people in a number of contexts. See  Tinker v. Des Moines School District, a case from 1969 which upheld students’ rights to protest the Vietnam War under the First Amendment right to Free Speech.  In Planned Parenthood Of Missouri v. Danforth, Justice Harry Blackmun wrote the following: ” Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority.” This case involved the “parental consent” provision of a Missouri abortion law.

The Supreme Court has only addressed the constitutionality of curfew laws once, back in 1943. That case, Kiyoshi Hirabayashi v. United States, involved the wartime curfew imposed upon Japanese Americans during World War II. The court allowed the curfew because it was “during a time of war.” In 1998, the Court refused to hear a challenge to a Charlottesville, Virginia curfew law. Here’s a good article on that case.

Based on the 1998 Charlottesville case, it seems that the Supreme Court will permit curfews which contain liberal exceptions, with the most important being a kid’s right to exercise his or her First Amendment rights. So, the Emmitsburg statute allows an exception if  “The juvenile is out after curfew hours while exercising first amendment rights, such as that covered by Constitutional freedom of speech, religion or right of assembly.”

Unless the Supreme Court directly addresses the constitutionality of curfews, it’s not clear whether kids can be forced to obey them. What is clear, though, is that any kid in Emmitsburg is now allowed outside, at any time of the day or night, so long as he’s carrying a sign protesting the curfew law.

I don’t think this is what the  town council envisioned.

For more information on curfew laws, read this post by Rich Jahn at

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