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First Amendment – Overbreadth – Juvenile Curfew

Hodgkins v. Peterson, 355 F.3d 1048 (7th Cir. 2004)


In order not to offend the First Amendment, a statute that regulates the time, place, and manner of expression must be (1) content neutral, (2) narrowly tailored to serve a significant governmental interest, and (3) allow for ample alternative channels for the expression. Ward, 491 U.S. at 791, 109 S. Ct. at 2753. The O’Brien standard for content neutral regulations which incidentally impact expression requires: (1) that the regulation is within the constitutional power of the government; (2) that it furthers an important or substantial governmental interest; (3) the governmental interest must be unrelated to the suppression of free expression (in other words, content neutral); and (4) the incidental restriction on alleged First Amendment freedoms must be no greater than is essential to the furtherance of that interest….

Indiana juvenile curfew statute held to be overbroad despite allowing “defense” for various protected activities — “because the defense imposes no duty of investigation on the arresting officer, as a practical matter it protects only those minors whom the officer has actually seen participating in protected activity.”

Granted, Indiana’s curfew does not forbid minors from exercising their First Amendment rights during curfew hours, but it does forcefully discourage the exercise of those rights. The First Amendment defense will shield a minor from conviction, assuming that she can prove to the satisfaction of a judge that she was exercising her First Amendment rights, but, as discussed, 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. Hodgkins II, 175 F. Supp. 2d at 1148. The prospect of an arrest is intimidating in and of itself; but one should also have in mind what else might follow from the arrest….

The Wisconsin supreme court upheld a juvenile curfew ordinance against overbreadth challenge, in Milwaukee v. K.F., 145 Wis. 2d 24, 426 N.W.2d 329 (1988). The ordinance made it unlawful for anyone under the age of 17 to “congregate, loiter,” etc., in “public places” between 11 pm and 5 am unless accompanied by parent, guardian, etc. No provision was made for defense on basis of protected activity. The result is probably not reconcilable with Hodgkins. See also State v. J.P, FL. SCt. No. SC02-2288 (overturning local Florida juvenile curfew ordinances).


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