Nancy HODGKINS, Colin Hodgkins, and Caroline Hodgkins, by their next friend and natural parent Nancy HODGKINS, on their own behalf and on behalf of those similarly situated, Plaintiffs-Appellants, v. Bart PETERSON, Mayor, in his official capacity as mayor of the City of Indianapolis, Indiana, Jack L. Cottey, Sheriff, in his official capacity as Marion County Sheriff, and Scott Newman, in his official capacity as Marion County Prosecutor, Defendants-Appellees, and State of Indiana, Intervenor-Appellee.
No. 01-4115.
United States Court of Appeals, Seventh Circuit.
Argued May 31, 2002. Decided Jan. 22, 2004.
355 F.3d 1048
The order of the board is vacated and the matter returned to the board for further proceedings consistent with this opinion.
VACATED AND REMANDED.
Peggy D. Dallmann (argued), Office of the Corporation Counsel, Thomas M. Fisher (argued), Office of the Attorney General, Indianapolis, IN, for Defendants-Appellees.
Before HARLINGTON WOOD, Jr., COFFEY, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge.
A parent and her minor children challenged Indiana‘s curfew law (
I.
Shortly after 11:00 pm on August 26, 1999, Colin Hodgkins and his three friends left a Steak‘n Shake restaurant in Marion County, Indiana where they had stopped to eat after attending a school soccer game.1 As they left the restaurant, police arrested and handcuffed them for violating Indiana‘s curfew regulation. The police took Colin and his friends to a curfew sweep processing site where he was given a breathalyser test and escorted to a bathroom where he was required to submit a urine sample to be tested for drugs. Later, both tests were determined to be negative. After the tests, a community volunteer interviewed Colin, asking him various personal questions about his friends and family including whether his family attend-
Colin‘s arrest spurred a series of legal challenges to the constitutionality of the statute, followed by subsequent revisions to the curfew law and culminating in the statute challenged in the instant case. At the time of Colin‘s arrest, the Indiana statute set a curfew of 11 p.m. on weekday nights and 1 a.m. on weekend nights as described below:
Children fifteen through seventeen years of age
Sec. 2. It is a curfew violation for a child fifteen (15), sixteen (16), or seventeen (17) years of age to be in a public place:
(1) between 1 a.m. and 5 a.m. on Saturday or Sunday;
(2) after 11 p.m. on Sunday, Monday, Tuesday, Wednesday, or Thursday; or
(3) before 5 a.m. on Monday, Tuesday, Wednesday, Thursday, or Friday.
(1) accompanied by the child‘s parent, guardian, or custodian;
(2) accompanied by an adult specified by the child‘s parent, guardian or custodian; or
(3) participating in, going to, or returning from:
(A) lawful employment;
(B) a school sanctioned activity; or
(C) a religious event.
Pursuant to a challenge by Colin, his mother, and a certified class of minors similarly situated, the district court determined that the statutes were constitutionally flawed as they lacked any exceptions for First Amendment activity. Hodgkins v. Goldsmith, No. IP99-1528-C-T/G, 2000 WL 892964, at *18 (S.D.Ind. July 3, 2000) (”Hodgkins I“). Following this decision, the defendants appealed. While the appeal was pending, the Indiana General Assembly passed the current version of the curfew law, effective May 1, 2001, which is the subject of the instant appeal.2
Pursuant to Judge Tinder‘s holding that the prior curfew law was unconstitutional, the state legislature amended the statute to its current form. In doing so, the Indiana General Assembly repealed
31-37-3-3.5 Defenses
Sec. 3.5.
. . .
(b) It is a defense to a violation under this chapter that the child engaged in the prohibited conduct while:
(1) accompanied by the child‘s parent, guardian, or custodian;
(2) accompanied by an adult specified by the child‘s parent, guardian, or custodian;
(3) participating in, going to, or returning from:
(A) lawful employment;
(B) a school sanctioned activity;
(C) a religious event;
(D) an emergency involving the protection of a person or property from an imminent threat of serious bodily injury or substantial damage;
(E) an activity involving the exercise of the child‘s rights protected under the First Amendment to the United States Constitution or Article 1, Section 31 of the Constitution of the State of Indiana, or both, such as freedom of speech and the right of assembly; or
(F) an activity conducted by a nonprofit or governmental entity that provides recreation, education, training, or other care under the supervision of one (1) or more adults; or
(4) engaged in interstate or international travel from a location outside Indiana to another location outside Indiana.
The plaintiffs, unconvinced that the new affirmative defense for First Amendment activity cured the constitutional deficiency found by the district court in Hodgkins I, sought to preliminarily enjoin the enforcement of the new curfew law. Specifically, the plaintiffs asserted that the defense offered no real protection for minor plaintiffs involved in First Amendment activity who still might be vulnerable to arrest before they could assert a defense. The plaintiffs further maintained that the new curfew law violated the Fourteenth Amendment by unlawfully denying parents the autonomy to allow their children to be in public places unaccompanied during curfew hours.
Named plaintiff Nancy Hodgkins is a resident of Indianapolis, Indiana, and is the mother of named plaintiffs Colin and Caroline Hodgkins. Ms. Hodgkins would like to allow her children to participate in the activities protected by the curfew law‘s First Amendment exception, however, she is concerned that if they do so, they will be subject to arrest. Ms. Hodgkins recognizes that if one of her children is arrested while participating in a First Amendment activity she and the child could later use that activity as a defense to the charges. She is nevertheless concerned about the potential expense and time involved in launching such a defense, and, we surmise, she is wary of again placing herself in a position where she will be summoned by the police in the middle of the night to come to a curfew processing center or detention center and of placing her children in a position where they will be subject to arrest, a breathalyser test, urine test, and an intrusive interview. Ms. Hodgkins states that she will certainly consider the risk of arrest when deciding whether to allow her children to participate in First Amendment activities after curfew. Consequently, she asserts that the current statute chills her children‘s ability to engage in these types of activities.
The named plaintiffs seek to assert their constitutional claims not merely on their own behalf, but on behalf of the following two classes as well: Class A—all residents of Marion County, who are under the age of eighteen, and Class B—all parents and legal guardians of persons who are residents of Marion County and who are under the age of eighteen. The District Court certified both classes on August 31, 2001.4
Holding that the plaintiffs had failed to make a clear showing of a likelihood of success on the merits of either of their claims, the district court denied the plaintiffs’ motion for a preliminary injunction. Hodgkins v. Peterson, 175 F.Supp.2d 1132, 1151 (S.D.Ind.2001) (”Hodgkins II“). With respect to the First Amendment claim, the court found that the curfew law did not reach a substantial amount of protected conduct and found only an incidental burden on minors’ First Amendment rights. Id. at 1150. Furthermore, the court believed that the curfew law was narrowly tailored to serve the government‘s significant interests and that it left open ample alternative channels of communication. Id. at 1150-51. As for the Fourteenth Amendment claims, the district court held that parents do not have a fundamental right to allow minor children to be out in public with parental permission during the curfew hours (Id. at 1161) and, in any event, even if they did, that the curfew law could survive strict scrutiny as it was narrowly tailored to serve compelling governmental interests. Id. at 1166. The plaintiffs filed a timely appeal.
II.
In reviewing the district court‘s denial of a preliminary injunction, we review the court‘s findings of fact for clear
As the Second Circuit recently noted, juvenile curfew laws have existed throughout our nation‘s history, and state and local governmental attempts at enacting constitutional curfew statutes have met with varying degrees of success. See Ramos v. Town of Vernon, 353 F.3d 171, 172 (2d Cir.2003)(amended Dec. 19, 2003) (Equal Protection challenge to curfew law). In this case, the plaintiffs are concerned with two burdens that the Indianapolis curfew law imposes: the burden on the First Amendment rights of the youths themselves and the burden on the due process rights of the parents and legal guardians to direct their children‘s upbringing.
We must begin by exploring the baseline question: Do minors have a fundamental right to freedom of expression worthy of constitutional protection? The Supreme Court answered this question affirmatively in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511, 89 S.Ct. 733, 739, 21 L.Ed.2d 731 (1969). It is oft said that those rights are not coextensive with the rights of adults, at least in the context of the rights of students in public schools. Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682, 106 S.Ct. 3159, 3164, 92 L.Ed.2d 549 (1986); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266, 108 S.Ct. 562, 567, 98 L.Ed.2d 592 (1988). The question as to whether a minor‘s First Amendment rights are diluted outside of the school context is not as clear. Hazelwood, 484 U.S. at 266, 108 S.Ct. at 567 (noting that student speech which disrupts the educational environment need not be tolerated “even though the government could not censor similar speech outside the school“).
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 rights 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 democratic society. “People are unlikely to become well-functioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble.” Id. In short, minors have First Amendment rights worthy of protection. How we balance those rights against other legitimate governmental interests is, of course,
The Hodgkins maintain that the revisions to the curfew law have not cured the constitutional defect found in the previous version of the law which was struck down by the district court in Hodgkins I. The affirmative defenses added to the revised curfew law, they argue, do not adequately protect minors’ First Amendment rights, as the curfew law requires them to subject themselves to arrest—including the possibility of breathalyser tests, urine tests and intrusive questioning abut their family life—and then prove at a later time that the activity they were engaging in fell within the affirmative defense for First Amendment activity. They assert that the consequences of violating the curfew law are so burdensome and intrusive that, rather than risk arrest, they will be discouraged from participating in expressive activity during curfew hours. In other words, the plaintiffs claim that the curfew regulation creates a “chill” that imposes on their First Amendment rights. The Supreme Court has often noted that a realistic threat of arrest is enough to chill First Amendment rights. City of Houston, Texas v. Hill, 482 U.S. 451, 459, n. 7, 107 S.Ct. 2502, 2508, n. 7, 96 L.Ed.2d 398 (1987); Steffel v. Thompson, 415 U.S. 452, 462, 94 S.Ct. 1209, 1217, 39 L.Ed.2d 505 (1974); Babbitt v. United Farm Workers Nat‘l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2309, 60 L.Ed.2d 895 (1979) (“When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.“).
Most often in this context, plaintiffs launch First Amendment challenges pursuant to the overbreadth doctrine. The overbreadth doctrine allows an attack on the facial validity of a statute even though the conduct of the person attacking the statute could be regulated by a statute drawn with the requisite narrow specificity. Dombrowski v. Pfister, 380 U.S. 479, 486-87, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22 (1965). The theory behind the doctrine is that a “statute‘s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). “Facial challenges to overly broad statutes are allowed not primarily for the benefit of the litigant, but for the benefit of society—to prevent the statute from chilling the First Amendment rights of other parties not before the court.” Sec‘y of State of Md. v. Munson, 467 U.S. 947, 958, 104 S.Ct. 2839, 2847, 81 L.Ed.2d 786 (1984). In short, “[t]he First Amendment doctrine of overbreadth is an exception to our normal rule regarding the standards for facial challenges.” Virginia v. Hicks, 539 U.S. 113, 123, 123 S.Ct. 2191, 2196, 156 L.Ed.2d 148 (2003). The plaintiffs in this case assert their legitimate intention to engage in the protected expression themselves and therefore, as a technical matter, they need not really rely on the overbreadth doctrine to assert their facial challenge. See Nunez v. City of San Diego, 114 F.3d 935, 949 (9th Cir.1997); Waters v. Barry, 711 F.Supp. 1125, 1133-34 (D.D.C.1989). This is particularly so, where a plaintiff class has been certified which includes everyone who might be affected by the statute. Waters, 711 F.Supp. at 1133. Nevertheless, the plaintiffs may launch a facial attack on their own behalf if the statute creates an unacceptable risk of suppression of ideas. Munson, 467 U.S. at 965, n. 13. The distinction in this context is merely an academic one, for in either case the plaintiffs may seek to
Having determined that the statute is one that is eligible for facial attack, our next task is to decide through which of the many First Amendment lenses we will analyze the constitutionality of the curfew law. The plaintiffs do not maintain that the legislature‘s purpose in enacting the ordinance was to regulate the content of their expressive activity and indeed it seems clear that it was not. The curfew ordinance was enacted to regulate conduct (minors in public at night), but could be seen as having the incidental effect of burdening speech and is therefore subject to the four-prong analysis established in United States v. O‘Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). The statute in this case could also be described as a law that merely regulates the time, place, and manner of speech and thus subject to the analysis enunciated in Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). The approach we choose has no real effect on the outcome of the case, as the O‘Brien analysis and the Ward time, place and manner analysis are really just variations on the same principle. See Ben‘s Bar, Inc. v. Village of Somerset, 316 F.3d 702, 714 (7th Cir.2003) (noting that for all practical purposes, the distinction between the two tests is irrelevant and that the Supreme Court has held that the two tests embody the same standards (citing Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566, 111 S.Ct. 2456, 2460, 115 L.Ed.2d 504 (1991) (plurality opinion))). They are tests that apply an intermediate level of scrutiny to content neutral government regulations affecting speech.5
These intermediate scrutiny tests can be applied only to governmental regulation of conduct that has an expressive element or to regulations directed at activity with no expressive component but which nevertheless impose a disproportionate burden on those engaged in protected First Amendment activity. Arcara v. Cloud Books, Inc., 478 U.S. 697, 703-04, 106 S.Ct. 3172, 3175-76, 92 L.Ed.2d 568 (1986). The government claims that plaintiffs cannot mount a facial challenge to the curfew law under O‘Brien or Ward because they have not demonstrated either that the curfew law imposes a disproportionate burden on those engaged in First Amendment activities or that it regulates conduct with an expressive element.
We agree that the Indiana curfew ordinance does not disproportionately impact First Amendment rights. As Colin Hodgkins can attest, it burdens minors who want to attend soccer games as much as it burdens those who wish to speak at a political rally. See Nunez, 114 F.3d at 950 (finding that the San Diego ordinance did not disproportionally burden First Amendment rights). On the other hand, the curfew ordinance regulates minors’ abilities to engage in some of the purest and most protected forms of speech and expression. As Judge Tinder recognized,
Despite this extensive regulation, the State of Indiana argues that the curfew law is a general regulation of conduct and not a regulation of expressive conduct. The State likens this case to Arcara, 478 U.S. at 697, 106 S.Ct. at 3172, where a bookstore owner challenged the government closure of the store pursuant to a public health statute which allowed the state to close any business being used for prostitution or lewd conduct. The Supreme Court in Arcara concluded that the regulation did not impose a disproportionate burden on those engaged in First Amendment activity nor did it involve a government regulation of conduct that has an expressive conduct; after all, illegal sexual activity, the Court opined, “manifests absolutely no element of protected expression.” Id. at 705, 106 S.Ct. at 3176. Consequently, because the ordinance neither regulated conduct with an expressive element nor imposed a disproportionate burden on those engaged in protected First Amendment activity, it could not be subjected to the “least restrictive means” test of O‘Brien and the ordinance was upheld. The Arcara court, however, distinguished the case before it from prior Supreme Court cases where it found unconstitutional regulations in which the nonspeech subjected to the government regulation was intimately related to the expressive conduct protected under the First Amendment. Id. at 706, n. 3, 106 S.Ct. at 3177, n. 3 (citing Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946) (prosecution under trespass law against persons distributing religious literature); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940) (prosecution under breach of peace law against persons distributing religious literature)). It is easy to see how the Arcara court found that the conduct which the government sought to regulate in that case—various forms of illegal sexual activity—was unrelated to the protected First Amendment activity of selling books. In this case, however, the government regulation of nonspeech (the nocturnal activity of minors) is intimately relat-
Similarly, the recent Supreme Court decision in Hicks, 539 U.S. 113, 123 S.Ct. at 2191 cited by both defendants in supplemental authority submitted to this court is of no help on this front. The trespass law at issue in that case barred those with “no legitimate business or social purpose” from the streets of a public housing authority. Id. at 2195. The plaintiff‘s overbreadth challenge failed in that case because he could not demonstrate that the trespass policy would be applied to anyone engaged in protected First Amendment activity. Id. at 2198. The exemption for “legitimate business and social purposes,” the court surmised, could include constitutionally protected speech. Id. In this case, however we know that the ordinance applies to constitutionally protected speech. All parties agree that minors who are out walking to the Governor‘s residence to protest an early morning execution are subject to arrest (Hodgkins II, 175 F.Supp.2d at 1148) as are all other minors engaged in protected First Amendment activity during curfew hours. As the examples above demonstrate, the application of the law to protected speech in this case is substantial, even in relation to the scope of the law‘s plainly legitimate sweep. Hicks, 539 U.S. at 113, 123 S.Ct. at 2197. Consequently, the curfew law warrants review under the O‘Brien or Ward tests described above and applied below.
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. O‘Brien, 391 U.S. at 377, 88 S.Ct. at 1679. There is no dispute that the curfew law is content neutral and was within the power of the Indiana legislature to pass—knocking out the first prong of the Ward test and the first and third prongs of the O‘Brien test. The lynchpin questions in this case then are first, whether the curfew law furthers an important or substantial governmental interest and, second, whether the restrictions imposed by the curfew regulation are no greater than are essential to further that interest (Id. at 377, 88 S.Ct. at 1679) or in the words of the Ward court—whether the statute is narrowly tailored to serve a significant governmental interest (Ward, 491 U.S. at 791, 109 S.Ct. at 2753)—and second, whether the curfew law allows for ample alternative channels for expression. Id.
The district court found that the curfew law advanced the important governmental interest in providing for the safety and well-being of children and combating juvenile crime. Hodgkins II, 175 F.Supp.2d at 1150. Even the plaintiffs agree that the interests asserted by the government are legitimate (though they stop short of calling the interests substantial or important). And we agree that they are indeed important and substantial. See Ramos, 331 F.3d 315, 2003 WL 21257959, at *10 (town has legitimate interest in protecting minors
The question remains, however, whether the nexus between the curfew law and those significant governmental interests is close enough to pass constitutional muster. Whether we call it “narrowly tailored” or “no more burdensome than is essential” is of no moment. See Ward, 491 U.S. at 798, 109 S.Ct. at 2757 (“we have held that the O‘Brien test in the last analysis is little, if any, different from the standard applicable to time, place, or manner restrictions“). We look to see whether the curfew law is no more restrictive than necessary to further the governmental interest. The law does not require that the State of Indiana use the least restrictive means to meet its goal (that would, of course, be what we would require were we applying strict scrutiny. See id. at 798, 109 S.Ct. at 2757-58). Nor can the government slide through the test merely because another alternative would not be quite as good. Rodney A. Smolla, Smolla & Nimmer on Freedom of Speech § 9:17 (2003).
Under the “no more restrictive than necessary” standard, the “[g]overnment may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” Ward, 491 U.S. at 799, 109 S.Ct. at 2758 (citation omitted). The district court in Hodgkins I concluded that without the affirmative defense, the curfew ordinance indeed did burden speech more than was necessary to serve the state‘s legitimate interests. Hodgkins I, 2000 WL 892964, at *10-11. After the affirmative defense for First Amendment activity was added, however, the district court concluded that the defense sufficiently protected children‘s abilities to engage in protected communication during curfew hours. Hodgkins II, 175 F.Supp.2d at 1150-51. After all, the court noted,
an officer would not have probable cause to arrest children who appear to be under the age of 18 and who also appear to be participating in an early morning protest at the Governor‘s residence. Similarly, an officer would not have probable cause to arrest children apparently under the age of 18 attending Midnight Mass at the Cathedral. In those cases, the officer would have knowledge of facts and circumstances which would conclusively establish the First Amendment activity affirmative defense; the officer would not have to conduct any investigation into the defense as it would be readily apparent that the children were engaging in protected activity.
Hodgkins II, 175 F.Supp.2d at 1149.
But there is no reason to think that the minors whom the affirmative defense will shield from arrest represent most or even many of those who are at risk of being stopped by the police. A police officer has probable cause to arrest when “the facts and circumstances within the officer‘s knowledge . . . are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 2632, 61 L.Ed.2d 343 (1979) (emphasis ours). Under Indiana law, “[r]easonable suspicion exists where the facts known to the officer,
Thus, a police officer who actually sees a sixteen-year-old leaving a late-night religious service or political rally could not properly arrest the youth for staying out past curfew. But, as Judge Tinder held, the statute‘s affirmative defenses do not compel the officer to look beyond what he already knows in order to decide whether one of the affirmative defenses applies. Hodgkins II, 175 F.Supp.2d at 1148. Thus, if a police officer stops a seventeen-year-old on the road at 1:00 a.m., and the teen informs the officer that she is returning home from a midnight political rally, the officer need not take the teen at her word nor attempt to ascertain whether she is telling the truth. Lacking firsthand knowledge that the juvenile indeed has been participating in First Amendment activity, the officer is free to arrest her and leave assessment of the First Amendment or any other affirmative defense for a judicial officer. As Judge Tinder acknowledged:
To be sure, an officer observing a child who appears to be under the age of 18 out walking during curfew hours does not have to investigate the child‘s assertion that he is returning from or going to a religious or political activity. So, children who appear to be under the age of 18 who are out during curfew hours walking to the Governor‘s residence to protest an early morning execution might be arrested. This is because the officer might have to investigate whether the children are in fact walking to the Governor‘s residence to the protest, and the officer is not required to undertake such an investigation in determining probable cause.
Consequently, 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. This strikes us as a small subset of minors participating in late-night First Amendment activities, and therefore we conclude that the statute reaches a substantial amount of protected conduct. Most religious and political events occurring during curfew hours are organized and attended by adults, so even assuming that police routinely monitor such events, they would have no reason to suspect that any particular juvenile taking part in one of these events is doing so unaccompanied by a parent or other responsible adult. Only when the minor is observed by himself or solely in the company of other minors would a police officer have reason to believe that he is in public after hours unaccompanied by a responsible adult. Indeed, if an unaccompanied minor comes to the attention of the police at all, it is much more likely that he will do so while traveling the relatively deserted public way to or from the late-night First Amendment activity, not in the midst of the activity itself.
Furthermore, we think the district court took too narrow a view when determining that the curfew law left open adequate alternative channels of communication. Judge Tinder noted that minors could engage in protected activity during the ample non-curfew hours, during curfew hours under the shield of the affirmative defense, when accompanied by an authorized adult, or within the confines of their home by telephone or through the internet. No doubt many if not most of the participants would find it more convenient to exercise their First Amendment rights other than in the dead of night. It is by no means a coincidence, however, that so many of the expressive activities we illustrated above occur late in the evening. In some instances, the late hour of the activity may be dictated by necessity—as, for example, when citizens wish to observe or influence a legislative session that extends into the late hours, or a down-to-the-wire election postpones a celebration for the winning candidate until the wee hours of the morning. More often, however, the late hour is closely linked with the purpose and message of the activity. Take Back the Night marches and rallies frequently extend to and after midnight in order to protest the crimes that jeopardize the security of women at night. Executions of prisoners on death row often are carried out shortly after midnight or in the early hours of the day, and so are routinely attended by all-night vigils held by those for and against the death penalty. Kristallnacht (Night of Glass) is commemorated with late-night prayers and vigils because it was after midnight one evening sixty-five years ago when Nazi hooligans looted and destroyed Jewish businesses, homes, and synagogues in Germany. In the final days of Ramadan, mosques remain open all night so that Muslims may mark Lailat al-Qadr (Night of Power), the night when the prophet Mohammed first received revelations from the angel Jibra‘el (Gabriel), by holding vigil in prayer, Qur‘anic reading, and contemplation. And it was after midnight one evening in October 1998 when young Matthew Shepard was beaten, burned, and lashed to a fence, and left for dead outside of Laramie, Wyoming; and so it is that candlelight vigils
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. Recall that Colin Hodgkins was picked up in one of Marion County‘s curfew sweeps as he and his friends were leaving the Steak‘n Shake restaurant after enjoying a bite to eat on their way home from a soccer game. Upon arrival at the sweep processing site, and pursuant to standard curfew sweep procedures, Colin was required to undergo a breathalyser test (for alcohol use) as well as a urinalysis (for cocaine and marijuana use). He was then required to speak with a community volunteer, who asked him a series of questions from a form, including questions about his friends and family, and whether his family attended church. At 1:30 a.m.—two and a half hours after Colin was arrested—a deputy sheriff arrived at the Hodgkins residence and advised Colin‘s mother that she would have to come to the sweep processing site in order to pick him up. Once there, she too was questioned by a volunteer about Colin‘s family life. See Hodgkins I, 2000 WL 892964, at *3-4, *6. We have no doubt that the authorities are well meaning in administering the drug and alcohol testing and in questioning the minor and his parents about his friends and family life. But these are also rather serious intrusions upon one‘s personal and familial privacy, and they represent a substantial price for a minor to have to pay in order to take part in a late-night political or religious event. The chill that the prospect of arrest imposes on a minor‘s exercise of his or her First Amendment rights is patent.
In sum, we hold that the curfew law, even with the new affirmative defenses for First Amendment activity, is not narrowly tailored to serve a significant governmental interest and fails to allow for ample alternative channels for expression. The statute restricts a minor‘s access to any public forum during curfew hours, and the affirmative defense for participating in First Amendment activities does not significantly reduce the chance that a minor might be arrested for exercising his First Amendment rights. Under these circumstances, a facial challenge is both appropriate and necessary. As-applied review would require a minor to suffer arrest and the attendant consequences before a court would consider the constitutionality of the curfew; and neither a minor nor his parents should have to pay that penalty before mounting a challenge to the statute. See generally Hicks, 539 U.S. at 113, 123 S.Ct. at 2196. The concrete possibility of arrest at the same time makes clear that the statute unduly chills the exercise of a minor‘s First Amendment rights. In that respect, the current version of the statute fares no better than the prior version, which contained no provision at all for the exercise of a minor‘s First Amendment rights and which Judge Tinder appropriately found unconstitutional.7 Hodgkins I, 2000 WL 892964, at *27. Consequently, we reverse the judgment and remand with directions to enjoin the enforcement of Indiana‘s curfew until such time as the State‘s legislature removes the chill that
Although this disposition renders it unnecessary to reach the plaintiff parents’ due process claim, the nature of the curfew‘s affirmative defenses leads us to make one final observation about that claim. The premise of the due process claim is that parents have a right to make decisions about their children‘s upbringing without undue interference by the state. Courts sustaining curfew laws against this type of claim typically cite the laws’ exceptions and defenses as evidence that the laws interfere only minimally with parental authority. See Hutchins, 188 F.3d at 545; Schleifer, 159 F.3d at 853; Qutb, 11 F.3d at 495-96; Bykofsky, 401 F.Supp. at 1264; cf. Nunez, 114 F.3d at 952 (curfew statute with no exception other than for accompaniment by parent unduly interferes with parental decision-making). In this case, the exceptions covering a broad variety of circumstances do give parents greater flexibility to allow their children to stay out after hours and in that way minimize the interference with parental autonomy. But the affirmative defenses in the Indiana curfew statute present a risk that a minor will be arrested whenever the arresting officer lacks direct knowledge that the minor is on an emergency errand, coming from a school sanctioned activity, or engaging in some other activity encompassed by the specified defenses. For that reason, we are not convinced that the affirmative defenses actually do minimize the state‘s restraint on parental authority in a manner sufficient to overcome a constitutional attack. Nevertheless, we leave that determination for another day.
REVERSED AND REMANDED.