Curfews in Times of Protest: Are They Legal?

In times of extreme civil unrest, state and local governments can impose curfews to aid police in keeping things under control. With a curfew in place, police can simply arrest anyone who’s on the street after the designated time, without any other justification.

On the other hand, the First Amendment rights to free speech and free assembly generally give protestors the legal protection to voice their grievances in public. And governments typically can’t shut protests down just because they don’t like the message or it becomes difficult for law enforcement to manage the situation.

Here are some of the basics on protestors’ First Amendment rights and government officials’ power to use curfews to quell criminal activity that can occur during protests. (For related information, read about your rights when protesting.)

Why Curfews Are Used by Governments

During mass protests, it’s often the case that the overwhelming majority of protestors are peacefully demonstrating without breaking any laws. But sometimes there are people in the mix who aren’t being so peaceful.

When a large number of protestors are following the law and a small minority are causing trouble, it can become difficult for law enforcement to locate and arrest the few troublemakers. The large crowd can create a kind of buffer between police and the individuals who are breaking the law. The police might know that activities like vandalism and looting are going on, but the mass of the crowd can prevent them from being able to do much about it.

In anticipation of these situations, government officials might decide that a curfew is necessary to restore order. A curfew is designed to eliminate the needle-in-a-haystack issue—police can just arrest anyone who’s out on the street. And, in theory, the more people who obey the curfew, the less likely it is that violence or destruction will happen in the first place.

Curfews and Inequality

As shown by the mass demonstrations after the killing of George Floyd, many protests arise from the government’s unequal treatment of its people. Protests are often in response to issues like systematic racism and police brutality.

A curfew gives police more power and discretion in deciding whom to arrest, creating the potential for even more unequal treatment. In effect, a police officer who sees a crowd of people violating a curfew can pick and choose whom to arrest.

Many people believe giving police this kind of unfettered discretion only exacerbates existing inequality issues. In other words, if abuse of police power is the problem, giving the police more power isn’t the solution.

The Law on Curfews

Generally, the courts have viewed curfews as a legitimate balance between rights to free speech and assembly and the needs of cities and local governments to maintain order and security.

Whenever the government orders a curfew, there’s at least the potential that it’ll interfere with First Amendment rights. After all, a curfew makes it illegal to engage in speech and assembly at certain times of day. It even stops people who want to go about their normal activities in public—like grocery shopping—from doing so during the appointed time.

However, in times of emergency, the law gives the government quite a bit of leeway in taking measures that, under normal circumstances, wouldn’t fly. In deciding whether curfew is lawful, courts generally look to whether the curfew:

• is reasonably necessary (“narrowly tailored”) to achieve a significant government interest, and
• still allows people adequate means of exercising their free speech rights.

Perhaps unsurprisingly, courts have generally found that curfew restrictions in times of extreme civil unrest are permissible. If behavior like looting and violence have recently been happening to any significant extent, courts are likely to conclude that a curfew is a reasonable measure to restore order and security.

Also, given that protest curfews are normally limited to certain hours and locations, courts generally find that the interference with First Amendment rights isn’t significant enough to make the restriction unconstitutional.

But it’s important to remember that every situation is different. And the First Amendment rights at stake here are essential to a functioning democracy. So, courts aren’t necessarily going to side with the government in all cases.

And, critically, officers don’t have carte blanche to behave how they want just because they’re policing a protest. For example, officers can face discipline, lawsuits, and even criminal charges for violence toward protestors.

If Your Government Imposes a Curfew

Regardless of the theoretical potential of a successful court challenge to the restriction, anyone who goes out in violation of an active curfew runs the risk of being arrested. Even if an arrested protester later convinces a judge that the curfew was illegal, the protester will likely go to jail in the short term.