Hodgkins, Nancy v. Peterson, Bart

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4115
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.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP-01-1032-C T/K—John Daniel Tinder, Judge.
____________
ARGUED MAY 31, 2002—DECIDED JANUARY 22, 2004
____________
2 No. 01-4115
Before HARLINGTON WOOD, JR., COFFEY, and ROVNER,
Circuit Judges.
ROVNER, Circuit Judge. A parent and her minor children
challenged Indiana’s curfew law (Ind. Code §§ 31-37-3-2 and
31-37-3-3.5 (“curfew law”)) claiming that the law violates
the First Amendment rights of minors and impinges on the
substantive due process rights of parents to raise and
control the upbringing of their children. The district court
denied the plaintiffs’ motion for a preliminary injunction,
holding that the curfew law—which contains an affirmative
defense for minors arrested while participating in, going to,
or returning from an activity protected under the First
Amendment to the United States Constitution— did not
threaten to curtail the First Amendment rights of juveniles
and did not impede the due process rights of parents to
direct their children’s upbringing without undue interfer-
ence from the government. Even with the affirmative
defense, however, the new curfew leaves minors on their
way to or from protected First Amendment activity vulnera-
ble to arrest and thus creates a chill that unconstitutionally
imposes on their First Amendment rights. Consequently, we
reverse the decision of the district court.
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
1
The facts described in this paragraph are those that gave rise
to the Hodgkins’ first challenge to the Indiana Curfew law. See
Hodgkins v. Goldsmith, No. IP99-1528-C-T/G, 2000 WL 892964,
at *3-7 (S.D. Ind. July 3, 2000). Following this challenge, the stat-
ute was revised and the Hodgkins challenged the new statute. Al-
(continued...)
No. 01-4115 3
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 inter-
viewed Colin, asking him various personal questions about
his friends and family including whether his family at-
tended church. Two and a half hours later, at 1:30 a.m., a
member of the Marion County Sheriff’s Department went
to the Hodgkins residence to inform Nancy Hodgkins that
her son had been arrested and had to be picked up at the
local high school. When she arrived to pick up her son, a
community volunteer interviewed her and asked her
personal questions about the Hodgkins family.
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;
1
(...continued)
though the facts that follow are those that gave rise to the initial
lawsuit and are not those of the case before us today, they are
included in order to give context and background to the current
dispute.
4 No. 01-4115
(2) after 11 p.m. on Sunday, Monday, Tuesday, Wednes-
day, or Thursday; or
(3) before 5 a.m. on Monday, Tuesday, Wednesday,
Thursday, or Friday.
Ind. Code 31-37-3-2. A second statute made it unlawful for
any child under the age of fifteen to be in any public place
after 11 p.m. or before 5 a.m. on any day. Ind. Code 31-37-3-
3. Violations of the latter provision constituted a delinquent
act (Ind. Code 31-37-2-5) and could subject a parent to
criminal liability. Ind. Code 31-37-2-5 (making it a crime to
knowingly or intentionally encourage, aid, induce, or cause
a person under eighteen years of age to commit an act of
delinquency). A third statute in force at the time of Colin’s
arrest exempted from application of the curfew statute any
child who was:
(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.
Ind. Code 31-37-3-1(repealed). Together, these statutes
formed what we will call Indiana’s prior curfew law.
Pursuant to a challenge by Colin, his mother, and a cer-
tified 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
No. 01-4115 5
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 Ind. Code 31-37-3-1 (the statute listing
exceptions to the curfew rule), kept the remainder of the
statute intact and enacted a new Ind. Code 31-37-3-3.5
which, rather than creating an exception for First Amend-
ment activity, created an affirmative defense for those
engaged in protected expressive activity:
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:
2
After the district court declared the initial state curfew law
unconstitutional, the City of Indianapolis enacted a curfew or-
dinance which Ms. Hodgkins challenged in a separate action solely
on a due process claim. Hodgkins v. Peterson, No. IP-00-1410-C-
T/G, 2000 WL 33128726 (S.D. Ind. 2000). After a denial of a
preliminary injunction, Hodgkins appealed. The appeals of both
matters were dismissed when the State of Indiana passed the new
curfew law at issue in the present appeal. Hodgkins v. Peterson,
Nos. 00-2919, 01-1093 (7th Cir. May 24, 2001).
6 No. 01-4115
(A) lawful employment;
(B) a school sanctioned activity;
(C) a religious event;
(D) an emergency involving the protection of a per-
son 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 assem-
bly; or
(F) an activity conducted by a nonprofit or govern-
mental 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 constitu-
tional 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 in-
volved 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
No. 01-4115 7
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.
Furthermore, Ms. Hodgkins wishes to assert her rights as
a parent to measure out more privileges and responsibilities
to her children as they mature and grow more capable of
acting responsibly with additional freedom. She believes
that it is part of a parent’s job to prepare a child for adult-
hood by doling out greater freedoms, including the freedom
to remain out past curfew without being accompanied by an
adult. She seeks a preliminary injunction against defen-
dants Bart Peterson, in his official capacity as Mayor of the
City of Indianapolis, Jack Cottey, in his official capacity as
Sheriff of Marion County, and Scott Newman, in his official
capacity as Prosecutor of Marion County, barring them from
enforcing the new juvenile curfew law. The State of Indiana
has intervened as a matter of right pursuant to 28 U.S.C. §
8 No. 01-4115
2403(b) to defend the constitutionality of the law.3 Together,
the defendants claim that the curfew law is constitutional
and serves the compelling governmental interest in lower-
ing the incidence of drug and alcohol use by youth, decreas-
ing crime committed by and against minors, fostering
parental involvement in children’s conduct, and empower-
ing parents who wish to set limits on their children’s
nighttime 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
3
We refer to the State and local defendants together as “the de-
fendants” or “the government.”
4
Although Colin, who was born on August 6, 1983, is no longer
under the age of eighteen and thus subject to the limitations of
the curfew law, it is well established that “[a] properly certified
class has a legal status separate from and independent of the in-
terests asserted by the named plaintiff.” Whitlock v. Johnson, 153
F.3d 380, 383-84 (7th Cir. 1998). “[W]here a class has been
properly certified, the mootness of the named plaintiff ’s individual
claim does not render the class action moot.” Id. Because another
named plaintiff, Caroline, remains an appropriate class represen-
tative, the Class A claim may continue without the substitution
of a new named representative for Colin. See id.
No. 01-4115 9
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 tai-
lored to serve the government’s significant interests and
that it left open ample alternative channels of communica-
tion. 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
error, and its legal conclusions de novo. Jones v. Infocure
Corp., 310 F.3d 529, 534 (7th Cir. 2002). Ordinarily, to
succeed on a motion for a preliminary injunction, the party
seeking the injunction must make an initial showing (1)
that her case has a likelihood of success on the merits; (2)
no adequate remedy at law exists; and (3) she will suffer
irreparable harm if the injunction is not granted. FoodCom
Int’l. v. Barry, 328 F.3d 300, 303 (7th Cir. 2003). In this
case, the only issue in play is the first—that is, whether the
plaintiffs have adequately shown that they are likely to
succeed on the merits of their claim. The district court
below found, and the government defendants do not dis-
pute, that the plaintiffs had successfully established all of
the other elements required for a preliminary injunction.
Hodgkins II, 175 F. Supp. 2d at 1139.
As the Second Circuit recently has noted, juvenile curfew
10 No. 01-4115
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, No. 01-7118, 2003 WL
22989226, at *1 (2d Cir. June 2, 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 (1969). It is oft said that those rights are not co-
extensive 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
(1986); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260,
266, 108 S. Ct. 562, 567 (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
No. 01-4115 11
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 key
question in this case and will be discussed at length below.
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 intru-
sive 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 (1987); Steffel v. Thompson, 415 U.S. 452,
462, 94 S. Ct. 1209, 1217 (1974); Babbitt v. United Farm
12 No. 01-4115
Workers Nat’l Union, 442 U.S. 289, 298, 99 S. Ct. 2301,
2309 (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 doc-
trine. 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 (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 (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 (1984). In short, “[t]he First Amend-
ment doctrine of overbreadth is an exception to our normal
rule regarding the standards for facial challenges.” Virginia
v. Hicks, ___ U.S. ___, ___, 123 S. Ct. 2191, 2196 (2003). The
plaintiffs in this case assert their legitimate intention to
engage in the protected expression themselves and there-
fore, 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. 2d at 1133.
No. 01-4115 13
Nevertheless, the plaintiffs may launch a facial attack on
their own behalf if the statute creates an unacceptable risk
of suppression of ideas. Joseph H. Munson Co., 467 U.S. at
965, n.13, 104 S. Ct. at 2851, n.13. The distinction in this
context is merely an academic one, for in either case the
plaintiffs may seek to strike down the ordinance on its face.
See Nunez, 114 F.3d at 949 (citing Waters, 711 F. Supp. at
1133-34).
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 inciden-
tal 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 (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 (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 principal. 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 stan-
dards (citing Barnes v. Glen Theatre, Inc., 501 U.S. 560,
566, 111 S. Ct. 2456, 2460 (1991) (plurality opinion))). They
are tests that apply an intermediate level of scrutiny to
14 No. 01-4115
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. Acara v. Cloud Books, Inc., 478 U.S.
697, 703-04, 106 S. Ct. 3172, 3175-76 (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 935, 950
(finding that the San Diego ordinance did not dispropor-
tionally burden First Amendment rights). On the other
5
Other courts that have reviewed curfew laws challenged on
Equal Protection grounds and the right to travel or to free move-
ment have struggled to decide whether minors’ constitutional
rights should be subject to strict scrutiny, intermediate scrutiny,
or an amalgam of both. See Ramos, 2003 WL 22989226, at *5-6
(including discussion of the various methodologies courts have
chosen to incorporate the status of minors into the Equal Protec-
tion framework). We find it unnecessary to reach any conclusion
regarding the level of scrutiny minors should receive in Equal
Protection cases, as the minor plaintiffs in this case challenge the
statute on First Amendment grounds only. As we will discuss
further, under this type of First Amendment challenge to a
content neutral statute, a level of intermediate scrutiny an-
nounced in O’Brien and Ward applies.
No. 01-4115 15
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, 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 meetings or nighttime events.
Hodgkins I, 2000 WL 892964, at *10. 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 Shavuot
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 sleep-
ins 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. Thus, during the last
weeks of the 1960 presidential campaign, then-Senator
John F. Kennedy addressed a group of University of
Michigan students at 2:00 a.m. on the steps of the Michigan
Union. In unprepared remarks, he asked the students
whether they would be willing to devote a few years of their
lives working in underdeveloped countries in order to foster
better relations between the people of those nations and the
United States. The students responded with a petition
calling for the creation of the Peace Corps, which came into
being the following year. 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.
Despite this extensive regulation, the State of Indiana
argues that the curfew law is a general regulation of con-
duct and not a regulation of expressive conduct. The State
16 No. 01-4115
likens this case to Acara, 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 Acara
concluded that the regulation did not impose a dispropor-
tionate 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 regu-
lated 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 Acara 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, 3177, n.3 (citing Marsh v.
Alabama, 326 U.S. 501, 66 S. Ct. 276 (1946) (prosecution
under trespass law against persons distributing religious
literature); Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct.
900 (1940) (prosecution under breach of peace law against
persons distributing religious literature)). It is easy to see
how the Acara 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 related to the
expressive conduct at issue. Being out in public is a neces-
sary precursor to almost all public forums for speech,
expression, and political activity. See Nunez, 114 F.3d at
No. 01-4115 17
950. Its relationship to expressive conduct is intimate and
profound.
Similarly, the recent Supreme Court decision in
Hicks, ___ U.S. at ___, 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 term “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 constitu-
tionally 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, ___ U.S. at ___, 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
18 No. 01-4115
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, 2003 WL
21257959, at *10 (town has legitimate interest in protecting
minors from harm at night and protecting the general
population from nighttime juvenile crime); Nunez, 114 F.3d
at 945-46 (government has a compelling interest in protect-
ing the community from juvenile crime and in protecting
the safety and welfare of its minors); Qutb v. Strauss, 11
F.3d 488, 492 (5th Cir. 1993) (city has a compelling interest
in reducing juvenile crime and victimization and promoting
No. 01-4115 19
juvenile safety and well-being), cert. denied, 511 U.S. 1127,
114 S. Ct. 2134 (1994).
The question remains, however, whether the nexus be-
tween the curfew law and those significant governmental
interests is close enough to pass constitutional muster.
Whether we call it “narrowly tailored” or “no more burden-
some 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 restric-
tive 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 affirma-
tive defense for First Amendment activity was added,
however, the district court concluded that the defense suf-
ficiently 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
20 No. 01-4115
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 (1979) (emphasis ours).
Under Indiana law, “[r]easonable suspicion exists where the
facts known to the officer, together with the reasonable
inferences arising from such facts, would cause an ordi-
narily prudent person to believe that criminal activity has
or is about to occur.” Baldwin v. Reagan, 715 N.E.2d 332,
337 (Ind. 1999) (emphasis ours). Once a police officer
discovers sufficient facts to establish probable cause, she
has no constitutional obligation to conduct any further
investigation in the hope of discovering exculpatory evi-
dence. Eversole v. Steele, 59 F.3d 710, 718 (7th Cir. 1995);
see also Humphrey v. Staszak, 148 F.3d 719, 724 (7th Cir.
1998) (validity of affirmative defense is irrelevant to
whether or not police officer sued for false arrest had
No. 01-4115 21
probable cause to make arrest); Hodgkins II, 175 F. Supp.
2d at 1146 (collecting cases). A police officer may not ignore
conclusively established evidence of the existence of an
affirmative defense, Estate of Deitrich v. Burrows, 167 F.3d
1007, 1012 (6th Cir. 1999), but the officer has no duty to
investigate the validity of any defense. Baker v. McCollan,
443 U.S. 137, 145-46, 99 S. Ct. 2689, 2695 (1979). In fact,
both the defendants in this case and the court below, ruling
in their favor, conceded that a police officer need not
investigate an individual’s claim of an affirmative defense
to determine facts unknown to the officer. See Hodgkins II,
175 F. Supp. 2d at 1147. A legislature can draft a curfew
law which specifies that a law enforcement official must
look into whether an affirmative defense applies before
making an arrest. See Hutchins v. District of Columbia, 188
F.3d 531, 535 (D.C. Cir. 1999) (en banc) (noting that before
police officer may detain juvenile for violation of District of
Columbia’s curfew ordinance, officer must “reasonably
believe . . . that an offense has occurred under the curfew
law and that no defense exists”) (emphasis ours); Qutb, 11
F.3d at 490-91 (noting that Dallas curfew ordinance
requires police officer to inquire into minor’s reasons for
being in public place during curfew hours and permits
officer to issue citation or make arrest “only if the officer
reasonably believes that the person has violated the
ordinance and that no defenses apply”) (emphasis ours).
The Indiana Legislature did not impose that requirement.
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 de-
fenses do not compel the officer to look beyond what he al-
ready knows in order to decide whether one of the affirma-
tive defenses applies. Hodgkins II, 175 F. Supp. 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
22 No. 01-4115
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 first-hand knowl-
edge 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.
Hodgkins II, 175 F. Supp. at 1148. Any juvenile who
chooses to participate in a late-night religious or political
activity thus runs the risk that he will be arrested if a
police officer stops him en route to or from that activity and
he cannot prove to the officer’s satisfaction that he is out
after hours in order to exercise his First Amendment rights.
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 as-
No. 01-4115 23
suming that police routinely monitor such events, they
would have no reason to suspect that any particular juve-
nile taking part in one of these events is doing so unaccom-
panied 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 respon-
sible 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 accompa-
nied 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 exam-
ple, 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
24 No. 01-4115
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 contempla-
tion. 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 were and are
held in the middle of the night to protest the homophobia
that motivated his killers. Thus, to the extent that the
curfew prevents a minor from being outside of the home
during curfew hours, it does not mean simply that she must
shift the exercise of her First Amendment rights to non-
curfew hours or to the telephone or internet; it means that
she must surrender her right to participate in late-night ac-
tivities whose context and message are tied to the late hour
and the public forum. There is no internet connection, no
telephone call, no television coverage that can compare to
attending a political rally in person, praying in the sanctu-
ary of one’s choice side-by-side with other worshipers,
feeling the energy of the crowd as a victorious political
candidate announces his plans for the new administration,
holding hands with other mourners at a candlelight vigil, or
standing in front of the seat of state government as a
legislative session winds its way into the night. “The First
Amendment mandates that we presume that speakers, not
the government, know best both what they want to say
and how to say it,” Riley v. Nat’l Fed’n of the Blind of N.C.,
Inc., 487 U.S. 781, 790-91, 108 S. Ct. 2667, 2674 (1988),
No. 01-4115 25
and, we add, when to say it. And although an adequate
alternative for expression does not have to be the speaker’s
best or first choice, it must provide the speaker with suf-
ficiently adequate alternatives. Weinberg v. City of Chicago,
310 F.3d 1029, 1041 (7th Cir. 2002), cert. denied, 124 S. Ct.
78 (2003).
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 satis-
faction of a judge that she was exercising her First Amend-
ment 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
26 No. 01-4115
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 Amend-
ment rights is patent.
The only way that a minor can avoid this risk is to find a
parent or another adult designated by his parent to accom-
pany him. See Ind. Code. § 31-37-3-3.5(b)(1), (2).6 But that
alternative itself burdens a minor’s expressive rights:
adults may be reluctant or unable to accompany the minor
to a late-night activity; a seventeen-year-old attending
college away from home may be unable to recruit a parent
or designated adult; and the minor himself may decide that
participation is not worth the bother if he must bring a
parent or other adult along with him. To condition the
exercise of First Amendment rights on the willingness of an
adult to chaperone is to curtail them. Am. Amusement
Mach. Ass’n, 244 F.3d at 578. Furthermore, “alternative
channels of communication must be more than merely
theoretically available. They must be realistic as well.”
Gresham v. Peterson, 225 F.3d 899, 906 (7th Cir. 2000).
In sum, we hold that the curfew law, even with the new
6
Like participation in activity protected by the First
Amendment, being out past curfew with a parent or other
designated adult is an affirmative defense to a curfew violation,
rather than an exception from the prohibition. Ind. Code. § 31-37-
3-3.5(b)(1), (2). But the risk of arrest in that situation is obviously
slight, for an officer who sees the minor in the company of an
adult would typically have no reason to believe that the affirma-
tive defense does not apply.
No. 01-4115 27
affirmative defenses for First Amendment activity, is not
narrowly tailored to serve a significant governmental inter-
est 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, ___ U.S. at ___, 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 appropri-
ately found unconstitutional.7 Hodgkins I, 2000 WL 892964,
7
The defendants ask this Court to revisit the question of whether
a First Amendment affirmative defense is necessary at all. Our
conclusion in this case should put that issue to rest. We note, as
Judge Tinder did when considering the original version of the
curfew statute, that 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. See, e.g., Ramos, 2003 WL 22989226, at *1 (petition for
rehearing pending); Hutchins, 188 F.3d at 535 (although called an
affirmative defense, the ordinance explicitly required that before
making an arrest, a police officer must determine that no valid
defenses existed. Logically, then, although labeled a “defense,” the
requirement was really an element of the offense); Qutb, 11 F.3d
(continued...)
28 No. 01-4115
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 the statute places on the exercise of First
Amendment rights by minors. Although this case is before
us on the appeal of a denial of a motion for preliminary
injunction, given the manner in which the parties and
district court agree that the affirmative defenses will
operate, the constitutional defect in this case is clear. There
is no need for further proceedings on this matter and
judicial efficiency will best be served with an instruction to
the district court to permanently enjoin the enforcement of
the curfew law.
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 pro-
cess claim is that parents have a right to make decisions
about their children’s upbringing without undue interfer-
ence 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 accompani-
ment by parent unduly interferes with parental decision-
making). In this case, the exceptions covering a broad
7
(...continued)
at 490-91 (same); Schleifer v. City of Charlottsville, 159 F.3d 843,
846 (4th Cir. 1998), cert. denied, 526 U.S. 1018 (1999); Bykofsy v.
Borough of Middletown, 401 F. Supp. 1242, 1247 (M.D. Pa. 1975),
aff ’d 535 F.2d 1245 (3d Cir. 1976), cert. denied, 429 U.S. 964
(1976). The Indiana law is no exception.
No. 01-4115 29
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 con-
vinced 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.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-22-04