No. 27315 - Anna Sale, by and through her next friend and parents, June and
William Sale; Katelyn Genevieve Kimmons, by and through her next
friend and parent, Rebecca Kimmons; Carol Freas, M.D.; Lealah
Pollock, by and through her next friend and parent, Carol Freas; and the
American Civil Liberties Union of West Virginia v. Mayor Jay
Goldman, Mayor of the City of Charleston; Chief Jerry Riffe, the Chief
of Police for the City of Charleston; and the City of Charleston
Starcher, J., concurring:
After working for more than 20 years as a circuit judge, where I focused on
effectively responding to problems of juvenile abuse, victimization, crime, and delinquency,
I am confident that the curfew of which the majority opinion approves is not only
unconstitutional -- it is also simply ineffectual political posturing and pandering -- at the
expense of the civil rights of young people and their parents.
The urge to scapegoat and stigmatize someone, anyone -- for the larger shortcomings of our society, and especially how we treat our kids -- finds regular expression in our juvenile justice system, just as it does in our larger criminal justice system. Hence, youth curfews.
While I disagree with Judge King's ultimate conclusion, in the decision that we are reviewing, to uphold the Charleston curfew -- I appreciate very much the breadth and quality of Judge King's thoughtful and thorough legal opinion. He brought a remarkable level of jurisprudence and scholarship to his decision that fully elevated this issue to its proper importance.
I particularly appreciate and agree with Judge's King's application of strict scrutiny to the curfew in question. For the majority of this Court, then, to retreat from Judge King's strict scrutiny conclusion, is an inexplicable and unnecessary derogation of the rights of all West Virginians -- including those West Virginians who are not yet the magic age of 18.
Fortunately, because the majority opinion is per curiam, the majority's chosen approach is not set in the firmest of jurisprudential cement. I hope that in the future this Court will recognize that strict scrutiny applies to the rights of young people to assemble, etc. -- just as it does to the rights of other citizens.
With regard to the question of whether such a curfew is constitutionally sustainable, the legal reasoning of the majority is in clear tension with a more enlightened and progressive legal approach.
We need not look far to find a definitive expression of such an enlightened and progressive approach. For if we merely substitute Charleston for Charlottesville, what Judge Blaine Michael of the United States Court of Appeals for the Fourth Circuit, a distinguished West Virginian, wrote in his dissent in Schliefer v. City of Charlottesville, 159 F.3d 853 (4th Cir. 1998) -- as set forth in full in the Appendix to this dissent -- is one hundred per cent applicable to the instant case.
I cannot improve on Judge Michael's writing (and what a job it would be to
even summarize it!). I therefore set forth and subscribe to his reasoning as stating why I
dissent to the constitutional reasoning of the per curiam majority opinion.
Finally, the police will make what use they will of the curfew that we have approved. After a while, it will probably gather dust in a drawer. I hope that until that happens, the police will be restrained, and that we will not see the curfew's application disproportionately to minority youth. I also hope that young people and their parents will take full advantage of the First Amendment provisions and protections of the curfew -- because I think that in a passive-media-driven culture, actively asserting the right of freedom of expression is one of the best kinds of practical education in citizenship that our children can have.
Today, the majority relegates kids to second-class citizenship by upholding
Charlottesville's nighttime curfew for minors. Forbidding children to go out at night affects
their fundamental rights, and such a restriction can be valid only if it withstands strict
scrutiny. The Charlottesville curfew ordinance fails the test because it sweeps too broadly
and usurps rather than supports parental authority over child rearing. The ordinance has
another constitutional defect as well. Although it is a crime to violate the ordinance, the
crime is only vaguely defined. The curfew does not apply when minors are "exercising First
Amendment rights." This exception is unconstitutionally vague, leaving children, their
parents, and the police to guess whether particular conduct is punishable as a crime. I
The majority attempts to brush this dissent aside by claiming that under my
approach "no curfew ever would pass constitutional muster," ante at 854-55. I can as easily
say that under the majority's approach no curfew would ever fail constitutional muster. I'm
afraid that my claim will be proven true. As long as the majority's standard is the law, a city
council can pass a juvenile curfew as a routine measure because the justification is so easy
to articulate. This should not stand under the Constitution. Children make up a quarter of
our population, and their rights must not be ignored. A city council cannot order such a
large segment of the community to stay at home for thirty-three hours of every week unless
its curfew satisfies strict scrutiny. Subjecting Charlottesville's ordinance to this test does not
subvert the "democratic authority" of the City Council, see ante at 854-55. On the contrary,
the Council's authority must be exercised within constitutional bounds. The Council cannot,
in the name of majority rule, take away constitutional rights of a minority, in this case all
children under seventeen.
FN1. The written document must contain the following information: (1) the minor's
name; (2) the authorizing parent's name, (3) signature, (4) address, and (5) telephone
number; (6) the telephone number where this parent may be reached during the
pendency of the errand; (7) a "brief" description of the errand; (8) the minor's
destination or destinations; and (9) "the hours the minor is authorized to be engaged
in the errand." See City Code § 17-7(b)(6).
On March 10, 1997, Daniel Schleifer and four other minors, two adult parents of these
minors, and an eighteen-year-old adult brought suit against the City of Charlottesville
seeking a declaratory judgment that the curfew ordinance is unconstitutional. In district
court the minor plaintiffs argued their case as a Fourteenth Amendment equal protection
violation that implicates their fundamental rights, including First Amendment and due
process rights and the right to intrastate movement. The parent plaintiffs argued that the
curfew's restrictions impermissibly burdened their due process right to exercise parental
discretion and control over the rearing of their children by making the exercise of this
discretion and control illegal. Finally, all plaintiffs challenged the statute as being void for
vagueness under the Due Process Clause. [FN2] The district court ruled for the City on these
claims after a trial on the merits. I would reverse on the grounds that the curfew violates the
Equal Protection Clause and is void for vagueness.
FN2. Like the majority, I read the plaintiffs' equal protection and due process claims
as arising under the Fourteenth Amendment, rather than the Fifth Amendment as
alleged in their complaint.
The Charlottesville curfew ordinance does implicate fundamental rights. Cf. Kolender v.
Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (loitering statute
implicates First Amendment liberties and "constitutional right to freedom of movement");
Nunez v. City of San Diego, 114 F.3d 935, 944-45 (9th Cir.1997) (holding that curfew
infringed minors' fundamental rights). Normally, this would require the City to demonstrate
that the ordinance satisfies strict scrutiny. However, because this case involves the
fundamental rights of minors, and not those of adults, the majority concludes that equal
protection requires only intermediate scrutiny. See ante at 846-47. I disagree. Like the
Fifth and Ninth Circuits, I would hold that the Equal Protection Clause subjects to strict
scrutiny all governmental classifications that impact fundamental constitutional rights. See
Nunez, 114 F.3d at 945-46; Qutb v. Strauss, 11 F.3d 488, 492 & n. 6 (5th Cir.1993). Under
this standard the Charlottesville curfew is unconstitutional.
The Supreme Court has consistently reflected the traditional Western concept of the family
as a "unit with broad parental authority over minor children." See Parham v. J.R., 442 U.S.
584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979). Indeed, the Court's " 'constitutional
interpretation has consistently recognized [that] parents' claim to authority in their own
household to direct the rearing of their children is basic in the structure of our society.' "
Bellotti II, 443 U.S. at 638, 99 S.Ct. 3035 (quoting Ginsberg v. New York, 390 U.S. 629,
639, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968)). This authority is undoubtedly broad. When
parental control comes into play, "unemancipated minors lack some of the most fundamental
rights of self- determination--including even the right of liberty in its narrow sense, i.e., the
right to come and go at will." Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654, 115 S.Ct.
2386, 132 L.Ed.2d 564 (1995).
However, a parent's broad authority does not generally carry over to the state. "[O]ur
constitutional system long ago rejected any notion that a child is 'the mere creature of the
State' and, on the contrary, asserted that parents generally 'have the right, coupled with the
high duty, to recognize and prepare [their children] for additional obligations.' " Parham, 442
U.S. at 602, 99 S.Ct. 2493 (quoting Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct.
571, 69 L.Ed. 1070 (1925)); see also Bellotti II, 443 U.S. at 637, 99 S.Ct. 3035; Wisconsin
v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) ("This primary role of the
parents in the upbringing of their children is now established beyond debate as an enduring
American tradition."). The Court has repeatedly said that it is " 'cardinal with us that the
custody, care and nurture of the child reside first in the parents, whose primary function and
freedom include preparation for obligations the state can neither supply nor hinder.' " See
Bellotti II, 443 U.S. at 638, 99 S.Ct. 3035 (alteration in original) (quoting Prince v.
Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944)). This broad
recognition of the parents' right to control the upbringing of their children and of
constitutional deference to parental authority is linked to the parents' duty to raise and protect
their children. See Lehr v. Robertson, 463 U.S. 248, 257-58, 103 S.Ct. 2985, 77 L.Ed.2d 614
(1983); Meyer v. Nebraska, 262 U.S. 390, 400, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). This
deference to parents rests on the strong presumptions that "natural bonds of affection lead
parents to act in the best interests of their children" and that "parents possess what a child
lacks in maturity, experience, and capacity for judgment required for making life's difficult
decisions." See Parham, 442 U.S. at 602, 603, 99 S.Ct. 2493; see also Bellotti II, 443 U.S.
at 637, 99 S.Ct. 3035; Yoder, 406 U.S. at 232, 92 S.Ct. 1526.
Only in limited instances is the state able to assert a parent's broad power to control the
activities of minors. For example, when the state acts as the legal guardian for a child, it will
assume much, if not all, of a parent's traditional prerogatives. Similarly, the teachers and
administrators of a public school will act "in loco parentis" while children are in their
physical custody because parents " 'delegate part of [their] authority' " to the school by
placing their children under its instruction. See Vernonia, 515 U.S. at 655, 115 S.Ct. 2386
(quoting 1 W. Blackstone, Commentaries on the Laws of England 441 (1769)); Bethel Sch.
Dist. No. 403 v. Fraser, 478 U.S. 675, 682, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986); id. at
688, 106 S.Ct. 3159 (Brennan, J., concurring in the judgment). [FN3]
FN3. The majority overlooks Vernonia 's real thrust by quoting it to suggest that a
minor's constitutional rights with respect to the state are subject to "customary
limitations," ante at 847, that "includ[e] even the right of liberty in its narrow sense,
i.e., the right to come and go at will," id. (quoting Vernonia, 515 U.S. at 654, 115
S.Ct. 2386). Had the majority quoted the very next line in Vernonia, it would be
obvious that the case makes clear that minors lack some of the most fundamental
rights of self-determination with respect to their parents, not the state. See 515 U.S.
at 654 ("They are subject, even as to their physical freedom, to the control of their
parents or guardians."). Vernonia repeatedly emphasized that a minor's rights "vis-a-
vis the State may depend on the individual's legal relationship with the State" and that
"central" to the Court's decision was the fact that the children claiming a constitutional
privacy right had "been committed to the temporary custody of the State as
schoolmaster." See id. at 654, 115 S.Ct. 2386; see also id. at 655, 656, 662, 665, 115
S.Ct. 2386; cf. Nunez, 114 F.3d at 944-45 (rejecting as "out of context" the same
quotation the majority uses from Vernonia ).
In a similar way, the state (as parens patriae) may occasionally displace the parents' primary
role in child rearing in order to protect a child's welfare. Thus, the state may trump parental
discretion in delinquency proceedings (because parental control has already faltered), see
Schall v. Martin, 467 U.S. 253, 265, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984); In re Gault, 387
U.S. 1, 17, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), or in situations where a child's "physical
or mental health is jeopardized," see Parham, 442 U.S. at 603, 99 S.Ct. 2493; Yoder, 406
U.S. at 233-34, 92 S.Ct. 1526. In these circumstances, the strong presumption that parents
are able and willing to act in the best interests of their children may be rebutted. See
Parham, 442 U.S. at 602, 99 S.Ct. 2493. The state's power to displace parental discretion
is limited, however, and must be justified on a case-by-case basis.
That some parents "may at times be acting against the interests of their children" ... creates a basis for caution, but is hardly a reason to discard wholesale those pages of human experience that teach that parents generally do act in the child's best interests. The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.
Id. at 602-03, 99 S.Ct. 2493 (citations omitted). Indeed, "[s]imply because the decision of
a parent is not agreeable to a child or because it involves risks does not automatically transfer
the power to make that decision from the parents to some agency or officer of the state." Id.
at 603, 99 S.Ct. 2493 (emphasis added). Thus, except in special circumstances, the state
normally must defer to the exercise of a broad degree of parental discretion.
It is also clear that while the state does have an independent interest in the welfare of
children, this interest may be superseded by the parents' right to exercise broad discretion in
raising their children. See, e.g., Yoder, 406 U.S. at 229-30, 92 S.Ct. 1526; Pierce, 268 U.S.
at 534-35, 45 S.Ct. 571; Meyer, 262 U.S. at 400, 43 S.Ct. 625. Consequently, the rights of
minors in relation to the state must be analyzed to consider not only the interests of the minor
and the state but also the interests of parents. Cf. Parham, 442 U.S. at 600, 99 S.Ct. 2493
(minor's "interest is inextricably linked with the parents' interest in and obligation for the
welfare and health of the child"). Thus, the analysis of a minor's rights is complicated by
the addition of this third party (a parent) who can bolster either the state's claim of authority
or the minor's assertion of rights. Cf. Yoder, 406 U.S. at 231, 92 S.Ct. 1526 (recognizing
that "competing interests of parents, children, and the State" requires additional analysis).
FN4. Recently, in Reno v. ACLU, 521 U.S. 844, ----, 117 S.Ct. 2329, 2348, 138
L.Ed.2d 874 (1997), the Court recognized that it is "clear that the strength of the
government's interest in protecting minors is not equally strong" in all applications of
the Communications Decency Act. Specifically, the Court indicated that the
government's interest in protecting minors from indecent material would be greatly
diminished where "a parent allow[s] her 17-year-old to use the family computer to
obtain information on the Internet that she, in her parental judgment, deems
appropriate." See id. (emphasis added).
Although the Court's language in Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88
L.Ed. 645 (1944), "taken at its broadest sweep" would lend support to the majority's
expansive view of state power, Prince has limited application beyond its facts. See Yoder,
406 U.S. at 229, 92 S.Ct. 1526. Prince involved a challenge to a conviction under a child
labor law that made it criminal for parents to allow boys under the age of twelve and girls
younger than eighteen to sell newspapers and similar items. See Prince, 321 U.S. at 160-61,
64 S.Ct. 438. The Court sustained the conviction of Mrs. Prince for taking her ward (and
niece), a nine-year-old girl, with her to assist in selling religious literature during the evening
hours. See id. at 161-62, 64 S.Ct. 438; id. at 171, 64 S.Ct. 438 (Murphy, J., dissenting);
see also Ginsberg, 390 U.S. at 638-39, 88 S.Ct. 1274. The Court ruled that the state's
interests in protecting the nine-year- old from psychological and physical harms that might
result from Prince's activities were sufficient to justify the conviction. See 321 U.S. at 169-
70, 64 S.Ct. 438. The Court was careful to state, however, that its decision did "not extend
beyond the facts the case presents." See id. at 171, 64 S.Ct. 438. Accordingly, the Court
has since limited Prince 's application to situations where there is a " 'substantial threat' " of
harm to the "physical or mental health of the child or to the public safety, peace, order, or
welfare." See Yoder, 406 U.S. at 230, 92 S.Ct. 1526. In light of Yoder and the facts of
Prince, I read Prince to allow a state to override parental discretion when the exercise of this
discretion creates a substantial threat to the health and safety of children. In assessing this
threat, Prince suggests that very young children are particularly vulnerable to harm.
This discussion underscores the Supreme Court's recognition of the special status of children
and the predominance of the family unit. In particular, it underscores the Court's deference
to the traditional authority of parents over the activities of their children. With this
background, I now turn to the proper standard of scrutiny that must be applied in this case.
FN5. There are limited differences imbedded in our Constitution. For instance, the
Twenty-Sixth Amendment guarantees the right to vote only to those eighteen and
older. See U.S. Const. amend. XXVI.
While minors generally possess the same rights against governmental deprivations as adults,
considerations unique to minors can lend more weight to the government's interest in
regulating this class. See Nunez, 114 F.3d at 945; Qutb, 11 F.3d at 492 n. 6. In Bellotti II
a four-justice plurality noted that the Supreme Court has used three reasons to "justify[ ]"
treating minors differently from adults under the Constitution: "the peculiar vulnerability of
children; their inability to make critical decisions in an informed, mature manner; and the
importance of the parental role in child rearing." 443 U.S. at 634, 99 S.Ct. 3035. If minors
are to be accorded constitutional rights unequal to adults by reason of a particular regulation,
these factors must support the government's assertion of greater authority. " 'It is only upon
such a premise ... that a State may deprive children of ... rights [when a similar deprivation]
would be constitutionally intolerable for adults.' " Bellotti II, 443 U.S. at 635 n. 13, 99 S.Ct.
3035 (quoting Ginsberg, 390 U.S. at 650, 88 S.Ct. 1274 (Stewart, J., concurring in the
result)) (emphasis added).
The principle is illustrated by the Supreme Court's treatment of statutes forbidding a minor
to obtain an abortion without parental consent. The Court has steadfastly insisted that such
statutes must have a judicial bypass procedure. See, e.g., Bellotti II, 443 U.S. at 647-48, 99
S.Ct. 3035 (consent statute); Danforth, 428 U.S. at 72-75, 96 S.Ct. 2831 (same). The
analysis used by the Court in Danforth is particularly instructive. After ruling that a spousal
consent provision was unconstitutional, the Court addressed the statute's parental consent
provision, saying that "much of what has been said above, with respect to [spousal consent],
applies with equal force to [parental consent]." 428 U.S. at 74, 96 S.Ct. 2831. The Court
explained that "[m]inors, as well as adults, are protected by the Constitution and possess
constitutional rights." Id. However, it acknowledged that "the State has somewhat broader
authority to regulate the activities of children than of adults." See id. Consequently, the
Court explained: "It remains, then, to examine whether there is any significant state interest
in conditioning an abortion on the consent of a parent ... that is not present in the case of an
adult." See id. at 75, 96 S.Ct. 2831 (emphasis added). This analysis demonstrates that the
Court did not assume that the state always possesses broader authority to regulate children.
To the contrary, it looked to whether there were significant interests specific to minors that
justified the law, indicating that the law would be unconstitutional if these interests did not
provide sufficient support for broader authority to regulate minors. After examining the
interests advanced by the state, the Court struck down the parental consent law because it
lacked "sufficient justification." See id. at 75, 96 S.Ct. 2831.
The Court applied the same reasoning it used in Danforth to its subsequent parental consent
cases. In Bellotti II the Court constructed its judicial bypass requirement to permit the
consent undertaking to apply only to those minors who could justifiably be treated differently
from adults. Thus, a bypass procedure must allow a minor to demonstrate that either (1) she
is mature and informed enough to make the abortion decision herself or (2) the abortion is
in her best interests. See Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 511, 110
S.Ct. 2972, 111 L.Ed.2d 405 (1990) (Akron II ); Bellotti II, 443 U.S. at 647-48, 99 S.Ct.
3035. First, the state's justification that minors generally are not able "to make critical
decisions in an informed, mature manner," Bellotti II, 443 U.S. at 634, 99 S.Ct. 3035, is lost
when a minor is adjudged mature and informed. Without the immaturity justification, the
state has little reason to, and indeed cannot, require a parent's consent. Cf. Danforth, 428
U.S. at 75, 96 S.Ct. 2831 (parent's interest in abortion decision is outweighed by mature
minor's privacy right). Similarly, Bellotti 's final consideration, that greater restrictions may
be imposed on minors to reinforce the "importance of the parental role in child rearing,"
Bellotti II, 443 U.S. at 634, 99 S.Ct. 3035, is premised on the presumption that parents will
discharge their "responsibility for [their] children's well-being." See id. at 638-39, 99 S.Ct.
3035. When a minor can demonstrate to a court that an abortion is in her best interests, the
state's interest in involving the parents is reduced so much that the state can no longer require
a minor to obtain parental consent. Therefore, when a minor is mature or an abortion is in
her best interests, parental consent requirements are unconstitutional because the state's
interests (specific to minors) do not justify a restriction that could not be applied to adults.
The parental consent example demonstrates that the government may sometimes, but not
always, have interests in protecting minors that will allow it to impose special restrictions
that narrow a minor's constitutional rights. It follows that courts must look at the regulation
in question to determine if the state has sufficient justification to claim that a minor's rights
are not the equal of an adult's. Only through this process can the state-defined age of
majority have any significance insofar as constitutional rights are concerned.
It is clear from the discussion above that the majority's categorical approach is wrong. The
majority would apply intermediate scrutiny in all cases involving minors, even those in
which the government has no justification specific to minors for infringing upon their
fundamental rights. In the latter situation the governmental interest in regulating minors
under the majority's approach is identical to its interest in regulating adults. Yet the rights
of minors could still be treated differently because their "fundamental" rights are not
protected with strict scrutiny review. This has far ranging implications. Legislative bodies
can pass many laws regulating conduct that would pass intermediate scrutiny but fail strict
scrutiny. Under the majority's approach, such laws could be applied to all minors but could
not be applied to any adults (whose fundamental rights are protected by strict scrutiny), even
though the government had no reason to regulate minors any more than it did adults. The
majority's holding, therefore, allows a minor to be deprived of constitutional rights when a
similar deprivation would be constitutionally intolerable for adults, even though the state
lacks any reason for different treatment. This result cannot be justified and essentially
creates a second-class citizenship for all persons under the age of majority. For these
persons, federal constitutional rights will "mature and come into being magically only when
[they] attain[ ] the state-defined age of majority," Danforth, 428 U.S. at 74, 96 S.Ct. 2831.
FN6. Although I disagree with the details of the approach taken by the district court,
its analysis properly focused on the existence or absence of interests specific to
minors that would justify "accord[ing] the state more regulatory latitude in governing
children in certain circumstances." Schleifer v. City of Charlottesville, 963 F.Supp.
534, 541 (W.D.Va.1997) (preliminary injunction analysis that was adopted in final
ruling) (emphasis added). Under its approach, only "[w]hen the Bellotti factors ... cut
in favor of increased state oversight" will intermediate, rather than strict, scrutiny
apply. See id. at 541-42.
Moreover, the majority's approach is completely inconsistent with the Supreme Court's
decisions on parental consent in the abortion context. As discussed above, the state cannot
constitutionally regulate a minor's abortion rights by requiring parental consent unless the
regulation provides a judicial bypass. The majority's holding, however, would allow the state
to regulate a minor's abortion rights if the state's regulation " 'is substantially related' to
'important' governmental interests," ante at 847. Such a result is clearly at odds with the
Supreme Court's approach, as the state always has an important interest in regulating
abortions. Beginning with Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147
(1973), the Supreme Court has repeatedly recognized the state's "important and legitimate
interest in protecting the potentiality of human life." Id. at 162, 93 S.Ct. 705. See also
Planned Parenthood v. Casey, 505 U.S. 833, 871, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992);
Harris v. McRae, 448 U.S. 297, 324-25, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). This
interest by itself would enable state abortion statutes to meet intermediate scrutiny.
Therefore, the majority's holding that intermediate scrutiny should apply to the regulation of
minors simply cannot be squared with the Supreme Court's insistence that a state cannot
require a mature minor to obtain parental consent for an abortion. Indeed, if the majority
was correct, the state could completely ban abortions for women under the age of eighteen.
This confirms the fallacy of applying intermediate scrutiny to cases involving the
fundamental rights of minors.
I would avoid these difficulties by applying strict scrutiny to all equal protection challenges
involving fundamental rights, regardless of whether minors or adults are involved. Under
this approach, minors must be treated the same as adults whenever the government lacks
interests specific to minors to support more restrictive regulatory authority over them. Cf.
Bellotti II, 443 U.S. at 635 n. 13, 99 S.Ct. 3035; Danforth, 428 U.S. at 74-75, 96 S.Ct. 2831.
However, when circumstances trigger governmental interests that are particular to minors,
these interests, when coupled with the government's other interests, can make the
government's claim for greater restrictions on minors much stronger. If these interests taken
as a whole are compelling, the government's regulation (if narrowly tailored) will survive
strict scrutiny with respect to minors, even though it would fail the test in the case of adults.
See Nunez, 114 F.3d at 945 ("the Bellotti framework enables courts to determine whether
the state has a compelling interest justifying greater restrictions on minors than on adults");
Qutb, 11 F.3d at 492 n. 6 (same). This approach therefore provides a principled approach
for deciding when children may be treated differently from adults for constitutional purposes.
FN7. The majority relies on the plurality opinion in Carey v. Population Services
International, 431 U.S. 678, 691-99, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977), to support
its argument that the Charlottesville curfew should be subjected to less than strict
scrutiny. See ante at 847. Carey is a slender reed for this proposition. First, Carey
's plurality opinion was decided before Bellotti II, and later cases have followed the
reasoning of Bellotti II. Second, Carey itself is best read as a recognition that the
state's unique and significant interests in regulating children will make it easier to
justify greater restrictions on minors than on adults. See Carey, 431 U.S. at 693, 97
S.Ct. 2010 (plurality opinion).
The Fifth and Ninth Circuits adopt this approach and analyze minors' equal protection
challenges with strict scrutiny when fundamental rights are implicated. See Nunez, 114 F.3d
at 945-46; Qutb, 11 F.3d at 492 & n. 6; cf. Hutchins v. District of Columbia, 144 F.3d 798,
805-10 (D.C.Cir.1998) (opinion of Rogers, J.) (intermediate scrutiny); id. at 825- 27 (Tatel,
J., concurring in the judgment) (strict scrutiny); id. at 828 (Silberman, J., dissenting)
(finding that no fundamental right was affected by curfew and therefore applying rational
basis review to age-based equal protection challenge). [FN8] I would join these circuits and
hold that the Equal Protection Clause subjects all governmental classifications impacting on
the fundamental constitutional rights of minors to strict scrutiny.
FN8. Reno v. Flores, 507 U.S. 292, 301-05, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993),
indicates that strict scrutiny should apply when the fundamental rights of minors are
involved. In Flores a class of minors challenged an INS regulation that requires
juvenile aliens to be placed in institutional group care facilities during the pendency
of deportation proceedings if a guardian or adult relative is not available to take
custody. The Court recognized that strict scrutiny applies "when fundamental rights
are involved," see id. at 302, 305, 113 S.Ct. 1439, but it rejected the minors' due
process claim because it found that no fundamental right existed under the
circumstances of the case. See id. at 305, 113 S.Ct. 1439; cf. id. at 304, 113 S.Ct.
1439 (stating that "the child's fundamental rights must not be impaired" by INS). The
approach adopted by the Fifth and Ninth Circuits is therefore consistent with Flores
' implication that strict scrutiny applies when a minor's fundamental rights are in the
By restricting the freedom of minors during curfew hours, the ordinance treats all minors
under the age of seventeen as a threat to society in order to protect the community from
juvenile crime. This broad restriction is not narrowly tailored to meet its objective of crime
prevention. The ordinance treats all minors the same even though an exceedingly small
percentage commit crimes. The Equal Protection Clause forbids such a crude grouping
when fundamental rights are at stake, and limiting the curfew's hours and providing
exceptions does not diminish this shortcoming.
This is not to say that emergency curfews that are broadly applicable and limited in duration
are unconstitutional. Our circuit has previously, and properly, ruled that such emergency
measures are a proper exercise of the state's police power. See, e.g., United States v. Chalk,
441 F.2d 1277, 1280-83 (4th Cir.1971). Here, however, we have a curfew with no sunset
provision--a curfew that sweeps in a vast class, all minors under seventeen, most of whom
are law-abiding. The Equal Protection Clause does not permit such a broad segment of
society to be kept off the streets every night with the simple generalization, "We want to
prevent crime." Narrow tailoring requires something less drastic.
The City's stated interest in protecting minors under the age of seventeen is not compelling
here because the curfew was not designed to be supportive of the parental role. Bellotti II
recognized that "restrictions on minors, especially those supportive of the parental role, may
be important to the child's chances for ... full growth and maturity" and therefore can justify
an increased governmental authority to regulate the protected activities of minors. See 443
U.S. at 338-39, 99 S.Ct. 2781 (emphasis added). This authority can be present when the
governmental interest in regulation complements the traditional authority of the parent. By
supporting the exercise of parental discretion, the state aligns its regulatory power with the
interests of parents who have broad discretion to control the activities of their children. The
combined interests of parents and the state therefore strengthen the justification for
governmental regulation. Ginsberg, for example, prohibited the direct sale of pornographic
magazines to minors in order to strengthen parents' control over their children's access to
such material. See 390 U.S. at 631, 639, 88 S.Ct. 1274. The Court was careful to note,
however, that the government did not displace parental authority: "the prohibition against
sales to minors does not bar parents who so desire from purchasing the magazines for their
children." See id. at 639, 88 S.Ct. 1274; see also Reno v. ACLU, 117 S.Ct. at 2346-48.
Laws like the one in Ginsberg may thus be justified because they defer to parental authority
The Charlottesville ordinance, however, paternalistically displaces the exercise of parental
discretion by making it illegal for parents to allow their children to move about
independently at night. Yet parents are better able to assess their children's maturity and
capacity for judgment than a city council. Parents may legitimately decide that the best way
to raise their children is to permit them to be out on their own after midnight on occasion.
See Nunez, 114 F.3d at 952. In other words, parents may legitimately conclude that the risk
of granting children some independence is small compared to the benefits resulting from the
gradual development of maturity and judgment that is needed in preparation for a responsible
adult life. This exercise of parental discretion is impossible under the ordinance. [FN9]
FN9. The curfew's sixth exception allows a minor to run an "errand" for his parent if
he carries a signed document meeting nine statutory criteria. See City Code § 17-
7(b)(6). This rigid exception, with its bureaucratic demand for detail, does not afford
parents the discretion to allow their children to operate with any degree of
independence. See supra note 1 (listing nine requirements).
Indeed, the ordinance was purposefully designed to displace parental discretion with the will
of the City Council. On the day the curfew was enacted, the Council's agenda said the
following about the curfew's purpose: "parental responsibility for the whereabouts of their
children is the norm and where that does not exist, then the legal sanction should enforce
such responsibility. Further, well communicated curfew ordinances ... impose a community-
wide standard on parents who are unable or unwilling to set such limits." (Emphasis added).
Rather than supporting the parental role, this curfew supersedes it. It reflects the "statist
notion that governmental power should supersede parental authority in all cases because
some parents" fail to exercise control over their children. See Parham, 442 U.S. at 603, 99
S.Ct. 2493. This governmental paternalism is "repugnant to American tradition." Id.
Consequently, because the curfew attempts to achieve its stated purpose of promoting the
safety and well-being of minors by displacing parental authority over the upbringing of
children, the curfew does not serve a compelling governmental interest.
For these reasons, I would hold that the Charlottesville curfew fails to satisfy strict scrutiny
and thus violates the Equal Protection Clause.
Kolender, 461 U.S. at 358 n. 7, 103 S.Ct. 1855 (quoting United States v. Reese, 92 U.S. 214,
221, 23 L.Ed. 563 (1875)). In other words, "[w]ell- intentioned prosecutors and judicial
safeguards do not neutralize the vice of a vague law." Baggett v. Bullitt, 377 U.S. 360, 373,
84 S.Ct. 1316, 12 L.Ed.2d 377 (1964). The law itself must draw a sufficiently clear line
between the legal and the illegal for both our police and our citizens.
What the majority ignores is the exception to this general rule: when "a law reaches 'a
substantial amount of constitutionally protected conduct,' " facial vagueness challenges are
"permit[ted]" and a plaintiff may attack the law " 'as being vague as applied to conduct other
than his own.' " See Kolender, 461 U.S. at 358 & n. 8, 103 S.Ct. 1855 (citations omitted)
(First Amendment rights and freedom of movement affected by regulation of loitering and
wandering); see also Hoffman Estates, 455 U.S. at 494-95, 102 S.Ct. 1186 (recognizing that
general rule applies only to statutes that "implicate [ ] no constitutionally protected conduct"
(emphasis added)); Gooding v. Wilson, 405 U.S. 518, 521, 92 S.Ct. 1103, 31 L.Ed.2d 408
(1972); Aptheker v. Secretary of State, 378 U.S. 500, 517, 84 S.Ct. 1659, 12 L.Ed.2d 992
(1964) (facial challenge to law restricting international travel). This exception is "logically
related and similar" to the doctrine of substantial overbreadth, see Kolender, 461 U.S. at 358
n. 8, 103 S.Ct. 1855, in that it is necessitated by the chilling effect that vague laws can have
on the exercise of protected freedoms. As the Supreme Court has explained,
The objectionable quality of vagueness and overbreadth does not depend upon absence of fair notice to a criminally accused or upon unchanneled delegation of legislative powers, but upon the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application. These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.
NAACP v. Button, 371 U.S. 415, 432-33, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963) (citations and
footnote omitted); see also Keyishian v. Board of Regents, 385 U.S. 589, 604, 609, 87 S.Ct.
675, 17 L.Ed.2d 629 (1967) ("The danger of [a] chilling effect upon the exercise of vital First
Amendment rights must be guarded against by sensitive tools which clearly inform
[individuals] what is being proscribed."); Kolender, 461 U.S. at 358 n. 8, 103 S.Ct. 1855
(citing Button and Keyishian to support exception to general rule). Especially, then, when
chilling effects are a danger and a "substantial amount" of protected activity is implicated,
facial challenges must be permitted. In other words, we do not have to wait for case-by-case
judicial review of particular applications of the law.
Because the City's curfew regulates a substantial amount of protected activity, I would hold
that it is subject to a facial challenge. The Supreme Court's decision in Kolender all but
mandates this conclusion. In Kolender the Court held that a California loitering statute was
unconstitutionally vague on its face. The law made it a crime for persons who "loiter or
wander on the streets" to fail to provide "credible and reliable" identification when a peace
officer requests it under circumstances that would justify a Terry stop. See 461 U.S. at 353,
357, 103 S.Ct. 1855. See generally Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d
889 (1968), and later cases. The Court permitted a facial challenge because it found that the
"law reache[d] a substantial amount of constitutionally protected conduct," see Kolender, 461
U.S. at 358 n. 8, 103 S.Ct. 1855 (internal quotation marks omitted), notwithstanding the
dissenting argument that the law was not "impermissibly vague in all of its applications" and
could not be facially attacked because it had an "unmistakable core that a reasonable person
would know is forbidden," id. at 370, 371-72, 103 S.Ct. 1855 (emphasis added). The
concern that led the Court to allow the facial challenge was the law's " 'potential for
arbitrarily suppressing First Amendment liberties' " and the "constitutional right to freedom
of movement." See id. at 358, 103 S.Ct. 1855 (quoting Shuttlesworth v. Birmingham, 382
U.S. 87, 90, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965)). The same concerns underlie the curfew
in this case. The main difference is Charlottesville's First Amendment "exception," but, as
I explain below, this exception is itself impermissibly vague and therefore cannot save the
statute from a facial challenge. Indeed, the need in this case for facial review is even
stronger than that in Kolender because the curfew ordinance applies to all law- abiding
minors under the age of seventeen. The law in Kolender, by contrast, required credible and
reliable identification only when peace officers had already made a justifiable Terry stop, that
is, after they had temporarily detained a suspect because of "a reasonable and articulable
suspicion that the person seized [wa]s engaged in criminal activity," Reid v. Georgia, 448
U.S. 438, 440, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) (per curiam) (following Terry ).
Accordingly, Kolender makes clear that a facial challenge is appropriate in this case.
The majority errs in asserting that because "core First Amendment activities" are protected
by the ordinance, "marginal cases" may be challenged as the statute is applied, see ante at
854. Even assuming that "core" activities are protected, this argument appears to parallel
the dissenting view rejected by Kolender. The proper inquiry is not whether some core
values are protected but whether the curfew "reaches 'a substantial amount of constitutionally
protected conduct,' " Kolender, 461 U.S. at 358 n. 8, 103 S.Ct. 1855 (quoting Hoffman, 455
U.S. at 494, 102 S.Ct. 1186). The First Amendment protects a substantial amount of
conduct in addition to "political protest and religious worship," ante at 854, and the
vagueness doctrine must be applied to protect these rights. [FN10] Deferring review for as-
applied challenges impermissibly risks chilling the exercise of a substantial amount of
constitutionally protected activity. Cf. 11126 Baltimore Blvd., Inc. v. Prince George's
County, 58 F.3d 988, 993-94 (4th Cir.1995) (en banc) (ruling that "courts must permit" facial
challenge when there is significant risk of chilling First Amendment speech because chill "
'can be effectively alleviated only through a facial challenge' " (quoting City of Lakewood
v. Plain Dealer Publishing Co., 486 U.S. 750, 757, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988))).
I now turn to why Charlottesville's curfew is void for vagueness.
FN10. The majority's citations to Hoffman Estates do not support the conclusion that
federal courts may wait for as-applied challenges in "marginal cases," see ante at 854.
Hoffman Estates clearly limits its analysis to those cases in which "no
constitutionally protected conduct" is implicated by the challenged law. See 455 U.S.
at 494-95, 497, 102 S.Ct. 1186; Kolender, 461 U.S. at 358 n. 8, 103 S.Ct. at 1859. A
wait- and-see approach is justified only when there is no risk of chilling a substantial
amount of protected activity.
FN11. Federal courts do not look simply to the statutory language to determine if the
law is vague. If a federal statute is involved, a federal court may construe the
disputed provision to remove its vagueness. See United States v. 12 200-ft. Reels of
Super 8mm. Film, 413 U.S. 123, 130 n. 7, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973); cf.
CISPES v. FBI, 770 F.2d 468, 473-75 (5th Cir.1985) (construing federal statute to
avoid overbreadth). Likewise, when a state provision is challenged as vague on its
face, a federal court must " 'consider any limiting construction that a state court or
enforcement agency has proffered.' " See Ward v. Rock Against Racism, 491 U.S.
781, 795-96, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (quoting Hoffman Estates, 455
U.S. at 494 n. 5, 102 S.Ct. 1186). If no narrowing interpretation is provided by the
state, however, a federal court is "without power to remedy the [statute's] defects by
giving [it] constitutionally precise content." See Hynes v. Mayor of Oradell, 425 U.S.
610, 622, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976); see also Smith v. Goguen, 415 U.S.
566, 575, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974).
The vagueness of the First Amendment exception is intuitively plain. Indeed, its language
is anything but clear. What are "First Amendment rights"? What is considered to be
"speech"? Does it include written communication? What of expressive conduct that does
not involve oral or written communication? What types of speech are "protected" by
"freedom of speech"? Is commercial speech protected? If so, to what extent? What is the
"free exercise" of religion? And what of the "right of assembly"? Do two friends have the
"right" to "assemble" or meet at a coffeehouse? This says nothing of the general First
Amendment rights (e.g., association, press, petition) that the City's exception leaves
unmentioned. The questions above are difficult enough for courts, Congress, and
constitutional scholars, let alone for someone with no legal training. And when answers are
given, they are often imprecise and turn on the specifics of a case and a balancing of many
factors. Furthermore, First Amendment jurisprudence is a vast and complicated body of law
that grows with each passing day. As a result, criminal conduct cannot be defined by simply
referring to the title (First Amendment) or subtitle (speech or assembly) of a particular right.
Although the Supreme Court has not addressed the First Amendment issue before us, its
decisions involving statutes that define criminal conduct by referring to the principles of
constitutional "due process" and "equal protection" are instructive. Like the First
Amendment principles of "freedom of speech" and the "free exercise of religion," due
process and equal protection are complicated and nuanced constitutional concepts that are
not susceptible to general definition. The existence of these rights likewise depends on the
specifics of a case and a balancing of the interests involved. As I will show, the Supreme
Court's opinions in Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495
(1945) (plurality opinion), United States v. Guest, 383 U.S. 745, 753-55, 86 S.Ct. 1170, 16
L.Ed.2d 239 (1966), and later cases demonstrate that constitutional "due process" and "equal
protection" are inherently too vague to be used to define criminal conduct without a carefully
defined scienter requirement. This applies with at least as much, if not more, force to
Charlottesville's mention of the First Amendment to define criminal conduct by way of
In Screws the Court upheld a statute under which several law enforcement officers had been convicted of illegally depriving a prisoner of his life without "due process" of law. See 325 U.S. at 93, 100, 65 S.Ct. 1031. The defendants were prosecuted under 18 U.S.C. § 20, [FN12] which made it illegal to " 'willfully' " deprive another " 'of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States' " under the color of state law. See id. They argued to the Court that this provision was impermissibly vague as applied to their convictions for depriving the deceased of "due process" because the law provided "no ascertainable standard of guilt." See id. at 94-95, 65 S.Ct. 1031. Justice Douglas, writing for a four-justice plurality, said that
FN12. 18 U.S.C. § 20 was the predecessor to 18 U.S.C. § 242, discussed infra.
the decisions of the courts are, to be sure, a source of reference for ascertaining the specific
content of the concept of due process. But even so the Act would incorporate by reference
a large body of changing and uncertain law. That law is not always reducible to specific
rules, is expressible only in general terms, and turns many times on the facts of a particular
case. Accordingly, it is argued that such a body of legal principles lacks the basic
specificity necessary for criminal statutes under our system of government. Congress did
not define what it desired to punish but referred the citizen to a comprehensive law library
in order to ascertain what acts were prohibited. To enforce such a statute would be like
sanctioning the practice of Caligula who "published the law, but it was written in a very
small hand, and posted up in a corner, so that no one could make a copy of it."
Id. at 96, 65 S.Ct. 1031 (quoting Suetonius, Lives of the Twelve Caesars 278). Indeed,
seven justices indicated that § 20's use of "due process" to define criminal conduct would
have been unconstitutionally vague without something else to mitigate its ambiguous
incorporation of constitutional principles. See id. at 105, 65 S.Ct. 1031 (§ 20 must be
construed with narrow scienter requirement to "avoid grave constitutional questions"); id.
at 149-50, 65 S.Ct. 1031 (Roberts, J., dissenting) ("[a]ll but two" justices agreed on this
issue). However, the plurality concluded that the statute could be saved by construing
"willfully" to require a specific intent to purposefully deprive another of a specific federal
right made definite by the express terms of the Constitution and laws of the United States or
by the decisions interpreting them. See id. at 100-05, 65 S.Ct. 1031. Thus, Screws
"recognized that the expansive language of due process that provides a basis for judicial
review is, when incorporated by reference into § 242, generally ill-suited to the far different
task of giving fair warning about the scope of criminal liability," Lanier, 117 S.Ct. at 1225
(unanimous decision), but that the use of a strict scienter requirement could sufficiently
mitigate this ambiguity.
The Court in Guest relied on Screws to reject a similar vagueness challenge to a prosecution
for conspiracy to deprive black citizens of rights protected by the Equal Protection Clause.
The Court again emphasized that the specific intent requirement of 18 U.S.C. § 241, like that
of § 242, removed the problem of the statute's vagueness. See Guest, 383 U.S. at 753-54,
86 S.Ct. 1170; id. at 785, 86 S.Ct. 1170 (Brennan, J., concurring in part) (incorporation of
constitutional provisions "brings § 241 close to the danger line of being void for vagueness"
but "stringent scienter requirement saves [it] from condemnation"); see also United States
v. Kozminski, 487 U.S. 931, 941, 108 S.Ct. 2751, 101 L.Ed.2d 788 (1988) (tension between
requirement of "definite standard of guilt" and "incorporat[ion] by reference a large body of
potentially evolving federal law" is resolved with strict scienter requirement).
Recently, a unanimous Supreme Court in Lanier reiterated the principles established in Screws and Guest. The Court again recognized that "in lieu of describing the specific conduct it forbids, [the] general terms [of §§ 241 and 242] incorporate constitutional law by reference.... The result is that neither the statutes nor a good many of their constitutional referents delineate the range of forbidden conduct with particularity." Id. at 1224. Consequently, this "affront to the [due process] requirement" of fair notice is made permissible only when "willful violators" deprive (or conspire to deprive) others of rights that
"have been 'made specific' by the text or settled interpretations." See id. at 1225 (quoting
Screws, 325 U.S. at 105, 65 S.Ct. 1031). "[W]illful violators 'certainly are in no position to
say that they had no adequate advance notice' " of the definition of the crime. Id. (quoting
Screws, 325 U.S. at 105, 65 S.Ct. 1031).
Like the statutes in Screws, Guest, and Lanier, the Charlottesville curfew's First Amendment
exception incorporates a large and growing body of law that is not reducible to specific rules
and that turn on a balancing of numerous factors. Unlike the federal statutes, however, the
City's curfew ordinance has no scienter requirement that could mitigate the inherent
vagueness of First Amendment jurisprudence. Most important, though, the curfew regulates
in areas involving constitutionally protected activity, while §§ 241 and 242 do not. In fact,
those sections are designed to punish those who willfully deprive and conspire to deprive
others of constitutional rights, as, for example, in United States v. Lanier, where the
defendant, a state judge, sexually assaulted (in his office) several employees and others who
had business before him. Lanier, 117 S.Ct. at 1222-23. Such conduct lies far outside of the
realm of constitutionally protected action, and therefore §§ 241 and 242 do not have to meet
the strict vagueness standard that applies when protected activity is involved. The curfew,
however, does. Consequently, the ordinance must survive scrutiny under a vagueness
standard much more strict than that applied in Screws and Guest. Under that standard and
in light of the absence of a scienter element capable of saving the ordinance, I would hold
that the First Amendment exception and the ordinance are void for vagueness. [FN13]
FN13. The majority misses the mark when it says that a scienter requirement would
necessarily expand, and not narrow, the breadth of Charlottesville's curfew because
subsection (b)(8) "provides an exception from liability" and does not affirmatively
define criminal conduct. See ante at 853 n. *. The curfew ordinance uses section
(b) and its eight exceptions to define what conduct is illegal. See City Code § 17-
7(b). With respect to subsection (b)(8) in particular, the ordinance makes it a crime
for minors to remain in public when not exercising First Amendment rights. See id.
§ 17-7(b), (b)(8). Subsection (b)(8) thus plainly incorporates the First Amendment
to define the scope of criminal conduct. Even when a law is drafted to include
exceptions in defining the crime, a scienter element that is applied to the criminal
provision as a whole (and not just its exceptions) can reduce the objectionable
vagueness of the law.
The testimony of Charlottesville's Chief of Police proves the statute's ambiguity. When
asked whether two fifteen-year-olds violate the ordinance by discussing politics in a coffee
shop during the curfew, the Chief said, "You're indoors, it's a public location, I ... think
technically under the ordinance it may be a violation. I doubt whether we would deal with
it." Similarly, when asked if a fifteen-year-old who plays in a band in a local restaurant after
curfew hours violates the curfew when he is not paid for the performance, the Chief
answered, "I think that technically [the minor] is possibl[y] in violation of the ordinance."
However, "the officer would obviously have to make a decision about whether they're in
violation or not. And I believe there's some discretion allowed." It is this discretion
combined with the failure to define with specificity what conduct is illegal that makes the
statute unconstitutional. The danger of chilling the exercise of constitutionally protected
activity arises because of the uncertainty associated with the First Amendment exception.
FN14. It is of no constitutional consequence that the Chief testified that "if there's a
question [as to whether the First Amendment exception applied,] we would go down
on the side that it was a valid Constitutional kind of activity" and "would consult with
the Commonwealth Attorney or the city attorney's office to see whether it was or not."
"Well-intentioned prosecutors and judicial safeguards do not neutralize the vice of a
vague law." Baggett, 377 U.S. at 373, 84 S.Ct. 1316.
The majority errs in supporting its reasoning with the fact that city councils appear to be
placed "between a rock and a hard place," ante at 853- 54. While it is true that curfews
without exceptions will almost always impermissibly infringe upon substantive constitutional
rights and that curfews with exceptions may be subject to vagueness challenges, invalidation
of this ordinance is still mandated by our Constitution. "Our Constitution is designed to
maximize individual freedoms within a framework of ordered liberty. Statutory limitations
on those freedoms are examined for substantive authority and content as well as for
definiteness or certainty of expression." Kolender, 461 U.S. at 357, 103 S.Ct. 1855 (emphasis
added); see also Nunez v. City of San Diego, 114 F.3d 935, 943-44 (9th Cir.1997)
(recognizing that interpreting curfew to avoid vagueness problems under Due Process Clause
"may make it more difficult for the statute to pass constitutional muster on substantive
grounds"). "[L]egislative bodies in draftsmanship obviously have the same difficulty as do
the judicial in interpretation. Nevertheless despite the difficulties, courts must do their best
to determine whether or not the vagueness is of such a character 'that men of common
intelligence must necessarily guess at its meaning.' " Winters v. New York, 333 U.S. 507,
518, 68 S.Ct. 665, 92 L.Ed. 840 (1948); see also Kingsley Int'l Pictures Corp. v. Regents of
the Univ., 360 U.S. 684, 694, 79 S.Ct. 1362, 3 L.Ed.2d 1512 (1959) (Frankfurter, J.,
concurring). Although we may "appreciate the difficulties of drafting precise laws," we
must require that all statutes meet constitutional standards for clarity. See City of Houston
v. Hill, 482 U.S. 451, 465, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987). If we did otherwise, we
would forgo our duty to enforce the mandates of the Due Process Clause. [FN15]
FN15. I also disagree with the majority's claim that the First Amendment exception
"fortifies, rather than weakens, First Amendment values." See ante at 853-54.
Because First Amendment rights can never be diminished by a city ordinance, see
U.S. Const. art. VI, cl. 2, the City's exception does nothing but restate a well-settled
constitutional restriction on its substantive regulatory authority. Indeed, the
majority's citation to CISPES v. FBI, 770 F.2d 468 (5th Cir.1985), contradicts its
position. Cf. ante at 853-54. CISPES recognized that "such a provision cannot
substantively operate to save an otherwise invalid statute." See 770 F.2d at 474. A
statement similar to the First Amendment exception in this case, however, was used
by the Fifth Circuit to determine Congressional intent and guide its construction of
the provision to avoid substantial overbreadth. See id. Here, though, we are faced
with a local, not a federal, statute, and therefore we are without the authority to
provide a limiting construction that might save the ordinance. See Hynes, 425 U.S.
at 622, 96 S.Ct. 1755. The First Amendment exception thus does little to advance
First Amendment values.
Taken to its logical conclusion, the majority's reasoning would immunize all statutes
regulating conduct involving the exercise of First Amendment rights whenever they contain
a First Amendment "exception." Because such provisions would not be impermissibly
vague under the majority's analysis, the statutes would be immune from both substantive and
vagueness challenges. Substantively the statute cannot, according to its own terms, violate
the constitution. In fact, it incorporates the Constitution's protections. The upshot is that
facial attacks could never be brought and that statutes containing these exceptions could be
challenged only as they are applied. This squarely conflicts with the Supreme Court's long-
standing concern with the potential chill of constitutionally protected activity created by the
mere existence of vague criminal statutes and the potential for their arbitrary enforcement.
For these reasons, I would hold that the curfew's First Amendment "exception" renders the
ordinance impermissibly vague on its face. Until the ordinance is amended by the City
Council or given a construction by state courts that sufficiently reduces its unconstitutional
vagueness, its enforcement conflicts with the constitutional guarantee of due process of law.