Is Seattle’s Curfew Legal?

On Wednesday, Seattle Mayor Paul Schell imposed an overnight curfew on the city’s downtown area for the second night in a row. Police threatened to arrest anyone who ventured into the zone without “legitimate business.” The ACLU plans to contest the action in court. Is this curfew legal?

Like most cities, Seattle has municipal laws that grant the mayor broad “police powers”–the authority to take the actions necessary to protect citizens and their property. (Similar powers are granted to other chief executives, such as county commissioners, governors, and the president.) In Seattle’s case, the mayor may declare a state of emergency and/or impose a curfew whenever he believes that “extraordinary measures [are needed] to prevent the death or injury of persons and to protect the public peace, safety, and welfare, and alleviate damage, loss, hardship or suffering.”

Even if Mayor Schell’s curfew is found to be consistent with Seattle’s municipal laws (as most agree it will be), it could still be challenged in federal court on the grounds that it violates constitutional rights, such as free speech. Typically, justices defer to the judgment of the executive branch during the event–that is, they would be unlikely to grant an injunction preventing the city from enforcing its curfew while the WTO is in town. Instead, cases are brought after the fact that seek either monetary damages from the city or a court order barring similar action in the future.

These instances–when public safety and fundamental rights conflict–comprise one of the murkiest areas of constitutional law. There are few cut-and-dry legal standards for determining which interest prevails. The facts are weighed on a case-by-case basis. If the Seattle curfew is contested in court–which is all but inevitable–here are the major questions the judge will have to decide:

Were free speech rights violated? Courts have deemed streets, sidewalks, and parks to be open forums for free speech–and Seattle’s action clearly limited the protestors’ access to them. However, courts have also determined that governments can restrict expression to a reasonable time, place, and manner. The city might argue that this is all its curfew did, since protestors could simply go elsewhere in the city to hold their demonstrations without interference. But since access to the desired audience is part of free speech, complainants could counter that restricting their location impinged on their rights.

Were continued protests likely to have led to unlawful conduct? Federal courts have clearly held that First Amendment activities cannot be banned simply because prior similar activity led to violence–as they did in Seattle on Tuesday afternoon. (For example, after the Rodney King verdict and ensuing riots in 1992, the Ninth Circuit Court of Appeals concluded that the San Francisco Police Department had acted improperly in ordering officers to disband all future protests.) However, if police have specific information about future lawbreaking or reasonably believe that they would be been unable to control an outbreak of violence, courts have sometimes allowed First Amendment rights to be temporarily curtailed.

Was the prohibition content-based? Any law that prohibits one type of speech while allowing another is presumptively unconstitutional. In Seattle, the curfew banned from downtown everyone who said they intended to protest or who lacked another reason for entering. Therefore, the city might argue, it was not content-based: Everyone was equally affected, regardless of his or her cause. However, complainants could contend that in practice it was discriminatory: It actually affected only the group of protestors who opposed the WTO, and some reports suggest that police were barring people based on their style of dress.

Could the same result have been accomplished by more limited means? Governments are required to restrict speech and other rights as little as possible. So, complainants would likely win a case if they could prove that the city did not pursue another, less restrictive option. Seattle could contend that nothing short of an outright ban on downtown demonstrations would have both protected public safety and ensured that non-protestors (including WTO delegates) would be able go about their lawful business. And they could point to their accommodation–which some have even suggested was too great–of protestors during the day and the limited duration of the curfew. But other lawyers have already publicly stated that the complete prohibition of demonstrations and the large size of the area are both unconstitutionally extreme.

Explainer thanks Prof. Stewart Jay of the University of Washington School of Law and Prof. Eben Moglen of the Columbia University School of Law.

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