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For kids 16 and under, there’s at least one way to stay out late: Take part in a protest against D.C.’s youth curfew.
Is David Grossman a criminal? At first glance, you might think so. After all, the Connecticut Avenue bank clock just south of Dupont Circle reads 11:30—a full half-hour after D.C.’s new curfew law orders kids aged 16 and under off the streets. And the 15-year-old is going nowhere fast: Along with the half-circle of 50 other demonstrators gathered around a metal folding stool that serves as a makeshift soapbox inside Dupont Circle Park, the preternaturally young American University sophomore has taken to the nighttime streets to flout a law he calls an insult to his civil rights.
At around this moment in any exercise of civil disobedience, an uneasy feeling starts to grow in the bellies of your standard street protesters. Any second now, the agitators usually realize, the police could arrive and break out the handcuffs. Is this cause worth spending a night in the slammer?
Grossman may well think so. But thanks to free-speech language in D.C.’s legislation, that’s not an option. Technically speaking, the easiest way to avoid being sent home by the cops is…to simply say you don’t want to be sent home by the cops. “Just remember that there are loopholes in this curfew,” protester Paul Kuhn blurts through a 10-watt megaphone. “If you’re wearing an anti-curfew T-shirt, they can’t arrest you.”
Kuhn—who like many of the protesters looks as if he hasn’t been a teenager for a good 14 years—is right. According to a Metropolitan Police Department fact sheet about the new law, initially passed in 1995 but tied up in the D.C. Court of Appeals until this June, “persons under the age of 17 do not violate the law during curfew hours if they are…[e]xercising their First Amendment rights protected by the U.S. Constitution, including the free exercise of speech, religion, and right of assembly.”
The way Grossman sees it, that makes rallying against the curfew about the safest teen activity in town. “If you are out during curfew hours and doing anything that can be identified as a First Amendment activity—protesting, rallying, doing a sit-in—those things are all exempt from the curfew,” says Grossman, referring to the legislation.
That ain’t the half of it. After all, sporting a curfew-cursing T-shirt and knocking D.C. politics through a megaphone are only some of the more obvious ways of flexing your free expression. What about kids out late wearing boring off-white sweaters? Aren’t they—unwittingly—commenting on the empty nihilism of our times? How about a pair of youths on the corner complaining to each other about their health teacher over bottles of soda on a Friday night? Not exactly the Montgomery bus boycott, but expressions of free speech and assembly just the same.
“It is an M.C. Escher-style statute—the tail devours the head,” says Jamin Raskin, professor of Constitution and First Amendment law at American University. “The First Amendment protects all the activities that the curfew prohibits.” Without a definite Supreme Court ruling on curfews, he predicts, the law will invite constitutional litigation: “If you’re talking to a friend, you’re exercising First Amendment rights. So the exemption swallows the law.”
Determining when a teenager is legitimately exercising his or her rights and when the kid is simply out too late is something parents have grappled with for years. And the D.C. government’s shrewdest legal minds don’t exactly seem any more on top of this conundrum. Calls to the police’s public information office were referred to the Corporation Counsel’s office—which, half a dozen queries later, referred the question back to the police.
It’s a slippery slope. When you think about it, why stop with the First Amendment? Why should the Constitution’s other guarantees die at 11 p.m. on weekdays and midnight on weekends? Teens out late on the streets might well be exercising their rights under the Third Amendment, which protects citizens against involuntarily quartering soldiers in their homes. Or the Fourth Amendment, against unreasonable search and seizure. Or the 13th, which abolished slavery. (Who knows? If they’d stayed in, their moms might have made them mop the kitchen.)
So far, though, most curfew opponents haven’t picked up on the self-cancellation cited by Raskin. “Is the First Amendment going to protect kids from violating the curfew? Probably not,” argues Arthur Spitzer, the American Civil Liberties Union’s director for the capital area. Spitzer instead opposes the law on the basis of the Fifth Amendment: “No person shall be…deprived of life, liberty, or property without due process of the law.”
“There are some things the government can’t take away,” says Spitzer. Especially when the government’s own statutes give them right back. CP