After months of silence, the ACLU has finally taken a stand to protect civil liberties during the COVID-19 pandemic.
Their stand, however, is not against the draconian lockdowns of society which have destroyed millions of jobs and ruined millions of lives. No, instead of supporting freedom-loving, law-abiding people who want to work, eat out, travel, and educate their children, the ACLU is standing up for violent rioters and anarchists who want to burn down American cities.
Thus, on Wednesday, ACLU senior counsel Ahilan Arulanantham sent a letter to Los Angeles County Supervisor Kathryn Barger urging her to lift the curfews that county officials have imposed during the past few days.
The letter, portions of which were published by the Los Angeles Times, argues that the Constitution does not permit the county to order such a sweeping restriction on free speech and travel to address “a few localized attacks on property.”
The ACLU’s hypocrisy is jarring. After all, just two months ago, ACLU legal director David Cole defended the indefinite lockdowns of society, telling USA Today: “All kinds of constitutional liberties are being constrained right now. They are restricted because there’s a reason to restrict them. In a time like this, you have to defer substantially to public health experts.”
If public health experts have the discretion to lock down entire states for months, certainly law enforcement experts should have the discretion to impose a curfew for a few days to protect people and property from violent looters.
But that’s not how the ACLU sees it. According to Arulanantham, this “unlawful conduct cannot justify a state of emergency in the entire county that effectively places over 10 million people under house arrest for twelve hours every evening and morning.”
Has the ACLU been paying attention? Los Angeles County residents have effectively been under house arrest since March. They’ve been stuck at home not because of anything they did but because of fear. If fear of a virus can justify the indefinite lockdown of society, surely unlawful conduct like violent looting can justify a 12-hour curfew.
But that’s the problem with the lockdowns. They only worked because people—law-abiding people who run businesses, pay their taxes, and respect the police—followed them.
As I’ve previously written, these lockdowns weren’t necessary. Curfews, on the other hand, are necessary. Of course, any sort of lockdown should be narrowly and appropriately tailored, lasting no longer than necessary. Importantly, they should ensure that peaceful protestors have the right to gather at a reasonable time, place, and manner.
But the government has both the authority and the duty to protect communities from violent rioting and looting. Indeed, during the riots that followed the Rodney King verdict in 1992, Long Beach adopted a curfew between 7 p.m. and 6 a.m. to stop rioting there.
In the case In re Juan C. (1993), the family of a 14-year-old who was arrested and convicted of violating the curfew challenged it. A panel of the California Court of Appeal upheld the conviction. It stated that, like flooding, fire, and disease:
…rioting, looting and burning pose a similar threat to the safety and welfare of a community, and provide a compelling reason to impose a curfew. The right to travel is a hollow promise when members of the community face the possibility of being beaten or shot by an unruly mob if they attempt to exercise this right. Temporary restrictions on the right to travel at night are a reasonable means of reclaiming order from anarchy so that all might exercise their constitutional rights freely and safely.
Those interests also outweigh any First Amendment rights that may be chilled by a 12-hour curfew. Thus, the court in In re Juan C. held that, as in other cases, a curfew could be used “as a reasonable means of protecting the public welfare.” The key is that the curfew is tailored and temporary, as it was in the In re Juan C. case. In the past, courts have struck down indefinite curfews that were not issued in response to rioting and looting but were used as generic crime-fighting tools.
The Los Angeles curfew mimics the curfew from the In re Juan C. case. No court is going to strike it down, provided that the County lifts it soon. Meanwhile, the ACLU should use its newfound interest in the Constitution to lobby California and its municipalities to lift their indefinite lockdown orders. Ending the lockdowns will make a bigger difference than ending a temporary, 12-hour curfew—and it could help the ACLU get some of its credibility back.