Birmingham bans protests 19 hours a day. That’s likely unconstitutional, experts say

In Birmingham, cradle of the civil rights movement and icon of nonviolent resistance, peaceful protest is currently banned 19 hours a day.

During the five-hour daily window when public protests are allowed under a sweeping city order instituted last week, demonstrators must first obtain a permit and agree to rally in a designated park several miles away from the prominent downtown sites where Martin Luther King Jr. famously led mass acts of civil disobedience.

Meanwhile, more than a dozen cities, suburbs and rural areas across Jefferson and Shelby counties have imposed nighttime curfews that specifically ban rallies, marches and demonstrations while allowing a wide range of exemptions for businesses and workers.

The politicians who have approved these restrictions invariably describe them as necessary to maintain order as the wave of protests that emerged in the wake of the killing of George Floyd by a Minneapolis police officer continues across the United States. But law professors, advocates and other experts say the restrictions represent clear violations of people’s constitutional rights – especially in towns that have not seen protests or violence.

"[T]hese curfews present constitutional issues," Ian Kalish, a lecturing fellow at Duke University School of Law's First Amendment Clinic, wrote in an email. "In my opinion, these curfews are far too broad and violate the First Amendment."

The limited violence and property damage by demonstrators and shows of force by police – including firing tear gas and rubber bullets – that marked a handful of protests in Alabama last week appears to be on the wane. Over the weekend, most protests throughout the state were held peacefully and without arrests.

But the curfews have remained in place, criminalizing the act of leaving one's home for any reason not deemed allowable under the orders.

The Birmingham ban

For a few hours beginning the night of May 31, Birmingham Mayor Randall Woodfin and his police chief, Patrick Smith, watched a peaceful protest escalate into a chaotic scene of violence and lawlessness in the city’s central business district. Following a rally in historic Linn Park, a group of people damaged 14 businesses, started fires and assaulted journalists. Police restored order in the early morning of June 1, and 24 people were arrested.

A few hours later, Woodfin responded by declaring a state of emergency and instituting an indefinite curfew barring people in Birmingham from being out in public between the hours of 7 p.m. and 6 p.m., except under certain circumstances.

“We’re not playing," Woodfin said during a press conference announcing the measures. “We’re going to enforce the law.”

He also said, “Birmingham, this is not us. This is not who we are. This is not how we taught the world how to protest.” Shortly after 7 p.m. that evening, Birmingham police arrested 12 peaceful protesters in Linn Park for violating the curfew.

The following day, Tuesday, Woodfin issued an amended order banning indefinitely “any demonstration, parade, march, or vigil on any of the public ways or upon any public property, including the public parks of the city, unless pursuant to a permit,” anytime day or night. The order cited “the continuing threat of further rioting that has taken over peaceful protests of the death of George Floyd in many other major cities across the United States over the past week.”

Instituting such restrictions amid ongoing protests in Birmingham last week likely violated people's rights under the U.S. Constitution, according to Barry McDonald, a professor at Pepperdine University School of Law.

"It's just not sufficiently tailored to meet the public safety needs that are at stake here," McDonald said. "The term I'd use is 'overbroad,' in terms of suppressing free speech rights in order to meet the public need."

Birmingham Police Sgt. Rod Maudlin declined to comment in a phone interview, saying that for "[a]nything regarding curfew, you'll have to follow up with City Hall because we don’t create laws, we just enforce them."

Woodfin's office declined to answer a series of questions about the curfew and protest restrictions and concerns about their constitutionality, instead pointing to previously published statements and providing a brief response via email.

“[P]rotests have not been ‘shut down,’ as you said in your email,” Chanda Temple, a spokesman for the mayor, wrote, declining to elaborate. “Anyone interested in having a peaceful protest is asked to engage the City in their efforts.”

On Wednesday, the day after the amended order was instituted, the American Civil Liberties Union of Alabama issued a plea for "Mayor Woodfin to reconsider this ill-advised order and respect the constitutional right of his constituents to protest."

Woodfin responded later that day with a "guidance for peaceful demonstrations" that clarified that protests could be held in Birmingham in limited circumstances.

“[T]he city has identified W.C. Patton Park as a designated zone for permitted demonstrations or vigils from 10 a.m. to 3 p.m. during the state of emergency and while the curfew is in place,” Woodfin said in the statement. “This is our creative solution to ensure freedom of speech while reducing public safety risks.”

Woodfin added that "[t]he intent is to end the current curfew Monday June 8, 2020 at 11:59 p.m. but may be extended due to circumstances."

On Thursday, a gathering of about 100 protesters gathered in Linn Park at about 3 p.m. amid unsubstantiated rumors that Ku Klux Klan members were in Birmingham. Police officers allowed them to protest until shortly after 7 p.m., when they arrested a handful of people who remained in the park after the citywide nighttime curfew went into effect. It’s not clear why they were allowed to protest despite not following the guidelines issued Wednesday. On Thursday, the city also erected chain-link fences around Linn and Kelly Ingram parks.

Asked in a Friday interview about the initial restrictions the city instituted on Tuesday, Randall Marshall, executive director of the ACLU of Alabama, said "that did strike us as being unconstitutional and it was walked back pretty quickly. Was it walked back enough? That’s always the tough question."

Woodfin said Wednesday in his statement about the amended order released that day that Birmingham leaders were "aware of credible threats against the city, certain locations, individuals and protesters. We are taking the steps needed to protect our employees, our residents, our businesses and our protesters."

Later Wednesday, a Warrior man was arrested and charged with threatening in a 911 call to "assassinate" Woodfin and shoot protesters.

“Unfortunately, the tragic consequences of this week’s protests, occurring both on our streets and around the country, demonstrate a clear and present danger to the safety of our residents, including peaceful protesters,” Woodfin said in his statement earlier that day.

But experts said a judge likely would not agree that the level of danger facing Birmingham and its residents this week was sufficient to limit public protest in the city to demonstrations held during a five-hour daily window in a relatively obscure park three miles from City Hall after obtaining a permit.

“That is quite possibly constitutionally overbroad, because the nature of the articulated concern and government interest does not seem sufficient tied to the scope of the time, place and manner restrictions, because five hours a day is such a significant restriction, plus the location restrictions,” said John Inazu, a professor at Washington University in St. Louis School of Law.

Kalish agreed, describing the ban as "far too broad" in its scope.

"There is no attempt to accommodate peaceful speech in any real way," he said.

Tabatha Abu El-Haj, a professor at Drexel Kline School of Law, agreed, saying she believed Birmingham's curfew would be "challengeable" in court as a potential violation of people's First Amendment rights.

"It did not seem like there was a lot of rioting or an extensive loss of control or ability to police the city as a whole," she said. "The presumption is against prior restraint. If it were to be challenged in court, they would have to basically prove it was necessary to impose a curfew to keep the public safe."

Other communities

While Birmingham has the distinction of having instituted perhaps the most onerous protest restrictions in the state this past week, many surrounding communities have approved curfews that limit protest activity.

During an emergency meeting on June 1, the Homewood City Council voted 8-1 to institute a broad nighttime curfew. Mayor Scott McBrayer cited vague "threats" and the May 31 violence in Birmingham as justification for the curfew, which lists a number of exemptions for people engaged in various "necessary" activities.

“I understand constitutional rights … but we have an obligation to do what we think is right," he said at the time. “Our first obligation as a city government is to protect and defend. I don’t think it would be smart of us to sit back and do nothing.”

Similar curfews were swiftly adopted Monday in municipalities including Hoover, Mountain Brook, Bessemer and Tarrant. Hoover Police arrested 14 protesters the following evening for violating curfew.

On Tuesday, the Jefferson County Commission approved a "public safety curfew" banning "[t]ravel upon any public street, alley, or roadway or upon any other public property." It lists exemptions for people passing through the county, engaging in "necessary" pursuits like obtaining medical assistance or food or attending religious services, and people who perform "necessary" jobs, such as utility workers, law enforcement officers, medical personnel and journalists.

By the end of the day Wednesday, over a dozen municipalities in Jefferson and Shelby counties had instituted curfews limiting nighttime movement within their borders. Many of the curfews, including those rolled out in Bessemer, Gardendale, Alabaster and Pelham, specifically ban public protests at night.

Fultondale, a northern suburb of Birmingham with fewer than 10,000 residents, instituted its curfew on Wednesday.

Fultondale Mayor Jim Lowery released an open letter that day that stated that "[w]hile the Resolution establishes curfew hours of 7:00 p.m. to 6:00 a.m. and completely restricts participation in any demonstration, parade, march or vigil on any public ways or any public property, it has no application to commercial enterprises."

Lowery said in a phone interview on Thursday that Fultondale had not experienced any violence or threats related to the ongoing protests.

"We haven't had any problems to date. However, you have to prepare, whether there's anything going on, in case something does happen," Lowery said. "This is a precaution we can take. So if we do have a problem we have an ordinance in place."

He added that the unrest in Birmingham and across the nation played a part in his support for the curfew: “I just felt that was the best thing to do … I see a lot of different things going on.”

Legal experts say such an approach poses clear constitutional concerns.

"These constitutional problems are particularly profound where towns have enacted purely preemptive curfews," Kalish wrote. "If no looting or violence has previously occurred, the government has an even less legitimate interest in imposing a curfew."

Abu El-Haj said it is likely a violation of people’s First Amendment rights to institute a curfew without there being “a compelling state interest,” in this case, a clear and significant threat or danger to public safety.

"If there is no actual threat and you can produce no evidence that there is a threat and it's just a hypothetical amorphous threat and you're just worried about other areas, I don’t see how that’s a compelling state interest," she said. "In situations where there has been no unrest … I don’t see how those curfews can be upheld."

Plus, even if residents of towns under such curfews have no intention of protesting, McDonald said they could potentially still have a plausible claim that the restrictions violated their rights under the Constitution.

"To me, if you're imposing a curfew when there's absolutely no evidence to support it, you could argue that your due process rights are being violated," he said. "You don’t even have to go out and get arrested. You could just allege, 'I wanted to go out and take a walk and I couldn’t because of the curfew.'"

The specifics of the orders provide further basis for challenging them as unconstitutional, experts said.

For instance, at least some of them specifically allow restaurants, retail outlets and other businesses to continue to operate after curfew. That is the case in Fultondale, according to Lowery’s open letter : “all businesses that sell any ‘commodity or service’ are unaffected by the curfew hours.” And they allow people traveling to and from places of employment to be out past curfew as well.

Those exemptions raise questions about whether there was sufficient danger to warrant the imposition of curfews, McDonald said. That could make it more difficult to argue that such curfews did not violate people’s constitutional rights.

"The more exceptions you make, the harder it's going to be for the government to justify its sweeping restrictions," he said. "So, again, it does undermine the government's assertion."

As of early Monday morning, following a weekend of broadly peaceful protests in Alabama, curfews still remained in place throughout much of the Birmingham suburbs.