New York City's racial justice protest curfew did not violate the Constitution

The Court of Appeals holds that the City of New York was legally able to impose a week-long nighttime curfew that curtailed the racial justice protests that followed the murder of George Floyd in 2020. This case highlights the complexities of constitutional law, as the plaintiffs framed their case under the constitutional right to travel, not the First Amendment.

The case is Jeffries v. City of New York, issued on August 16. The curfew lasted from June 1 through June 7, 2020. Floyd was murdered on May 25, 2020. It is not clear to me why the plaintiffs (on behalf of a proposed class) abandoned their First Amendment claim; it might be because the curfew affected everyone in the City, not just the protesters. What makes this case unique is not only the right to travel angle (few cases actually clarify the scope of this right) but that the district court dismissed the case under Rule 12(b)(6), prior to any discovery. Cases with complex balancing tests normally are not dismissed on the face of the complaint and have to await a full record following discovery, when the parties then move for summary judgment.

You probably did not know the Constitution protects the right to travel. But it does. The ruling provides a lengthy review of the right to travel, which appears nowhere in the Constitution, though such a right is implied and is therefore judge-made. This right covers both interstate (state to state) and intrastate (neighborhood to neighborhood or city to city) travel. The Second Circuit recognizes the right to intrastate travel, but it has not "sharply defined" the parameters of such a right, though it recognizes that a municipal curfew implicates the right to intrastate travel. The Second Circuit (Raggi, Lohier and Carney) sidesteps whether this case requires strict scrutiny or heightened scrutiny (the standards of review in many constitutional cases) but instead holds that even under strict scrutiny, the plaintiffs lose, and the case is over.

Plaintiffs lose because, first, the City had a compelling governmental interest in preventing crime and maintaining civil order. The Court takes judicial notice that the racial justice protests in 2020 were marred by violence and arson in New York City; though not everyone engaged in lawless behavior, it was widespread enough for the government to impose the night-time curfew. Once the government shows its restrictions were necessitated by a compelling interest, to win, it must then show the restrictions were narrowly tailored to meet that compelling interest. 

This balancing test is quite difficult for the government to satisfy, but it can do so here because (1) the City imposed the curfew only after contemplating alternative courses of action (such as traditional policing) following a "tumultuous and confrontational moment in the City's history"; (2) the scope of the curfew was narrow (night-time to early in the morning, when most law-abiding people are likely to be at home); and (3) there were exceptions for people who have to be out at night (police officers, firefighters, etc.).