Curfews, stay-at-home orders, and the broad power of local governments

Jim Melwert
June 05, 2020 - 4:32 pm
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PHILADELPHIA (KYW Newsradio) — As we’ve seen over the past week — and over the past few months — governments have broad power when it comes to curfews and stay-at-home orders. 

But what is the limit of that power? 

Villanova University constitutional law professor Michael Moreland said state and local governments have the authority to take action to combat public health emergencies or to protect public safety, and there are general guidelines for implementation.

“If the government is facing an emergency of some kind, it has these tools to address concerns about public order and civil unrest,” he said, but with limitations. 

For example, a curfew cannot legally single out one race, but it can target a geographic area.

Moreland said a curfew also can’t be imposed simply to block the First Amendment right for people to gather and peacefully protest.

“But if the restriction is tailored to the government’s interest in preventing property damage or other kinds of violence, then that’s where the law is friendlier to the exercise of public authority,” he added.

Generally, Moreland said a government needs to offer another outlet for the expression of free speech. But similar to the coronavirus stay-at-home orders, if the curfews start to go on too long, there could be more legal challenges.

That’s the legal theory of curfews — just like anything else, how they’re actually implemented can vary.