Cities ‘criminalizing Halloween’ with threat of jail may violate constitution, ACLU says

The First Amendment protects freedom of religion, freedom of speech and freedom of the press — and maybe even the freedom to trick-or-treat, according to the Virginia chapter of the American Civil Liberties Union.

Cities in Virginia and beyond have imposed time and age restrictions on the Halloween tradition, with some trick-or-treating rules threatening violators with jail and fines, writes Jennifer Safstrom, an ACLU legal fellow. Safstrom cites a Chesapeake, Virginia, ordinance that says trick-or-treaters older than 12 face fines of “not less than $25.00 nor more than $100.00” and “confinement in jail for not more than six months.”

Once it gets late, even kids in Chesapeake face a hefty fine — or worse.

“The potential penalty for asking for candy after 8 p.m., regardless of age? A maximum fine of $100, up to 30 days in jail, or both,” Safstrom writes.

Chesapeake officials say police are “not actively seeking out violations of the time or age limits.”

But the ACLU points out that the ordinance is still on the books, and says the “ghoulish limitations” are more than just “criminalizing Halloween.”

“Laws that unnecessarily restrict an individual’s communication and social engagement are antithetical to the First Amendment,” Safstrom writes, citing laws and court rulings protecting canvassing and door-to-door solicitation. “Local ordinances that prohibit trick-or-treating, or soliciting, on Halloween would not likely pass muster under this rigorous constitutional standard.”

Are the trick-or-treating limits actually enforced, though?

They were as recently as 2009 in Virginia Beach, Virginia, the Virginian-Pilot reported in 2015: Police spokesman James Cason, Jr., told the newspaper that there were six trick-or-treating ordinance violations between 1988 and 2009, though records didn’t say what the exact violations were.

“In most cases like that, someone might open the door and say, ‘Aren’t you a little old?’ and nothing comes of it,” Cason told the newspaper.

In nearby Portsmouth, a police spokesperson also said Halloween ordinance violators usually get let off with a warning, the Virginian Pilot reported.

And police said the goal isn’t to punish teens.

“It’s not like we have officers that are patrolling the neighborhoods saying ‘How old are you?’ That’s not the point,” Newport News, Virginia, police spokesman Lou Thurston said, The Associated Press reported in 2016. “The point is making the place safe.”

Still, the ACLU says the rules promote needless fear, and that if they’re enforced they could disproportionately harm those with developmental disabilities who want to trick-or-treat at older ages.

“The only thing a 13-year-old trick-or-treater should fear is a stomach ache at bedtime — not jail,” Safstrom wrote. “This Halloween: Keep calm, carry a wand, and report civil rights violations.”

This story was originally published October 19, 2018 at 3:28 PM with the headline "Cities ‘criminalizing Halloween’ with threat of jail may violate constitution, ACLU says."