Scary laws won't make Halloween safer
The prospect of police scouring suburban streets to enforce trick-or-treating bans gives a whole new meaning to the term "witch hunt."
From New England to the California coast, cities have Halloween customs in the crosshairs as coronavirus cases surge and public health officials warn that door-to-door candy collection increases infection risks.
In Texas, El Paso County and Hidalgo County enacted emergency orders that forbid trick-or-treating. The time-honored tradition is against the law this year in Worcester, Massachusetts; Plainfield, New Jersey; Greenville, Mississippi; and Lumberton, North Carolina.
New York Mayor Bill de Blasio said outdoor trick-or-treating can proceed, but costumed children can't make their rounds inside apartment buildings. Some local governments are limiting the size of neighborhood candy caravans and setting trick-or-treat hours or curfews.
Elsewhere, communities have avoided mandatory restrictions and instead are asking families to take precautions. Los Angeles County initially said trick-or-treating was prohibited, but health officials revised that pronouncement and now say it's merely "not recommended."
Is keeping costumed superheroes, pirates, monsters and ghosts off neighbors' front porches really a legitimate exercise of government power? Would judges rubber-stamp efforts to enforce Halloween laws that many Americans find intrusive?
Trick-or-treating is a form of door-to-door solicitation entitled to First Amendment protection, Pacific Legal Foundation attorney Daniel M. Ortner wrote last year. In an 8-1 ruling, the Supreme Court struck down an Ohio village ordinance that imposed misdemeanor charges for canvassing without a permit. The 2002 case affirmed Jehovah's Witnesses' right to ring your doorbell.
"Trick-or-treating is consistent with this tradition of expressive door-to-door activity," Ortner wrote. "A trick-or-treater's costume can be a form of speech protected against government censorship. Costumes are a way for people to express their likes and dislikes, and even to comment on politics and social issues."
Free speech, however, can be subject to reasonable time, place and manner restrictions without running afoul of the First Amendment. And courts agree the preservation of public health is a compelling government interest that can justify some temporary limits on personal liberty.
Sarah Wetter, an attorney and law fellow at Georgetown University's O'Neill Institute for National and Global Health Law, told The Charlotte Observer she believes trick-or-treat bans would be upheld.