Indiana Law Review State and Federal Constitutional Law Developments Rosalie Berger Levinson* Introduction This Article explores state and federal constitutional law developments over the past year. Parts I-III examine both U.S. Supreme Court cases and significant Indiana state and low^er federal court cases addressing federal constitutional issues. Part IV will focus on state civil constitutional law cases. I. First Amendment Speech Cases During the 2000 term the U.S. Supreme Court decided several cases raising First Amendment issues. In addition, both the district courts in Indiana and the Seventh Circuit Court of Appeals were called upon to assess First Amendment challenges to Indiana statutes. A recurring theme is the extent to which government may regulate speech in order to protect children. A. Regulating Commercial Speech to Protect Minors In Lorillard Tobacco Co. v. Reilly,^ the tobacco industry successfully challenged various Massachusetts regulations governing the advertising of tobacco products. State regulations, promulgated by the Attorney General, prohibited the outdoor advertising of smokeless tobacco or cigars within 1000 feet of a school or playground.^ Further, they proscribed indoor, point-of-sale advertising ofcigars and smokeless tobacco "placed lower than five feet from the floor ofany retail establishment which is located within a thousand foot radius" of any school or playground.^ Despite the state's obviously strong interest in protecting its children from the ills of tobacco use, the Court reasoned that the regulations went too far. After striking the cigarette advertising regulations on pre-emption grounds,"* Justice O'Connor applied a four-prong analysis established in Central Hudson Gas & Electric Corp. v. Public Service Commission^ to test the smokeless tobacco regulations. Under the first prong, the court determines whether the expression is protected at all, since the state may ban commercial speech if it is * Associate Dean and Professor of Law, Valparaiso University School of Law. B.A., 1969, Indiana University; J.D., 1973, Valparaiso University School of Law. 1. 533 U.S. 525(2001). 2. Id at 545. 3. Id at 566 (quoting Mass. Regs. Code tit. 940, §§ 21.04(5)(b), 22.06(5)(b) (2000)). 4. Id. at 553-57. The Court relied on the Federal Cigarette Labeling and Advertising Act, which prescribes mandatory health warnings for cigarette packaging and advertising. The Court rejected the Attorney General's argument that pre-emption should not apply because the regulations targeted youth exposure to tobacco, rather than the health-related content ofadvertising. The Court found the two concerns "intertwined." Id. at 526-27. 5. 447 U.S. 557(1980). 1264 INDIANA LAW REVIEW [Vol. 35:1263 false, deceptive, or misleading, or if it concerns unlawful activity.^ The second prong asks whether the asserted governmental interest is substantial.^ The third and fourth prongs require the court to determine whether the regulation directly advances the asserted governmental interest and whether the regulation is more extensive than necessary to serve that interest.* The first two prongs were conceded by the parties and the Court found "ample documentation" of a problem with underage use of smokeless tobacco and cigars, which could be ameliorated by preventing campaigns targeted at juveniles.' The Court concluded, however, that the ban on outdoor advertising failed the fourth prong because it was more extensive than necessary to advance the state's interest in preventing underage tobacco use.'° The Court expressed concern that the regulations made no distinctions based on the size of the sign, nor did the regulations differentiate between rural, suburban, or urban locales, which "demonstrates a lack of tailoring."" The Court noted that in some areas the regulations "would constitute nearly a complete ban on the communication of truthful information about smokeless tobacco and cigars to adult consumers."'^ The Court reiterated the firmly established principle that the government's interest in protecting children from harmful materials "does not justify an unnecessarily broad suppression of speech addressed to adults."'^ As to the prohibition on indoor point-of-sale advertising, the Court concluded that this regulation failed both the third and fourth prongs ofthe Central Hudson analysis because it neither advanced the goal of preventing minors from using tobacco products, nor curbed the demand for such activity.'"* The five-foot rule would not curb demand for the product since children can obviously look up and see the ads, and there was not a "reasonable fif between the restriction and the goal of targeting advertising that entices children.'^ Further, the Court rejected a "de minimis" exception for even limited restrictions on advertising, where the restrictions lack sufficient tailoring.'^ The concurring opinions ofJustices Kennedy, Scalia, and Thomas expressed concern with the CentralHudson test. Justice Kennedy,joined by Justice Scalia, opined that "the test gives insufficient protection to truthful, nonmisleading 6. Id Sit 566. 7. Id 8. Id 9. Z,on7/arfl^,533U.S. at563. 10. Id at 566. 11. Mat 564. 12. Id 13. Id at 565 (quoting Reno v. ACLU, 521 U.S. 844, 875 (1997)). 14. Id. at 566. The Court, however, did sustain regulations requiring "tobacco retailers to place tobacco products behind counters and require customers to have contact with a sales-person before they are able to handle a tobacco product." Id at 568. 15. Id at 567. 16. Id 2002] CONSTITUTIONAL LAW 1265 commercial speech."'^ Justice Thomas flatly stated that he would subject all advertising regulations that restrict truthful speech to strict scrutiny analysis.'* As to the state's interest in protecting minors. Justice Thomas emphasized that the state did not focus its ban on "youthful imagery.'"^ More basically, he emphasized that the state cannot pursue its interest in regulating speech directed at children "at the expense of the free speech rights of adults."^^ Justice Stevens, joined by Justice Ginsberg and Justice Breyer, would have remanded the case for a trial to better assess whether the measures were properly tailored to serve the government's compelling interest in "ensuring that minors do not become addicted to a dangerous drug before they are able to make a mature and informed decision as to the health risks associated with that substance."^' Because there was some doubt in the record as to the impact the advertising ban would have, particularly in the state's largest cities, the breadth of the ban was potentially problematic. However, the dissenters would have upheld the point-of-sale advertising restrictions as not significantly implicating First Amendment concerns." Lorillard is significant for several reasons. The decision triggered nine separate opinions, including four rather convoluted concurring opinions. Nonetheless, CentralHudson remains intact, despite the urging ofsome members ofthe Court that truthful, nonmisleading commercial speech should enjoy the full First Amendment protection afforded non-commercial speech. On the other hand, the decision indicates that the Central Hudson test is not toothless and that the government will not be permitted to impose broad advertising bans to discourage the use of legal but disfavored products, even where a child welfare argument is invoked.^^ Either government must enact generally applicable 1 7. Id. at 570 (Kennedy, J., concurring). But see Commodity Trend Serv., Inc. v. Commodity Futures Trading Comm'n, 233 F.3d 981, 994 (7th Cir. 2000) ("The government can directly regulate deceptive advertising without any further justification."). 18. Lorillard, 533 U.S. at 570 (Thomas, J., concurring). 19. Mat 574. 20. Mat 575-76. 21 . Id. at 587 (Stevens, J., concurring in part and dissenting in part). 22. Mat 590. 23. The Supreme Court's strict analysis of advertising bans is also reflected in Thompson v. Western States Medical Center, 122 S. Ct. 1497 (2002). The Court ruled 5-4 that the government could not prohibit the advertising of compounded drugs even when the government, in return, exempted such drugs from FDA standard drug approval requirements. The Court conceded that the prohibition on wide advertising of compounded drugs where such drugs did not first undergo safety testing might advance the government's interest in discouraging broad use of such drugs. However, the new law failed to meet Central Hudson's requirement that the means be no more restrictive than necessary: 'ifthe Government could achieve its interests in a manner that does not restrict speech, or that restricts less speech, the Government must do so." Id. at 1 506. Again the Court reiterated the principle that government cannot halt the dissemination oftruthful commercial information simply to keep members ofthe public from making bad decisions with this information. Id at 1507. 1266 INDIANA LAW REVIEW [Vol. 35:1263 zoning ordinances that apply to all products, or it must take special care that its restrictions are limited to advertising with special appeal to minors in especially problematic geographical locations, in order to meet the narrow tailoring requirement. B. Regulating to Protect Minorsfrom Violence It is well established that obscene materials are unprotected by the First Amendment. Further, even material that does not meet the adult standard of obscenity may be proscribed for minors based on the potential harm such material might cause to the psychological or ethical development of children.^* On the other hand, the Supreme Court has never addressed the constitutionality of laws aimed at shielding minors from depictions of graphic violence, despite a growing body of evidence that such material is also harmful to minors. In American Amusement Machine Ass 'n v. Kendrick^^ the Seventh Circuit was called upon to address this issue in the context of an Indianapolis ordinance aimed at limiting children's access to video games that depict violence. Under an Indianapolis ordinance, establishments which feature five or more coin-operated arcade games containing graphic violence or strong sexual content were required to both segregate such games to ensure access only by adults and to obtain parental consent prior to allowing a minor to play such games.^^ The ordinance specifically targeted amusement machines that predominantly appeal "to minors' morbid interest in violence or minors' prurient interest in sex, [that are] patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for persons under the age of eighteen (18) years," and that lack "'serious literary, artistic, political or scientific value as a whole for persons under' that age."^^ The portion ofthe ordinance aimed at sexually explicit material closely tracks a similar statute that was sustained by the Supreme Court in 1 968.^^ The plaintiffs, manufacturers ofvideo games and their trade association, challenged only the "graphic violence" aspect ofthe ordinance, which targeted "an amusement machine's visual depiction or representation of realistic serious injury to a human or human-like being where such serious injury includes amputation, decapitation, dismemberment, bloodshed, mutilation, maiming or disfiguration [disfigurement]."^^ Violations triggered potential 24. See Ginsberg v. New York, 390 U.S. 629, 639-43 (1968). 25. 244 F.3d 572 (7th Cir. 200 1 ), cert, denied, \ 22 S. Ct. 462 (200 1 ). 26. See id. at 573. 27. Id. (quoting INDIANAPOLIS, IN, CiTY-CouNTY General Ordinance No. 72, § 831.1 (2000)). 28. In Ginsberg, the Court upheld a statute that forbade any representation of nudity that "predominantly appeal [ed] to the prurient, shameful or morbid interest of minors," that was "patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors" and that was "utterly without redeeming social importance for minors." Ginsberg, 390 U.S. at 633. 29. Am. Amusement Mach. Ass'n, 244 F.3d at 573 (alteration in original) (quoting 2002] CONSTITUTIONAL LAW 1267 suspension or revocation ofthe right to operate the machines as well as monetary penalties.^^ The district court upheld the Indianapolis ordinance.^' It applied a rational basis analysis and concluded that empirical studies by psychologists, which found that playing violent video games tends to make young persons more aggressive in their attitudes and behaviors, sufficiently justified the enactment.^^ Further, the district court believed that the fact that the ordinance tracked the conventional standard for obscenity eliminated any due process vagueness concerns." The Seventh Circuit rejected both the district court's analysis and its conclusion. It reasoned that the ordinance had to be subjected to strict scrutiny and, because it found that Indianapolis could not meet this heightened standard, it ordered entry ofa preliminary injunction prohibiting enforcement ofthe law.^"* A core question in the case was whether the city appropriately relied on the analogy to obscene material. Arguably, depictions ofviolence may be even more harmful to minors than sexually explicit material and, thus, ifthe former may be regulated, why not the latter? Judge Posner rejected the city's attempt "to squeeze the provision on violence into a familiar legal pigeonhole, that of obscenity."^^ He reasoned that the U.S. Supreme Court has sustained regulation of obscenity not on grounds that it is harmful, but on grounds that it is offensive.^^ Government need not prove that obscene material is likely to affect anyone's conduct before the material can be proscribed, because it is sheer offensiveness that justifies the restriction.^^ On the other hand, because the city argued a link to harmful consequences as the basis for restricting violent speech, it was required to present some proof of a causal connection to some harm.^* While conceding that "protecting people from violence is at least as hallowed a role for government as protecting people from graphic sexual imagery," the court found that the city had failed to create a record demonstrating that violent video games led youthful players to breach the peace.^^ Judge Posner found the psychological studies relied on by the city unpersuasive because they failed to show that violent video games are any more harmful to the public safety than violent movies or other violent entertainment readily accessible to minors.'*^ He reasoned that video games are no different Indianapolis, FN, City-County General Ordinance, No. 72, § 831.1 (2000)). 30. Id. 31. See Am. Amusement Mach. Ass'n v. Cottey, 1 1 5 F. Supp. 2d 943 (S.D. Ind. 2000). 32. Mat 964-66. 33. Mat 978-81. 34. Am. Amusement Mach. Ass '«, 244 F.3d at 580. 35. Mat 574. 36. M 37. Mat 575. 38. Mat 576. 39. Mat 575. 40. M at 578-79. 1268 INDIANA LAW REVIEW [Vol. 35:1263 from literature; many games have story lines and even ideologies, just as books and movies do.*' The facts that violent video games constitute a "tiny fraction" ofthe media violence to which American children are exposed and the characters in the video games are "cartoon characters" who could not be mistaken for real people further persuaded Judge Posner that the ordinance's curtailment of free expression could not be offset by anyjustification "'compelling' or otherwise.'"*^ Although access to such games was permitted when minors were accompanied by their parents, the court concluded that the parental accompaniment requirement would deter children from playinggamesand that most parents were simply too busy to accompany their children, even if they thought their children could be exposed to violent video games without suffering any harm."*^ The Indianapolis ordinance was addressed in the context of a preliminary injunction, and, thus, the court did not discuss whether a more narrowly drawn ordinance might survive a constitutional challenge. Judge Posner, however, implied that a sufficiently narrow statute must restrict itself to games that use actors in simulated real death and mutilation convincingly or to games that lack any story line and instead consist merely of "animated shooting galleries.'"** It can be questioned, however, whether strict scrutiny must be the analysis applied when government seeks to protect children. Certainly, as Judge Posner conceded, the Supreme Court has allowed greater government regulation where speech is targeted at children.*^ Further, the Court has applied a somewhat more deferential approach where the speech has little communicative value and appears to lie at the periphery ofthe First Amendment. For example, the Court has allowed much greater regulation of sexually explicit material, even where such material does not meet the strict legal definition of obscenity.*^ Arguably, 41. /J. at 578. 42. Jd at 579. 43. Id at 578. 44. Id at 579. 45. For discussion of Ginsberg, SQQ supra nolQlS. 46. In City ofErie v. Pap 's A. M. , 529 U.S. 277 (2000), a plurality held that a city's concern for the highly detrimental effects of lewd, immoral activities justified a ban on nudity as applied to nude dancing. The plurality specifically rejected the suggestion that the city had to develop a more specific evidentiary record of harm in order to justify its statute. Id. at 299-300. Similarly, in Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986), the Court upheld restrictive zoning ofadult establishments, based on the alleged secondary effects associated with such businesses, without mandating that the city conduct its own new studies proving adverse secondary effects. The Court found that it sufficed that the studies relied on were "reasonably believed to be relevant to the problem'' addressed, /af. at 51-52. Further, in City ofLos Angeles v. Alameda Books, Inc., 122 S. Ct. 1728 (2002), the Court in a 5-4 ruling held that a city could reasonably rely on studies correlating crime patterns with the concentration ofadult businesses in single-use establishments to support an ordinance prohibiting more than one adult entertainment business in the same building. The Ninth Circuit held that the lack of more specific empirical data regarding multiple-use adult establishments was fatal to the zoning ordinance. 222 F.3d 719 (9th Cir. 2000). Relying on Renton, Justice O'Connor criticized 2002] CONSTITUTIONAL LAW 1269 violent video games can be said to fail within this less protected category. Judge Posner asserted that the ordinance could not meet even a lesser standard because ''[cjommon sense says that the City's claim of harm to its citizens from these games is ... at best wildly speculative.'"*^ He did so, however, only after flatly rejecting the psychological studies, because the games used in the studies were purportedly not similar enough to those marketed in game arcades in Indianapolis, and because the studies found only that the games triggered aggressive feelings, but not necessarily violent conduct.** Judge Posner's concept of "common sense" may not necessarily comport with that of other reasonable minds. He claims that children cannot "become well- functioning, independent-minded adults and responsible citizens ifthey are raised in an intellectual bubble[,]"*^ but common sense does not dictate that the development ofminors will be impeded or that minors will be left "unequipped to cope with the world as we know it,"^° simply because they are denied access to violent video games unless accompanied by an adult. Although concerns for the First Amendment perhaps warrant a closer analysis than the reasonable basis test imposed by the district court, it is difficult to understand the notion that the court below for setting too high a bar on municipalities that were simply addressing the secondary effects of protected speech. Id. at 1736. Renton required only that the city's evidence *'fairly support the municipality 's rationale for its ordinance." Id. Justice O'Connor cautioned that cities could not rely on "shoddy data or reasoning" to enact zoning ordinances, but concluded that plaintiffs must cast doubt on the city's rationale by either demonstrating that its evidence does not support its rationale or by furnishing evidence that disputes the city's factual findings. At least at the summaryjudgment stage, plaintiffs had not produced such evidence and the city, therefore, met Renton's evidentiary requirement. Id. In a concurring opinion. Justice Kennedy emphasized that in the zoning context, cities have significant power to target the secondary effects of speech, and provided the purpose ofthe ordinance is ''to limit the negative externalities of land use," the usual presumption that content'based restrictions on speech are unconstitutional does not apply. Id. at 1741; see also Blue Canary Corp. v. City of Milwaukee, 270 F.3d 1 156 (7th Cir. 2001). The Seventh Circuit held the city's denial of a permit for nude dancing at a burlesque theatre in a residential district did not violate the First Amendment because it only barred the operation in proximity to a residential neighborhood, leaving abundant convenient locations within the city. Further, the court rejected the argument that the zoning commissioner was given too much discretion in administering the zoning law, reasoning that '"some degree of discretion is an unavoidable feature of law enforcement." Id, at 1 158. In an earlier ruling upholding the city's refusal to renew the plaintiffs liquor license, the court reasoned that ''[t]he impairment of First Amendment values is slight to the point of being risible, since the expressive activity involved in the kind of striptease entertainment provided in a bar has at best a modest social value." Blue Canary Corp. V. City ofMilwaukee, 251 F.3d 1121, 11 24 (7th Cir. 2001). Although the subsequent request did not involve the sale of alcohol, the court still found the same minimal impairment of free speech. See Blue Canary Corp., 270 F.3d at 1 1 57. 47. Am. Amusement Mach. Ass'n, 244 F.3d at 579. 48. Id at 578-79. 49. Id. it 577, 50. Id 1270 INDIANA LAW REVIEW [Vol, 35:1263 government has a sufficiently important interest in restricting the exposure of juveniles to sexually explicit material, but cannot restrict their access to video games that depict graphic violence. Concerns of vagueness are always an issue in the First Amendment context but, as the district court appropriately noted, the Indianapolis ordinance tracks the definition for regulating sexually explicit material aimed at minors that has been sustained by the Supreme Court. Further, the definition of proscribed material is quite detailed. Judge Posner concluded that the ordinance was overly broad because it was not restricted to games using more realistic actors and more realistic depictions of death and mutilation, or games lacking any story lines.^' Further, he contended that the ordinance was under-inclusive because it was aimed only at video games and not at violent movies and television." Concerns of over and under-inclusiveness are a well established aspect of strict scrutiny analysis; however, the Supreme Court has been less apt to apply this stringent analysis vv^hen the speech is targeted only at minors and has limited First Amendment value, and the state is exercising its power to protect minors.^^ Further, his analogy to violent movies and television is inapt. Unlike television, it is feasible for a city to restrict access to violent video games without affecting adult access,^"^ and movies already have a rating system that denies minors access to unsuitable films. The fact that parental rights are protected by allowing access when children are accompanied by their parents, similar to the motion picture industry, further supports the validity ofthe ordinance. Indianapolis appealed the ruling, but its certiorari petition was denied.^^ The issue, however, is unlikely to go away, as many state legislatures and municipalities have either enacted or are in the process of enacting similar legislation.^^ 51. /(/. at 579-80. 52. /^. at 578-79. 53. See, e.g., Bellotti v. Baird, 443 U.S. 622, 633-34 (1979) (four-Justice plurality recognizing that the rights of minors cannot be equated with those of adults due to their peculiar vulnerability, their inability to make critical decisions in an informed, mature manner, and the importance of the parental role in child rearing). 54. Unlike the cigarette advertising ban previously discussed, this ordinance need not adversely affect the rights of adults. See discussion supra Part I.A. 55. See Kendrick v. Am. Amusement Mach. Ass'n, 122 S. Ct. 462 (2001). 56. The Connecticut legislature passed similar legislation in May 2001, that was vetoed by the governor. See S.B. 1 19, 2001 Gen. Assem., Reg. Sess. (Conn. 2001). A bill targeting business owners who allow children to operate video games with "point and shoof' simulated firearms is pending in the New York Assembly. See A.9019, 224th Leg., Reg. Sess. (N.Y. 2001). Tennessee has recently amended its statute governing the sale, loan, or exhibition to minors of material that depicts sexual conduct to include "excess violence." Tenn. Code Ann. §§ 39-1 7-911, 39-17-914 (2000). Similar legislation is pending in Oklahoma, Minnesota, Chicago and Honolulu. Indiana is considering enacting a similar provision. See H.R. 1649, 112 Leg., First Session (Ind. 2001) (referred to Senate on March 6, 200 1 ). Finally, St. Louis County, Missouri, is currently defending an ordinance which requires parental permission for children to buy violent or sexually explicit video games. See Interactive Digital v. St. Louis Co., No. OO-CV-2030, 2000 WL 826822 (E.D. 2002] CONSTITUTIONAL LAW 1271 The First Amendment has also posed an obstacle to Indiana lawmakers seeking to protect children from violence through curfew laws. In July 2000, a federal district court ruled that Indiana's first attempt to enact such a statute was unconstitutional because it interfered with the First Amendment rights of minors.^^ Although the statute created certain exceptions for work, school events and religious activities, the court found that it did not allow for other important, protected activities that take place after hours.^* The court reasoned that "without a general First Amendment activities exception, a curfew law is overbroad."^^ In response, the Indiana Legislature redrafted the law in May 2001 and broadened the exceptions in order to avoid intrusion on the First Amendment rights of minors. The new statute allows all First Amendment activity (free speech, the right ofassembly, and freedom ofreligion) to be asserted as a defense to an arrest under the curfew statute.^*^ The Indiana Civil Liberties Union has challenged the new law as an even greater intrusion on First Amendment rights, because it requires minors to come forward and assert a defense.^' It contends that the possibility of arrest will deter youths from exercising their federally protected rights during curfew hours.^^ A district court last fall refused to enjoin enforcement ofthe statute.^^ Judge Tinder reasoned that the ICLU failed to show "a realistic threat" that minors would be arrested on curfew violations when they were exercising their First Amendment rights.^ Judge Tinder agreed that an exception for First Amendment activity was constitutionally mandated.^^ The judge, however, was not troubled by the fact that the exemption in the ordinance appeared as an affirmative defense, rather than as an exception, since state and federal law requires an arresting officer to consider the totality ofcircumstances, including the First Amendment activity defense.^ Further, he ruled that, even if the law burdened some First Amendment conduct, the ordinance was narrowly Mo. 2002). 57. See Hodgkins v. Goldsmith, No. IP99-1 528.C-T/G, 2000 WL 892964 (S.D. Ind. July 3, 2000). 58. See id. 2X*9'\0. 59. Id. at IS. Subsequently, in Hodgkins v. Peterson, No. 1P00-1410-C-T/G, 2000 WL 33 128726 (S.D. Ind. 2000), the court rejected a challenge based on the substantive due process rights of parents to raise and control their children without undue government interference. Although the court applied intermediate scrutiny, it concluded that, at the preliminary injunction stage, the parents had not made a clear showing that the ordinance was invalid in light ofthe city's substantial interests in protecting its youth from victimization and protecting the city from crimes committed by youth during curfew hours. See id. at 1 3- 1 5. 60. 5ee IND. Code §31-37-3-3.5 (2001). 61. Hodgkins ex rel. Hodgkins v. Peterson, 175 F. Supp. 2d 11 32 (S.D. Ind. 2001). 62. /flf. atll45. 63. /flf. atll67. 64. Mat 1149. 65. Mat 1140-44. 66. Mat 1147. 1272 INDIANA LAW REVIEW [Vol. 35:1263 tailored to serve the government's interest "in providing for the safety and well- being of its children and combating juvenile crime."^^ In addition, the district court rejected the argument that the law interfered with the parents' right to guide the upbringing of their children, reasoning that "a parent's right to allow his or her minor children to be in public with parental permission during curfew hours" should not be viewed as a fundamental privacy right.^* The court applied the "intermediate scrutiny" standard of review, because ofthe significance ofthe parental rights at stake, but concluded that the curfew lawwas substantially related to the city's interests in "protecting its youth from victimization and protecting others from crimes committed by youth during curfew hours."^' Indeed, the court concluded that the curfew law would also satisfy strict scrutiny7^ The judge's decision has been appealed to the Seventh Circuit. Several cities have enacted similar legislation, and the litigation demonstrates that the lower courts are divided as to both the standard of review that should apply to such laws and as to the core question of whether the state's interest in protecting juveniles from crime on the streets outweighs any potential First Amendment harm.^' In general, however, curfew laws that do not broadly exempt First Amendment activity have been disallowed, whereas ordinances that insulate First Amendment activity have been sustained7^ 67. /J. at 1150. 68. Id. Hi 1161. 69. /