Concerns over the spread of the coronavirus as the U.S. enters its ninth month of the pandemic has prompted one city to ban Halloween’s favored activity: trick-or-treating.
The mayor of Springfield, Massachusetts, announced this month that door-to-door trick-or-treating would not be allowed, citing the difficulty of “social distancing on porches and at front doors.”
“Why in the hell would you want to put your child and/or yourself in harm’s way?” Mayor Domenic Sarno said during a news conference announcing the decision, WWLP reported. “It makes no sense whatsoever.”
Critics of the early stay-at-home orders that shuttered businesses and kept people from religious services argued local and state officials lacked the authority to issue such sweeping bans. But can the same be said for trick-or-treating?
“There is no constitutional right to go trick-or-treating,” legal expert Sarah Wetter told McClatchy News.
Wetter is a Law Fellow at the O’Neill Institute for National and Global Health Law at Georgetown University and a staff attorney at the Network for Public Health Law. She said officials have the authority to prohibit trick-or-treating using what’s known as police powers, “or their authority to act to promote the health, safety, and welfare of the people.”
“In this case, the ban would be justified by the government’s interest in curbing the spread of infectious disease,” Wetter said in an email. “This is the same type of authority that officials used to implement curfews and ban large gatherings back in the spring.”
Lawrence O. Gostin, a law professor at Georgetown University and director of the O’Neill Institute, said the risk of COVID-19 clusters forming by groups of kids trick-or-treating door-to-door is enough evidence to support those restrictions.
“There are many court cases challenging public health orders around COVID-19,” he told McClatchy News in an email. “While individuals do have rights to travel, protest, and worship, these need to be balanced against the health and safety threats posed by this pandemic.”
Recommendations, not ultimatums
The U.S. Centers for Disease Control and Prevention issued a set of guidelines for how to safely celebrate Halloween last week, which deemed trick-or-treating “high-risk” but virtual consume contests, scavenger hunts and Halloween movie nights “safe alternatives.”
The recommendations mirror those issued by state and local officials across the U.S.
Los Angeles County health officials tried to ban trick-or-treating in early September but quickly walked it back, McClatchy News reported. Now the guidelines say it’s “not recommended.”
New York Gov. Andrew Cuomo has said he “wouldn’t consider a state-wide ban on trick-or-treating,” Good Housekeeping reported, but other major events like New York City’s Greenwich Village Halloween Parade have already been canceled.
Salem, Massachusetts — whose witch trials have historically attracted a slew of tourists at Halloween — is allowing trick-or-treating but has had to cut back on its holiday festivities, The New York Times reported, and in Pima County, Arizona, health officials stopped short of issuing a ban, urging residents instead to avoid trick-or-treating, haunted houses and “trunk-or-treat” events.
That’s likely the preferred approach by health officials — recommendations, not outright bans, according to Leila Barraza, an associate professor at Arizona State University in the College of Public Health and a Senior Consultant at the Network for Public Health Law.
“There is always a balance of constitutional protections and potential for infringement on an individuals’ right versus protection of a community, just like with isolation and quarantine or vaccination laws,” she told McClatchy News. “That’s what some of these local jurisdictions are trying to do by giving these recommendations — giving people safer, lower risk options to follow.”
Who has the authority?
Regulations on trick-or-treating have to come from state and local health officials because the federal government lacks the power, Gostin said.
Banning such events, however, might not be in their best interest.
“These are hard to enforce and we clearly don’t want a heavy law enforcement presence,” he told McClatchy. “Public health officials should be helping educate parents.”
However, this type of ban is nothing new — some city and county officials have already prohibited teenagers from trick-or-treating, Quartz reported in 2018. It wasn’t so much about “actively looking to catch teenage trick-or-treaters in the act” as it was an effort to curb “pranks and vandalism,” according to the media outlet.
Those restrictions have been challenged by critics citing a weak tie between age limits and public safety, Wetter said.
“Others have raised First Amendment challenges, asserting that age limits violate freedom of expression, and the right to engage in door-to-door solicitation,” she told McClatchy. “These arguments hold little water normally, and would be even less viable when a jurisdiction has an interest in limiting infectious spread during a pandemic.”
These types of mandates also tend to be better received by local officials, partly because of varying COVID-19 case numbers across a given state.
According to Barraza, local jurisdictions know what the community spread is in their area and can give residents recommendations accordingly — particularly as the season progresses and the metrics shift.
“The entire 2020 holiday season will look different this year,” she said. “I think that’s definitely key — everything is going to be a little different until the pandemic is over, (but) we will return to normal someday.”