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Blog > Issues > Free Speech and Association > Handing out candy to trick or treaters in some cities could get you fined

Handing out candy to trick or treaters in some cities could get you fined

October 28, 2020 I By DANIEL ORTNER

For kids who have been subjected to lockdowns and distance learning for months on end, Halloween this year should be an especially sweet treat. Trick-or-treating is an outdoor activity that is socially distancing and mask-wearing friendly—indeed, kids have worn masks on Halloween long before COVID-19. Kids get to express their creativity, let out months of pent-up energy, and get some candy out of it. A win-win for everyone.

Taking very basic precautions, families can participate in trick-or-treating with only moderate risk for spreading COVID-19. For example the CDC suggests leaving candy on your porch to eliminate the need for any face-to-face interaction.

It is understandable that governments are wary of social activities in the face of COVID-19. And it is completely appropriate for local government to provide families and communities with best practices for how to trick or treat safely.

But what cannot be justified is for government bureaucrats to step in and completely ban trick-or-treating. Unfortunately, that is exactly what some counties and municipalities—from Beverly Hills, California, to Willacy County in Texas to Glenn Ridge, New Jersey, to Springfield, Massachusetts—have decided to do.

The decision to crack down on trick-or-treating is legally dubious. The First Amendment protects the right to go door-to-door for expressive purposes. Halloween costumes have always had a particularly strong expressive component, and that is no less true in 2020. This year, for instance, Dr. Anthony Fauci may be a popular costume choice, as might costumes related to ongoing Black Lives Matter protests and the upcoming presidential election. The government has no business banning this kind of expression.

This type of ban also simply makes no sense. Governments should trust parents to encourage safe behaviors, rather than immediately turning to bans and restrictions. Unfortunately, the tendency to immediately turn to heavy-handed government regulation has been an alarming trend throughout the COVID-19 pandemic. Rather than teaching safety principles and allowing people to govern themselves, government bureaucrats have taken to scolding, public shaming, and even arresting people in order to enforce arbitrary and constantly shifting restrictions. And the sad thing is that these restrictions will also likely have the inverse impact. Rather than discouraging Halloween festivities, they will drive more people indoors and into less socially distance-friendly parties and gatherings. They will also generate more outrage and unwillingness to comply with health guidance in the future.

What we need are logical, evidence-based, and consistently applied policies. Instead, during COVID-19 we have seen governments act woefully inconsistently. We have seen government officials who decried anti-shutdown protests but joined protests when they suited their worldview and political values. We have also seen officials who were caught visiting businesses that their policies would ban. Governors have made decisions over which businesses can open and which must close on a seeming whim without evidence or explanation. This latest decision to shut down trick-or-treating is just another manifestation of this discouraging trend.

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