First Amendment - Speech, Vagueness, & Overbreadth Flashcards
What is Speech - Texas v. Johnson
Whether conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether:
1) an INTENT to convey a particularized message was present, and
2) whether there is a great LIKELIHOOD the message was UNDERSTOOD.
Some conduct is speech that does not pass the Texas v. Johnson test, i.e., messages which evokes feelings but not messages. (Justice Thomas suggestion: is there an intent to communicate something and is the viewer likely to perceive that something is intending to be communicated),
Example:
Painting of Jackson Pollock is speech;
Modern art.
Vagueness Doctrine
Government must put its citizens on notice of acts which may be against the law. It’s a basic due process principle. We don’t wait for you to do something bad then retroactively call it illegal.
If the regulation is vague, then it isn’t giving specific notice, and that’s why we call it the vagueness doctrine. You can’t tell if you broke the law if the law itself was unclear.
In Speech Context – Does the law put a person of reasonable intelligence on notice that their speech is illegal. Applies only as to the specific plaintiff at trial.
If you can look at that law and say it was CLEAR WITH RESPECT TO ME, but with respect to OTHER PEOPLE, the law was VAGUE WITH RESPECT TO THEM, that is NOT A DEFENSE.
Vagueness is a doctrine you ONLY APPLY FOR YOUR OWN BENEFIT, which is DISTINCT FROM OVERBREADTH.
Overbreadth Doctrine
The overbreadth doctrine tries to determine if the overinclusive chilling effect caused by a speech statute is actually a problem.
If a statute chills speech, it may be unconstitutional. This doctrine facially challenges a statute that infringes protected speech even if the statute constitutionally might be applied to the plaintiff, which would result in the statute being facially invalid (and thus completely destroyed). Very powerful.
Illustrates Exceptions to Constitutional Application Rules – A statute is normally not facially invalid if it has some application that is constitutionally permissible, unless you are applying the overbreadth doctrine.
This statute allows even the individual whose speech is unprotected to obtain protection under the overbreadth doctrine if that same statute sweeps up a substantial amount of protected speech in its effect. Doesn’t matter if the bad guy gets away.
Overbreadth Doctrine – Test
Test – Does the degree to which the statute goes beyond 1st amendment protections represent a SUBSTANTIAL swathe of protected speech that is being chilled by the statute? If substantial, overbreadth kicks in and kills the statute outright.
Substantial looks to compare both the protected and unprotected speech swept up by the statute. I.e., is the government sweeping in more protected speech than it should?
The more that free speech is swept up in a statute, the more likely it is for it to be held unconstitutional as its chilling effect on speech is too substantial. An individual can also bring an as-applied challenge for that specific plaintiff instead of challenging the statute facially via the Overbreadth doctrine.
A bad guy saying unprotected stuff can still use overbreadth to say hey look at the good guy in the borderland being affected too, therefore it’s overbroad pls kill statute thx.
Specific Steps Showing Relationship between Overbreadth and Tailoring –
1) Interpret the statute to determine what speech is swept up (blue circle). The scope.
2) How much of that speech does the First Amendment leave unprotected. (this is the red circle). If it’s content-based, we ask if there’s a compelling gov purpose. If not, then it’s not permissible, so we would draw no red circle. If it is a compelling purpose and narrowly tailored, then we draw the red circle. If it’s a nonpublic forum we ask if it’s reasonable and viewpoint neutral, we do that analysis rather than a traditional SoR. But some analyses might call for tailoring analysis.
3) To the extent that the statute goes beyond constitutional permissible regulation, is it substantial? In other words, does blue line exceed red line and if so, to the extent that it does, does it go substantially beyond? If it is, then the statute is facially unconstitutional. Ultimately it’s a judgment call on social cost.
What exactly does “SUBSTANTIALLY” overbroad mean?
Could be one speaker who speaks all the time or it could be many speakers. As a judge, you would say it’s substantial when you think the risk of chilling has become too costly. The statute is no longer worth it. It’s when the social costs tip the scale. Very discretionary.
Synergy between Overbreadth and Vagueness
If you bring overbreadth, you will also bring vagueness. Why? The vaguer the statute, the broader its possible reach and therefore the better your overbreadth argument will be.
Lots of cases involve statutory interpretation where X (the chilled person) might be in the borderland or might not be in the statute’s scope at all. If you want to argue overbreadth, you want to find every possible way that statute could extend further because the more vague it is, the more overbroad it is.
Remember RAV - statute there said no anger or resentment. The Minnesota court read it as a fighting words statute. That’s not obvious and it is arguable. There is a lot of speech that would provoke anger but not immediate violence. So you could read that statute as being vastly overbroad. Then you wouldn’t have to get into the 3 RAV exceptions.
