Academic journal article Constitutional Commentary

There Is No First Amendment Overbreadth (but There Are Vague First Amendment Doctrines); Prior Restraints Aren't "Prior"; and "As Applied" Challenges Seek Judicial Statutory Amendments

Academic journal article Constitutional Commentary

There Is No First Amendment Overbreadth (but There Are Vague First Amendment Doctrines); Prior Restraints Aren't "Prior"; and "As Applied" Challenges Seek Judicial Statutory Amendments

Article excerpt

In this short article I hope to clarify three doctrines that have produced enormous confusion among lawyers, judges, and academic commentators. These are the doctrines of First Amendment overbreadth, prior restraint, and as-applied (as opposed to facial) challenges. My purpose is entirely analytical, although analytical clarity will undoubtedly have normative implications, some of which I shall briefly note.


My title correctly suggests that there is no such thing as first amendment overbreadth despite its apparently well-established status as a first amendment doctrine. Indeed, given the conception of overbreadth--a statute is overbroad if it has some unconstitutional applications--that is utilized in what is taken to be first amendment overbreadth, there is no such thing as overbreadth in any constitutional domain.

To see this, consider a hypothetical law that surely exemplifies first amendment overbreadth if any law ever does: "No person shall speak, write, or through any other medium seek to communicate any idea to any other person." Surely, this hypothetical law is unconstitutionally overbroad, is it not? For a substantial number of its possible applications--though not all, as with fighting words, malicious defamations, child pornography, incitements to imminent lawless action, etc.--are constitutionally immune from prohibition by virtue of the First Amendment. (1)

But now consider this hypothetical amendment to my hypothetical overbroad law: "This law shall only apply to the extent that its application is constitutionally permitted." If the law were so amended, would it now be overbroad? It is hard to see how it would be, as by its terms it now has no unconstitutional applications.

But--and here is the key point--the hypothetical statutory amendment is already a part of every statute. For Article VI of the Constitution, which declares the Constitution to be the supreme law of the land, and by direct implication renders legally void any state or federal laws inconsistent with the Constitution, already accomplishes what the hypothetical amendment accomplishes. (2) Or, to put it differently, there would be absolutely no cost in terms of statutory objectives for legislatures to append to all laws "to the extent consistent with the Constitution."

So my hypothetical amendment to my hypothetical overbroad statute, which by hypothesis eliminates the statute's overbreadth, accomplishes nothing that is not already accomplished by Article VI. And this, of course, will be true of any statute. Therefore, there are no overbroad statutes, in the First Amendment domain or elsewhere.

Note, however, that my hypothetical overbroad statute, even if it is not and cannot actually be overbroad, still seems oppressive and capable of chilling free speech. If not because of overbreadth, because of what? The chilling effect is a product of the vagueness of the first amendment tests that distinguish constitutionally-protected speech from speech that can constitutionally be prohibited. Those are the tests that eliminate the overbreadth. But because they are vague, they leave the statute they amend with quite vague margins. Even a citizen well-versed in these first amendment tests--perhaps someone who has gone to law school or has even taught the First Amendment recently in a law school--will not be at all certain in a pretty broad swath of situations whether or not his proposed speech will turn out to be constitutionally protected under extant first amendment doctrines. Therefore, although my hypothetical overbroad statute is not actually overbroad, as truncated by Article VI or a statutory amendment to the same effect, it is quite vague and will likely chill a considerable amount of speech. That is its real first amendment vice.

If my analysis of first amendment overbreadth is correct, and the vagueness of first amendment doctrines is the true source of the chilling effect worry, then this demonstrates the incoherence of some Supreme Court overbreadth decisions. …

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