Constitutional Law: Protection of Individual Rights: First Amendment: Procedural Issues and Methods
- First Amendment: Procedural Issues and Methods
- First try to make a facial attack. Claim that the law is overbroad or vague or is a prior restraint or an official has unfettered discretion.
- Overbreadth: Overbroad statute is one which punishes both protected and unprotected speech. Be skeptical of words like “all” or “any”
- Vagueness: law will be void for vagueness if it is so unclearly defined that persons of ordinary intelligence must guess at its meaning. A statute that prohibits “offensive language and opprobrious words” is vague.
- Prior Restraint: (censorship, licensing, injunction) government restriction on free speech in advance of publication is unconstitutional.
- Except for national security reasons; and some obscene books and films.
- Unfettered discretion: a licensing scheme where licensing official has “unfettered discretion” to confer or deny the permit.
- Next look at the speech which is being regulated. Look at an ordinance and ask: Is the speech which is being regulated content specific, or content neutral. I.e. is the law regulating the message or the conduct?
- Track 1 – Content Specific
- Track 2 – Content Neutral.
- Track 1. Content Specific. If content specific speech is being regulated, is it protected? Or unprotected? If protected, apply strict scrutiny and the law will be presumptively invalid. If unprotected speech, there are areas where strict scrutiny will not apply.
- Clear and Present Danger
- Defamation
- Obscenity
- Child Porn
- Fighting words
- Fraudulent Commercial speech.
- Track 2. If statement is regulating conduct (i.e. one that’s content neutral but regulating time, place, and manner of speech). Apply a 3-part test similar to intermediate scrutiny. The government regulation must:
- (1) further a significant government interest
- (2)Be narrowly tailored (no more restrictive than necessary)
- (3)Leave open alternative channels of communication