2. Constitutional Law II Spring 2005Con Law II1 Vagueness & Overbreadth

3. Spring 2005Con Law II2 Nothing Vague about Vagueness Due Process requires clarity Cannot be held accountable for violating secret or unintelligible laws  Example: IRC Section 501(c)(3) denies tax-exempt status to organizations if lobbying is a substantial part of their activities  IRS Rule: the amount of lobbying allowed depends on “all the pertinent facts and circumstances in each case”  Some flexibility may be required here But not in criminal law And certainly not where speech is concerned

4. Spring 2005Con Law II3 Due Process requires clarity Notice Selective Prosecution What the First Amendment adds 1 st A mend rights are fragile rights, easily “chilled” Arbitrary enforcement based on speech content  Any restriction on speech activities must be accompanied by specific standards to guide law enforcement Twin vices of vagueness Lack of adequate notice Invites discriminatory enforcement

5. Spring 2005Con Law II4 Coates v. Cincinnati (1971) Unlawful for group to conduct itself “in a manner annoying to persons passing by”

6. Spring 2005Con Law II5 Coates v. Cincinnati (1971) Unlawful for group to conduct itself “in a manner annoying to persons passing by” Violates 1 st A mend in two-fold sense “subjects the right of assembly to an unascertainable standard” and  Persons of “common intelligence must necessarily guess at [the statute’s] meaning” Proscribes (at least some) constitutionally protected speech  Inviting arbitrary enforcement “Void for Vagueness”

7. Spring 2005Con Law II6 Vague Laws are Facially Invalid Facial vs. As-Applied – generally In 1 st A mend context Even if claimant’s speech could be regulated (e.g., obscene, threatening)  Vague laws don’t provide adequate notice (DP)  Risk of arbitrary (unlawful) enforcement is too great Anyone subject to law can facially challenge it Incapable of being applied in a constitutional manner Constitutional in some applications, but not this one “subversive activity” Baggett v. Bullitt

8. Spring 2005Con Law II7 Don’t Overstate Overbreadth Laws that proscribe protected & unprotected speech are overlybroad “Annoying” includes harassment “Subversive” includes incitement to violence Why isn’t this covered by vagueness? If claimant’s speech is unprotected, why won’t she even have a chance to raise vagueness? Standing overbreadth Is an exception to the rule on jus tertii standing

9. Spring 2005Con Law II8 Schad v. Mt. Ephraim (1981) Ordinance prohibits all live entertainment Both obscene (unprotected) speech, and All other (protected) speech ( e.g, music, drama) Schad can raise 1 st A mend rights of others Even if he is not w/in “zone of interest” of 1 st This speech is unpro- tected Ordinance Prohibits both This speech is pro- tected Even if claimant’s speech is in here She can assert the rights of this speaker Overbroad laws are unconstitutional on their face The 1st Amend Needs breathing space

10. Spring 2005Con Law II9 Means vs. Standing Overbreadth standing OB A law that proscribes more speech than constitutionally permissible -> standing OB A law that fails 1 st A mend scrutiny because Although ENDS are important/compelling means OB MEANS not narrowly tailored -> means OB Ex: law prohibiting “verbal threats” Could be applied to threats of physical violence Or to threats of lawful consequences standing OB This speaker would claim standing OB means OB This speaker would claim means OB. Although ENDS (protecting liberty) may be valid, MEANS go too far.

11. Spring 2005Con Law II10 Don’t Overstate Overbreadth The overbreadth must be “substantial” A little bit of “chilling” is ok (but not too cold) Broadrick v. Oklahoma (1973) Law prohibiting political activities by public employees  Was valid as to some speech (e.g., on-the-job politicing), and  Was invalid as to other speech (off-the-job politicing) Invalid applications did not overwhelm valid ones quantitatively A law must be quantitatively overbroad  “realtistic danger that statute will significantly compromise protected speech” of third parties  Houston v. Hill – law criminalizes substantial amount of speech  NY v. Ferber – only small amount of protected speech affected

12. Spring 2005Con Law II11 Don’t Overstate Overbreadth The overbreadth must be “substantial” Quantitatively, and Qualitatively (only high-valued speech)  Does not apply to Commercial speech  Does not apply to Pornography (non-obscene) Narrowing the reach of an overbroad law Limiting construction can cure overbreadth  Ex: “Nudity” means “lewd exhibition” State courts can narrow state statutes But federal courts can’t. Why not?  Gooding v. Wilson (state courts give authoritative construction)

13. Spring 2005Con Law II12 LA Airports v. Jews for Jesus (1987) LAX is “not open for [any] 1 st A mend activities” 1 st A mend free Creates a 1 st A mend free zone at LAX  Prohibiting every species of protected speech  But very explicitly Overbroad, but not vague LAX “not open to unprotected 1 st A m speech” Vague, but not overbroad (by definition)