first amendment overbreadth, vagueness, and prior restraints Flashcards
what is void for vagueness doctrine
If a criminal law or regulation fails to give ordinary persons reasonable notice of what is prohibited it may violate the Due Process Clause.
(for example, a ban on “opprobrious and offensive” words – highly subjective and vague)
when applied against speech, it is applied more strictly
when is a law overbroad
A regulation of speech or speech-related conduct will be invalidated as overbroad if it punishes substantially more speech than is neces- sary.
what does it mean to be facially invalid on over breadth grounds?
It may not be enforced against anyone—not even a person engaging in activity that is not constitutionally protected
when is an overbroad regulation facially invalid and not facially invalid?
An overbroad regulation is facially invalid unless a court has limited construction of the regulation so as to remove the threat to consti- tutionally protected expression.
to what extent can an overbroad regulation be enforced against people engaging in activities that are not constitutionally protected?
laws that are not substantially overbroad
prior restraints
court orders or administrative systems that prevent speech before it occurs, rather than punish it afterwards
types of prior restraints
licensing systems
injunctions
to what extent are injunctions and licensing schemes valid as prior restraints?
To be valid, a system for prior restraint must provide the following safeguards:
- The standards must be narrowly drawn, reasonable, and defi- nite,
- The injunction must promptly be sought (if the restraining body wishes to restrain the dissemination of certain speech), and
- There must be prompt and final judicial determination of the validity of the restraint (for example, a review of a permit denial).
officials cannot have unfettered discretion
who bears burden of proving speech is unprotected when prior restraint is challenged
A number of other cases, especially in the area of movie censorship, require that the government bear the burden of proving that the speech involved is unprotected.
if a statute gives officials involved in prior restraint application unfettered discretion, what happens?
statute is void on its face
if a prior restraint statute or system is void on its face due to giving unfettered discretion to officials, what can challengers do
don’t even need to apply for permit
if prior restraint system includes standards for application, can speakers ignore the statute and speak anyway?
speaker can’t ignore the statute; they must seek a permit and if it is denied, they can challenge the denial on First Amendment grounds.
prior restraints for fair trial?
a prior restraint will be upheld only if it is the ONLY sure way of preserving a fair trial for the defendant
prejudicial publicity is a problem, but it should be dealt with by other means
vague laws and criminal law
if a criminal law fails to give reasonable notice of what is prohibited, it may violate due process
this is applies somewhat strictly when first amendment activity is involved to avoid the chilling effect a vague law might have on speech
