Overbreadth 1st Amendment question Forum

[Charles Barkley]

Can someone explain to me how I should analyze a law being potentially overbroad in regards to the 1st Amendment?

For example, assume Congress passes a law that says there is to be no picketing outside the Supreme Court. Would this be overbroad? Does it depend on what the purpose behind the law is?

Thanks for the help.

[Flips88]

How much of the 1st Amendment did you cover in Con Law? I'm taking a first amendment elective, but in my con law course, for instance, we only did Brandenburg v. Ohio, which is about incitement to criminal action.

[Charles Barkley]

I'm in Con Law 2. We covered freedom of expression. Content neutral vs. content specific; RAV; overbreadth; vaguness; unprotected/less protected speech; gov't property as forums

[purr se]

You want to know whether there is "substantial" overbreadth.

Look at 1) how much unprotected speech the law regulates and 2) how much protected speech the law regulates. Then compare. If the amount of protected speech is substantially greater than the amount of unprotected speech, the law is invalid for overbreadth. The litigant is going to have to come up with a ton of examples of how the law potentially restricts protected speech. Also, the litigant has third party standing. (At least that's how my prof explained it.)

[Charles Barkley]

That seems to be very helpful.

So in regards to the example in my original post, the law seems to be substantially overbroad. It pretty much only prohibits political speech, which is the core of the 1st Amendment...

[purr se]

If I were the litigant, I think that I would challenge the law you've set out as being 1) vague and 2) overbroad. If those don't work (or for purposes of writing an exam answer), I'd then go on to do a forum analysis.

Vagueness: 1) Fails to clearly state what the regulation proscribes (does not clearly define "picketing" or "outside"); 2) lack of definition leaves room for arbitrary enforcement (cops could selectively arrest based upon their personal definitions or could choose to arrest only those whose picketing they disagree with); and 3) lack of clarity will likely have a chilling effect on permissible speech (people will be uncertain as to whether they're able to picket a speaker / business etc not related to a SCOTUS case who is speaking across the street because they'd still be picketing "outside" the court).

Overbreadth: 1) Prohibits unprotected speech (ie you can't express obscenity, fighting words, etc in your picket outside the court) and 2) would likely prohibit a substantially greater amount of protected speech (like the people picketing a business across the street, people who want to picket the court without obscenities etc). I think that the amount of protected speech being prohibited would be substantially greater. Although, it seems like overbreadth really becomes an issue when the regulation is aimed at unprotected speech and it happens to catch a lot of protected speech in its net.

If the court didn't agree with either of these, then I'd go on to forum analysis.

[I.P. Daly]

I’m not an expert on First Amendment law, but…

Your example, no picketing around SCOTUS, would arguably be analyzed under the public forum doctrine, and probably not the overbreadth doctrine.

Traditional Public Forum
The area around SCOTUS probably falls under the category of “traditional public forum” (rather than limited/designated public forum, or nonpublic forum). Traditional public forums are places that by long tradition or by government fiat have been devoted to assembly and debate. Traditional such areas as public squares, streets, parks, and sidewalks.

TPF Scrutiny
Traditional public forums may be regulated only by content-neutral time, place, and manner restrictions. To survive judicial scrutiny, such restrictions must be justified without reference to the content of the regulated speech, must be narrowly tailored to serve a significant government interest, and must leave open ample alternative channels for communication of the information. Ward.

Overbreadth Analysis:
A statute may be deemed invalid due to overbreadth when it is designed to prohibit activity that is not constitutionally protected, but the scope of the statute includes a substantial amount of activity that is protected by the First Amendment.

An example of an overbroad statute might include prohibiting “annoying language” in public: language can be annoying without being protected under the First Amendment.

As to your example, for the sake of argument, let’s say the federal government enacts a statute barring the public from engaging in First Amendment Activites outside of the area around SCOTUS. (Again, let’s say this area is considered a traditional public forum). Someone was convicted of violating this statute for protesting the PPACA outside the court.

If the offender challenged this, the statute would arguably be held to be unconstitutionally overbroad. When the government restricts speech on the basis of its content, unless the communication is likely to incite violence or is obscene, defamatory, or commercial, it’s entitled to constitutional protection.

Also, under an overbreadth challenge, she could prevail by proving that the statute as drawn is overbroad and would unconstitutionally prohibit the conduct of some other person, not necessarily her own.

[Charles Barkley]

Thanks for the replies. Very helpful.

[Cupidity]

I would suggest reading Broadrick v. Oklahoma. Usually reading a case isn't all that useful, but the analysis in the case is laid out quite clearly, and it might help you understand the underlying principles.

[purr se]

Overbreadth Analysis:
A statute may be deemed invalid due to overbreadth when it is designed to prohibit activity that is not constitutionally protected, but the scope of the statute includes a substantial amount of activity that is protected by the First Amendment.

Word. This is helpful to me. Thanks!

[romothesavior]

Overbreadth Analysis:
A statute may be deemed invalid due to overbreadth when it is designed to prohibit activity that is not constitutionally protected, but the scope of the statute includes a substantial amount of activity that is protected by the First Amendment.

Yep, this is pretty much it. It is sort of like narrow tailoring analysis (not quite the exact same but similar). Basically the government's law does target some language that it is permitted to regulate, but they do it in a way that also reaches too much speech that is protected. So they have to go back to the drawing board if they want to regulate the unprotected speech.

[Cupidity]

Overbreadth Analysis:
A statute may be deemed invalid due to overbreadth when it is designed to prohibit activity that is not constitutionally protected, but the scope of the statute includes a substantial amount of activity that is protected by the First Amendment.

Word. This is helpful to me. Thanks!

To add on, there is the awkward back and forth on what the actual quantity of "substantial amount" is. It is certainly not a least restrictive means test, but the language used in Broadrick is the surprisingly unhelpful, "must not sweep up more speech than is necessary," standard. When you get to this point, just go into a typical fact analysis balancing test and ultimately say it is a close call and pick whatever side you feel like.

[Cupidity]

It is sort of like narrow tailoring analysis (not quite the exact same but similar)..

I think that might be an incorrect response, while the differences are hard to articulate, I don't think you'd get points for putting this on a test.

[romothesavior]

It is sort of like narrow tailoring analysis (not quite the exact same but similar)..

I think that might be an incorrect response, while the differences are hard to articulate, I don't think you'd get points for putting this on a test.

Yeah for sure, I wouldn't explicitly compare it to that on an exam. Narrow tailoring is far stricter. Don't use that terminology. I was just using it for illustrative purposes.

[Flips88]

Yeah, though I haven't started studying for my 1st Amendment exam, I'd say outside the SCOTUS is a Time/Place/Manner issue and it's arguably a traditional public forum so strict scrutiny.

[Charles Barkley]

You would be correct Flips.

I think it's an unreasonable TPM restriction in a public forum

But i was just curious about the aspect of overbreadth. Thanks for the help everyone

[goodolgil]

Check out the anti-abortion picketing cases (Frisby v. Schultz (1988), Madsen v. Women Health Ctr. (1994), Schenck v. Pro Choice Network (1997), and Hill v. Colorado (U.S. 2000)) to see the public forum doctrine put into action. All 4 cases essentially went against the picketers, and thus the logic of the cases can be extended to any picketing, not just abortion-related (abortion being a constitutionally-protected fundamental right is meaningless in this context).