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.

• Author: Alexander, Larry

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.

1. FIRST AMENDMENT OVERBREADTH

   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. The most prominent one is Gooding v. Wilson. (3) The Supreme Court in Gooding struck down as "overbroad" a Georgia statute punishing offensive speech. The Court implied that it would not have struck down the statute had the Georgia courts limited its application to "fighting words" as defined in Chaplinsky v. New Hampshire." But the implication is nonsensical because the Georgia statute could not be validly applied except in accordance with Chaplinsky. Chaplinsky is already a part of the Georgia statute because the Constitution is already a part of the Georgia statute by operation of Article VI. (5) So the Georgia statute was not--because it could not be--overbroad. On the other hand, if the vice of the statute was its vagueness due to the vagueness of the Chaplinsky "fighting words" test, then that vice could not have been cured had the Georgia court's limited the statute to "'fighting words," the Court's statement to the contrary notwithstanding. The Court's rationale is internally contradictory.

   One final point. There are some laws that are, in a sense, overbroad in that they have no valid applications. Or, put differently, the Article VI proviso that is implied in every law obliterates such laws in their entirety. Such laws have no valid applications because they contain an illegitimate predicate for governmental action. (6)

   Consider laws that ban flag burning, or speech by Republicans, or speech criticizing the government. These laws have no valid applications, not because every token of flag burning, speech by Republicans, or speech criticizing the government is constitutionally immune to regulation, but because such acts are constitutionally immune to regulation under rules the terms of which refer to certain disfavored ideas or persons.

   Consider flag burning. When the Supreme Court held it to be protected under the First Amendment, all it really held is that it could not be banned under laws that by their terms punish certain treatments of the flag. (7) It did not suggest that even expressive uses of the flag could not be punished under, for example, laws prohibiting burning any object for any purpose in the street, or laws banning murder even if committed for expressive purposes by strangling someone with an American flag. Therefore, expressive uses of the American flag are not protected under the First Amendment except from laws that make those expressive uses the predicate for the prohibition. (8)

2. PRIOR RESTRAINTS AREN'T "PRIOR"

   Restrictions of speech found in criminal and civil laws are typically analyzed "substantively"--that is, by whether the content of speech is protected by the First Amendment against the particular way in which the law is restricting it, or by whether the time, place, or manner of the speech, whatever its content, is being unduly restricted. But there is one type of regulation of speech that is thought to be special and specially disfavored, the so-called prior restraint of speech. There are two types of regulation that fall into this category. One consists of those requirements that one obtain a license from some agency or person before engaging in the speech activity. Such requirements can be based on the particular content of the proposed speech, such as whether it concerns one's activities with the C.I.A., or whether it is a film that might be pornographic. Or they can be based on the time, place, or manner of the proposed speech, such as whether it involves door-to-door solicitations, or whether it involves a demonstration that could impede traffic. The other type of regulation deemed to be a prior restraint is the judicial injunction or order when directed against the content of speech or its time, place, or manner.

   Now notice that neither license requirements nor injunctions are in any sense more prior as restraints than...