Constitutional Law > Constitutional Law Study Buddy > Emanuel Law Outline > Chapter 14. FREEDOM OF EXPRESSION
FREEDOM OF EXPRESSION
Overbreadth: A person whose expression is impaired by the government may make use of the doctrine of “overbreadth.” A statute is “overbroad” if it bans speech which could constitutionally be forbidden but also bans speech which is protected by the First Amendment. Overbreadth doctrine lets a litigant prevail if he can show that the statute, applied according to its terms, would violate the First Amendment rights of persons not now before the court.
Vagueness: A second important First Amendment doctrine is that of vagueness. A statute is unconstitutionally vague if the conduct forbidden by it is so unclearly defined that a reasonable person would have to guess at its meaning.
Advocacy of illegal conduct: The government may ban speech that advocates imminent illegal conduct. To be banable, the speech must satisfy two requirements: (1) the advocacy must be intended to incite or produce “imminent lawless action”; and (2) the advocacy must in fact be likely to incite or produce that imminent lawless action.
“Time, place and manner” regulations: The government frequently tries to regulate the “time, place and manner” of expression.
Three-part test: A “time, place and manner” regulation of speech or expressive conduct has to pass the three-part test summarized above, i.e., (1) it has to be content-neutral; (2) it has to be narrowly tailored to serve a significant governmental interest; and (3) it must “leave open alternative channels” for communicating the information.
Licensing: There are special limits on the government’s right to require a license or permit before expressive conduct takes place.
No excess discretion: Most importantly, the licensing scheme must set forth the grounds for denying the permit narrowly and specifically, so that the discretion of local officials is curtailed.
Fighting words: Expression that constitutes “fighting words” can be flatly banned or punished by the state. “Fighting words” are words which are likely to make the person to whom they are addressed commit an act of violence, probably against the speaker.
Limits: But the “fighting words” doctrine is tightly limited. For instance, the police must control the angry crowd instead of arresting the speaker, if they’ve got the physical ability to do so.
Offensive language: Language that is “offensive” is nonetheless protected by the First Amendment. (Thus language that is profane, or language that preaches racial or religious hatred, is protected.)
The public forum: Speech that takes place in a “public forum” is harder to regulate.
Content-based: If a regulation is content-based, it makes no difference whether the expression is in a public forum: strict scrutiny will be given in any event.