Overbreadth and Vagueness

The free speech clause of the First Amendment to the U.S. Constitution reads:

“Congress shall make no law…abridging the freedom of speech."

The First Amendment generally protects us from government intrusion upon the right to free speech. The U.S. Supreme Court has also interpreted this right to encompass free expression in conduct and other forms.

But, this freedom is not absolute. Several circumstances exist where speech and expression can be regulated or restricted by the government. In such cases, the restrictions must be consistent with the Supreme Court’s interpretation of the First Amendment and the Constitution.

What Is Protected Speech?

As a general rule, the First Amendment protects all types of expression except for those that the Supreme Court has categorized as unprotected speech.

The Court has held that the following types of speech are unprotected:

• Defamation

• Fraud

• Fighting words

• Incitement

• Obscenity

• Child pornography

• True threats

As we will see, however, regulation of these categories of unprotected speech may still face constitutional challenges.

How Do Courts Determine If a Law Infringes on Free Speech?

Supreme Court precedent has established that governmental regulation of speech will be deemed constitutional if the restriction:

• Serves a sufficiently important government or state interest, and

• It is appropriately tailored for that purpose.

The Supreme Court has set forth tiered legal standards to evaluate these criteria.

Strict Scrutiny

Strict scrutiny is the most difficult standard of judicial review. It generally applies when evaluating content-based restrictions. It requires the state to prove that the restriction advances a compelling state interest and is narrowly tailored to serve that interest in the least restrictive manner.

Intermediate Scrutiny

Intermediate scrutiny is a less difficult standard to satisfy. It generally applies to content-neutral regulation of speech and regulation of commercial speech. The intermediate scrutiny test takes varying forms but typically requires the restriction to serve a substantial or important state interest and be narrowly tailored to further that interest.

Types Of First Amendment Challenges

The Supreme Court has recognized different constitutional challenges to government restrictions on speech.

Facial Challenges

A facial challenge means that the plaintiff asserts that a restriction is unconstitutional on its face. This means that the restriction, as a whole, operates unconstitutionally regardless of its application. As the Court said in United States v. Stevens, it “lacks any ‘plainly legitimate sweep.’”

"As-Applied" Challenges

An as-applied challenge is another type. This occurs when a party asserts that a restriction unconstitutionally violates their First Amendment right to free speech.

An as-applied challenge pertains only to the particular speech activity in a case. A party asserting this challenge claims a restriction violates their constitutional rights when applied to their specific case facts.

Parties can bring facial and as-applied claims challenging the constitutionality of a speech restriction based on many legal theories. They include:

• The overbreadth doctrine

• The vagueness doctrine

• Prior restraint

The Court has also created frameworks for analyzing the constitutional validity of free speech restrictions in particular contexts, like public schools and prisons.

What is Overbreadth?

A party may bring a facial challenge for an allegedly overbroad statute. A statute or restriction is overbroad if its reach exceeds its scope. In other words, it regulates more speech than intended or permitted by the Constitution.

Laws that are overbroad and extend their reach to protected speech will generally be invalidated in their entirety.

The Court recognizes facially overbroad challenges primarily to benefit society as opposed to individual litigants. As the Court has said, the goal is “to prevent the statute from chilling the First Amendment rights of other parties not before the court.”

Overbroad statutes run the risk of creating a chilling effect on constitutionally protected speech. The Court explained in Virginia v. Hicks that facial challenges for overbreadth exist to address restrictions on unprotected speech or conduct that actually reach protected speech or expression.

However, in Massachusetts v. Oakes, the Court explained that overbroad laws unrelated to First Amendment protections would generally be invalidated only to the extent they apply to protected conduct.

According to United States v. Williams, a party seeking to establish that a restriction is overbroad on its face must demonstrate that it “prohibits a substantial amount of protected speech” “relative to the statute’s plainly legitimate sweep.”

In Broadrick v. Oklahoma, the Court cautioned that invalidating a law for overbreadth is a remedy that’s not to be taken lightly. As a result, the Court said, this “strong medicine” should rarely be utilized.

Application of the Overbreadth Doctrine

In 1972, the Court addressed a Georgia statute that criminalized the use of “abusive language, tending to cause a breach of the peace” in Gooding v. Wilson.

The Supreme Court had already established fighting words and incitement as constitutionally unprotected speech subject to government regulation.

However, the Court determined that Georgia courts didn’t limit the application of the law to these unprotected categories. As interpreted by Georgia courts, the law ran the risk of reaching protected speech. Therefore, the Court held the law to be unconstitutionally overbroad (and vague).

Likewise, in Lewis v. City of New Orleans, the Court evaluated the constitutionality of a law criminalizing the use of “obscene or opprobrious language toward or regarding any member of the city police while in the actual performance of his duty.”

The Court determined that the law was overbroad because its restrictions weren’t limited to fighting words or obscenity. Rather, it sought to categorize (and therefore regulate) the use of all such language as fighting words or incitement. It also ran the risk of arbitrary and discriminatory enforcement by the police and was therefore held to be unconstitutional.

Similarly, in Cohen v. California, the Court determined that expression of profanity on a jacket reading "Fuck the Draft" couldn’t properly be categorized as obscenity, fighting words, or any other category of unprotected speech. It further cautioned against governmental action based on principled distinctions, which are, by nature, subjective.

What is Vagueness?

A party may also challenge the constitutionality of a law regulating speech because of vagueness. Vagueness claims may take the form of facial or as-applied challenges.

In Winters v. New York, the Court explained that vagueness generally pertains to a lack of clarity. This can be about whether a law applies to particular people. It can also refer to uncertainty about the state's standard to determine if the law has been violated.

A law may be deemed unconstitutionally vague if it relies entirely on subjective judgment calls without providing “statutory definitions, narrowing context, or settled legal meanings.”

The Court stated in Ward v. Rock Against Racism that a restriction wouldn’t be found to be unconstitutionally vague for simply lacking “perfect clarity and precise guidance.”

However, as the Court noted in NAACP v. Button, "[p]recision of regulation must be the touchstone in an area so closely touching our most precious freedoms."

Vague laws also have the potential to violate our right to due process by failing to give fair notice about prohibited acts. That is why we often see vagueness challenges in the context of criminal matters.

However, vagueness is particularly problematic in the context of speech regulations. This is because a restriction on our free speech rights that lacks clarity runs the risk of causing a chilling effect on protected expression. As the Court has noted:

“Uncertain meanings inevitably lead citizens to ‘steer far wider of the unlawful zone’ . . . than if the boundaries of the forbidden areas were clearly marked."

In City of Chicago v. Morales, the Supreme Court established two reasons for finding a law unconstitutionally vague:

1.   It doesn’t give someone of ordinary intelligence a reasonable opportunity to understand and distinguish conduct prohibited by the law.

2.   It “authorizes or even encourages arbitrary and discriminatory enforcement.”

Application of the Vagueness Doctrine

In Smith v. Goguen, the Court struck down a Massachusetts law banning misuse of the American flag as unconstitutionally vague. The Smith Court also suggested a departure from earlier case law. In doing so, it stressed the need for laws to provide standards and guidelines to govern their enforcement. The Court noted this as perhaps the most important part of the vagueness doctrine.

This is illustrated in Coates v. City of Cincinnati. In Coates, the Court addressed an ordinance criminalizing congregating on public sidewalks and acting “in a manner annoying to persons passing by.”

Because conduct that annoys can vary by individual, the Court found the law provided virtually no standards for prohibited conduct. It, therefore, held the ordinance to be unconstitutionally vague.

In Keyishian v. Board of Regents, a landmark First Amendment academic freedom case, the Court broadened First Amendment protections for loyalty oaths.

In Keyishian, the Court reviewed a statute aimed at curbing subversiveness amongst public education employees in New York. A Board of Regents rule supplemented this objective with a requirement that employees and prospective employees sign a loyalty oath with several provisions attesting they weren’t communists.

The Court found the state created a confusing regulatory scheme with laws and administrative rulings. It found many provisions of this scheme to lack navigable objective measurements and thus voided them as unconstitutionally vague.

In 1997, the Court addressed one of its first free speech cases on internet regulation in Reno v. ACLU. Here, the ACLU challenged the constitutionality of a federal law called the Communications Decency Act. The Act criminalized “obscene or indecent” internet communications considered “offensive” according to community standards.

The Court indeed established obscenity as an unprotected category of speech subject to government regulation. However, the Reno Court found that the Act was vaguely worded and failed to define terms like “indecent.”

As a result, the Act could regulate vast amounts of protected material unconstitutionally. Similarly, the Court found “community standards” in the internet context to be problematically vague. For example, the wording of the Act raised questions as to whether it prohibited internet discussion of topics like homosexuality and birth control.

The Court did recognize the state's interest in protecting minors from exposure to harmful content. However, that didn’t justify restricting the vast amount of internet speech that’s constitutionally protected expression for adults.  

Therefore, the Court found the Act placed too heavy a burden on protected speech. This decision also distinguished between First Amendment protections as applied to internet and broadcast media regulation.

The body of First Amendment caselaw addressing the constitutionality of free speech restrictions is vast and evolving. As new technologies emerge, the Supreme Court sometimes faces unprecedented matters that pose unique free speech concerns. Case law concerning persistent constitutional challenges based on overbreadth and vagueness, however, adapts to these dynamic circumstances.