Arbitration
First Amendment • Acknowledge different types of protection • Understand rules that allow Gov't to regulate expression • New Terminology: o Protected v. Unprotected o Content-based v. Content Neutral o Censorship and “chilling Effect” v. Time place and manner laws o Symbolic speech v. “pure” speech • First amendment case begins usually on a technicality etc. look at it from • In what ways can Gov't regulate speech that is protected? Gov't Regulation and Valid Laws (rules of the case) • Laws must not be vague or overbroad • Laws cannot effect a “prior restraint” • Injunctions against future speech are problematic when time is of the essence Herndon v. Lowry pg 1247 • This case tells us that a law limiting first amendment must be written with precision, laws written vaguely cannot be enforced. • It gives us history of vagueness and overbreadth. Coates v. Cincinnati case • State of Cincinnati wants the people off the street corners (people were speaking their minds in the corners etc). • Court said that its protected speech that’s being limited o We have right to assemble and petition, the right to blow off steam. • Attempting to incite insurrection is not precise enough here. o Pg 1249 • Rule: laws that are not cured for their vagueness are treated as overbroad laws. o Legislative precision o Left to Court interpretation • Overbreadth: it’s a flat itself, you can have overbreadth o A law that is enforced, it covers protected as well as unprotected activities. o Laws that enforce protected activities are per se invalid, they get Strict Scrutiny. • In order for Gov't to regulate protected speech it must avoid vague laws. o Vague laws – when uncured are treated as overbroad laws. o Vague laws tend to be overbroad. • Pg 1248 bottom – we are thus relegated at best to the words of the ordinance themselves. o Gov't is going to enforce it against people who constitute a public nuisance. • Coates is treated as a case where vagueness that is uncured. • Vague laws uncured are overbroad. And its overbroad laws that cant be enforced b/c the cover too much speech. • They created an automatic defense for people who wanted to attack vague and overbroad laws. Broadrick v. Oklahoma • When a law is facially overbroad, anyone can challenge it. even if someone who is not affected, they can challenge it. • Broadrick and Brocket: they give us impression that ease in which these laws can be attacked are part of court’s design. o Court allows vague laws to be more easily attacked. o So even a bad guy, whose speech is unprotected can get away using this law. • Bad guy has standing. • It’s a unique form of 3rd party standing. To invalidate laws that are overbroad. Brockett: pg 1253 • Sexually oriented expression. • Word “lust” was used in the statute. • 1253, court talks about 2 approaches o 1st amendment – • court wants to simplify a path to attack a law which is unclear when it reaches the court. o So even bad guys have standing and will escape prosecution on a facial attack on the law. The entire would be invalidated completely. (See Broadrick). o So the good guy formula will apply for bad guys as well. • Its easier for good • But if the law is substantially overbroad, even bad guys will win… meaning that their unprotected speech will win… • Laws that are attacked on their face o (used before in Equal Protection, motive plain on face of the law) • Facial attacks are attacks where the whole law is attacked, and the accusation is that every conceivable form of enforcement is unconstitutional.