Vagueness and Overbreadth

Coates v. Cincinnati (p. 44)

A Cincinnati ordinance makes it a criminal offense for “three or more persons to assemble . . . on any of the sidewalks . . . and there conduct themselves in a manner annoying to persons passing by.” What do you think of that ordinance?

Suppose Sean Lennon, Madonna, and Neil Young get together on the corner of 14th and O Streets and, to protest the war in Iraq, start singing “Give Peace A Chance” a capella as I walk by. Does this annoy me?

Is it protected speech?

On the other hand, suppose 3 or 4 skinheads get together and as I walk by scream insults and obscenities at me. Is this protected speech?

Maybe not (the Court has held that so-called “fighting words” are not protected by the First Amendment--abusive, insulting words that are likely to produce a violent reaction).

So one problem with this statute is that it is overbroad i.e. it sweeps beyond punishing unprotected activities and includes within its scope activities which are protected by the First Amendment.

Let’s assume that the law is enforced against the skinheads (and remember we are assuming that the language they used constitutes fighting words not protected by the first amendment).

Can the skinheads attack the statute as being unconstitutional “on its face” because it sweeps very broadly so as to cover both protected and unprotected speech?

Do they have standing to raise the claims of persons who might be prosecuted for engaging in protected speech that annoys someone?

You could view this as a third party standing issue, but I think the First amendment overbreadth doctrine is based more on First Amendment concerns than on justiciability concerns.

From a First Amendment perspective, why should we allow these skinheads, whose abusive speech is unprotected, to attack this law as unconstitutional on its face.

What effect does this kind of law have on protected speech? Assuming you knew of the existence of the law, would you be more likely or less likely to get together with 2 or 3 friends to protest against the war, or abortion, or high taxes, or police brutality?

The law has a chilling effect on constitutionally protected speech and there is also a danger that it will be selectively enforced against unpopular speakers.

[As one scholar explains: “The central rationale is that a special exemption from the usual standing rules is warranted in the free speech context because of the risk that overbroad laws will chill the exercise of first amendment rights.”]

[Another insight from the same scholar: “In effect, then, the overbreadth doctrine is an exception both to the traditional ‘as applied’ mode of judicial review and to the general rule that an individual has no standing to litigate the rights of third persons.”]

What do you think about the overbreadth doctrine? Do the benefits of the doctrine outweigh its costs?

The vagueness doctrine is closely related to the overbreadth doctrine.

Vagueness deals with the clarity of a challenged law. Generally, under procedural due process requirements, a criminal law must be drawn with sufficient clarity so as to provide fair notice to persons before making their activity criminal.

When laws regulate activities protected by the First Amendment, such as speech, assembly or association, the requirement of fair notice is of special importance. Do you agree? Why?

Again, a vague law restricting speech might chill protected speech. For example, what effect would the Cincinnati ordinance have on your decision to assemble with a few friends for the purpose of constitutionally protected (but perhaps offensive) speech?

In order to ensure that protected speech is not chilled and that there be clear guidelines to govern law enforcement, a statute will be declared void for vagueness if it is so vague as to bring protected speech into the prohibition or if it leaves citizens without clear guidance as to the nature of speech for which they can be punished. The Cincinnati ordinance in Coates violated both of these guidelines.

The idea is that the First Amendment needs “breathing space.” [413 U.S. at 611 – Broderick v. Oklahoma].

A law that is overbroad but not vague – A law prohibiting “all speech on public sidewalks.”

Vague but not overbroad – A law prohibiting “all speech not protected by the First Amendment.”