Anti-Speech vs. Non-Speech Regulation

Speech Acts, by their very nature, comprise expressive and non-expressive components. Except for ESP (and my being able to know what's on your computer screen during class), communicating requires some physical means of transport. Sometimes, government justifiably regulates the transport irrespective of the content of the message. When that occurs, lesser 1st amendment protection attaches to the communication itself. On the other hand, content regulation is often disguised as conduct regulation. Once unmasked, the speech restriction should be subject to exacting scrutiny.

There are 2 doctrines commonly employed to ascertain whether government is targeting the message (anti-speech) or the associated physical conduct (non-speech). The doctrines serve a "switching function" to head us down the appropriate path of inquiry - either strict scrutiny (for fully protected speech; somewhat less for mid-level speech) in the case of content-based regulation; or low level scrutiny (somewhat higher than rational basis review; more ad hoc in nature) in the case of content-neutral regulation.

The 2 doctrines are "Time, Place and Manner" and O'Brien. The former is used in the case of speech occuring in a public fora (or on private property); the latter in the case of "Symbolic Speech." The doctrines sometimes get mixed up (by students and judges). This isn't a serious problem, since their purposes are the same. So long as you understand what the 2 tests are designed to accomplish, you're in good shape.

The Public Forum

According to Wikipedia, "Forum Romanum was the central area around which ancient Rome developed, in which commerce, business, prostitution, cult and the administration of justice took place. Here the communal hearth was located." Also at the Forum was the Roman Senate and the Tabularium (City Hall).

Perhaps this is what the Supreme Court had in mind when it proclaimed the public forum doctrine in Saia v. NY (1948): "streets and parks ... have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use ... has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens."

Open Thread

Hey, it's the weekend, and your thoughts naturally drift to Con Law. Don't you need a blogging break?

Overwhelmed by Overbreadth?

Every means inquiry looks to the relationship between a challenged law and the purpose (goal, objective, end) of the legislature in enacting it. In 1st Amendment cases, we apply strict scrutiny to the means analysis. Accordingly, to survive scrutiny, a law must not proscribe more speech than necessary to accomplish the state's compelling interests.
Laws that restrict more speech than necessary (or more than can be constitutionally sustained) are "overbroad." Thus, in Schad v. Mt Emphraim, a law prohibiting "live entertainment" could be constitutionally applied to nude (lewd) dancing, but unconstitutional if applied to most other forms of entertainment.
A person engaged in protected speech could challenge the law as restricting more speech than necessary, including his. The law would fail the means test. But a person engaged in unprotected speech, although injured by the law, would not have any 1st amendment rights of her own in the balance. "Standing overbreadth" allows her to raise the 1st amendment claims of 3rd parties (not before the court) and have the law invalidated because of those impermissible applications. An overbroad law is invalid on its face.

Are You Vague on Vagueness?

Vaguely recollecting the vagueness doctrine, this is what we know (more or less): Legislative precision is a seldom-realized ideal. Laws often describe their objects or their rules with varying degress of uncertainty. One function of the common law process is to add clarity to positive law. Courts do this by filling in blanks, resolving ambiguities, and creating norms. Thus, the "law" (in common law countries) consists not only of statutes, regulations, and other legislation (including quasi-legislation), but also of decisional law (precedent). The legal maxim that "every person is presumed to know the law" extends to clarifying caselaw.

However, until such time as courts to clear up statutory imprecision (which is often years or decades), the law we are presumed to know is the naked statute. If a law imposes obligations but is unclear in meaning or scope, then application of that law can create due process problems (yes, it is a "procedural due process" problem; no, we did not discuss it as part of our PDP unit). Such an infirmity becomes acute where the statute in question imposes criminal liability (greater due process requirement) or restricts speech.

Unprotecting Speech

Despite its absolute command ("Congress shall make no law ..."), the Supreme Court provides only qualified protection to speech rights. It does this through 2 forms of balancing: "categorical" and "ad hoc." The former refers to the process by which certain types of speech are placed outside the ambit of 1st amendment protection. The latter refers to the accommodation made between speech and state interests.

There are a half dozen or so "categories" of speech that receive little or no 1st amendment protection. These include: incitement, solicitation, threats, obscenity, libel of private persons, and fighting words. These categories have qualities that reduce their expressive nature. Often, they are considered so closely associated with conduct as to be treated as action, rather than speech. Also, they seem to have little in common with core values underlying the 1st amendment (personhood, search for truth, political participation).

Let's take pornography for example

Open Thread on Things that Have No Place Else to Go

Go inside, if you dare ....