CONSTITUTIONAL LAW
W.B. Fisch, Fall 2006
Assignment #39

    2. Vagueness, Overbreadth, and Prior Restraint

        A. Vagueness and Overbreadth

Suppose I stand on the street corner and read aloud from a book which is obscene (in the constitutional sense), but I'm prosecuted under a statute which prohibits public speech "which is annoying to passersby" -- can I challenge the prosecution on constitutional grounds? If so, which ones? Due process? Freedom of speech?

Herndon v. Lowry, p. 1292 (1937).

  • what was the proven conduct on the basis of which Herndon was convicted?
  • how was the crime defined, of which he was convicted?
  • was it possible for Herndon to determine, from the law on the books, whether or not what he was doing was forbidden?
  • was the conduct that was proven, itself constitutionally protected under the 1st A.?

COATES V. CINCINNATI, p. 1293 (1971)

  • how was the offense defined, on the basis of which Coates was convicted?
  • what was the proven conduct, on the basis of which Coates was convicted?
  • was that conduct (whatever it was) clearly constitutionally protected?
  • whose constitutional rights did Coates invoke, in order to strike the statute down? did he have standing to invoke them?

Broadrick v. Oklahoma, p. 1296 (1973)

  • had the plaintiffs knowingly violated the statute they were trying to enjoin?
  • was their conduct constitutionally protected?
  • was the language of the statute so vague that they couldn't be sure that they had violated it?
  • did the statute purport to prohibit other conduct that is constitutionally protected?
  • how much such conduct must be encompassed within the prohibition, to allow these plaintiffs to challenge the constitutionality of the statute?

Brockett v. Spokane Arcades, Inc., p. 1297 (1985)

  • did the challengers invoke their own constitutional right to free speech, or that of others?
  • if the former, is the statute to be declared void on its face, or only unconstitutional as applied to these challengers' conduct?

VIRGINIA V. HICKS, p. 1301

  • What regulation, with what purpose?
  • Is the regulation “overbroad” in the First Amendment sense?
    • What does the challenger need to show in order to establish overbreadth?
    • Wherein did the challenger in this case fail?
    • If the state supreme court found a state law to be overbroad, why shouldn’t that finding be given deference by the U.S. Supreme Court?