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Of Other Tests and Standards: Vagueness, Overbreadth, Least Restrictive Means, and Others.—In addition to the foregoing tests, the Court has developed certain standards that are exclusively or primarily applicable in First Amendment litigation. Some of these, such as the doctrines prevalent in the libel and obscenity areas, are very specialized,155 but others are not. Vagueness is a due process vice which can be brought into play with regard to any criminal and many civil statutes,156 but as applied in areas respecting expression it also encompasses concern that protected conduct will be deterred out of fear that the statute is capable of application to it. Vagueness has been the basis for voiding numerous such laws, especially in the fields of loyalty oaths,157 obscenity,158 and restrictions on public demonstrations.159 It is usually combined with the overbreadth doctrine, which focuses on the[p.1051]need for precision in drafting a statute that may affect First Amendment rights;160 an overbroad statute that sweeps under its coverage both protected and unprotected speech and conduct will normally be struck down as facially invalid, although in a non–First Amendment situation the Court would simply void its application to protected conduct.161 Similarly, and closely related at least to the overbreadth doctrine, the Court has insisted that when the government seeks to carry out a permissible goal and it has available a variety of effective means to the given end, it must choose the measure which least interferes with rights of expression.162 Also, the Court has insisted that regulatory measures which bear on expression must relate to the achievement of the purpose asserted as its justification.163 The prevalence of these standards and tests in this area would appear to indicate that while “preferred position” may have disappeared from the Court’s language it has not disappeared from its philosophy.

Is There a Present Test?—Complexities inherent in the myriad varieties of expression encompassed by the First Amendment guarantees of speech, press, and assembly probably preclude any[p.1052]single standard. For certain forms of expression for which protection is claimed, the Court engages in “definitional balancing” to determine that those forms are outside the range of protection.164 Balancing is in evidence to enable the Court to determine whether certain covered speech is entitled to protection in the particular context in which the question arises.165 Utilization of vagueness, overbreadth and less intrusive means may very well operate to reduce the occasions when questions of protection must be answered squarely on the merits. What is observable, however, is the re–emergence, at least in a tentative fashion, of something like the clear and present danger standard in advocacy cases, which is the context in which it was first developed. Thus, in Brandenburg v. Ohio,166 a conviction under a criminal syndicalism statute of advocating the necessity or propriety of criminal or terroristic means to achieve political change was reversed. The prevailing doctrine developed in the Communist Party cases was that “mere” advocacy was protected but that a call for concrete, forcible action even far in the future was not protected speech and knowing membership in an organization calling for such action was not protected association, regardless of the probability of success.167 In Brandenburg, however, the Court reformulated these and other rulings to mean “that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”168 The Court has not revisited these is[p.1053]sues since Brandenburg, so the long–term significance of the decision is yet to be determined.


155 Infra, pp.1136–45, 1149–59.
156 The vagueness doctrine generally requires that a statute be precise enough to give fair warning to actors that contemplated conduct is criminal, and to provide adequate standards to enforcement agencies, factfinders, and reviewing courts. See, e.g., Connally v. General Construction Co., 269 U.S. 385 (1926) ; Lanzetta v. New Jersey, 306 U.S. 451 (1939) ; Colautti v. Franklin, 439 U.S. 379 (1979) ; Village of Hoffman Estates v. Flipside, 455 U.S. 489 (1982) .
157 E.g., Cramp v. Board of Pub. Instruction, 368 U.S. 278 (1961) ; Baggett v. Bullitt, 377 U.S. 360 (1964) ; Keyishian v. Board of Regents, 385 U.S. 589 (1967) . See also Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) (attorney discipline, extrajudicial statements).
158 E.g., Winters v. New York, 333 U.S. 507 (1948) ; Burstyn v. Wilson, 343 U.S. 495 (1952) ; Interstate Circuit v. City of Dallas, 390 U.S. 676 (1968) .
159 E.g., Cantwell v. Connecticut, 310 U.S. 296 (1940) ; Gregory v. City of Chicago, 394 U.S. 111 (1969) ; Coates v. City of Cincinnati, 402 U.S. 611 (1971) . See also Smith v. Goguen, 415 U.S. 566 (1974) (flag desecration law); Lewis v. City of New Orleans, 415 U.S. 130 (1974) (punishment of opprobrious words); Hynes v. Mayor of Oradell, 425 U.S. 610 (1976) (door–to–door canvassing). For an evident narrowing of standing to assert vagueness, see Young v. American Mini Theatres, 427 U.S. 50, 60 (1976) .
160 NAACP v. Button, 371 U.S. 415, 432–33 (1963) .
161 E.g., Kunz v. New York, 340 U.S. 290 (1951) ; Aptheker v. Secretary of State, 378 U.S. 500 (1964) ; United States v. Robel, 389 U.S. 258 (1967) ; Zwickler v. Koota, 389 U.S. 241 (1967) ; Lewis v. City of New Orleans, 415 U.S. 130 (1974) . However, the Court’s dissatisfaction with the reach of the doctrine, see e.g., Younger v. Harris, 401 U.S. 37 (1971) , resulted in a curbing of it in Broadrick v. Oklahoma, 413 U.S. 601 (1973) , a 5–to–4 decision, in which the Court emphasized “that facial overbreadth adjudication is an exception to our traditional overbreadth adjudication,” and held that where conduct and not merely speech is concerned “the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep,” Id. at 615. The opinion of the Court and Justice Brennan’s dissent, id. at 621, contain extensive discussion of the doctrine. Other restrictive decisions are Arnett v. Kennedy, 416 U.S. 134, 158–64 (1974) ; Parker v. Levy, 417 U.S. 733, 757– 61 (1974); and New York v. Ferber, 458 U.S. 747, 766–74 (1982) . Nonetheless, the doctrine continues to be used across a wide spectrum of First Amendment cases. Bigelow v. Virginia, 421 U.S. 809, 815–18 (1975) ; Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) ; Doran v. Salem Inn, 422 U.S. 922, 932–34 (1975) ; Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 633–39 (1980) ; Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984) (charitable solicitation statute placing 25% cap on fundraising expenditures); City of Houston v. Hill, 482 U.S. 451 (1987) (city ordinance making it unlawful to “oppose, molest, abuse, or interrupt” police officer in performance of duty); Board of Airport Comm’rs v. Jews for Jesus, 482 U.S. 569 (1987) (resolution banning all “First Amendment activities” at airport).
162 Shelton v. Tucker, 364 U.S. 479 (1960) ; United States v. Robel, 389 U.S. 258 (1967) ; Schneider v. Smith, 390 U.S. 17 (1968) ; Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976) ; Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 564, 565, 569–71 (1980) .
163 Bates v. City of Little Rock, 361 U.S. 516, 525 (1960) ; NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 464 (1958) ; Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293 (1961) . See also Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 564, 565, 569 (1980) .
164 Thus, obscenity, by definition, is outside the coverage of the First Amendment, Roth v. United States, 354 U.S. 476 (1957) ; Paris Adult Theatre v. Slaton, 413 U.S. 49 (1973) , as are malicious defamation, New York Times Co. v. Sullivan, 376 U.S. 254 (1964) , and “fighting words,” Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) . The Court must, of course, decide in each instance whether the questioned expression definitionally falls within one of these or another category. See, e.g., Jenkins v. Georgia, 418 U.S. 153 (1974) ; Gooding v. Wilson, 405 U.S. 518 (1972) .
165 E.g., the multifaceted test for determining when commercial speech is protected, Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 566 (1980) ; the standard for determining when expressive conduct is protected, United States v. O’Brien, 391 U.S. 367, 377 (1968) ; the elements going into decision with respect to access at trials, Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606–10 (1982) ; and the test for reviewing press “gag orders” in criminal trials, Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 562–67 (1976) , are but a few examples.
166 395 U.S. 444 (1969) .
167 Yates v. United States, 354 U.S. 298 (1957) ; Scales v. United States 367 U.S. 203 (1961) : Noto v. United States, 367 U.S. 290 (1961) . And see Bond v. Floyd, 385 U.S. 116 (1966) ; Watts v. United States, 394 U.S. 705 (1969) .
168 395U.S. at 447 395U.S. at 447 (1969). Subsequent cases relying on Brandenburg indicate the standard has considerable bite, but do not elaborate sufficiently enough to begin filling in the outlines of the test. Hess v. Indiana, 414 U.S. 105 (1973) ; NAACP v. Claiborne Hardware Co., 458 U.S. 886, 928 (1982) . But see Haig v. Agee, 453 U.S. 280, 308– 09 (1981).
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