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There is No First Amendment Overbreadth (But There are Vague First Amendment Doctrines); Prior Restraints Aren’t ‘Prior’; and ‘As Applied’ Challenges Seek Judicial Statutory Amendments

Constitutional Commentary, Forthcoming

San Diego Legal Studies Paper No. 10-029

19 Pages Posted: 14 Aug 2010  

Larry Alexander

University of San Diego School of Law

Multiple version iconThere are 2 versions of this paper

Date Written: August 12, 2010

Abstract

In this short paper I argue that there are no overbroad statutes, and that the worry about overbreadth is really a worry about the vagueness of some First Amendment doctrines. I further argue that there is nothing “prior” about prior restraints; the temporal worry about injunctions is due to the judicially-created collateral bar doctrine, and the temporal worry about licensing schemes is that of the delay occasioned by the license requirement. Finally, I argue that “as applied” constitutional analysis is an exercise in judicial statutory amendment. I conclude with an Appendix discussing two recent prominent articles that are inconsistent with some of my arguments.

Keywords: prior restraint, overbreadth, as applied, facial invalidity

JEL Classification: K10, K39

Suggested Citation

Alexander, Larry, There is No First Amendment Overbreadth (But There are Vague First Amendment Doctrines); Prior Restraints Aren’t ‘Prior’; and ‘As Applied’ Challenges Seek Judicial Statutory Amendments (August 12, 2010). Constitutional Commentary, Forthcoming; San Diego Legal Studies Paper No. 10-029. Available at SSRN: https://ssrn.com/abstract=1658106

Lawrence Alexander (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-2317 (Phone)
619-260-4728 (Fax)

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