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
19 Pages Posted: 27 Jan 2011
Date Written: January 26, 2011
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: First Amendment, Overbreadth, Vagueness, Prior Restraint, As Applied, Facial
JEL Classification: K10, K39
Suggested Citation: Suggested Citation