First Amendment — Free Speech Clause: Procedural Matters

Amdt1.7.2.1 The Overbreadth Doctrine, Statutory Language, and Free Speech

The overbreadth doctrine focuses on the need for precision in drafting a statute that may affect First Amendment rights, and more concretely, allows a special kind of facial challenge to statutes.¹ Ordinarily, to prevail in a facial challenge—a claim challenging a statute on its face, rather than only in certain applications—a litigant “must ‘establish that no set of circumstances exists under which the [law] would be valid,’ or show that the law lacks ‘a plainly legitimate sweep.’”² Accordingly, if a statute sweeps in both protected and unprotected activity, the Court will ordinarily only invalidate its application to protected conduct.³ In the context of the First Amendment, however, the Supreme Court has allowed a person whose own conduct may not be constitutionally protected to bring a facial challenge to a law, if the statute is so broadly written that it sweeps in protected speech and could therefore have “a deterrent effect on free expression.”⁴ The overbreadth doctrine thus allows the facial invalidation of a law that “punishes a ‘substantial’ amount of protected free speech, ‘judged in relation to the statute’s plainly legitimate sweep.’”⁵ For example, in United States v. Stevens, the Supreme Court applied the overbreadth doctrine to rule unconstitutional a federal law that “criminalize[d] the commercial creation, sale, or possession of certain depictions of animal cruelty.”⁶ The Court described the statute as “a criminal prohibition of alarming breadth,” and concluded that “the presumptively impermissible applications of [the law] . . . far outnumber any permissible ones.”⁷

The Supreme Court has recognized, however, that “there are substantial social costs created by the overbreadth doctrine when it blocks application of a law to constitutionally unprotected speech, or especially to constitutionally unprotected conduct.”⁸ The Supreme Court has cautioned that facial “[i]nvalidation for overbreadth is ‘strong medicine’ that is not to be ‘casually employed.’”⁹ The requirement that a law must be “substantially” overbroad accounts for this concern.¹⁰ In addition, the Supreme Court has said “a state statute should not be deemed facially invalid unless it is not readily subject to a narrowing construction by the state courts, and its deterrent effect on legitimate expression is both real and substantial.”¹¹ Further, the Court has said “that overbreadth analysis does not normally apply to commercial speech.”¹²

Amdt1.7.2.2 Vagueness, Statutory Language, and Free Speech

Vagueness is a due process doctrine that can be brought into play with regard to any criminal and many civil statutes,¹ but it has a special significance when applied to governmental restrictions of speech: fear that a vague restriction may apply to one’s speech may deter constitutionally protected speech as well as constitutionally unprotected speech.² In the First Amendment context, vagueness concerns are often combined with claims that the law is substantially overbroad and sweeps in too much protected speech.³ Vagueness has been the basis for voiding numerous such laws, especially in the fields of loyalty oaths,⁴ obscenity and indecency,⁵ and restrictions on public demonstrations.⁶ However, outside of the overbreadth context, the Court has rejected vagueness challenges where “the statutory terms are clear in their application to [a plaintiff ’s] proposed conduct”—even when that application may implicate speech, and when the scope of the law “may not be clear in every application.”⁷

Amdt1.7.2.3 Prior Restraints on Speech

The Supreme Court has recognized that “liberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally although not exclusively, immunity from previous restraints or censorship.”¹ Under the English licensing system, which expired in 1695, all printing presses and printers were licensed and nothing could be published without prior approval of the state or church authorities.² The great struggle for liberty of the press was for the right to publish without a license what for a long time could be published only with a license.³ Given this history, the Supreme Court reviews “[a]ny system of prior restraints of expression” with “a heavy presumption against its constitutional validity.”⁴ To state this another way, the government “carries a heavy burden of showing justification for the imposition of such a restraint.”⁵

The United States Supreme Court’s first encounter with a law imposing a prior restraint came in Near v. Minnesota ex rel. Olson, in which a 5-4 majority voided a law authorizing the permanent enjoining of future violations by any newspaper or periodical once found to have published or circulated an “obscene, lewd and lascivious” or a “malicious, scandalous and defamatory” issue.⁶ An injunction had been issued after the newspaper in question had printed a series of articles tying local officials to gangsters.⁷ Although the dissenters maintained that the injunction constituted no prior restraint, because that doctrine applied to prohibitions of publication without advance approval of an executive official,⁸ the majority deemed it “the essence of censorship” that, in order to avoid a contempt citation, the newspaper would have to clear future publications in advance with the judge.⁹ Recognizing that liberty of the press to scrutinize closely the conduct of public affairs was essential, Chief Justice Charles Hughes stated: “The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional privilege.”¹⁰ The Court, however, did not explore the kinds of restrictions to which the term “prior restraint” would apply other than to assert that prior restraint would only be permissible in “exceptional cases.”¹¹

The Supreme Court has written that “[t]he special vice of a prior restraint is that communication will be suppressed . . . before an adequate determination that it is unprotected by the First Amendment.”¹² The prohibition on prior restraint, thus, essentially limits restraints until a final judicial determination is made that the First Amendment does not protect the restricted speech. For example, it limits temporary restraining orders and preliminary injunctions pending final judgments rather than permanent injunctions following final judgments that the First Amendment does not protect the restricted speech.¹³

In a number of cases during the mid-1900s, the Court invoked the doctrine of prior restraint to strike down restrictions on First Amendment rights, including a series of loosely drawn statutes and ordinances requiring licenses to hold meetings and parades and to distribute literature, with uncontrolled discretion in the licensor whether or not to issue them.¹⁴ The doctrine that generally emerged from these early cases was that permit systems and prior licensing are constitutionally valid so long as the issuing official’s discretion was limited to questions of time, place, and manner.¹⁵ In a 1965 opinion, Freedman v. Maryland, the Supreme Court clarified that in the noncriminal context, a prior restraint may be upheld only if it contains certain procedural safeguards.¹⁶ First, the burden must be on the government to prove that the speech is unprotected.¹⁷ Second, the restraint may not “be administered in a manner which would lend an effect of finality to the censor’s determination whether [speech] constitutes protected expression.”¹⁸ To meet this second requirement, a statute or “authoritative judicial construction” must ensure “that the censor will, within a specified brief period, either issue a license or go to court to restrain” the speech.¹⁹ Content-neutral time, place, and manner regulations do not have to satisfy the procedural safeguards of Freedman—although pursuant to those early cases, they still must “contain adequate standards to guide the official’s decision and render it subject to effective judicial review.”²⁰

The Court has also encountered the doctrine in the national security area, for example, when the government attempted to enjoin press publication of classified documents pertaining to the Vietnam War²¹ and, although the Court rejected the effort, at least five and perhaps six Justices concurred on principle that, in some circumstances, prior restraint of publication would be constitutional.²²

Confronting a claimed conflict between free press and fair trial guarantees, the Court unanimously set aside a state court injunction barring the publication of information that might prejudice the subsequent trial of a criminal defendant.²³ Though agreed as to the result, the Justices were divided as to whether “gag orders” were ever permissible and if so what the standards for imposing them were. The majority opinion used a now-discredited formulation of the “clear and present danger” test and considered as factors in any decision on the imposition of a restraint upon press reporters “(a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger.”²⁴ Though the Court found that one seeking a restraining order must meet “the heavy burden of demonstrating, in advance of trial, that without a prior restraint a fair trial would be denied,” it refused to “rule out the possibility of showing the kind of threat to fair trial rights that would possess the requisite degree of certainty to justify restraint.”²⁵ On a different level, however, are orders that restrain the press as a party to litigation in the dissemination of information obtained through pretrial discovery. In Seattle Times Co. v. Rhinehart, the Court determined that such orders protecting parties from abuses of discovery require “no heightened First Amendment scrutiny.”²⁶

Amdt1.7.2.4 State Action Doctrine and Free Speech

The First Amendment by its terms applies only to laws enacted by Congress and not to the actions of private persons.¹ As such, the First Amendment is subject to a “state action” (or “governmental action”) limitation similar to that applicable to the Fifth and Fourteenth Amendments.² The Supreme Court has stated that “a private entity can qualify as a state actor in a few limited circumstances,” such as “[1] when the private entity performs a traditional, exclusive public function; [2] when the government compels the private entity to take a particular action; or [3] when the government acts jointly with the private entity.”³ In addition, some private entities established by the government to carry out governmental objectives may qualify as state actors for purposes of the First Amendment. For example, in Lebron v. National Railroad Passenger Corp., the Court held that the national passenger train company Amtrak, “though nominally a private corporation,” qualified as “an agency or instrumentality of the United States” for purposes of the First Amendment.⁴ It did not matter, in the Court’s view, that the federal statute establishing Amtrak expressly stated that Amtrak was not a federal agency because Amtrak was “established and organized under federal law for the very purpose of pursuing federal governmental objectives, under the direction and control of federal governmental appointees.”⁵

Starting with the “public function” test, the Court extended the First Amendment to apply to the actions of a private party in Marsh v. Alabama, barring the punishment of a resident of a company-owned town for distributing religious literature.⁶ While the town was owned by a private corporation, “it ha[d] all the characteristics of any other American town,” including residences, businesses, streets, utilities, public safety officers, and a post office.⁷ Under these circumstances, the Court held that “the corporation’s property interests” did not “settle the question”⁸: “[w]hether a corporation or a municipality owns or possesses the town[,] the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free.”⁹ Consequently, the corporation could not be permitted “to govern a community of citizens” in a way that “restrict[ed] their fundamental liberties.”¹⁰

Since Marsh was issued in 1946, however, it has largely been limited to the facts presented in that case, and applies only if a private entity exercises “powers traditionally exclusively reserved to the State.”¹¹ The Supreme Court extended the Marsh decision in 1968: in Amalgamated Food Employees Union v. Logan Valley Plaza, the Court held that a private shopping mall could not prevent individuals from peacefully picketing on the premises, noting similarities between “the business block in Marsh and the shopping center” at issue in that case.¹² However, the Court subsequently disclaimed Logan Valley in Hudgens v. NLRB, rejecting the idea that “large self-contained shopping center[s]” are “the functional equivalent of a municipality.”¹³ Instead, the Court held that in Hudgens, where a shopping center manager had threatened to arrest picketers for trespassing, “the constitutional guarantee of free expression ha[d] no part to play.”¹⁴ As a result, the picketers “did not have a First Amendment right to enter this shopping center for the purpose of advertising their strike.”¹⁵ In another decision in which the Supreme Court held that the First Amendment did not prevent a shopping center from banning the distribution of handbills, the Court distinguished Marsh by noting that “the owner of the company town was performing the full spectrum of municipal powers and stood in the shoes of the State.”¹⁶ By contrast, the disputed shopping center had not assumed “municipal functions or power.”¹⁷ The fact that the shopping center was generally open to the public did not qualify as a “dedication of [the] privately owned and operated shopping center to public use” sufficient “to entitle respondents to exercise therein the asserted First Amendment rights.”¹⁸

More recently, in Manhattan Community Access Corp. v. Halleck, the Supreme Court held that Manhattan Neighborhood Network (MNN), a private, nonprofit corporation designated by New York City to operate public access channels in Manhattan, was not a state actor for purposes of the First Amendment because it did not exercise a “traditional, exclusive public function.”¹⁹ Emphasizing the limited number of functions that met this standard under the Court’s precedents,²⁰ the Court reasoned that operating public access channels “has not traditionally and exclusively been performed by government” because “a variety of private and public actors” had performed the function since the 1970s.²¹ Moreover, the Court reasoned, “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.”²²

Apart from the factual circumstances presented by the company town that exercises powers “traditionally” and “exclusively” held by the government,²³ the Court has sometimes applied the First Amendment against private parties if they have a “sufficiently close relationship” to the government.²⁴ Such circumstances may exist where a private company “is subject to extensive state regulation”—although government regulation alone is not sufficient to establish the state action requirement.²⁵ Instead, the inquiry in such a case is “whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.”²⁶ Accordingly, for example, in Manhattan Community Access Corp., the Supreme Court also held that the city’s selection of MNN and the state’s extensive regulation of MNN did not in and of themselves create state action.²⁷

The question of when broadcast companies are engaged in governmental action subject to the First Amendment has sometimes been a difficult one. In Columbia Broadcasting System v. Democratic National Committee, the Court considered whether a radio station that had a license from the government to broadcast over airwaves in the public domain needed to comply with the First Amendment when it sold air time to third parties.²⁸ The radio station had a policy of refusing to sell air time to persons seeking to express opinions on controversial issues.²⁹ Three Justices joined a plurality opinion concluding that the radio station was not engaged in governmental action when it enforced this policy.³⁰ They reasoned that the federal government had not partnered with or profited from the broadcaster’s decisions and that Congress had “affirmatively indicated” that broadcasters subject to federal law retained certain journalistic license.³¹ In the view of those Justices, if the Court were “to read the First Amendment to spell out governmental action in the circumstances presented . . . , few licensee decisions on the content of broadcasts or the processes of editorial evaluation would escape constitutional scrutiny.”³² In contrast, three other Members of the Court would have held that the radio station was engaged in governmental action because of the degree of governmental regulation of broadcasters’ activities and the station’s use of the airwaves, a public resource.³³ And three Justices would not have decided the state action question.³⁴ Nevertheless, these three Justices joined the Court’s opinion concluding that even if the broadcaster was engaged in governmental action, the First Amendment did not require “a private right of access to the broadcast media.”³⁵