Learning Outcomes
After reading this article, you will be able to identify and explain the constitutional doctrines of prior restraint, vagueness, and overbreadth as they relate to individual rights under the First Amendment. You will understand how these doctrines are tested on the MBE, recognize invalid restrictions on speech, and apply the correct standards to typical exam scenarios.
MBE Syllabus
For the MBE, you are required to understand the constitutional limits on government regulation of speech, especially:
- The prohibition on prior restraints and the rare exceptions where they are allowed.
- The void-for-vagueness doctrine and its application to laws restricting speech.
- The overbreadth doctrine and its use in challenging statutes that restrict protected as well as unprotected speech.
- The standards for facial and as-applied challenges to speech regulations.
- The relationship between these doctrines and time, place, and manner restrictions.
- The consequences of unconstitutional speech restrictions for MBE-style questions.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
-
Which of the following is most likely to be struck down as a prior restraint?
- A law punishing libel after publication.
- A court order prohibiting publication of troop movements during wartime.
- A licensing scheme that gives officials unlimited discretion to deny parade permits.
- A law requiring disclosure of campaign contributions.
-
A statute makes it a crime to use “offensive or annoying language” in public. What is the strongest constitutional objection?
- Overbreadth.
- Vagueness.
- Prior restraint.
- Content neutrality.
-
A law bans all “disrespectful” speech about government officials. What is the best argument for invalidity?
- The law is a prior restraint.
- The law is vague and overbroad.
- The law is a valid time, place, and manner restriction.
- The law is viewpoint neutral.
Introduction
The First Amendment sharply limits government power to restrict speech. Three doctrines—prior restraint, vagueness, and overbreadth—are central to MBE questions on individual rights. These doctrines provide powerful tools for challenging laws that suppress speech, and are frequently tested in both facial and as-applied challenges. Understanding their scope and application is essential for success on the MBE.
Prior Restraint
A prior restraint is any government action that prevents speech before it occurs, rather than punishing it after the fact. Prior restraints are almost always unconstitutional, except in rare circumstances (such as national security or incitement to imminent lawless action). The government bears a heavy burden to justify any prior restraint.
Key Term: Prior Restraint A government order or regulation that prohibits speech or publication before it occurs, rather than imposing penalties after the fact. Prior restraints are presumptively invalid under the First Amendment.
Vagueness
A law is unconstitutionally vague if people of ordinary intelligence must guess at its meaning or differ as to its application. Vague laws violate due process by failing to give fair notice of what is prohibited and by encouraging arbitrary enforcement.
Key Term: Vagueness The constitutional defect in a law that is so unclear that persons of common intelligence must guess at its meaning, making it impossible to know what conduct is forbidden.
Overbreadth
A law is overbroad if it prohibits a substantial amount of protected speech along with unprotected speech. The overbreadth doctrine allows a person whose own speech could be constitutionally restricted to challenge a law on behalf of others whose protected speech is also restricted.
Key Term: Overbreadth The constitutional defect in a law that restricts not only unprotected speech but also a substantial amount of protected speech, making the law invalid on its face.
Prior Restraint: The Rule and Its Exceptions
Prior restraints are presumptively invalid. The government must show a compelling interest and that no less restrictive means are available. Even then, procedural safeguards are required (such as prompt judicial review and narrow, definite standards).
Examples of prior restraints include:
- Injunctions prohibiting publication.
- Licensing schemes for parades or demonstrations that give officials unlimited discretion.
- Censorship boards for films or books.
Exceptions where prior restraint may be upheld:
- National security (e.g., troop movements during wartime).
- Incitement to imminent lawless action.
- Obscenity or true threats (with narrow, definite standards).
Worked Example 1.1
A city ordinance requires a permit for any public demonstration, but gives the police chief unlimited discretion to deny permits “for any reason.” Is this a valid restriction?
Answer: No. The ordinance is an unconstitutional prior restraint because it gives officials unlimited discretion, allowing arbitrary suppression of speech. Valid permit schemes must have clear, objective standards and prompt judicial review.
Vagueness: The Void-for-Vagueness Doctrine
A law is void for vagueness if it fails to provide clear notice of what is prohibited. Vague laws chill speech by making people uncertain about what is allowed, and invite arbitrary enforcement by officials.
Common examples of vague terms:
- “Annoying,” “offensive,” “immoral,” “disrespectful,” or “unwelcome” language.
- Laws that prohibit “improper” or “inappropriate” speech without further definition.
A vague law is invalid on its face and cannot be enforced against anyone.
Worked Example 1.2
A state law makes it a crime to use “offensive or annoying language” in public. A protester is arrested for calling a politician “corrupt.” Is the law valid?
Answer: No. The law is unconstitutionally vague because “offensive or annoying” is subjective and fails to provide clear notice of what is forbidden. It also risks arbitrary enforcement.
Overbreadth: Protecting Protected Speech
A law is overbroad if it restricts a substantial amount of protected speech in addition to unprotected speech (such as obscenity, incitement, or true threats). The overbreadth doctrine allows facial challenges even by those whose own speech is unprotected.
Overbreadth is especially important in First Amendment cases. A person whose own speech could be constitutionally restricted may challenge the law if it also restricts protected speech of others.
Worked Example 1.3
A statute bans “all speech that may disturb public order.” A protester is convicted for shouting at a rally. Is the statute valid?
Answer: No. The statute is overbroad because it prohibits a wide range of protected speech (such as peaceful protest or political criticism) along with unprotected speech (such as incitement to riot). It is invalid on its face.
Facial vs. As-Applied Challenges
- Facial challenge: Argues that a law is invalid in all applications (often due to vagueness or overbreadth).
- As-applied challenge: Argues that a law is invalid as applied to the challenger’s specific conduct.
Overbreadth and vagueness are grounds for facial invalidation. Prior restraint is often challenged facially, especially when a law gives officials excessive discretion.
Exam Warning
Laws that are both vague and overbroad are especially likely to be struck down. On the MBE, if a law uses undefined, subjective terms and covers a wide range of speech, both doctrines may apply.
Summary
Prior restraint, vagueness, and overbreadth are powerful doctrines for invalidating laws that restrict speech. Prior restraints are almost always invalid. Vague laws fail due process and chill speech. Overbroad laws can be challenged by anyone whose protected speech is at risk. These doctrines are frequently tested on the MBE.
Key Point Checklist
This article has covered the following key knowledge points:
- Prior restraints are presumptively invalid; government must show a compelling interest and provide procedural safeguards.
- Vague laws are unconstitutional because they fail to give clear notice and invite arbitrary enforcement.
- Overbroad laws are invalid if they restrict a substantial amount of protected speech along with unprotected speech.
- Facial challenges are allowed for vagueness and overbreadth; prior restraint is often challenged facially.
- Licensing schemes must have clear, objective standards and prompt judicial review.
- On the MBE, look for undefined, subjective terms and broad restrictions on speech.
Key Terms and Concepts
- Prior Restraint
- Vagueness
- Overbreadth
