The Procedural First Amendment

Keith Werhan. Freedom of Speech: A Reference Guide to the United States Constitution. Praeger, 2004.

“‘The history of American freedom,’ Mr. Justice Frankfurter once observed, ‘is, in no small measure, the history of procedure.’… Responding to this realization, courts have … construct[ed] a body of procedural law which defines the manner in which they and other bodies must evaluate and resolve … first amendment ‘due process’.”

~ Henry P. Monaghan*

The Supreme Court has codified First Amendment jurisprudence not only by developing special rules for particular categories of speech content, but also by categorizing free speech doctrine according to the varying nature of the restrictions that governments impose on speech. The justices have recognized that particular types of speech regulation, like certain categories of speech, raise distinctive First Amendment issues. They also have recognized that different methods of speech regulation, like different types of speech content, create differing degrees of First Amendment concern, thus warranting distinct levels of judicial scrutiny. But there is a difference between categorizing speech content and speech regulation: When assessing speech content, the Court begins from a baseline of full First Amendment protection and inquires whether a particular category of speech dictates a retreat from that norm. When the Court examines the nature of a speech restriction, the justices may heighten as well as lower the level of constitutional protection generally afforded free speech.

We have already seen the Court’s most important doctrine categorizing governmental restrictions on speech—the content distinction principle. That doctrine is grounded on the judicial sense that restrictions predicated on the government’s desire to limit or to eradicate a specific speech content are more likely censorial than are restrictions that the government imposes without regard to the content of speech. Thus content-based distinctions are presumptively unconstitutional and are typically subjected to strict judicial scrutiny, whereas content-neutral restrictions face only an intermediate level of review. Within that basic two-level structure, however, the Court has integrated several additional doctrines that further calibrate judicial scrutiny according to the nature of government speech restrictions. This chapter takes a brief look at these complementary, restriction-based doctrines.

The public forum doctrine, which is discussed first, applies to government regulations of expressive activity on public property. The doctrine directs reviewing courts to adjust First Amendment scrutiny according to the nature of the public property that a speaker wishes to use as a forum for speech. The other restriction-based doctrines considered in this chapter—the doctrines of prior restraint, over-breadth, and vagueness—serve only to ratchet up judicial scrutiny. These latter three doctrines address speech restrictions that are so invidious or threatening to First Amendment values that the courts at times prohibit their use against otherwise unprotected expressive activity.

The Public Forum Doctrine

The public forum doctrine provides individuals a First Amendment right to engage in expressive activity on public property. The doctrine got off to a false start in the final years of the nineteenth century, however (Davis v. Massachusetts, 1897). Davis was convicted of delivering a sermon on Boston Common without having obtained the necessary city permit. He defended by challenging the constitutionality of the permit requirement. As recounted in the Court’s opinion, Davis argued, “Boston Common is the property of the inhabitants of the city of Boston, and dedicated to the use of the people of that city and the public in many ways; and the preaching of the gospel there has been, from time immemorial to a recent period, one of these ways.” It should not be surprising that Davis’s argument resonated more with property law than with freedom of speech. The case arose during the “dark age” of First Amendment jurisprudence, before the development of truly protective free speech doctrine (see Chapter 1). The justices responded to Davis’s constitutional claim in kind, ruling that as holder of legal title to Boston Common, the city could control public use of the park. The Court essentially rubber-stamped the opinion that Justice Oliver Wendell Holmes, Jr., then a member of the Supreme Judicial Court of Massachusetts, had written when Davis was before that court. According to Holmes, “For the Legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house” (Commonwealth v. Davis, 1895). The Court’s decision in Davis, as well as Holmes’s opinion for the state high court, was emblematic of pre-modern First Amendment jurisprudence in its failure to appreciate freedom of speech as a fundamental right deserving of strong constitutional protection.

The justices reversed their position on the public forum near the end of the 1930s, when, not coincidentally, the Court finally came to accept the fundamental nature of the free speech guarantee. The turning point came in Hague v. Committee for Industrial Organization (1939), which invalidated a city ordinance that local officials had used systematically to prevent labor organizations and their advocates from holding assemblies on public property. Justice Owen J. Roberts, writing only for a plurality of three justices, accepted Davis’s original argument for speaker access to public property. In language that has been quoted frequently, Roberts wrote, “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.” Justice Roberts thus turned Holmes’s position in Davis on its head. A democratic government does not stand in the shoes of a private property owner, as Holmes would have it, but rather it controls public places merely as trustee for the benefit of a sovereign people. Justice Roberts conceded that public use of public property for expressive purposes could not be absolute, however. Expressive activity is hardly the only public use of “streets and public places.” According to Roberts, the government, in its role as property custodian, may regulate speaker access to public property in order to accommodate competing uses of the property. But it may not “abridge[] or den[y]” speaker access to public places “in the guise of regulation.”

Justice Roberts’s use of the rhetoric of property rights met Davis on its own terms, but his conception of public places as public fora was informed by a vision of free speech that was wholly absent from the prior decision. In Roberts’s plurality opinion in Hague, the public forum is nothing less than a physical manifestation of the marketplace of ideas, an American agora. Streets, sidewalks, and parks comprise the central nervous system of local communities. They are the places where residents come into contact with each other on a daily basis. The public forum doctrine requires the government to recognize that social reality by opening these common areas to those who seek expressive encounters with their fellow citizens.

The public’s expressive use of public places is necessary for freedom of free speech because these places frequently offer the only venues available to advocates who lack the financial heft to reach an audience through the media. The expressive uses for which speakers might commandeer public property are many and varied. Groups can take to the streets to stage public demonstrations in support of their causes. Individuals can use public sidewalks to facilitate such one-on-one encounters as leafleting, soliciting financial support, or engaging in conversation. Or they might convene a meeting in a public auditorium in order to discuss issues of the day, or to hold a rally in a public park. The public forum doctrine serves as a First Amendment equalizer, providing access not so much to a piece of property, but to potential audiences that many speakers could not otherwise hope to reach.

The protective potential of Hague‘s conceptualization of a community’s common areas as public fora matured in a series of cases involving municipal efforts to prevent proselytizing by Jehovah’s Witnesses. Members of that group often spread their word and distributed their literature by house-to-house canvassing and by engaging passersby on sidewalks. Many people found these encounters annoying. And because Jehovah’s Witnesses at times caustically criticized other religions, especially Catholicism, these activities often proved to be provocative as well. Municipal officials in a number of communities responded to residents’ complaints about Jehovah’s Witnesses by generally restricting various kinds of expressive activity on public property, rather than by targeting the group explicitly. The Jehovah’s Witnesses often registered their rejection of these restrictions by simply ignoring them, and they were duly prosecuted in a number of localities. The result of the Jehovah’s Witnesses controversies was a series of First Amendment decisions involving “petty offenses that raised constitutional questions of the most serious magnitude” (Watchtower Bible and Tract Society of New York v. Village of Stratton, 2002).

The Court’s Jehovah’s Witnesses decisions enforced and elaborated the nascent public forum doctrine of Hague. The central theme of the decisions was that the First Amendment required municipal officials to open public property even to expressive activity that imposed real costs on the cities and its residents. The leading decision sounding this theme was Schneider v. State (1939), which the Court decided the same year as Hague. Schneider involved First Amendment challenges to four municipal ordinances that restricted leafleting in public places. Following the Roberts plurality opinion in Hague, the Court emphasized the duty of municipal officers, as “trustees for the public,” to ensure that public streets and sidewalks provide a place where individuals can exercise their “fundamental personal rights” to free expression. Streets and sidewalks, the Court explained, were “natural and proper places for the dissemination of information and opinion,” and keeping those places available for that purpose was “vital to the maintenance of democratic institutions.” The cities had expressed a concern that leafleting led to littering, but the municipal duty to maintain the cleanliness of public property, the Court held, was insufficient to trump the powerful free speech values sacrificed by the ordinances.

Schneider thus gathered the majority support for Justice Roberts’s public forum doctrine that was absent in Hague. The decision also tweaked the doctrine by requiring that any cost/benefit balancing regarding speaker access to the public forum be calibrated, in Harry Kalven’s famous description, with a judicial “thumb … on the speech side of the scales.” As the Court put it in a later decision, “The right to use a public place for expressive activity may be restricted only for weighty reasons” (Grayned v. City of Rockford, 1972). In assessing the weight of the government’s reasons for restricting expressive activity in the public forum, the Court in Grayned focused on the “nature of [the] place” together with “the pattern of its normal activities.” In Grayned, the Court identified the “crucial question” in public forum analysis as “whether the manner of expression is basically compatible with the normal activity of a particular place at a particular time.” This so-called “compatibility test” focused public forum doctrine on one simple, functional inquiry: whether the expressive activity would materially interfere with an overriding governmental interest regarding the property at issue. If not, Grayned required the government to accommodate speaker access.

The vitality of the public forum doctrine elaborated in Hague, Schneider, and Grayned has been diluted in recent years by two developments. The first of these developments is the content distinction principle. That doctrine began its firm hold on free speech jurisprudence with the Court’s opinion in Police Department of City of Chicago v. Mosley (1972), which, ironically, the justices decided on the same day as Grayned. Justice Thurgood Marshall, writing for the Court in Mosley, integrated the presumption against content-based restrictions on speech with the public forum doctrine in rhetoric which rivaled that of Justice Roberts’s opinion in Hague. Justice Marshall wrote:

[G]overnment may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an ‘equality of status in the field of ideas,’ and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone.

While Mosley made clear that the Court would not tolerate content-based exclusions of expressive activity from the public forum except, if at all, in the most extraordinary of circumstances, the negative implication of that declaration emerged only with the passage of time: the Court would be more accepting of content-neutral restrictions on speaker access to the public forum than Schneider and Grayned had suggested.

While the justices in Grayned, consistent with Schneider, had limited governmental authority to restrict expressive activity in the public forum on a content-neutral basis “only for weighty reasons,” the contemporary Court has not consistently held itself to that standard. The Court, for example, has allowed content-neutral restrictions on speaker access to the public forum in the interest of facilitating the orderly movement of patrons on state fairgrounds (Heffron v. International Society for Krishna Consciousness, 1981), of maintaining the aesthetic appearance of a city (Members of City Council v. Taxpayers for Vincent, 1984; Metromedia, Inc. v. San Diego, 1981), and of maintaining the attractiveness of public parks (Clark v. Community for Creative Non-Violence, 1984). Justice Marshall, the author of the Court’s opinions in both Mosley and Grayned, decried the tendency of the justices to allow themselves to be lulled by the content neutrality of public forum restrictions into ignoring the weight of the rationale that supported the restrictions. Because the Court “dramatically lowered its scrutiny” of content-neutral restrictions on speaker access, Justice Marshall observed, the justices have “transformed the ban against content distinctions from a floor that offers all persons at least equal liberty under the First Amendment into a ceiling that restricts persons to the protection of First Amendment equality—but nothing more.” The Court on occasion has invalidated overly broad, content-neutral restrictions on speaker access to the public forum, as when a restriction manifestly failed to serve the government’s stated interests (see United States v. Grace, 1983), or when a restriction almost completely banned a medium of communication (see City of Ladue v. Gilleo, 1994). But such decisions are decidedly the exception to what has become an otherwise permissive judicial approach to content-neutral restrictions on speaker access to the public forum.

The second limitation on the speech protectiveness of the public forum doctrine finds its roots in the originator of the doctrine, Hague itself. Justice Roberts, recall, ushered in the right of speaker access by emphasizing that “streets and public places” had been used as fora for expression, “time out of mind.” But what of the many kinds of government property that have not traditionally been so used? Was the mere fact of government ownership sufficient to open property to speakers? Or did the absence of a free speech tradition for a particular type of property justify the government in making it off limits to expressive activity?

The Court’s decision in Grayned, by focusing on the compatibility of expressive activity with the non-speech uses of the public property in question, had deemphasized the importance of the historical use of property as a forum for speech. But the Court abruptly shifted direction in Greer v. Spock (1976). In Greer, the Court upheld the refusal by the commanding officer of Fort Dix to allow several minor party candidates for president onto the base to hold a campaign rally, distribute literature, and discuss issues with soldiers. The Greer logic, in its simplicity, was devastating to the candidates’ public forum claim. Unlike the streets, sidewalks, and parks embraced in Hague as public properties that “time out of mind” had provided a forum for free expression, the purpose of military bases, as the Court succinctly put it, was “to train soldiers.” Because the government’s purpose in maintaining the bases did not include providing a forum for expression, the Court held, they were not public fora. And because the bases were not public fora, the Court further held, individuals had “no generalized constitutional right” to enter the base in order to engage in expressive activity. The Court in Greer did not concern itself with the question of whether the government could have accommodated the expressive activity without compromising the security of the base or its training mission. Nor did it matter that the speakers had sought access only to areas within the base that generally were open to the public. The key for the Court was whether the property qualified as a public forum, and the crucial determinant of that designation was the government’s purpose in holding and maintaining the property.

The Court cemented the Greer transformation of the public forum doctrine in Perry Education Ass’n v. Perry Local Educators’ Ass’n (1983), declaring, “[t]he existence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending on the character of the property at issue.” In Perry, the Court constructed a three-level hierarchy of public property. Hague‘s “traditional public forum” resided at the pinnacle. These are public places that, in the language of Perry, “by long tradition … have been devoted to assembly and debate.” The Court since Perry essentially has limited the category of traditional public fora to streets, sidewalks, and parks. The usual rules of free speech jurisprudence apply when individuals seek to engage in expressive activity in a traditional public forum: content-based restrictions are subjected to strict judicial scrutiny, while content-neutral restrictions receive intermediate scrutiny. Although the rhetoric of the Court’s opinions at times suggest that government restrictions on speaker access to the traditional public forum trigger an especially critical look by the justices, the Court’s actual decision-making seldom evidences any such heightened judicial concern. There is one distinctive feature of a property’s designation as a traditional public forum, however. The Court in Perry retained the Hague injunction that governments cannot completely close traditional public fora to expressive activity.

At the bottom of the Perry hierarchy was “non-forum property,” which includes all public property, like the military base in Greer, that governments maintain for purposes other than to provide a forum for expression. In a disconcerting nod to Davis, the Perry Court compared the government’s control over non-forum property with that of a private property owner. When the state restricts the expressive use of non-forum property, it acts as a “proprietor, managing its internal operations, rather than … as [a] lawmaker,” regulating individuals’ right of free expression (International Society for Krishna Consciousness v. Lee, 1992). In the Perry scheme, the First Amendment provides no right of speaker access to non-forum property. The government, as property custodian, is free to deny such access so long as the denial is reasonable and viewpoint-neutral.

Residing in a variable middle position between the traditional public forum and non-forum property was the “designated public forum.” This category includes public property that governments have voluntarily “opened for use by the public as a place for expressive activity” (Perry). In a designated public forum, the scope of a speaker’s right of access is determined by the extent to which the government has opened the property for expressive use. If the government has opened property generally to expressive activity, the broad free speech rights of the traditional public forum apply, although the government may close a designated forum to all expressive activity whenever it wishes (Perry). But the government may also choose to limit free speech rights when it designates a public forum. In that event, officials can restrict expressive activity in such fora consistently with the limitations the government has imposed, so long as the restrictions are reasonable and viewpoint-neutral.

The Court has allowed the government to limit use of a designated forum to certain speakers and to speech on specified subjects. For example, a public university may limit access to its facilities to students enrolled at the university (see Widmar v. Vincent, 1981), or the governmental sponsors of a pre-election debate may reserve the podium for candidates who have satisfied reasonable criteria of electability (see Arkansas Educational Television Comm’n v. Forbes, 1998). In addition to such speaker-based restrictions, the Court has permitted the state to designate fora for particular subject matter. For example, a school board may limit public comments at its meetings to items on the agenda (see City of Madison Joint School District v. Wisconsin Public Employment Relations Comm’n, 1976). The government, however, is bound by the rules governing speaker access that it has created, at least until it closes or re-designates the forum. Thus, in the examples mentioned above, the university could not deny access to its facilities to a student group whose message it opposed; the debate sponsors could not reject a qualifying candidate whom they did not wish to see elected; and the school board could not rule out of order those who intended to speak in opposition to an agenda item its members supported. As these examples illustrate, whenever the government denies speaker access in violation of the rules it has established for use of a designated public forum, official censorship looms as the likely explanation.

Because the Court has essentially closed the category of the traditional public forum to all public places except for streets, sidewalks, and parks, the dynamic of much contemporary public forum litigation involves a struggle over whether to categorize the public property at issue as a designated public forum or as a non-forum. The Court has been strict in these disputes, insisting that in order for property to qualify as a designated public forum, the government must have “intentionally open[ed]” the property to “public discourse” (NAACP Legal Defense and Educational Fund v. Cornelius, 1985). True to Greer, the government’s purpose for maintaining the property is key. And as Greer illustrates, the Court has not been persuaded by a showing that the property in question was generally open to the public or that the property was capable of accommodating expressive activity. Nor has it been sufficient to prove that the property on occasion has provided a venue for expression. In order to find the requisite designation, the Court expects to see a government policy or a manifest practice establishing that the purpose of the property in question is to serve as a public forum (Cornelius; Perry).

The Court’s categorization of public property into three discrete levels of forum status resembles the justices’ categorization of speech into three levels of First Amendment protection. Both efforts flow from the justices’ perceived need to establish limits to strong free speech protection. They also reflect the commonsense judgment that the nature and degree of free speech protections should vary for different types of speech and different kinds of public property. Both approaches create similar problems as well. Neither public property nor speech arranges itself into neat categories. Just as lesser protected or unprotected categories of speech at times implicate free speech values, non-forum property often can accommodate expressive activity. Allowing the government free rein to restrict expression in these instances often undermines freedom of speech.

In one important sense, the Perry approach to categorizing public property is more troubling than the Court’s traditional categorization of speech. In categorizing speech, the Court begins with a default position that expression is fully protected by the First Amendment, and places the burden on the government to persuade the justices that lessening or rejecting such protection is appropriate. Under Perry, however, the default position is that all public property other than streets, sidewalks and parks are non-forum property, and thus are largely immune from free speech obligations unless the government has consciously adopted a policy or practice to open the property to expressive activity. Because it is the government’s purpose that largely dictates public forum status, it is government officials, not the courts, who make the crucial judgments in defining free speech rights on public property. Whereas Hague created the public forum doctrine to loosen the control of government custodians over expressive activity on public property, the contemporary doctrine has largely returned that control.

With these criticisms in mind, Justice Anthony M. Kennedy recently proposed a revision of the public forum doctrine that would reorient the doctrine in a speech-protective direction (International Society for Krishna Consciousness v. Lee, 1992, concurring in the judgment). Rather than relying on the government’s purpose for maintaining a public place to define public forum status, Justice Kennedy, in the spirit of Grayned, would look more functionally at the “actual, physical characteristics and uses of the property.” Kennedy would provide public forum status not only to streets, sidewalks, and parks, but also more generally to all public property where “the objective physical characteristics … and the actual public access and uses which have been permitted by the government indicate that expressive activity would be appropriate and compatible with those uses.” Justice Kennedy’s reform, which came within one vote of a majority, would return the focus of the public forum doctrine to where it began in Hague, Schneider, and Grayned. Were the Court to adopt Kennedy’s proposed reformation of the public forum doctrine, government officials once again would be required to accommodate expressive activity in public places unless the activity would be incompatible with other overriding uses for the property.

The Prior Restraint Doctrine

The irreconcilability of a program of government censorship with a system of free expression, as well as the identification of prior restraints on expression as the essence of censorship, was ingrained in Anglo-American constitutionalism long before the founding of the United States. As recounted in our consideration of the history of free speech in Chapter 1, England responded to the invention of the printing press by creating a licensing system that required printers to receive the permission of royal officials before publishing a text. In free speech theory, such a licensing system constitutes a paradigmatic “prior restraint” on expression, because it requires governmental permission before a speaker is legally entitled to disseminate ideas and information to the public. The incompatability of the prior restraint of the English licensing system and free expression inspired John Milton in 1644 to write Areopagitica, which presented a defense of freedom of speech that became a milestone in Anglo-American constitutional history. England interred its licensing system in 1695, and, by the time of the American Revolution, it had enshrined a common law principle that defined “liberty of the press,” and by extension, freedom of speech, as a freedom from “previous restraints on publication.” (Emphasis in original.) William Blackstone, the authoritative expositor of English common law in the eighteenth century, justified that principle by equating prior restraints with government censorship, a system that “subject[s] all freedom of sentiment to the prejudices of one man, and make[s] him the arbitrary and infallible judge of all controversial points in learning, religion, and government.” At common law, according to Blackstone, “[e]very freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press.”

Blackstone’s focus on prior restraints as the essence of censorship, and thus as the antithesis of free expression, strongly influenced American constitutional thought. In their early nineteenth century legal commentaries, James Kent and Joseph Story both followed Blackstone by equating freedom of the press, and again by extension, free speech, to the freedom from prior restraint. Moreover, the Supreme Court emphasized early on that “the main purpose” of the First Amendment was to provide a bulwark against prior restraints (Patterson v. Colorado, 1907; Schenck v. United States, 1919). Such judicial rhetoric has been a staple of free speech jurisprudence ever since. For example, the modern Court characterized “prior restraints on speech and publication [as] the most serious and the least tolerable infringement on First Amendment rights” (Nebraska Press Ass’n v. Stuart, 1976). Accordingly, the Court has frequently emphasized that “[a]ny system of prior restraints of expression [bears] a heavy presumption against its constitutional validity” (Bantam Books, Inc. v. Sullivan, 1963).

Because of the historic linkage between prior restraints on expression and official censorship, it is easy to understand the deep antipathy to prior restraints that is such a prominent feature of contemporary First Amendment jurisprudence. Determining the doctrinal content of the special judicial hostility to prior restraints remains somewhat elusive, however. After all, content-based restrictions on speech generally are considered presumptively unconstitutional and rarely survive the strict judicial scrutiny they face. What greater protection, then, is afforded against prior restraints? The Court has never absolutely prohibited prior restraints, but it has cautioned that the “exceptional nature” of prior restraints requires that they be reserved for “exceptional cases” (Near v. Minnesota, 1931). The implication is that prior restraint systems trigger a kind of hyper-scrutiny. And such has been the case. The justices have subjected content-based prior restraints to a super-strict scrutiny, and they have given content-neutral prior restraints a more careful look than often is the case at intermediate scrutiny. Indeed, the Court’s antipathy toward prior restraints runs so deep that the justices have invalidated such restrictions on unprotected categories of speech (see Near v. Minnesota, 1931). That is, even in cases where the First Amendment permits the imposition of civil or criminal liability on a speaker, the government often is unable to prevent that speaker from engaging in the expressive activity in the first place. As Blackstone observed, such a speaker is free “to lay what sentiments he pleases before the public,” but he must be prepared to “take the consequences of his own temerity” if his expressive activity is unprotected.

The most celebrated instance of the prior restraint doctrine in action is the Pentagon Papers case (New York Times Co. v. United States, 1971). The Pentagon Papers was a top-secret Pentagon study entitled, “History of U.S. Decision-Making Process on Viet Nam Policy.” The study analyzed U.S. involvement in Southeast Asia from 1945 until 1968. The Johnson administration had undertaken the Pentagon Papers project in its waning years as part of a major reassessment of Vietnam policy. President Richard M. Nixon apparently had not even known that the Pentagon Papers existed until The New York Times began publishing portions of the study in the summer of 1971. The Washington Post began publishing its own installments of the Papers several days later.

The Nixon administration quickly filed suit asking federal courts in New York City and in Washington, D.C., to enjoin further publication of the Pentagon Papers by the two newspapers in order to avoid what the government claimed to be grave and irreparable harm to the national interest. These suits marked the first occasion on which the United States had sought a prior restraint of expression on national security grounds. There were still over 140,000 troops stationed in Southeast Asia at the time, and national security agencies were united in the belief that public disclosure of the Pentagon Papers, in various ways, might prolong the war and jeopardize the lives of U.S. personnel. The National Security Agency feared that information in the study would help America’s adversaries to break U.S. codes. The Central Intelligence Agency worried about exposing sources and methods of U.S. intelligence gathering. The Defense Department was concerned over disclosing military plans, strategy, and tactics to the enemy. And the State Department noted that publication of the Pentagon Papers might compromise the delicate peace talks with North Vietnam because such a massive leak of highly classified information suggested that the United States could not be trusted to keep a secret.

Both district courts ordered a temporary halt to publication. Because of the constitutional sensitivity surrounding prior restraints, the cases flew to the Supreme Court with only the briefest of stops in the courts of appeals. Only sixteen days separated the government’s commencement of the suits in the district courts and the Supreme Court’s final decision overturning the lower court injunctions. In the ordinary operation of the rules of federal civil procedure, a defendant has nearly twice that amount of time simply to answer a complaint. Justice John Marshall Harlan, writing for the three dissenters in New York Times, complained that the “frenzied” pace of the litigation, which had been undertaken “in the name of the presumption against prior restraints,” left the judiciary with a “wholly inadequate” amount of time to “giv[e] these cases the kind of consideration they deserve.” Justice Harlan surely had a point. The 47 monographs that constituted the Pentagon Papers included about 7,000 mimeographed pages, some 2.5 million words. No one who had helped to prepare the Papers remained in the government. And more to the point, no one involved in the litigation—including the lawyers, newspaper editors, national security agency officials, and judges—had been able to process the information contained in the study during the short life of the litigation.

Nevertheless, a six-justice majority of the Court concluded that a prior restraint on the publication of the Pentagon Papers was incompatible with the First Amendment. The majority joined together in a brief per curiam (“by the court”) opinion, which simply stated that the government had not met its “heavy burden” in overcoming the strong presumption against the constitutionality of prior restraints on expression. Each of the justices in the majority wrote a concurring opinion, with no one opinion gaining the allegiance of more than two justices. Nevertheless, there is a common theme in the views of several justices which suggests that the government’s failure to justify the injunctions lay in the speculative nature of the claims of harm to the national security. Certainty, not guesswork, was required. Justices William J. Brennan, Jr., and Potter Stewart, two of the concurring justices, seemed to use a hyper-Brandenburg standard in assessing the government’s case. Justice Brennan described the standard for obtaining a prior restraint on national security grounds as obligating the government to prove that “publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea.” Justice Stewart, in an opinion joined by Justice Byron R. White, used similar language, requiring that “disclosure … will surely result in direct, immediate, and irreparable damage to our Nation or its people.” And Justices Hugo L. Black and William O. Douglas, two other concurring justices, went even further, absolutely prohibiting any prior restraint on publication of information that the press had in its possession.

In operation, there may be scant difference between the hyper-Brandenburg standard of Justices Brennan and Stewart and the absolute prohibition advocated by Justices Black and Douglas, for surely it would be only the most extraordinary of cases where the government could actually prove that any publication was certain to cause immediate and grave harm. Prior restraints look to the future, not the past, at what will happen, and not at what has happened. Predicting the future with certainty is seldom, if ever, possible. The rigorous nature of the New York Times burden of proof for prior restraints on national security grounds came through most clearly with the acknowledgment by several concurring justices that publication of the Pentagon Papers would likely (although not certainly) cause at least some of the harms cited by the national security agencies. Indeed Justice White, joined by Justice Stewart, used his concurring opinion to make clear that the government’s inability to justify the prior restraint on publication did not compromise its “constitutional entitlement to a conviction for criminal publication.” Justice White, in fact, all but pleaded with the government to proceed criminally against the newspapers for publishing the leaked Pentagon study.

The special First Amendment hostility to systems of prior restraint so vividly on display in the Pentagon Papers case results from the lesson of history that such systems invariably operate as an “apparatus of censorship” (Freedman v. Maryland, 1965). The central First Amendment concern over prior restraint systems is that, like many other regulatory regimes, they suffer from a tendency to over-regulate the activity they are designed to control. This concern is especially acute when the regulated activity is expression. The natural tendency of government regulators is to err on the side of caution by preventing potentially harmful speech. The value of expression often seems abstract when compared with threats of concrete harms. This explains why the national security agencies in New York Times unanimously supported a prior restraint of the Pentagon Papers based on fears that, at least in retrospect, seem overdrawn. Erwin Griswold, who as Solicitor General of the United States argued the government’s case in New York Times, later wrote, “I have never seen any trace of a threat to the national security from the publication. Indeed, I have never seen it even suggested that there was such an actual threat.” Leslie Gelb, who oversaw the compilation of the Pentagon Papers, has concurred in that view. New York Times illustrates that decisions to issue a prior restraint are necessarily hampered by the speculative nature of the predicted consequences of speech that has not yet occurred. In cases where the harmful effects of speech are uncertain, the First Amendment counsels erring on the side of free expression, not suppression. Because government regulators cannot be expected to heed that counsel, courts have largely displaced their authority to issue prior restraints on expression.

The strong presumption against prior restraints in First Amendment jurisprudence, however, is not simply a prescription for a diagnosis of regulatory failure. As Black-stone understood, prior restraints on expression are anathema in a constitutional order dedicated to freedom of speech. The distinction between the deterrence of legally questionable speech by subsequent punishment schemes and the prevention of such speech by prior restraint systems, while subtle, is nevertheless profound. As the Supreme Court observed, “A prior restraint, by contrast [to a subsequent punishment], has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time” (Nebraska Press Ass’n v. Stuart, 1976). The chilling effect of criminal penalties for proscribed categories of speech, of course, is hardly trouble-free. Speakers are motivated to think carefully, and at times too cautiously, before sharing their ideas and information publicly. But as Blackstone argued, such speakers retain the freedom to speak out, and if need be, to defend their reasons for doing so. Prior restraints rob individuals of that freedom. They are anathema under the First Amendment precisely because they lodge the ultimate decision on whether to speak with government officials, rather than with speakers themselves.

In addition to instances where, as in the Pentagon Papers case, the government has asked judges to enjoin expressive activity, the Court also has deployed the strong presumption against prior restraints in its more traditional setting—government licensing systems for expressive activity. In the modern era, licensing systems have drawn the Court’s attention primarily in two areas, and have elicited different responses from the justices. The Court has virtually disabled systems requiring governmental pre-clearance of motion pictures in order to prevent the exhibition of obscene films. But the Court generally allows governments to use licensing systems in order to control access to the public forum. These two lines of prior restraint precedent are discussed in turn.

Modern Licensing Systems: Obscenity

Beginning in the early 1950s, the Supreme Court began to take an interest in schemes for the licensing of motion pictures that a number of states created in an effort to prevent the exhibition of obscenity. Although the Court held to the position that states could impose criminal penalties for the exhibition of obscene films (see Roth v. United States, 1957), the justices greatly trimmed the constitutional contours of these licensing schemes because, as systems of prior restraint on expressive activity, they were “always fraught with danger and viewed with suspicion” (Freedman v. Maryland, 1965; see Joseph Burstyn, Inc. v. Wilson, 1952). The Court explained:

The administration of a censorship system for motion pictures presents peculiar dangers to constitutionally protected speech. Unlike a prosecution for obscenity, a censorship proceeding puts the initial burden on the exhibitor or distributor. Because the censor’s business is to censor, there inheres the danger that he may well be less responsive than a court—part of an independent branch of government—to the constitutionally protected interests in free expression. And if it is made unduly onerous, by reason of delay or otherwise, to seek judicial review, the censor’s determination may in practice be final. (Freedman)

The Court in Freedman nevertheless did not invalidate motion picture licensing systems per se. Instead, the justices addressed the special First Amendment threats such systems created by demanding especially rigorous procedural requirements for their operation.

The Court in Freedman aligned motion picture licensing schemes with the usual First Amendment default rule that all expression is constitutionally protected. The Freedman procedures thus operate on a presumption that the First Amendment protects motion pictures that are subject to a licensing system. Licensing officials bear the burden of proving that a film is obscene. Moreover, the Freedman procedures deny licensing officials final authority to halt the distribution of films that they regard as obscene. They must ask a court to do so. “[B]ecause only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression,” the Freedman Court explained, “only a procedure requiring a judicial determination suffices to impose a valid final restraint.” In order to prevent licensing officials from blocking the exhibition of disfavored films simply by failing to act on a request for a license, the Court in Freedman required that the officials make their pre-clearance decisions “within a specified brief period.” Finally, the Freedman Court required that motion picture licensing schemes ensure “a prompt final judicial decision” on any effort by the state to stop the exhibition of a film that officials consider obscene (see also City of Littleton v. Z.J. Gifts D-4, 2004). The requirement that a speaker proceed through the licensing process, of course, is itself a prior restraint on expression that infringes freedom of speech until the final decision is made. The Court’s emphasis in Freedman on minimizing processing delays helps to explain the extraordinarily swift adjudication of the Pentagon Papers controversy.

It is worth emphasizing that Freedman imposed a procedural rather than a substantive barrier against motion picture licensing schemes. The decision operates on the premise that there is no First Amendment right to exhibit obscene films, and that states constitutionally may choose to prevent the exhibition of such films rather than, or in addition to, punishing their exhibition. Freedman is thus inconsistent with other Supreme Court decisions that have disallowed prior restraints on unprotected speech (see, e.g., Near v. Minnesota, 1931). But true to the traditional judicial hostility to prior restraints, Freedman‘s strict procedural requirements reflect the justices’ strong distrust of the competence and good faith of licensing officials to pre-clear expressive activity. The Freedman procedures minimize the role of licensing officials by forcing them to grant or deny licenses promptly, and in the event of a denial, by immediately transferring the final licensing decision to the courts. The Freedman procedures hem in the authority of licensing officials to such a degree that states have been discouraged from establishing such pre-clearance requirements.

Modern Licensing Systems: Access to the Public Forum

The Supreme Court has not applied the “extraordinary” procedural safeguards of Freedman to licensing systems that control access to the public forum (see Thomas v. Chicago Park District, 2002). The justices designed the Freedman procedures to fit an acute free speech problem. Motion picture licensing schemes pose an extreme risk of censorship because they authorize government officials to ban films because of their content. The Freedman procedures are especially stringent because they seek to minimize the risk that licensors will abuse their discretion by withholding approval of constitutionally protected films. These procedures would be overkill for licensing systems governing the use of public property. They are unnecessary because the public forum doctrine largely prohibits government officials from restricting access to public property because they disapprove of the legitimate content of a speaker’s speech. The stringency of the Freedman procedures also would undermine the role of government officials as property custodian, a role that requires them to balance the public’s expressive and non-expressive uses of public property. While one suspects that the Court was comfortable in discouraging the maintenance of motion picture licensing schemes, the justices have always recognized that some form of licensing system is useful, and perhaps necessary, for managing public fora (see Cox v. New Hampshire, 1941).

The Court has endeavored to reduce the risk of censorship in licensing schemes controlling access to the public forum by ensuring that the standards governing the license-granting authority not provide cover for content-based censorship. Consistent with the spirit of Freedman, the justices have been rigorous in demanding such assurance. They have insisted, in the first instance, that the standards governing the availability of a license be textually content-neutral (see Cox v. New Hampshire, 1941). More pointedly, the Court has required that the standards also be sufficiently “specific and objective” as to rob licensing officials of any discretion to make content-discriminatory decisions in allocating access to public fora (Thomas v. Chicago Park District, 2002; see Lakewood v. Plain Dealer Publishing Co., 1988; Lovell v. Griffin, 1938). These standards also provide a baseline for judicial review of licensing decisions, thereby enabling judges to assure themselves that the officials’ application of content-neutral standards governing use of a public forum not serve as a pretext for discrimination.

In the end, the Court’s approach to modern licensing schemes tracks the content distinction principle. The justices put a content-based scheme that smacked of governmental censorship (motion picture licensing) through a strict scrutiny wringer, but they allowed considerably more procedural flexibility for a system (public forum licensing) that ensured content neutrality.

The Overbreadth Doctrine

The overbreadth doctrine establishes the unremarkable proposition that a law violates freedom of speech if its prohibitory sweep is so broad that it encompasses a substantial amount of expressive activity that is protected by the First Amendment (see Ashcroft v. The Free Speech Coalition, 2002). The origins of the doctrine trace to Thornhill v. Alabama (1940), where the Court declared that the mere “existence of [an overbroad] statute … results in a continuous and pervasive restraint on all freedom of discussion that might reasonably be regarded as within its purview.” Overbroad statutes, the Thornhill Court also warned, invite discriminatory enforcement against officially disfavored speakers and points of view. The overbreadth doctrine therefore enforces a First Amendment requirement that legislatures “carefully” write statutes that restrict expressive activity in order to “punish only unprotected speech,” without being “susceptible of application to protected expression” (Gooding v. Wilson, 1972).

The distinctive bite of the overbreadth doctrine lies in its availability to those whose activity stands outside First Amendment protection. An individual to whom a statute may be applied consistently with the First Amendment may nevertheless challenge the statute “on its face” (that is, as written) as unconstitutionally overbroad if the statute applies as well to activity that is protected by the First Amendment. This is a departure from the usual rules of constitutional adjudication, in which litigants generally are allowed to challenge the constitutionality of statutes only as applied to their particular circumstances. Litigants typically lack standing to make legal claims that belong to third parties who are not before the court. The Court made an exception to that customary limitation on litigant standing in free speech cases because of “the transcendent value to all society of constitutionally protected expression” (Gooding). An overbroad statute generates a “chilling effect” on protected speech because those to whom the statute applies, albeit unconstitutionally, are likely to forego their right to free expression rather than to risk prosecution (Gooding). In this view, a litigant, even one who has engaged in unprotected criminal activity, performs a public service by successfully challenging an overbroad statute.

In recent years, the Court has emphasized that the overbreadth doctrine is “strong medicine” that should be used only sparingly (Broadrick v. Oklahoma, 1973). Because the doctrine obligates the justices to assess the constitutionality of legislation based on hypothetical applications of the statute, there is risk that the free speech problems that the doctrine highlights might prove to be merely fanciful. Moreover, the overbreadth doctrine also forces outcomes that the Court sometimes finds distasteful. The litigant claiming statutory overbreadth at times has engaged in activity that clearly is beyond First Amendment protection and would be vulnerable to conviction under a properly limited statute, but because of the legislature’s drafting error, that guilty party goes free.

While the justices remain committed to the overbreadth doctrine as an indispensable tool for the maintenance of the First Amendment system of free expression, the Court has trimmed its operation. The principal limit was devised in Broadrick v. Oklahoma (1973), where the Court held that in order to invalidate legislation as overbroad, the unconstitutional applications of the statute must be “substantial” in comparison with the statute’s “plainly legitimate sweep.” Dissenting in Broadrick, Justice Brennan chastised the majority for “mak[ing] no effort to define what it [meant] by ‘substantial overbreadth.'” In the years since Broadrick, the justices have acknowledged their inability to provide “an exact definition” of the “substantial overbreadth” requirement (Members of City Council v. Taxpayers for Vincent, 1984). But the central meaning of the Broadrick test is clear: In order to mount an overbreadth attack, a litigant cannot simply hypothesize “some impermissible applications of a statute” (Vincent). To be successful, a litigant must convince the Court that there exists “a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court” (Vincent).

As modified by Broadrick and explained by Vincent, the overbreadth doctrine is a flexible tool that empowers judges to invalidate a statute when they believe it is necessary to do so in the interest of protecting free expression, but which does not require judges to invalidate a statute simply because there exists some minimal or merely theoretical possibility of future First Amendment violations. If the threat of unconstitutional application is not “substantial,” the Court simply will allow the statute to stand and will monitor its constitutionality on a case-by-case basis, which after all, is the typical judicial method of protecting constitutional rights.

The Vagueness Doctrine

The doctrine of vagueness resembles the prior restraint and overbreadth doctrines because it, too, is focused on the means by which governments limit or prohibit expressive activity. As with the doctrines of prior restraint and overbreath, the vagueness doctrine identifies the nature of the speech restriction itself as a cause of special free speech concern. There is this difference, however: unlike the doctrines of prior restraint and overbreadth, the constitutional prohibition against unduly vague statutes is not a product of the First Amendment.

The vagueness doctrine arises from the constitutional guarantee of “due process of law” in the Fifth and Fourteenth Amendments, which requires that the federal and state governments, respectively, provide individuals with fair and reasonable notice of the boundaries between lawful and unlawful conduct. (Connally v. General Construction Co., 1926). The doctrine “insist[s] that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly” (Grayned v. City of Rockford, 1972). In addition to securing the due process value of fundamental fairness, the vagueness doctrine also serves a vital First Amendment function when speech is at issue. Vague statutes, like laws that are overbroad, create a constitutionally unacceptable risk of official censorship because they invite arbitrary and discriminatory enforcement (Smith v. Goguen, 1974).

Although the vagueness doctrine, as an element of due process, applies generally to all criminal legislation, the justices have recognized that the doctrine assumes a special urgency with respect to laws that prohibit expressive activity. Accordingly, the Court “demands a greater degree of specificity” when First Amendment rights are at risk (Smith). A vague law, like an overbroad statute, signals that the legislature has not carefully considered the free speech values it has jeopardized by its enactment. And because vague statutes leave the boundaries between lawful and unlawful conduct indeterminate, they, like overboard laws, instill caution in individuals, encouraging them to forego expressive activities that might conceivably be prohibited (Grayned v. City of Rockford, 1972). Vague statutes thus have a “chilling effect” on freedom of speech similar to that caused by overbroad laws.

Ironically, the test for determining whether a statute is unconstitutionally vague is itself vague. The Court applies the vagueness doctrine against a background understanding that statues typically do not “map out” individual behavior in advance (Smith). The justices therefore do not demand “mathematical certainty” from a statute (Grayned). The Court, moreover, often looks beyond the text of a law in an effort to supply the specificity that the legislature failed to provide. Vague statutory language can be clarified by judicial interpretations of the law, by analogous laws, and “perhaps to some degree,” by the interpretation of the law by enforcement authorities (Grayned).

The Court’s vagueness decisions illustrate the elusiveness of the doctrine. The justices, for example, rejected a vagueness challenge to a statute that prohibited the use of sound trucks that emit “loud and raucous noises” because the description “convey[ed] to any interested person a sufficiently accurate concept of what is forbidden” (Kovacs v. Cooper, 1949). The Court also rejected a vagueness challenge to a law that prohibited individuals, when near a school that was in session, from making “any noise or diversion which disturbs or tends to disturb the peace or good order of such school session or class thereof” (Grayned v. City of Rockford, 1972). Yet the Court invalidated a statute that prohibited treating the flag of the United States “contemptuously,” because that description did not distinguish with reasonable clarity between treatments of the flag that were criminal and those that were not (Smith v. Goguen, 1974). The Court also invalidated a law that prohibited the assembly on any sidewalk of three or more persons who “conduct themselves in a manner annoying to persons passing by.” The Court found the “annoying” standard to be no standard at all (Coates v. Cincinnati, 1971).

On close inspection, however, there is a discernable pattern in the Court’s vagueness jurisprudence. For one thing, it is clear that “vagueness” means more than ambiguity. The key to understanding the Court’s deployment of the vagueness doctrine in free speech cases is to view the doctrine less as imposing a formal requirement on legislative drafting than as providing a functional tool enabling judges to stifle the potential for governmental censorship against officially disfavored speakers or points of view. In this light, judges might take some comfort that a law enforcement official’s determinations that the sound level of a truck’s loudspeaker was unduly loud or that noise near a school disturbed classes would prove less prone to the subjective biases of enforcement officials, or perhaps more capable of judicial verification, than would decisions that an assembly of individuals might annoy passersby or that an individual had treated a U.S. flag with contempt. In this light, the Court’s vagueness decisions in the free speech align with—indeed, they implement—the content distinction principle. If this understanding of the Court’s use of the vagueness doctrine in free speech cases is accurate, the doctrine merits consideration as a distinctive First Amendment requirement.