Statutory Speech Bubbles, First Amendment Overbreadth, and Improper Legislative Purpose

Abstract

The article argues that the Supreme Court's contemporary treatment of First Amendment overbreadth law inadequately accounts for what ought to be one of that doctrine's primary functions, surfacing illicit government purposes underlying regulations that affect expression. It examines current understandings of overbreadth law through the lens of the Supreme Court's recent decision addressing Colorado's bubble law, Hill v. Colorado, 530 U.S. 703 (2000), and the broader debate about the constitutionality of statutory speech bubbles. The article begins by examining how the structure of First Amendment doctrine exerts enormous pressure on lawmakers to draft laws broadly. Examining the political process that led to the enactment of the Colorado bubble law, it argues that this pressure was manifest in the lawmakers' decisionmaking. While conventional wisdom suggests that the political process will act as a natural check on statutory breadth, that may not work where the legislature intentionally drafts a speech law broadly to avoid accusations of viewpoint and content discrimination, but simultaneously directs the public's attention only to the narrower social problem it seeks to advance. In other words, the bubble law's supporters had it both ways, in defending the law during the political process, they did not have to respond to claims by speakers other than abortion protestors, but when the law was subject to judicial review, they hid behind the law's formal neutrality. Next, the article argues that statutory speech bubbles ought to be viewed as facially overbroad and assert that insufficient attention to such laws' lack of precision leaves room for lawmakers to escape meaningful First Amendment review by intentionally drafting laws broadly. While the original understanding of overbreadth might have checked that tendency, the doctrine has come to mean something very different. In Hill, for example, the Court upheld the bubble law against an overbreadth challenge precisely because it regulated broadly. My article examines how this result was made possible by the gradual transformation of overbreadth law from a doctrine that guarantees legislative precision to a doctrine that focuses on equal treatment and on principles of procedural standing, and by the fact that the doctrine's justification rests on speaker- or audience-based free speech theories. Finally, the article asserts that the contemporary understanding of overbreadth ought to reflect the doctrine's precision-promoting functions and that those functions in turn serve as a doctrinal means of smoking out illicit government motives. Connecting my thesis to the recent work of scholars who have examined the First Amendment's place in checking improper government purposes, the article maintains that reviving overbreadth's precision requirement will place it more centrally into the larger framework of First Amendment law. The article concludes by exploring how overbreadth could counteract the incentives to obscure illicit legislative motive and then address some potential critiques of this proposed approach.