Media Law Prof Blog

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Louisiana State Univ.

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Monday, September 27, 2010

Prior Restraints, As Applied Challenges, and Overbreath Claims: Poof! Begone! Says One Professor

Larry Alexander, University of San Diego School of Law, has published 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. It is forthcoming in Constitutional Commentary. Here is the abstract.
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.
Download the paper from SSRN at the link.

http://lawprofessors.typepad.com/media_law_prof_blog/2010/09/prior-restraints-as-applied-challenges-and-overbreath-claims-poof-begone.html

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