The Government Can ’t Criminalize Words of Mere “Encouragement”

Thomas A. Berry andGregory MillThe First Amendment requires that Congress shall make no law “abridging the freedom of speech.” That means Congress generally can’t make speech a crime. Nonetheless, the Supreme Court has found a few rare and specific categories of speech to be outside the protection of the First Amendment, such as true threats, obscenity, incitement of imminent violence, and speech integral to criminal conduct.But what if Congress passes a law that applies tobothprotected and unprotected speech? Although some applications of such a law might be permissible, many others would violate the First Amendment. When a defendant is convicted under such a law for speechnotprotected by the First Amendment, that defendant may nevertheless challenge his conviction on the ground that the law is “facially overbroad” and criminalizes too much protected speech.A law is facially overbroad when the amount of unprotected speech that it legitimately forbids is eclipsed by the amount ofprotectedspeech that it suppresses. InAshcroft v. Free Speech Coalition (2002), the Supreme Court explained that overbreadth challenges are necessary because severe penalties for violating an unconstitutional law are enough to deter or “chill” citizens from uttering protected speech, even if those citizens might eventually win a challenge to their convictions if they were ever charged. If a court finds that a law is indeed facially overbroad, ...
Source: Cato-at-liberty - Category: American Health Authors: Source Type: blogs