PastPaperHero | Individual rights - Prior restraint, vagueness, and overbreadth

Learning Outcomes

This article explains prior restraint, vagueness, and overbreadth in First Amendment doctrine, including:

Distinguishing prior restraints from after‑the‑fact punishments and identifying when injunctions, gag orders, and licensing schemes are unconstitutional on the MBE.
Applying the void‑for‑vagueness doctrine to criminal and civil speech regulations and recognizing classic vague trigger words in bar‑exam fact patterns.
Using the overbreadth doctrine to evaluate statutes that sweep in protected speech, spot third‑party standing, and assess when facial invalidation is appropriate.
Differentiating facial challenges from as‑applied challenges in free speech cases and predicting which form of attack is most likely to succeed.
Integrating these doctrines with content‑based vs. content‑neutral rules and time, place, and manner restrictions, including forum analysis in public, limited public, and nonpublic forums.
Recognizing when courts may cure vagueness or overbreadth with a narrowing construction and when a statute is incurably invalid on its face.
Evaluating overlapping defects—prior restraint, vagueness, overbreadth, and viewpoint discrimination—to choose the single best answer under exam pressure.

MBE Syllabus

For the MBE, you are required to understand constitutional limits on government regulation of speech, with a focus on the following syllabus points:

The definition, presumptive invalidity, and narrow exceptions for prior restraints, including injunctions and licensing schemes.
The void‑for‑vagueness doctrine as a due process limitation on criminal and civil speech restrictions.
The overbreadth doctrine and facial challenges to laws that substantially restrict protected as well as unprotected speech.
Standing rules that allow third‑party challenges in overbreadth cases.
The interaction between prior restraint, vagueness, overbreadth, and time, place, and manner regulations in public forums.
Typical MBE patterns involving “annoying,” “offensive,” “disrespectful,” or similar subjective terms in statutes.
The role of forum analysis (public, limited public, nonpublic) in assessing speech regulations that raise vagueness, overbreadth, or prior restraint concerns.
The collateral bar rule and its impact on contempt proceedings arising from prior restraints.

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?
1. A law punishing libel after publication.
2. A court order prohibiting publication of troop movements during wartime.
3. A licensing scheme that gives officials unlimited discretion to deny parade permits.
4. 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?
1. Overbreadth.
2. Vagueness.
3. Prior restraint.
4. Content neutrality.
A law bans all “disrespectful” speech about government officials. What is the best argument for invalidity?
1. The law is a prior restraint.
2. The law is vague and overbroad.
3. The law is a valid time, place, and manner restriction.
4. 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. They police different types of constitutional defects:

Prior restraint focuses on timing: suppression of speech before it occurs.
Vagueness focuses on clarity: whether a law gives fair notice and constrains official discretion.
Overbreadth focuses on scope: whether a law sweeps in a substantial amount of protected speech.

They frequently appear together in facial challenges to statutes and ordinances regulating expression. Because they interact with due process, content‑based vs. content‑neutral regulation, and forum analysis, they are a favorite source of multi‑issue MBE questions.

On many questions, more than one doctrine is implicated. Your job is to recognize all of them but choose the best or strongest argument when the call of the question asks for it. For example, a parade permit scheme that uses vague terms and gives an official unbounded discretion is both a prior restraint and vague; if the core problem is standardless discretion over whether anyone may speak at all, the best label is usually 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.

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.

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.

Key Term: Facial Challenge
A claim that a statute or regulation is unconstitutional in all, or almost all, of its applications. If successful, the law cannot be enforced against anyone.

Key Term: As‑Applied Challenge
A claim that a statute is unconstitutional as applied to the challenger’s particular conduct or circumstances, even if it might be valid in other applications.

Key Term: Content‑Based Regulation
A speech restriction that applies because of the topic discussed or the idea or message expressed. It ordinarily triggers strict scrutiny.

Key Term: Time, Place, and Manner Restriction
A content‑neutral regulation of when, where, or how speech may occur, rather than what is said. In a public forum it must be narrowly tailored to serve a significant governmental interest and leave open ample alternative channels.

Key Term: Public Forum
Government property that has traditionally been open to expressive activity—such as streets and parks—or that the government has intentionally opened for expressive use.

Key Term: Overbreadth Doctrine
A First Amendment principle allowing a person to challenge a law because it substantially restricts protected speech, even if the challenger’s own speech could be constitutionally restricted.

Key Term: Unfettered Discretion
The vice in a law or permit scheme that gives officials open‑ended, subjective power to allow or deny speech (for example, permits “whenever the mayor thinks it appropriate”), without clear, objective standards.

Key Term: Limited Public Forum
Government property that is opened for limited expressive use by certain groups or on certain topics (for example, a school auditorium available for student groups). Speech restrictions here must be reasonable and viewpoint neutral.

Key Term: Nonpublic Forum
Government property not traditionally open to public speech and not designated for public expressive use (for example, jails, military bases, internal government offices). Speech regulations here must be reasonable and viewpoint neutral.

Key Term: Collateral Bar Rule
A rule of judicial procedure providing that a party generally cannot violate a court order and then defend a contempt proceeding by arguing that the order was unconstitutional; the party must obey and challenge the order through proper channels.

These doctrines sit at the intersection of the First Amendment and due process. Vagueness and overbreadth are usually analyzed under due process and First Amendment principles together, while prior restraint is primarily a First Amendment concept with strong structural and historical roots (it was the core evil the Framers associated with “censorship”). On the MBE, you will often be asked to recognize how they work alongside:

content‑based vs. content‑neutral regulation
public vs. nonpublic forums
unprotected and less‑protected categories of speech (obscenity, incitement, defamation, commercial speech)

Understanding not only the definitions but also the relationships among these doctrines is important to selecting the best answer.

Prior Restraint: The Rule and Its Exceptions

A prior restraint is any government action that prevents speech before it occurs, rather than punishing it afterward. Classic examples:

Injunctions that prohibit publication of certain information.
Licensing schemes that require permission before speaking, parading, or publishing.
Censorship boards for films or books.

The key contrast is with subsequent punishment—for example, a damages action for libel after publication, or a criminal prosecution for obscenity after distribution. Historically, Anglo‑American free speech tradition (following Blackstone) tolerated punishment after the fact but treated licensing and censorship before publication as especially dangerous. Modern doctrine reflects this suspicion.

The Court treats prior restraints as especially disfavored:

They carry a “heavy presumption” of unconstitutionality.
The government must usually satisfy strict scrutiny: a compelling interest and narrow tailoring (no less‑restrictive alternative).

Even when the government regulates less‑protected speech (obscenity, incitement, true threats), using prior restraints rather than post‑hoc sanctions triggers heightened skepticism. The concern is that, once speech is suppressed in advance, the marketplace of ideas never gets to evaluate it, and the public never gets to decide its value.

In addition, valid prior restraints must include procedural safeguards, drawn from cases involving film censorship and licensing:

Clear, narrow, definite standards that limit official discretion.
Burden on the government to justify any restraint.
Prompt decision‑making by the licensing or censoring authority.
Prompt and final judicial review of adverse decisions.

Without these safeguards, even a content‑neutral permit requirement becomes a tool for censorship.

Licensing schemes for parades, demonstrations, and use of public forums are common MBE vehicles. They are treated as prior restraints because they condition speech on securing prior permission. Such schemes are constitutional only if they:

Are content neutral on their face and as applied.
Do not grant officials unfettered discretion (for example, power to deny a permit whenever the event is “inappropriate” or “distasteful”).
Are narrowly tailored to serve a significant governmental interest (e.g., traffic control, safety).
Leave open reasonable alternative channels of communication.
Provide procedural safeguards like objective criteria, deadlines, and review.

If an ordinance simply says “no marches without the mayor’s approval” and tells you nothing about how the mayor should decide, you should immediately think “unconstitutional prior restraint.”

Exam Tip: In a public‑forum permit scheme, two red flags almost always signal an invalid prior restraint:

Subjective standards (“in the public interest,” “not disturbing,” “in good taste”).

Case‑by‑case discretion without objective criteria or deadlines. Even before you classify the law as content‑based or content‑neutral, ask: “Who decides, and under what standards?”

Judicial Orders as Prior Restraints

Court orders—injunctions and temporary restraining orders—can also be prior restraints when they forbid speech before it occurs. Examples:

An order barring the press from publishing details of a pending criminal case.
An order prohibiting picketing near a particular location.
An order instructing a speaker not to distribute leaflets on a topic.

Because judges are state actors, these orders are subject to First Amendment limits. That does not mean all injunctions that affect speech are invalid. For example, an injunction enforcing a valid time, place, and manner rule, or prohibiting harassment of a specific person, may be permissible. But gag orders directed at the press or the general public are almost never upheld.

Courts distinguish:

Gag orders on trial participants (lawyers, parties, witnesses): more leeway, because the court has a strong interest in fair trials and can regulate the conduct of those appearing before it.
Gag orders on the press or public: almost always invalid; the Court expects courts to rely on alternatives like careful voir dire, jury instructions, change of venue, or sequestration.

Key Term: Collateral Bar Rule
A party subject to a court order must obey it unless and until it is stayed or reversed. Violating the order and then defending a contempt citation by attacking the order’s constitutionality usually fails because of the collateral bar rule.

On the MBE, if a party is held in contempt for violating an injunction and then raises a First Amendment defense, you must separate two questions:

Was the original injunction constitutional?
Can the party collaterally attack it in the contempt proceeding?

Unless the facts indicate that the order is transparently void (for example, the court lacked jurisdiction over the parties or subject matter) or that there was no opportunity for appellate review, assume the collateral bar rule applies: the contempt conviction stands even if the order might ultimately be invalid.

This is a classic trap: an answer choice may correctly state that the injunction was an unconstitutional prior restraint but incorrectly suggest that this is a defense to a later contempt charge. On most bar‑style questions, that answer is wrong because of the collateral bar rule.

Licensing and Permit Schemes

Permit requirements for parades, rallies, sound amplification, or leafletting often appear to be neutral time, place, and manner rules. They become unconstitutional prior restraints if:

They target certain subjects or viewpoints (content‑based).
They impose vague standards (for example, “no permit if demonstration would be disturbing”).
They give officials case‑by‑case power to approve or deny without objective criteria.
They lack adequate procedures (no deadlines, no appeal, no burden on the government to justify denials).

By contrast, permit schemes are generally valid when:

They apply uniformly based on neutral criteria (e.g., first‑come‑first‑served; size of crowd; conflicts with other scheduled events).
They are limited to genuine administrative concerns (traffic control, crowd safety, noise at certain hours).
They leave open adequate alternative channels of communication (you can march at another time or along a different route).
They provide a clear appeal process and prompt decisions.

Forum status matters. In traditional public forums (streets, sidewalks, parks), prior restraint analysis is strict. In nonpublic forums (courthouse interiors, military bases, airport terminals), the government may impose broader restrictions, so long as they are reasonable and viewpoint neutral.

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 be content neutral, use clear, objective standards, and provide prompt judicial review. On the MBE, answer choices that focus on “unfettered discretion” or “standardless licensing” are usually pinpointing this prior restraint problem.

Worked Example 1.2

A trial judge issues an order prohibiting the press from publishing the name of a key witness in a pending criminal trial, claiming it is necessary to protect the defendant’s fair‑trial rights. The witness’s name is already widely reported online. A newspaper publishes the name in violation of the order and is held in contempt. In challenging the contempt citation, what is the strongest argument?

Answer:
The order is an unconstitutional prior restraint on the press. Protecting fair‑trial rights is an important interest, but gag orders on the press are almost never the least restrictive means, especially when the information is already public. Alternatives like voir dire, jury instructions, or change of venue are less speech‑restrictive.
Even if the order is unconstitutional, however, the newspaper may still be punished under the collateral bar rule because it disobeyed the order instead of seeking appellate relief. If a choice says the contempt conviction must be reversed simply because the injunction was invalid, it ignores the collateral bar rule and is likely wrong.

What Counts as a Permissible Prior Restraint

Although rare, some prior restraints may be upheld, for example:

National security: Preventing publication of troop movements during wartime or actual nuclear launch codes.
Obscenity, incitement, or true threats: If the material clearly falls within an unprotected category, subject to narrow, definite standards and prompt judicial review (for example, a narrowly drawn obscenity injunction directed at a specific film already adjudicated obscene).
Protection of a fair trial: Gag orders on trial participants (not usually the press) in highly sensitive cases, if they are no broader than necessary.

Even in these contexts, courts are reluctant to uphold broad gag orders, especially directed at the press. On the MBE, if the order is directed at the press, assume it is invalid unless the facts make the national security threat extremely concrete and imminent.

Remember also that not everything labeled a “prior restraint” by a party actually is one. A typical protective order in discovery limiting how parties can use confidential information obtained in litigation is generally not treated as a disfavored prior restraint; courts regard it as regulating access to information rather than forbidding publication of information already in a party’s possession.

Vagueness: The Void‑for‑Vagueness Doctrine

A law is unconstitutionally vague if people of ordinary intelligence must guess at its meaning or differ as to its application. Vagueness violates due process (both procedural and substantive) by:

Failing to give fair notice of what conduct is prohibited.
Inviting arbitrary and discriminatory enforcement by police, prosecutors, or licensing officials.
Chilling protected speech because people may stay silent to avoid unknowingly violating the law.

These concerns arise throughout criminal law, but vagueness scrutiny is more demanding when a law burdens First Amendment rights. The Court is particularly wary of statutes that give police broad power to arrest speakers they dislike.

Typical vague terms on the MBE:

“Annoying,” “offensive,” “immoral,” “disrespectful,” “unwelcome,” “improper,” “inappropriate,” “disturbing,” “harmful to minors” without definitions.
Duties to “advance respect,” “encourage good morals,” or “discourage lawlessness,” without clear standards.
Loitering or vagrancy laws that target those without “apparent purpose.”

A vague speech regulation has two related problems:

Notice problem: A reasonable person cannot tell in advance whether their speech is forbidden. To avoid risk, they will self‑censor.
Enforcement problem: Police and other officials can apply the law selectively against disfavored viewpoints, while ignoring others.

When a statute is vague:

It is usually invalid on its face, especially if it affects speech or imposes criminal penalties.
It cannot be enforced against anyone until a court gives it a narrowing construction that cures the defect.

A key point: state courts can sometimes save a vague or overbroad statute by interpreting it narrowly. If the fact pattern states that a state supreme court has narrowly construed a statute (for example, limiting “offensive language” to unprotected “fighting words”), the MBE expects you to evaluate the statute as narrowed, not as originally written.

Worked Example 1.3

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 invites arbitrary enforcement and chills a wide range of protected speech. It is also likely overbroad, but vagueness is the clearest and most fundamental defect, because no one can tell in advance what counts as “annoying.”

Worked Example 1.4

A state statute makes it a felony to “encourage disrespect for law and order” in any public place. A teacher is prosecuted after telling students that civil disobedience may be justified. The best constitutional objection is:

Answer:
The statute is void for vagueness. “Encourage disrespect” is an undefined and subjective phrase. People cannot know what speech crosses the line, and officials could target disfavored viewpoints. The vagueness is particularly problematic because the statute regulates core political speech. The statute also appears content‑based and overbroad, but the vagueness defect alone is enough to invalidate it.

On the MBE, when you see undefined evaluative terms—especially linked to speech about government or morality—vagueness should be at the top of your mind. Ask:

Could a reasonable person know, in advance, what is allowed?
Could a police officer apply this law faithfully without injecting personal views about which speech is “good” or “bad”?

If the answer to either question is no, vagueness is likely the best answer.

Vagueness vs. Overbreadth

Vagueness and overbreadth often appear together, but they are logically distinct:

Vagueness: the law is unclear; you cannot tell what it covers.
Overbreadth: the law is clear, but it covers too much.

For example, “no loud or offensive speech” is vague because “offensive” is unclear. By contrast, “no speech criticizing government policies” is perfectly clear (it is obvious what is banned) but overbroad and content‑based.

Many MBE statutes are both vague and overbroad. When forced to choose, focus on:

Vagueness if the key problem is lack of clarity in the words used.
Overbreadth if the key problem is that the law clearly but excessively suppresses protected speech.

Overbreadth: Protecting Protected Speech

A statute is overbroad if it prohibits a substantial amount of protected speech in relation to the legitimate sweep of the law. Overbreadth is a First Amendment‑specific doctrine, grounded in the concern that overly broad laws chill lawful expression.

Key features:

The law may be perfectly clear; the problem is that it reaches too much.
The overbreadth must be substantial, judged both in absolute terms and relative to the law’s legitimate aims.
A person whose own speech could be constitutionally restricted may still challenge the law on behalf of others. This is a major departure from ordinary standing rules.

Overbreadth often arises when the government tries to regulate unprotected speech (obscenity, incitement, fraud, true threats, fighting words) but drafts the statute so broadly that it incidentally covers large amounts of protected expression. The Court prefers to strike such laws facially rather than require every speaker to risk prosecution and litigate case by case.

A statute is not overbroad simply because it has a few unconstitutional applications. The defect must be substantial and realistic, not theoretical. For the exam, when you see answer choices that mention “substantially more speech than necessary” or laws that “burden a substantial amount of protected speech,” they are targeting overbreadth.

Note also that the Court is particularly reluctant to use facial overbreadth in certain contexts, such as commercial speech. Overbreadth challenges to commercial advertising restrictions are disfavored; the Court expects businesses to litigate as‑applied challenges rather than invalidate entire regulatory schemes.

Worked Example 1.5

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. The phrase “may disturb public order” goes far beyond incitement or fighting words and would cover ordinary protest and dissent, so the law burdens substantially more speech than necessary to protect genuine public order.

Worked Example 1.6

A city ordinance provides: “No person shall display any symbol or sign in a public park that could reasonably be expected to anger others.” A white supremacist and a civil‑rights group are both cited under the law. Which doctrine best invalidates the ordinance?

Answer:
Overbreadth. The ordinance covers any symbol that “could anger others,” which encompasses core protected political speech from all viewpoints. Although preventing violence is a legitimate goal, this law bans a substantial amount of protected expression in public parks, a traditional public forum. The law is also viewpoint discriminatory in practice because officials may selectively target controversial speakers.
On an exam, a choice that focuses on “substantial amount of protected speech” or “burdens more speech than necessary to serve the government’s interest” is pointing you to overbreadth.

Exam Tip: On the MBE, if a law applies to “any public statement,” “any symbol,” or “all speech” about a topic, and the government interest could be served by a narrower law, think overbreadth. Check whether the law sweeps much more broadly than the unprotected conduct that actually threatens the government’s interest.

Facial vs. As‑Applied Challenges

A facial challenge asserts that a law is unconstitutional in all, or nearly all, of its applications. Vagueness and overbreadth are classic bases for facial invalidation. If a statute is vague or substantially overbroad, it is typically struck down across the board.
An as‑applied challenge concedes that the statute might be valid in some circumstances but attacks how it is applied to the challenger’s specific conduct.

Because of the overbreadth doctrine, a defendant convicted under a speech statute can sometimes win even if their own speech is unprotected. The rationale is to prevent the chilling of others’ protected speech by invalidating deterrent laws altogether.

At the same time, courts treat facial invalidation as “strong medicine.” Outside the First Amendment, a facial challenge is extremely hard to win; the challenger usually must show that the law is unconstitutional in all its applications. In First Amendment overbreadth cases, the threshold is lower: substantial overbreadth is enough.

Worked Example 1.7

A statute bans distributing “any literature critical of the government” within 500 feet of a polling place on election day. A person is arrested for handing out fraudulent flyers that misstate the date of the election (unprotected fraudulent electioneering). Can the person challenge the statute?

Answer:
Yes. Under the overbreadth doctrine, a person whose own speech is unprotected (fraud) may bring a facial challenge because the statute also prohibits a substantial amount of protected political speech. The law is content‑based, targets criticism of the government in a core political context, and is overbroad.
The key point is third‑party standing: the defendant can invoke the rights of other speakers whose protected criticisms of government would be silenced by the statute.

A contrasting scenario helps distinguish facial and as‑applied attacks. Suppose a statute bans “true threats against judges and their families,” and the defendant sent a letter saying “I will kill you tomorrow, Judge Smith.” That letter is unprotected. An as‑applied challenge would be weak because the statute is being applied to unprotected conduct. A facial overbreadth challenge might also fail if the statute is carefully limited to true threats, a category outside First Amendment protection.

Relationship to Content‑Based Rules and Time, Place, and Manner Limits

Free speech questions on the MBE almost always require you to address multiple layers:

Is the regulation content‑based or content‑neutral?
What type of forum is involved?
Is the law a prior restraint, vague, or overbroad?
Is the challenge facial or as‑applied?

Keeping the hierarchy straight helps you avoid being misled by partially correct answer choices.

4. Content‑Based Regulations

A law that targets speech because of its subject matter or viewpoint (for example, “disrespectful speech about government officials”) is content‑based.

Such laws trigger strict scrutiny: they must be necessary to achieve a compelling governmental interest and must be narrowly tailored.
They are frequently also vague and overbroad, because terms like “disrespectful” or “offensive” rarely have clear, narrow definitions.
On the MBE, a law that singles out speech criticizing government or specific topics (e.g., “speech about foreign policy,” “speech advocating boycotts”) should immediately be treated as content‑based and presumptively invalid.

The fact that a statute is content‑based does not automatically make it vague or overbroad, but in practice many such laws use subjective terms or sweep too broadly. When an answer choice emphasizes “viewpoint discrimination” or “content‑based restriction on political speech,” that is usually the primary problem; vagueness and overbreadth are reinforcing defects.

5. Time, Place, and Manner Restrictions

Content‑neutral regulations in a public forum—like parks, streets, and sidewalks—are valid only if they:

Are content neutral on their face and as applied.
Are narrowly tailored to serve a significant governmental interest (not necessarily compelling).
Leave open ample alternative channels for communication.

Even a facially neutral time, place, and manner law can be invalid if it gives officials too much discretion or uses vague terms. For example, a rule allowing sound amplification “only if not disturbing to nearby residents” without further standards invites content‑based enforcement.

In limited public forums and nonpublic forums, the standard is looser:

Restrictions must be reasonable in light of the purpose of the property.
They must be viewpoint neutral, although they may limit entire subject matters (for example, a school bulletin board open only for school‑related announcements).

Prior restraint, vagueness, and overbreadth problems can arise even in nonpublic forums if the government adopts over‑sweeping or standardless rules. For instance, a rule barring “all offensive speech” by government employees in a government office would be both vague and overbroad, even though the office is a nonpublic forum.

Remember: the analysis typically proceeds in this order:

Identify the forum.
Determine whether the law is content‑based or content‑neutral.
Apply the appropriate level of scrutiny.
Then ask whether prior restraint, vagueness, or overbreadth provide additional (and often stronger) reasons for invalidity.

Worked Example 1.8

A city bans all “loud and offensive demonstrations” on public sidewalks outside foreign embassies. Permits are required, and the police chief can deny permits if the demonstration “brings any foreign government into disrepute.” What are the main constitutional problems?

Answer:
The law is content based and viewpoint based: it specifically targets demonstrations that bring foreign governments “into disrepute.” It therefore triggers strict scrutiny and almost certainly fails. In addition, terms like “offensive” and “into disrepute” are vague and invite arbitrary enforcement. The permit scheme is a prior restraint with unfettered discretion, compounding the constitutional defects.
Notice how multiple doctrines overlap: content discrimination, vagueness, overbreadth, and prior restraint. When choosing a single best answer, focus on the most fundamental flaw—here, viewpoint‑based prior restraint of political speech in a public forum.

Worked Example 1.9

A city ordinance provides: “No drive‑in theater may show any film containing nudity if the screen is visible from a public street.” A theater is cited for showing a G‑rated movie that briefly shows a baby’s bare bottom. The theater challenges the ordinance. Which doctrine best supports its claim?

Answer:
Overbreadth. The city may have a legitimate interest in shielding unwilling viewers from obscene displays, but a ban on all visible nudity sweeps in a large amount of clearly protected expression (for example, educational films, classical art, and nonsexual scenes). The law burdens substantially more speech than necessary to protect the city’s interest and is invalid on its face.
The ordinance is not vague; everyone can tell what “any film containing nudity” means. The defect is that it covers too much protected material.

Worked Example 1.10

A county controls access to meeting rooms inside the county courthouse. By written policy, it allows “non‑political community groups” to reserve rooms but denies access to “political organizations.” The election board denies an application from a local political party to hold a candidate forum in a courthouse room, citing this policy. The party sues. Which is the strongest argument?

Answer:
The interior of a courthouse is a nonpublic forum, so the county may impose reasonable, viewpoint‑neutral restrictions. A rule excluding all “political organizations” from using the rooms is subject‑matter based but not viewpoint based; it applies to all political viewpoints. The rule is likely reasonable in light of the courthouse’s purpose. The party’s strongest argument is not prior restraint or overbreadth, but that the policy is unreasonable if the county regularly allows other controversial groups while selectively excluding political groups. Absent such selective enforcement, the challenge will probably fail.

This example illustrates that the outcome can differ dramatically once you recognize the property as a nonpublic forum rather than a traditional public forum like a sidewalk. In nonpublic forums, the government has broad control over access; prior restraint analysis is less central than the reasonableness and viewpoint‑neutrality tests.

Putting It Together: Common MBE Patterns

Typical MBE patterns involving these doctrines include:

“Annoying,” “offensive,” or “disrespectful” speech statutes: Usually both vague and overbroad, and often content‑based. They frequently criminalize speech or authorize police to arrest anyone whose speech others find unpleasant. Think vagueness first, then overbreadth.
Broad public order or disorderly conduct statutes: If they criminalize any speech that “tends to disturb the peace” or “offends decency,” suspect overbreadth and vagueness, especially when used to arrest protesters or critics of government.
Permit requirements with subjective standards: Treat as prior restraints; look for excessive discretion (“as the chief of police sees fit”) and lack of procedural safeguards (no deadlines, no appeal process, no burden on the government to justify denials).
Wide‑ranging bans on speech near polling places, schools, or embassies: Assess whether the statute is content neutral and narrowly tailored. If it singles out specific viewpoints or topics (e.g., criticism of government, abortion counseling), it is content‑based and likely overbroad; if it applies to all speech regardless of content but leaves no alternative channels, it may fail time, place, and manner review.

A practical sequence for exam analysis:

State action? Almost always yes, but confirm the actor is governmental (city council, state university, police, judge). Private actors are not bound by the First Amendment unless there is significant government involvement.
Forum? Is the location a traditional public forum (street, park), a designated/limited public forum (university meeting room, school auditorium opened to clubs), or a nonpublic forum (jail, courthouse interior, military base, government workplace)?
Nature of regulation? Content‑based or content‑neutral? Prior restraint (licensing or injunction) or punishment after the fact?
Apply appropriate scrutiny:
- Content‑based → strict scrutiny (presumptively invalid).
- Content‑neutral TPM in public forum → intermediate scrutiny (significant interest, narrow tailoring, alternatives).
- Restrictions in nonpublic/limited forum → reasonableness and viewpoint neutrality.
Check for vagueness and overbreadth: Does the statute use subjective terms? Does it cover a substantial amount of clearly protected speech?
Consider facial vs. as‑applied challenge and standing: Can the challenger rely on the overbreadth doctrine to assert the rights of third parties? Or is an as‑applied claim more appropriate?

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. Prior restraint issues often arise simultaneously when the law requires a license or permit based on those vague standards.

When you see multiple doctrines in play, pay attention to the call of the question:

If it asks for the “best” or “strongest” argument, identify the doctrine that most directly matches the problem (e.g., unfettered discretion → prior restraint; subjective terms → vagueness; broad coverage of protected speech → overbreadth).
If it asks which doctrines a court would consider, an answer that mentions more than one (e.g., “vague and overbroad”) is often correct.

Key Point Checklist

This article has covered the following key knowledge points:

Prior restraints—such as injunctions and licensing schemes—are presumptively invalid; the government must show a compelling interest, narrow tailoring, and procedural safeguards.
Licensing schemes in public forums must be content neutral, use clear, objective criteria, and provide prompt judicial review; unfettered discretion is unconstitutional.
Judicial gag orders directed at the press are almost never valid; gag orders on trial participants receive more deference but must still be narrowly tailored and supported by a strong interest such as fair‑trial rights.
The collateral bar rule generally prevents a party from violating an injunction and later defending contempt by arguing that the order was unconstitutional.
Vague laws are unconstitutional because they fail to give clear notice and invite arbitrary enforcement, especially when they regulate speech; vagueness scrutiny is stricter in the First Amendment context.
Overbroad laws are invalid if they restrict a substantial amount of protected speech along with unprotected speech; a person may raise overbreadth even if their own speech is unprotected.
Overbreadth is “strong medicine” used sparingly, but in the First Amendment area it allows third‑party standing to prevent chilling effects and can support facial invalidation.
Facial challenges are common for vagueness and overbreadth; as‑applied challenges focus on the statute’s application to the challenger’s conduct and are the norm in non‑First Amendment cases.
Content‑based regulations of speech are subject to strict scrutiny and are often also vague or overbroad; content‑neutral time, place, and manner regulations in public forums receive intermediate scrutiny.
Time, place, and manner regulations must be content neutral, narrowly tailored to a significant governmental interest, and leave alternative channels of communication; in nonpublic and limited public forums, restrictions must be reasonable and viewpoint neutral.
Forum analysis matters: speech restrictions in streets and parks (public forums) are much more constrained than in courthouses, jails, and military bases (nonpublic forums).
Laws that use subjective terms such as “annoying,” “offensive,” or “disrespectful” are classic vagueness problems and often overbroad as well; they are common MBE patterns.
Permit schemes requiring approval before speaking or marching are prior restraints; when they rely on subjective criteria or lack deadlines, they are almost always unconstitutional.
Overbreadth doctrine generally does not allow facial challenges to commercial speech regulations; those are usually litigated as‑applied.
When multiple doctrines apply, the best exam answer often identifies the one that most directly matches the statute’s primary defect (prior restraint, vagueness, or overbreadth).

Key Terms and Concepts

Prior Restraint
Vagueness
Overbreadth
Overbreadth Doctrine
Facial Challenge
As‑Applied Challenge
Content‑Based Regulation
Time, Place, and Manner Restriction
Public Forum
Unfettered Discretion
Limited Public Forum
Nonpublic Forum
Collateral Bar Rule

Individual rights - Prior restraint, vagueness, and overbrea...