Judicial Decision-Making

As a part of working on deciding and writing a court opinion essay on a hypothetical case, there are several steps through which you need to go. Many of these steps are covered in the last couple of pages of the syllabus, but you will also need to be proficient in the steps listed below (and discussed in Appendix II in Tedford & Herbeck [see p. 444-449]).

When examining a law, ordinance, or policy that regulates speech:

1. Apply the test for vagueness (see Tedford p. 445). If persons of common intelligence must necessarily guess at the meaning of the law or how the law is to be applied, then the law may suffer due to vagueness.

2. Apply the test for overbreadth (see Tedford pp. 445-446). If, in an attempt to regulate behavior that is deserving of regulation, a law goes further and regulates behavior that deserves to be regulated and behavior that is protected, then the law may be overbroad and suffer from overbreadth.

A law that suffers from vagueness or overbreadth may be stricken (declared unconstitutional) by a judge. In such cases, the law cannot be used to convict an individual.

If a law is neither vague nor overbroad, then you proceed to the next step, determining if the individual's (or group's) behavior is speech or non-speech.

3. If, using the test from Professor Chafee that was codified in Chaplinsky, you decide that the behavior is clearly non-speech, then you may stop because non-speech is not deserving of First Amendment protection.

4. If, using the Chaplinsky test, you decide that the behavior is speech, then you must decide which test (or doctrine) should govern, and once the test is applied, whether or not the communicative behavior is protected by the First Amendment. This is done by employing the steps presented in the last couple of pages of the syllabus.