Hill v. Colorado, 530 U.S. 703, 73 (2000)

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Cite as: 530 U. S. 703 (2000)

Kennedy, J., dissenting

"freedom . . . to oppose or challenge police action," a right "by which we distinguish a free nation from a police state." Id., at 462-463.

The requirement of specificity for statutes that impose criminal sanctions on public expression was established well before Coates and Hill, of course. In Carlson v. California, 310 U. S. 106 (1940), a unanimous Court invalidated an ordinance prohibiting individuals from carrying or displaying any sign or banner or from picketing near a place of business "for the purpose of inducing or influencing, or attempting to induce or influence, any person to refrain from entering any such works, or factory, or place of business, or employment." Id., at 109. The statute employed imprecise language, providing citizens with no guidance as to whether particular expressive activities fell within its reach. The Court found that the "sweeping and inexact terms of the ordinance disclose the threat to freedom of speech inherent in its existence," a result at odds with the guarantees of the First Amendment. Id., at 112.

Rather than adhere to this rule, the Court turns it on its head, stating the statute's overbreadth is "a virtue, not a vice." Ante, at 731. The Court goes even further, praising the statute's "prophylactic approach; it forbids all unwelcome demonstrators to come closer than eight feet." Ante, at 729. Indeed, in the Court's view, "bright-line prophylactic rule[s] may be the best way to provide protection" to those individuals unwilling to hear a fellow citizen's message in a public forum. Ibid. The Court is quite wrong. Overbreadth is a constitutional flaw, not a saving feature. Sweeping within its ambit even more protected speech does not save a criminal statute invalid in its essential reach and design. The Court, moreover, cannot meet the concern that the statute is vague; for neither the Colorado courts nor established legal principles offer satisfactory guidance in interpreting the statute's imprecisions.

775

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