Rachel Moran (University of St. Thomas - School of Law (Minnesota)) has posted Overbroad Protest Laws (Forthcoming Columbia Law Review (2025)) on SSRN. Here is the abstract:
Protests are woven into the history and social fabric of the United States. Whether the topic involves racial inequity, abortion, police brutality, oil and gas pipelines, immigration, war, or allegedly stolen elections, Americans will voice their opposition, often in large groups and occasionally in frightening or destructive ways. Politicians, in turn, have a long history of using their lawmaking power to discourage protest, typically in the form of laws creating crimes like unlawful assembly, riot, civil disorder, disorderly conduct, and others. While lawmakers have considerable power to decide what is and isn’t legal, they cannot criminalize expression or assembly that the First Amendment protects. But the lines delineating what protest the government can and cannot criminalize are anything but bright.
This article aims to provide much-needed clarity on the question of how far lawmakers can go in prohibiting protest. It does so by illuminating a notoriously murky area of First Amendment doctrine: overbreadth. The overbreadth doctrine authorizes courts to strike down laws that are written so broadly as to infringe on constitutionally protected expression. Overbreadth concerns are especially acute in the context of laws used to criminalize protests.
The article makes three significant contributions to overbreadth scholarship. First, the article analyzes decades of Supreme Court caselaw addressing overbreadth claims arising from protests and articulates five features of protest-related laws that generate overbreadth concerns. Second, the article surveys an array of statutes that lawmakers and law enforcement officials have recently used or specifically enacted to deter protests and, employing the five features of potentially overbroad laws, examines which of these statutes present overbreadth concerns. Third, the article closes with a series of guidelines for eliminating or correcting overbroad protest laws.
Highly recommended.
