Free Speech Hypo

The state of Goldbergia has a problem with its citizens saying bizarre and inappropriate things on social media and embarrassing the governor, Ferica. In response to this problem, the state enacts the following law.

“No resident of Goldbergia may drive over the speed of 55 miles per hour, unless that person can prove that he/she writes only appropriate posts on FB, Twitter, Instagram, and all other forms of social media. Additionally, if anyone criticizes the governor, Ferica, that person must maintain a driving speed of 20 miles per hour on all roads.”

Roger, a resident of Goldbergia, posts the following message on FB: “I am going to kill Ferica in her sleep. I know her address” He then drives 60 mph on the highway and is arrested pursuant to the new Goldbergia law.

Can Roger challenge this law? Why or why not?

Assuming a court allows Roger to challenge the law, what are the challenges he should bring?

Answer key below:

  1. Roger can challenge the statute on its face, as the law is both vague and overbroad. Although as-applied to Roger, the restriction does not abridge any constitutionally protected speech (because his speech constitutes an unprotected true threat), the statute has substantial unconstitutional applications as compared to constitutional applications, so the law can be challenged on its face as overbroad. The statute is also void for vagueness, which allows a facial challenge.
  2. Roger will challenge both portions of the law as unconstitutional conditions, which condition a benefit (the right to drive faster) on the requirement that residents forgo their free speech rights. Residents would have to forgo their free speech rights because both portions of the law are unconstitutional. First, Roger’s vagueness challenge hinges on the fact that the word “appropriate” is impermissibly vague. The term is so broad and imprecise that a reasonable person would not know what is or is not restricted, leading to both self-censorship by residents and arbitrary enforcement by Goldbergia officials (who might use the discretion given the vague term to discriminate on the basis of viewpoint). Second, the portion of the law that relates to Ferica is a viewpoint-based restriction on speech that would not survive strict scrutiny, because there is no legitimate compelling interest in political officials insulating themselves from criticism.