American Constitutionalism in Historical Perspective (packet)

As applied doctrine: (1) requires appellate cts to review the factual record de novo. (2) Requires ct to narrow the statute judicially in each case in a way that Congress never did. (3) D/n address chilling effect.

1. 
   Yates v. US, 1957: (unconstitutional as applied) Interprets statute so only applicable to unprotected speech. As long as speaking from conviction, core of protected speech, not enough, even under Dennis, to count as clear and present danger. Draws distinction between incitement to action (unprotected) and incitement to believe (protected). Ct reconstrues statute to only apply to incitement to action and applies to facts.
   
2. 
   Scales v. US, 1961: (as applied) Upheld conviction under the Smith Act just for being a member of the Communist Party. Distinguished b/w active and passive members & found that Scales was an active member who had a specific intent that the goals of the org be accomplished. Fear that many of those who joined during height of popularity would be pulled in by such a broadly applied statute. Distinguishes b/w advocacy of action and of belief.
   
3. 
   Noto v. US: reverses b/c evidence is not there under “as applied” analysis
   

Overbreadth doctrine: (1)no factual de novo review, (2) ct d/n restructure statute (just asks if statute can be applied to protected speech),(3) strikes it down and tries to rebut statutes which have chilling effect.

1. 
   Development: Developed out of vagueness doctrine, fear that overzealous prosecutors would inhibit free speech.
   
2. 
   Standing: exception to normal rule of standing, people outside of an action can be considered by the court. P can raise the rts of 3^rd parties. Fear that those unable to come forward will have their rights compromised. P and court, sua sponte, able to raise their interests to challenge the statute.
   
3.