I'm posting this mainly so I can point Orin Kerr or one of the other Conspirators to my question, which is brought to mind by Professor Kerr's post on the Patriot Act and domestic terrorism. He writes that many people have mistaken understandings of the Patriot Act, particularly as it relates to "domestic terrorism". He then goes on to explain what it actually means, and responds to Dahlia Lithwick using a quote of hers:
Maybe it's just me, but that doesn't "sound as if it's directed . . . toward effigy-burning, or Greenpeace activity[.]" It's an interesting irony, though; a number of the claims that the Patriot Act chills speech are based on the erroneous belief that this statutory definition is a criminal prohibition. Strange, isn't it?So here's my question. If a law is widely misunderstood by the public and actually does chill speech -- even though perhaps it wouldn't, if it were properly understood -- can it run afoul of the First Amendment? Is a law's actual effect important, or are the only relevant effects those that follow rationally from a proper understanding of the law?
Orin Kerr responds via email:
I am not a 1st Amendment expert, but my understanding is that the answer is generally no. The Courts look to the actual language of the law, not how it has been understood by the public.