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Amdt1.7.2.1 The Overbreadth Doctrine, Statutory Language, and Free Speech

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The overbreadth doctrine focuses on the need for precision in drafting a statute that may affect First Amendment rights, and more concretely, allows a special kind of facial challenge to statutes.1 Ordinarily, to prevail in a facial challenge—a claim challenging a statute on its face, rather than only in certain applications—a litigant “must ‘establish that no set of circumstances exists under which the [law] would be valid,’ or show that the law lacks ‘a plainly legitimate sweep.’” 2 Accordingly, if a statute sweeps in both protected and unprotected activity, the Court will ordinarily only invalidate its application to protected conduct.3 In the context of the First Amendment, however, the Supreme Court has allowed a person whose own conduct may not be constitutionally protected to bring a facial challenge to a law, if the statute is so broadly written that it sweeps in protected speech and could therefore have “a deterrent effect on free expression.” 4 The overbreadth doctrine thus allows the facial invalidation of a law that “punishes a ‘substantial’ amount of protected free speech, ‘judged in relation to the statute’s plainly legitimate sweep.’” 5 For example, in United States v. Stevens, the Supreme Court applied the overbreadth doctrine to rule unconstitutional a federal law that “criminalize[d] the commercial creation, sale, or possession of certain depictions of animal cruelty.” 6 The Court described the statute as “a criminal prohibition of alarming breadth,” and concluded that “the presumptively impermissible applications of [the law] . . . far outnumber any permissible ones.” 7

The Supreme Court has recognized, however, that “there are substantial social costs created by the overbreadth doctrine when it blocks application of a law to constitutionally unprotected speech, or especially to constitutionally unprotected conduct.” 8 The Supreme Court has cautioned that facial “[i]nvalidation for overbreadth is ‘strong medicine’ that is not to be ‘casually employed.’” 9 The requirement that a law must be “substantially” overbroad accounts for this concern.10 In addition, the Supreme Court has said “a state statute should not be deemed facially invalid unless it is not readily subject to a narrowing construction by the state courts, and its deterrent effect on legitimate expression is both real and substantial.” 11 Further, the Court has said “that overbreadth analysis does not normally apply to commercial speech.” 12

NAACP v. Button, 371 U.S. 415, 432–33 (1963). back
Ams. for Prosperity Found. v. Bonta, No. 19-251, slip op. at 15 (U.S. July 1, 2021) (internal citations omitted) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987); Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008)). back
See, e.g., Barr v. Am. Ass’n of Political Consultants, No. 19-631, slip op at 13–14 (U.S. July 6, 2020) (discussing severability doctrine and the “power and preference” for partial invalidation of a statute); United States v. Salerno, 481 U.S. 739, 745 (1987) ( “[W]e have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.” ). But cf., e.g., Aptheker v. Secretary of State, 378 U.S. 500, 515–16 (1964) (concluding a First Amendment overbreadth case provided the appropriate analysis for a right-to-travel challenge to a statute that could not be narrowed due to the law’s “indiscriminately cast and overly broad scope” ). back
Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984). back
Virginia v. Hicks, 539 U.S. 113, 118–19 (2003) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)). back
United States v. Stevens, 559 U.S. 460, 464, 482 (2010). back
Id. at 474, 481. See, also, e.g., United States v. Robel, 389 U.S. 258, 266 (1967) (federal law barring members of registered Communist-action organizations from employment in defense facilities); Lewis v. City of New Orleans, 415 U.S. 130, 131–32 (1974) (state law prohibiting using fighting words towards police performing official duties); Erznoznik v. City of Jacksonville, 422 U.S. 205, 217–18 (1975) (city ordinance prohibiting films with nudity from being shown when visible from public streets); Doran v. Salem Inn, 422 U.S. 922, 932–34 (1975) (local ordinance prohibiting topless dancing in certain establishments, in the context of an appeal of a preliminary injunction); Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 633–39 (1980) (municipal ordinance prohibiting certain charitable organizations from soliciting contributions); Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 949–50 (1984) (charitable solicitation statute placing 25% cap on fundraising expenditures); City of Houston v. Hill, 482 U.S. 451, 455, 467 (1987) (city ordinance making it unlawful to “oppose, molest, abuse, or interrupt” police officer in performance of duty); Bd. of Airport Comm’rs v. Jews for Jesus, 482 U.S. 569, 570, 577 (1987) (resolution banning all “ First Amendment activities” at airport); Reno v. ACLU, 521 U.S. 844, 874–879 (1997) (statute banning “indecent” material on the internet); Iancu v. Brunetti, No. 18-302, slip op. at 11 (June 24, 2019) (federal law prohibiting the registration of immoral or scandalous trademarks); Ams. for Prosperity Found., slip op. at 16 (state law requiring charities to file forms disclosing information about donors). back
Hicks, 539 U.S. at 119 (upholding an ordinance banning from streets within a low-income housing development any person who is not a resident or employee and who “cannot demonstrate a legitimate business or social purpose for being on the premises” ). The Supreme Court has also rejected application of the doctrine in, for example, Arnett v. Kennedy, 416 U.S. 134, 158–64 (1974) (plurality opinion); Parker v. Levy, 417 U.S. 733, 757–61 (1974); and New York v. Ferber, 458 U.S. 747, 766–74 (1982). back
United States v. Williams, 553 U.S. 285, 293 (2008) (quoting L.A. Police Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32, 39 (1999)). back
Hicks, 539 U.S. at 119–20. back
Erznoznik, 422 U.S. at 216. back
Bd. of Trs. v. Fox, 492 U.S. 469, 481 (1989); see also, e.g., Bates v. State Bar of Ariz., 433 U.S. 350, 380 (1977) ( “[T]he justification for the application of overbreadth analysis applies weakly, if at all, in the ordinary commercial context.” ) back