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ArtIII.S2.C1.6.6.6 Overbreadth Doctrine

Article III, Section 2, Clause 1:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State, between Citizens of different States,—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Generally, a litigant challenging a law as unconstitutional may not assert the rights of a third party, and thus he must show that the law is either unconstitutional as applied to him (i.e., an “applied challenge” )1 or that there are no circumstances in which the law would be constitutional (i.e., a “facial challenge” ).2 However, there is an exception to this general rule known as the doctrine of overbreadth, which generally arises in the context of First Amendment challenges.3 The Supreme Court has held that prudential and constitutional limitations on third-party standing might not apply in cases in which the litigant brings a facial First Amendment challenge to a law as being substantially too broad and therefore chilling third parties’ rights protected by the First Amendment.4 The Court has permitted standing for such litigants when the law interferes with a potential or currently existing relationship (e.g., a business relationship) with a third party whose First Amendment rights could be hindered by the law.5

Clements v. Fashing, 457 U.S. 957, 966 n.3 (1982) ( “A litigant has standing to challenge the constitutionality of a statute only insofar as it adversely affects his own rights.” ). back
United States v. Salerno, 481 U.S. 739, 745 (1987) ( “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” ). back
For a more detailed explanation of this First Amendment doctrine, see Amdt1.7.2.1 The Overbreadth Doctrine, Statutory Language, and Free Speech. back
Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973) ( “[P]articularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” ). See also Munson Co., 467 U.S. at 958 ( “Facial challenges to overly broad statutes are allowed not primarily for the benefit of the litigant, but the benefit of society—to prevent the statute from chilling the First Amendment rights of other parties not before the court.” ); Black’s Law Dictionary 1213 (9th ed. 2009) (defining “overbreadth doctrine” as the “doctrine holding that if a statute is so broadly written that it deters free expression, then it can be struck down on its face because of its chilling effect—even if it also prohibits acts that may legitimately be forbidden.” ). back
Munson Co., 467 U.S. at 958. See also, e.g., U.S. Dep’t of Labor v. Triplett, 494 U.S. 715, 720–21 (1990) ( “When, however, enforcement of a restriction against the litigant prevents a third party from entering into a relationship with the litigant (typically a contractual relationship), to which relationship the third party has a legal entitlement (typically a constitutional entitlement), third-party standing has been held to exist.” ) (citation omitted); Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 392–93 (1988) (allowing standing, based on the overbreadth exception, to book sellers to assert the First Amendment rights of potential book buyers); City of Houston v. Hill, 482 U.S. 451, 459 n.7 (1987) (stating that a gay rights activist had standing to bring a First Amendment overbreadth challenge a local ordinance making it an offense to verbally interrupt a policeman because he had shown “a genuine threat of enforcement” of the ordinance against him in the future (quoting Steffel v. Thompson, 415 U.S. 452, 475 (1974))). back