Overbreadth doctrine

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In American jurisprudence, the overbreadth doctrine is primarily concerned with facial challenges to laws under the First Amendment.

Description

When federal or state laws are challenged in the United States court system for their constitutionality, they may be either challenged based on a facial challenge, challenging the whole of the law or provision and all applications of it, or may be through an as-applied challenge for a specific case or set of circumstances. Outside of First Amendment cases, most constitutional challenges are based on as-applied challenges, the facial challenge being "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", as stated in United States v. Salerno.[1]

However, for laws involving the First Amendment, the Courts will consider a law invalidated as though through a facial challenge "if a substantial number of its applications are unconstitutional" as stated in

U.S. Constitution
permits, and hence the law is overbroad.

The "strong medicine" of overbreadth invalidation need not and generally should not be administered when the statute under attack is unconstitutional as applied to the challenger before the court. See U.S. v. Stevens, 130 S.Ct. 1577, 1592 (Alito, J., dissenting). The overbreadth doctrine is to "strike a balance between competing social costs". U.S. v. Williams, 553 U.S. 285, 292. Specifically, the doctrine seeks to balance the "harmful effects" of "invalidating a law that in some of its applications is perfectly constitutional" as a possibility that "the threat of enforcement of an overbroad law deters people from engaging in constitutionally protected speech".

In determining whether a statute's overbreadth is substantial, the courts consider a statute's application to real-world conduct, not fanciful hypotheticals. See, for example, id., at 301–302. Accordingly, the courts have repeatedly emphasized that an overbreadth claimant bears the burden of demonstrating, "from the text of [the law] and from actual fact" that substantial overbreadth exists. Virginia v. Hicks, 539 U.S. 113 (2003). Similarly, "there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds". Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984). In Hoffman Estates v. The Flipside, Hoffman Estates, Inc., the Court held that the doctrine does not apply to commercial speech.[3]

Lewis Sargentich first analyzed and named the doctrine in 1970, in a famous note published in the Harvard Law Review, The First Amendment Overbreadth Doctrine (83 Harv. L. Rev. 844). Citing Sargentich's note, the U.S. Supreme Court explicitly recognized the doctrine in 1973 in Broadrick v. Oklahoma, where the Court stated "the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes".[1]

References

  1. ^ a b c Millhiser, Ian (May 12, 2020). "Clarence Thomas wants to shrink your free speech rights — unless you are a rich donor". Vox. Retrieved May 12, 2020.
  2. ^ "Overbreadth and Listeners' Rights". Harvard Law Review. May 28, 2010. Retrieved 2021-07-31.
  3. ^ Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982), at 497, Marshall, J.

External links