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In American jurisprudence, the overbreadth doctrine is primarily concerned with facial challenges to laws under the First Amendment.
| | This article needs additional citations for verification .(November 2015) |
In American jurisprudence, the overbreadth doctrine is primarily concerned with facial challenges to laws under the First Amendment.
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 United States v. Stevens . [1] American courts have recognized several exceptions to the speech protected by the First Amendment (for example, obscenity, fighting words, and libel or defamation), and states therefore have some latitude to regulate unprotected speech. A statute doing so is overly broad (hence, overbreadth) if, in proscribing unprotected speech, it also proscribes protected speech. Because an overly broad law may deter constitutionally protected speech, the overbreadth doctrine allows a party to whom the law may constitutionally be applied to challenge the statute on the ground that it violates the First Amendment rights of others. [2] See, e.g., Board of Trustees of State Univ. of N.Y. v. Fox , 492 U.S. 469, 483 (1989), and R. A. V. v. City of St. Paul , 505 U.S. 377 (1992). Overbreadth is closely related to vagueness; if a prohibition is expressed in a way that is too unclear for a person to reasonably know whether or not their conduct falls within the law, then to avoid the risk of legal consequences they often stay far away from anything that could possibly fit the uncertain wording of the law. The law's effects are thereby far broader than intended or than the 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]
In law, standing or locus standi is a condition that a party seeking a legal remedy must show they have, by demonstrating to the court, sufficient connection to and harm from the law or action challenged to support that party's participation in the case. A party has standing in the following situations:
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), is a case of the United States Supreme Court that unanimously struck down St. Paul's Bias-Motivated Crime Ordinance and reversed the conviction of a teenager, referred to in court documents only as R.A.V., for burning a cross on the lawn of an African-American family since the ordinance was held to violate the First Amendment's protection of freedom of speech. The Court reasoned that an ordinance like this constitutes "viewpoint discrimination" which may have the effect of driving certain ideas from the marketplace of ideas.
Brandenburg v. Ohio, 395 U.S. 444 (1969), is a landmark decision of the United States Supreme Court interpreting the First Amendment to the U.S. Constitution. The Court held that the government cannot punish inflammatory speech unless that speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action". Specifically, the Court struck down Ohio's criminal syndicalism statute, because that statute broadly prohibited the mere advocacy of violence. In the process, Whitney v. California (1927) was explicitly overruled, and Schenck v. United States (1919), Abrams v. United States (1919), Gitlow v. New York (1925), and Dennis v. United States (1951) were overturned.
Roth v. United States, 354 U.S. 476 (1957), along with its companion case Alberts v. California, was a landmark decision of the Supreme Court of the United States which redefined the constitutional test for determining what constitutes obscene material unprotected by the First Amendment. The Court, in an opinion by Justice William J. Brennan Jr. created a test to determine what constituted obscene material: Whether the average person, applying contemporary community standards would find that the material appeals to a prurient interest in sex, and whether the material was utterly without redeeming social value. Although the Court upheld Roth’s conviction and allowed some obscenity prosecutions, it drastically loosened obscenity laws. The decision dissatisfied both social conservatives who thought that it had gone too far in tolerating sexual imagery, and liberals who felt that it infringed on the rights of consenting adults.
Stromberg v. California, 283 U.S. 359 (1931), was a landmark decision of the Supreme Court of the United States in which the Court held, 7–2, that a California statute banning red flags was unconstitutional because it violated the First and Fourteenth Amendments to the United States Constitution. In the case, Yetta Stromberg was convicted for displaying a red flag daily in the youth camp for children at which she worked, and was charged in accordance with California law. Chief Justice Charles Hughes wrote for the seven-justice majority that the California statute was unconstitutional, and therefore Stromberg's conviction could not stand.
Virginia v. Black, 538 U.S. 343 (2003), was a landmark decision of the Supreme Court of the United States in which the Court held, 5–4, that any state statute banning cross burning on the basis that it constitutes prima facie evidence of intent to intimidate is a violation of the First Amendment to the Constitution. Such a provision, the Court argued, blurs the distinction between proscribable "threats of intimidation" and the Ku Klux Klan's protected "messages of shared ideology". In the case, three defendants were convicted in two separate cases of violating a Virginia statute against cross burning. However, cross-burning can be a criminal offense if the intent to intimidate is proven. It was argued by former Solicitor General of Virginia, William Hurd and Rodney A. Smolla.
In American constitutional law, a statute is void for vagueness and unenforceable if it is too vague for the average citizen to understand. This is because constitutionally permissible activity may not be chilled because of a statute's vagueness. There are several reasons a statute may be considered vague; in general, a statute might be void for vagueness when an average citizen cannot generally determine what persons are regulated, what conduct is prohibited, or what punishment may be imposed. For example, criminal laws which do not state explicitly and definitely what conduct is punishable are void for vagueness. A statute is also void for vagueness if a legislature's delegation of authority to judges or administrators is so extensive that it could lead to arbitrary prosecutions. A law can also be "void for vagueness" if it imposes on First Amendment freedom of speech, assembly, or religion.
In U.S. constitutional law, a facial challenge is a challenge to a statute in which the plaintiff alleges that the legislation is always unconstitutional, and therefore void. It is contrasted with an as-applied challenge, which alleges that a particular application of a statute is unconstitutional.
Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985), was a case in which the Supreme Court of the United States held that though portions of a law against obscenity and prostitution might be invalid, it would not be invalidated as a whole unless severing unconstitutional provisions would result in an unworkable law.
Aptheker v. Secretary of State, 378 U.S. 500 (1964), was a landmark decision of the US Supreme Court on the right to travel and passport restrictions as they relate to Fifth Amendment due process rights and First Amendment free speech, freedom of assembly and freedom of association rights. It is the first case in which the US Supreme Court considered the constitutionality of personal restrictions on the right to travel abroad.
Coates v. City of Cincinnati, 402 U.S. 611 (1971), is a United States Supreme Court case in which the Court held that a local city ordinance that made it a criminal offense for three or more persons to assemble on a sidewalk and "annoy" any passersby was unconstitutionally vague and overbroad.
United States v. 12 200-ft. Reels of Film, 413 U.S. 123 (1973), was an in rem case decided by the United States Supreme Court that considered the question of whether the First Amendment required that citizens be allowed to import obscene material for their personal and private use at home, which was already held to be protected several years earlier. By a 5–4 margin, the Court held that it did not.
National Endowment for the Arts v. Finley, 524 U.S. 569 (1998), was a United States Supreme Court case in which the Court ruled that the National Foundation on the Arts and Humanities Act, as amended in 1990,, was facially valid, as it neither inherently interfered with First Amendment rights nor violated constitutional vagueness principles. The act in question required the chairperson of the National Endowment for the Arts (NEA) to ensure that "artistic excellence and artistic merit are the criteria by which [grant] applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public". Justice Sandra Day O'Connor delivered the opinion of the Court.
Frisby v. Schultz, 487 U.S. 474 (1988), was a case in which the Supreme Court of the United States upheld the ordinance by the town of Brookfield, Wisconsin, preventing protest outside of a residential home. In a 6–3 decision, the Court ruled that the First Amendment rights to freedom of assembly and speech was not facially violated. The majority opinion, written by Justice Sandra Day O'Connor, concluded that the ordinance was constitutionally valid because it was narrowly tailored to meet a "substantial and justifiable" interest in the state; left open "ample alternative channels of communication"; and was content-neutral.
Nevada Commission on Ethics v. Carrigan, 564 U.S. 117 (2011), was a Supreme Court of the United States decision in which the Court held that the Nevada Ethics in Government Law, which required government officials recuse in cases involving a conflict of interest, is not unconstitutionally overbroad. Specifically, the law requires government officials to recuse themselves from advocating for and voting on the passage of legislation if private commitments to the interests of others materially affect the official's judgment. Under the terms of this law, the Nevada Commission on Ethics censured city councilman Michael Carrigan for voting on a land project for which his campaign manager was a paid consultant. Carrigan challenged his censure in court and the Nevada Supreme Court ruled in his favor, claiming that casting his vote was protected speech. The Supreme Court reversed, ruling that voting by a public official on a public matter is not First Amendment speech.
In the United States, some categories of speech are not protected by the First Amendment. According to the Supreme Court of the United States, the U.S. Constitution protects free speech while allowing limitations on certain categories of speech.
Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982), is a United States Supreme Court decision concerning the vagueness and overbreadth doctrines as they apply to restrictions on commercial speech. The justices unanimously upheld an ordinance passed by a Chicago suburb that imposed licensing requirements on the sale of drug paraphernalia by a local record store. Their decision overturned the Seventh Circuit Court of Appeals.
Connection Distributing Co. v. Holder, 557 F.3d 321 is a case in which the United States Court of Appeals for the Sixth Circuit held that the record-keeping provisions of the Child Protection and Obscenity Enforcement Act did not violate the First Amendment.
People v. Marquan M., 2014 WL 2931482 was the first case in which a US court weighed the constitutionality of criminalizing cyberbullying. In People v. Marquan M., the New York Court of Appeals struck down an Albany County law that criminalized cyberbullying, declaring its restrictions overly broad and thus in violation of the Free Speech Clause of the First Amendment.
United States v. Hansen, 599 U.S. 762 (2023), was a United States Supreme Court case about whether a federal law that criminalizes encouraging or inducing illegal immigration is unconstitutionally overbroad, violating the First Amendment right to free speech.