Overbreadth doctrine
Encyclopedia
In American jurisprudence
, the overbreadth doctrine is primarily concerned with facial challenge
s to laws under the First Amendment
. 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. 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 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.” Ibid.
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).
Lewis Sargentich
first analyzed and named the doctrine in his famous note in the Harvard Law Review
, The First Amendment Overbreadth Doctrine (83 Harv. L. Rev. 844). Then, citing Sargentich's note, the Supreme Court in Broadrick v. Oklahoma
explicitly recognized the doctrine in 1973.
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
, the overbreadth doctrine is primarily concerned with facial challenge
Facial challenge
In the context of American jurisprudence, a facial challenge is a challenge to a statute in court, in which the plaintiff alleges that the legislation is always, and under all circumstances, unconstitutional, and therefore void...
s to laws under the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
. American courts have recognized several exceptions to the speech protected by the First Amendment (for example, obscenity
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
, fighting words
Fighting words
Fighting words are written or spoken words, generally expressed to incite hatred or violence from their target. Specific definitions, freedoms, and limitations of fighting words vary by jurisdiction...
, 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. See, e.g., Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 483 (1989)
Board of Trustees, State Univ. of N. Y. v. Fox
Board of Trustees, State Univ. of N. Y. v. Fox, 492 U.S. 469 , was a case in which the Supreme Court of the United States instructed a lower court to reevaluate the compatibility of a resolution of the State University of New York that prohibited private commercial enterprises from operating in...
, and R. A. V. v. City of St. Paul, 505 U.S. 377 (1992)
R. A. V. v. City of St. Paul
R.A.V. v. City of St. Paul, was a United States Supreme Court case involving hate speech and the free speech clause of the First Amendment to the Constitution of the United States. A unanimous Court struck down St...
. Overbreadth is closely related to vagueness
Void for vagueness
Void for vagueness is a legal concept in American constitutional law that states that a given statute is void and unenforceable if it is too vague for the average citizen to understand. There are several ways, senses or reasons a statute might be considered vague...
; 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 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.” Ibid.
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).
Lewis Sargentich
Lewis Sargentich
Lewis Daniel "Lew" Sargentich , frequently referred to simply as "Sarge," has been a professor at Harvard Law School since 1973 where he teaches courses tort law and jurisprudence. Sargentich is well known for his remarkable tenure as a student at Harvard Law School, where he both named and first...
first analyzed and named the doctrine in his famous note in the Harvard Law Review
Harvard Law Review
The Harvard Law Review is a journal of legal scholarship published by an independent student group at Harvard Law School.-Overview:According to the 2008 Journal Citation Reports, the Review is the most cited law review and has the second-highest impact factor in the category "law" after the...
, The First Amendment Overbreadth Doctrine (83 Harv. L. Rev. 844). Then, citing Sargentich's note, the Supreme Court in Broadrick v. Oklahoma
Broadrick v. Oklahoma
Broadrick v. Oklahoma, 413 U.S. 601 is a United States Supreme Court decision upholding an Oklahoma statute which prohibited state employees from engaging in partisan political activities...
explicitly recognized the doctrine in 1973.