Overbreadth Doctrine

Under the overbreadth doctrine, a litigant may challenge the constitutionality of a law, even if the law could be properly applied to him or her. This is an important exception to normal principles of constitutional litigation.

The Court allows overbreadth challenges to laws impacting free speech ‘‘[b]ecause overbroad laws ... deter privileged activit[ies]’’ (Grayned v. City of Rockford [1972]). As Justice Brennan famously wrote for the Court in NAACP v. Button (1963), ‘‘[Free speech is] delicate and vulnerable, as well as supremely precious in our society.’’ Thus, judges will assume ‘‘that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression’’ (Broadrick v. Oklahoma [1973]).

To bring a successful overbreadth challenge, the litigant must show that the law is substantially overbroad, which means that it ‘‘prohibits a significant amount of protected expression’’ (Ashcroft v. Free Speech Coalition [2002]), when judged in relation to the law’s legitimate coverage (and as it has been interpreted by a state’s highest court) (Osborne v. Ohio [1990]). That is, ‘‘the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge’’ (Members of City Council of City of Los Angeles v. Taxpayers for Vincent [1984]). Generally, if the law covers a substantial amount of protected expression, it must usually pass strict scrutiny.

However, Professor Richard Fallon argued in Making Sense of Overbreadth, that a statute’s overbreadth should be measured in relation to the type of speech harmed. Under his approach, courts should require less overbreadth in laws impacting especially important speech, such as political dissent, than would be required in laws impacting low-value speech.

Schad v. Borough of Mt. Emphraim (1981) best illustrates the overbreadth doctrine. In Schad, owners of an adult bookstore that offered live nude dancing brought a free speech–based challenge to a law that banned all live entertainment. Although nude dancing was not, at the time of Schad, protected expression, a seven-to-two Court nonetheless invalidated the law because its coverage would have prohibited protected expression. Justice White noted that since the law disallowed ‘‘plays, concerts, musicals, dance, or any other form of live entertainment,’’ all of which is protected speech, the adult bookstore owners were ‘‘entitled to rely on the impact of the ordinance on the expressive activities of others as well as their own.’’ Since there was an insufficient justification for banning all forms of expression.

In New York v. Ferber (1983), the Court declined to invalidate a criminal prohibition of the production or possession of child pornography even though the scope of the law might have encompassed some protected speech, namely, material that would otherwise have serious literary, artistic, or educational value under Miller v. California (1973). The Court held that law in Ferber was not overbroad in relation to its legitimate prohibition of child pornography.

The overbreadth doctrine, although infrequently used to invalidate a law, gives courts a powerful way to invalidate laws restricting speech. But by requiring substantial overbreadth, the doctrine ensures that duly enacted laws are only rarely invalidated.

MICHAEL C. CERNOVICH

References and Further Reading

• Fallon, Richard, Making Sense of Overbreadth, Yale Law Journal 100 (1991): 853.

Cases and Statutes Cited

• Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)
• Broadrick v. Oklahoma, 403 U.S. 601, 610 (1973)
• Grayned v. City of Rockford, 408 U.S. 104, 11 (1972)
• Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984)
• Miller v. California, 413 U.S. 15 (1973) NAACP v. Button, 371 U.S. 415, 433 (1963)
• New York v. Ferber, 458 U.S. 747 (1983)
• Osborne v. Ohio, 495 U.S 103 (1990)
• Schad v. Borough of Mt. Emphraim, 452 U.S. 61 (1981)

See also Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002); Standing in Free Speech Cases; Vagueness Doctrine