Standing in Free Speech Cases

Article III of the Constitution limits the jurisdiction of federal courts to ‘‘cases and controversies.’’ Because of this limit, a litigant must have standing to challenge government conduct. That is, the litigant must show how government conduct directly harms him or her (Lujan v. Defenders of Wildlife). Excluding some narrow conceptions, a plaintiff may not litigate the interests of parties not before the court. Justice White wrote in Broadrick v. Oklahoma: ‘‘Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court. A closely related principle is that constitutional rights are personal and may not be asserted vicariously.’’

Thus,when a person raises a constitutional objection to some law, he may raise it only as it applies to him or her. There is an important exception to this rule.

In free speech cases, a party may seek to vindicate the rights of parties not before the court: that is, the litigant has third-party standing. Even if the law could be constitutionally applied to the party before the court, the law may nonetheless be struck down if it could be unconstitutionally applied to others. The rationale for the free speech exception is that speech might be chilled, and free speech is delicate and needs breathing room. In Broadrick v. Oklahoma, Justice White wrote ‘‘that facial overbreadth adjudication is an exception to our traditional rules of practice.’’

MICHAEL C. CERNOVICH

Cases and Statutes Cited

• Broadrick v. Oklahoma, 413 U.S. 601, 610 (1973)
• Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)

See also Overbreadth Doctrine; Vagueness Doctrine