Overbreadth doctrine

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

Definition

The overbreadth doctrine is used to find statutes that address a first amendment freedom unconstitutional when, by its plain language, the statute hinders expression. Overbreadth challenges allow a third party, who was not directly harmed by the broad sweep of the statute, to challenge its constitutionality even when his or her own rights are not violated. Thus, a statute that has regulated an individual's expression as allowed by the constitution's protections (i.e. an individual's unprotected speech is appropriately found to have violated a statute) can nonetheless be challenged by that individual on a claim that it also applies to substantial instances of protected expression. This serves to check statutes that would cause individuals to censor their own expressions for risk of breaking the law and being punished, something the Court refers to as chilling speech.

Overview

When federal or state laws are challenged in the United States court system for their constitutionality, they may be via a facial challenge, arguing the whole of the law or provision and all applications of it violate the constitution, or, an as-applied challenge for a specific case or set of circumstances. American courts have recognized several exceptions of speech not protected by the First Amendment (for example, obscenity, fighting words, and libel or defamation), and states therefore have some latitude to regulate unprotected speech. For laws involving the First Amendment, the Courts will consider a law facially invalid where it has the effect of regulating expression outside the scope of these exceptions, in other words, going beyond unprotected speech to regulate protected speech. A statute regulating expression reaching beyond these unprotected exceptions must substantially affect protected speech to be considered over broad (hence, overbreadth).

Case law

Thornhill v. Alabama, 310 U.S. 88 (1940) is the earliest case to follow the reasoning of the overbreadth doctrine. Here, an Alabama statute made it a misdemeanor to be outside a business with the intention of preventing their business in any way, which allowed the arrest of Thornhill for picketing outside of his factory job. Given that Thornhill did act in violation of the statute, Alabama argued that he could not challenge the statute as a violation of rights of others who had not violated the law. Explaining that the issues Thornhill was acting to bring attention to (i.e. labor union relations) were of public concern, Justice Marshall ultimately found Thornhill was improperly arrested because the statute outlawed peaceful expression including Thornhill's protesting. Here, the petitioner's First Amendment right of free speech was violated, but the statute was still found facially unconstitutional because its plain language included the peaceful expression of dissent.

In Broadrick v. Oklahoma, 413 U.S. 601 (1973), the Court explicitly mentioned the Overbreadth Doctrine while refusing to apply its "strong medicine," rejecting Broadrick's challenge to Oklahoma's regulation of the political activities of its state employees. Despite not applying the doctrine, Justice White explained the First Amendment exceptions to standing which allow individuals to argue that a statute poses a risk of being enforced against the constitutional right to expression of others. Justice White illustrated the justification for this exception; the possibility of protected speech being chilled far outweighs the risk of harm in allowing some unprotected speech to remain unregulated. This case narrowed the doctrine to require a finding that a challenged statute is substantially overbroad when compared to its permissible applications.  

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.

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".

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