Also known as: facial invalidity · facially invalidate · facially invalid · facial challenge
Written by attorneys · grounded in primary & secondary sources — see below
A judicial determination that a statute is unconstitutional in all applications because it is substantially overbroad or otherwise invalid on its face. The challenger must show that the law prohibits a substantial amount of protected speech relative to its legitimate sweep.
Felicia Fuentes challenges a city ordinance that bans all leafleting near financial offices. The ordinance reaches protected discussions about banking regulations in addition to any unprotected conduct. A court finds the law facially invalid because the prohibition on protected speech is substantial compared to any legitimate applications.
Frank Fisher seeks to enjoin enforcement of a state law that criminalizes nearly all abortions. The statute lacks an exception for the mother's health after viability. The court declares the law facially invalid because it cannot be applied constitutionally in any set of circumstances.
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Falcon Dynamics challenges a state rule that bans all advertising by energy companies. The rule reaches truthful commercial speech about solar products. The court holds the regulation facially invalid because it suppresses protected expression without satisfying intermediate scrutiny.
Fusion Power applies to register a mark criticizing fossil fuels. The agency denies registration under a rule barring disparaging marks. The court finds the rule facially invalid because it imposes viewpoint discrimination on private commercial speech.
Franklin Foundry challenges a federal limit on contributions to political parties. The provision reaches independent expenditures that the First Amendment protects. The court declares the provision facially invalid because it cannot be severed from its unconstitutional applications.
Fulton Shipping challenges a city ban on all off-premise signs. The ordinance reaches noncommercial messages that enjoy full First Amendment protection. The court holds the ordinance facially invalid because its overbreadth cannot be cured by narrowing construction.
Facial invalidation is appropriate when a statute is substantially overbroad or unconstitutional in every application. Courts prefer narrower remedies when possible but will facially invalidate a law that cannot be enforced without suppressing protected speech.
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The challenger must demonstrate that the statute prohibits a substantial amount of protected speech relative to its plainly legitimate sweep. Mere hypothetical applications affecting protected speech are insufficient.
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Yes. If the overbreadth is not substantial, the statute remains enforceable against unprotected conduct even though some hypothetical applications might reach protected speech.
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…entirely. Pp. 163-166. 7. Measured against these standards, the Texas abortion laws are unconstitutional. Pp. 164-166. 8. The facial invalidity of the Texas abortion laws does not require that all state abortion laws be invalidated. Pp. 166-167. Majority opinion Opinion of Blackmun, J. We forthwith acknowledge our…