Also known as: facially invalid · facial invalid · facial unconstitutionality
Written by attorneys — see sources below.
A constitutional doctrine under which a statute or regulation is struck down in its entirety. The doctrine applies when the measure is invalid in all applications or prohibits a substantial amount of protected speech relative to its plainly legitimate sweep.
The City of Kansas City granted a nonprofit an exclusive lease over a downtown plaza. The lease authorized removal of anyone engaging in hostile speech about charitable programs. Felicity was arrested after criticizing the nonprofit. She brought a facial challenge but presented no evidence quantifying how much protected speech the authorization reached relative to legitimate applications.
Texas enacted criminal abortion statutes that banned nearly all procedures. Jane Roe challenged the laws on behalf of women seeking abortions. The Court held the statutes facially invalid because they swept too broadly and lacked exceptions necessary to protect maternal health.
In March 1970, Jane Roe, a single woman residing in Dallas County, Texas, instituted a federal action against the District Attorney of the county. She sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional on their face. She also sought an injunction restraining enforcement of the statutes. Roe alleged that she was unmarried and pregnant. She wished to terminate her pregnancy by an abortion performed by a competent licensed physician under safe clinical conditions. She was unable to obtain a legal abortion in Texas because her life did not appear to be threatened by continuation of the pregnancy. She could not afford to travel to another jurisdiction to secure a legal abortion. James Hubert Hallford, a licensed physician, sought and was granted leave to intervene in Roe's action. In his complaint he alleged that he had been arrested previously for violations of the Texas abortion statutes. Two such prosecutions were pending against him in the Criminal District Court of Dallas County. He described conditions of patients who came to him seeking abortions. He claimed that for many cases he was unable to determine whether they fell within or outside the exception recognized by Article 1196 of the Texas Penal Code. John and Mary Doe, a married couple, filed a companion complaint also naming the District Attorney as defendant. The Does alleged that they were a childless couple. Mrs. Doe was suffering from a neural-chemical disorder. Her physician had advised her to avoid pregnancy until her condition materially improved. She had discontinued use of birth control pills pursuant to medical advice. If she should become pregnant she would want to terminate the pregnancy by an abortion performed by a competent licensed physician under safe clinical conditions. The two actions were consolidated and heard together by a duly convened three-judge district court for the Northern District of Texas. Upon the filing of affidavits, motions were made for dismissal and for summary judgment. The court held that Roe and members of her class and Dr. Hallford had standing to sue and presented justiciable controversies. The Does had failed to allege facts sufficient to state a present controversy and did not have standing. It concluded that the Texas criminal abortion statutes were void on their face. The court dismissed the Does' complaint while denying injunctive relief. The plaintiffs Roe and Doe and the intervenor Hallford appealed to the Supreme Court from that part of the District Court's judgment denying the injunction. The defendant District Attorney cross-appealed from the grant of declaratory relief. Both sides also took protective appeals to the United States Court of Appeals for the Fifth Circuit. That court ordered the appeals held in abeyance pending decision by the Supreme Court.
View caseThe University of California reserved sixteen spots in each medical school class for minority applicants. Allan Bakke, a white applicant with higher scores, sued after two rejections. The Court found the rigid quota system facially invalid under the Equal Protection Clause.
The Medical School of the University of California at Davis opened in 1968 with an entering class of 50 students. In 1971 the size of the entering class was increased to 100 students, a level at which it remains. The first class contained three Asians but no blacks, no Mexican-Americans, and no American Indians. Over the next two years the faculty devised a special admissions program to increase the representation of disadvantaged students in each Medical School class. The special program consisted of a separate admissions system operating in coordination with the regular admissions process. Under the regular admissions procedure candidates whose overall undergraduate grade point averages fell below 2.5 on a scale of 4.0 were summarily rejected. About one out of six applicants was invited for a personal interview. Following the interviews each candidate was rated on a scale of 1 to 100 by his interviewers and four other members of the admissions committee. The ratings were added together to arrive at each candidate's benchmark score. Since five committee members rated each candidate in 1973 a perfect score was 500. In 1974 six members rated each candidate so that a perfect score was 600. The full committee then reviewed the file and scores of each applicant and made offers of admission on a rolling basis. The special admissions program operated with a separate committee a majority of whom were members of minority groups. Special candidates did not have to meet the 2.5 grade point average cutoff applied to regular applicants. The special committee continued to recommend special applicants until a number prescribed by faculty vote were admitted. While the overall class size was still 50 the prescribed number was 8. In 1973 and 1974 when the class size had doubled to 100 the prescribed number of special admissions also doubled to 16. From the year of the increase in class size through 1974 the special program resulted in the admission of 21 black students 30 Mexican-Americans and 12 Asians for a total of 63 minority students. Over the same period the regular admissions program produced 1 black 6 Mexican-Americans and 37 Asians for a total of 44 minority students. Although disadvantaged whites applied to the special program in large numbers none received an offer of admission through that process. Allan Bakke is a white male who applied to the Davis Medical School in both 1973 and 1974. Despite a strong benchmark score of 468 out of 500 Bakke was rejected. His total was 549 out of 600. Again Bakke's application was rejected. In both years applicants were admitted under the special program with grade point averages MCAT scores and benchmark scores significantly lower than Bakke's. After the second rejection Bakke filed the instant suit in the Superior Court of California. He sought mandatory injunctive and declaratory relief compelling his admission to the Medical School. He alleged that the Medical School's special admissions program operated to exclude him from the school on the basis of his race in violation of his rights under the Equal Protection Clause of the Fourteenth Amendment Art. I § 21 of the California Constitution and § 601 of Title VI of the Civil Rights Act of 1964 42 U.S.C. § 2000d. The trial court found that the special program operated as a racial quota because minority applicants in the special program were rated only against one another and 16 places in the class of 100 were reserved for them. The court refused to order Bakke's admission however holding that he had failed to carry his burden of proving that he would have been admitted but for the existence of the special program. The California court accepted the findings of the trial court with respect to the University's program. On this basis the court initially ordered a remand for the purpose of determining whether under the newly allocated burden of proof Bakke would have been admitted to either the 1973 or the 1974 entering class in the absence of the special admissions program. In its petition for rehearing below however the University conceded its inability to carry that burden. The California court thereupon amended its opinion to direct that the trial court enter judgment ordering Bakke's admission to the Medical School. The Supreme Court granted certiorari to consider the important constitutional issue.
View caseA school district allowed after-hours use of its facilities for social, civic, and recreational meetings but denied access to a church group seeking to show a film on family values. The church sued. The Court held the exclusion policy facially invalid as viewpoint discrimination.
Lamb’s Chapel, an evangelical church in Center Moriches, New York, and its pastor John Steigerwald twice applied to the Center Moriches Union Free School District for permission to use school facilities after hours to show a six-part film series containing lectures by Dr. James Dobson. A brochure provided to the District described Dr. Dobson as a licensed psychologist, former associate clinical professor of pediatrics at the University of Southern California, best-selling author, and radio commentator, and outlined the series’ focus on returning to traditional Christian family values to counter media influences, with each of the six parts addressing specific family and child-rearing topics. The District denied both applications, stating that the film appeared to be church related. The District operated under New York Education Law § 414, which authorized local boards to permit after-hours uses of school property for social, civic, and recreational meetings open to the public, and had adopted rules allowing such uses as well as political uses while barring religious purposes. Shortly before these applications, the Church had also sought permission to use the facilities for Sunday morning services and Sunday School, which the District denied on the same religious-purpose ground, though that denial was not challenged in court. The Church filed suit in the United States District Court for the Eastern District of New York against the District and the New York Attorney General. The complaint alleged that the denials violated the Free Speech and Assembly Clauses, the Free Exercise Clause, the Establishment Clause of the First Amendment, and the Equal Protection Clause of the Fourteenth Amendment, all under color of state law pursuant to 42 U.S.C. § 1983. The District Court granted summary judgment for the defendants on all claims. The Court of Appeals for the Second Circuit affirmed the District Court’s judgment in all respects. The Supreme Court granted certiorari in 1992.
View caseCongress granted bankruptcy courts broad jurisdiction over all civil proceedings related to bankruptcy cases. Northern Pipeline sued Marathon in bankruptcy court over a contract dispute. The Court held the jurisdictional grant facially invalid because it conferred Article III power on non-Article III judges.
In 1978 Congress enacted the Bankruptcy Reform Act after nearly ten years of study. The statute established a United States bankruptcy court in each judicial district as an adjunct to the district court. It granted those courts jurisdiction over all civil proceedings arising under title 11 or arising in or related to cases under title 11. Bankruptcy judges appointed under the Act served fourteen-year terms. They were subject to removal by the judicial council of the circuit for incompetence, misconduct, neglect of duty, or disability. They received salaries subject to congressional adjustment. In January 1980 Northern Pipeline Construction Co. filed a petition for reorganization under the Act in the United States Bankruptcy Court for the District of Minnesota. In March 1980 Northern filed a separate suit in the same court against Marathon Pipe Line Co. seeking damages for alleged breaches of contract and warranty as well as for misrepresentation, coercion, and duress. Marathon moved to dismiss the suit on the ground that the Act unconstitutionally conferred Article III judicial power on bankruptcy judges who lacked life tenure and salary protection. The United States intervened to defend the statute. The Bankruptcy Court denied the motion to dismiss. On appeal the District Court reversed and dismissed the suit. Northern and the United States filed notices of appeal, and the Supreme Court noted probable jurisdiction.
View caseFederal law barred registration of trademarks that disparaged persons or groups. Simon Tam sought to register The Slants as the name of his Asian-American band. The Court held the disparagement clause facially invalid as a viewpoint-based restriction on speech.
Simon Tam serves as the lead singer of the rock group The Slants, whose members are Asian-Americans. He chose the name in an effort to reclaim the term and drain its denigrating force as a derogatory reference to Asian persons. The group has incorporated childhood slurs into its lyrics and titled albums including The Yellow Album and Slanted Eyes, Slanted Hearts. Tam filed an application with the Patent and Trademark Office seeking registration of THE SLANTS as a trademark. The PTO examining attorney rejected the application after applying a two-part analysis and concluding that a substantial composite of persons of Asian descent would find the mark offensive. The attorney cited dictionary definitions labeling the term as derogatory and evidence that the band's name had prompted cancellation of a performance along with negative comments from online readers. Tam appealed the denial first to the examining attorney and then to the Trademark Trial and Appeal Board, which upheld the refusal. Tam then brought the case before the Federal Circuit. Sitting en banc, that court reversed the Board. The Government petitioned for certiorari, and the Supreme Court granted review.
View caseThe challenger must show that the law prohibits a substantial amount of protected speech judged in relation to its plainly legitimate sweep. The burden rests on the challenger. A law that is not substantially overbroad may still be enforced against unprotected conduct.
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No. Facial invalidity requires substantial overbreadth. Isolated or hypothetical applications to protected speech do not suffice when the regulation has a plainly legitimate sweep that predominates.
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Yes. When the unconstitutional applications are substantial relative to legitimate ones, the statute is facially invalid. Courts may still enforce the statute against unprotected conduct if overbreadth is not substantial.
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