Also known as: facially unconstitutional · facial challenge · facially invalid
Written by attorneys · grounded in primary & secondary sources — see below
A determination that a statute or regulation violates the Constitution because the prohibition reaches a substantial amount of protected conduct when measured against the measure's plainly legitimate sweep. The challenger must demonstrate that the overbreadth is substantial. A statute that is not substantially overbroad remains enforceable against unprotected conduct even if some applications would reach protected activity.
A county ordinance bans any display on public roads that shows agriculture negatively. An advocate distributing leaflets criticizing factory farms is cited. The advocate sues claiming the ordinance reaches far more protected criticism than any legitimate regulation of true threats or interference with farm operations. The court evaluates whether the prohibition sweeps in a substantial volume of protected speech relative to valid applications.
Washington prohibits assisting suicide. Physicians and terminally ill patients seek to invalidate the statute entirely rather than only in particular applications. The court examines whether the prohibition is invalid in all or most cases in which it might be applied before considering narrower as-applied claims.
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Virginia criminalizes cross burning with intent to intimidate. A defendant convicted under the statute argues the law is invalid on its face because it covers protected expressive conduct in addition to true threats. The court assesses whether the statute's reach into protected speech is substantial enough to require facial invalidation.
Texas imposes admitting-privileges and surgical-center requirements on abortion providers. Clinics challenge the provisions as facially invalid because they would close most facilities statewide. The court determines whether the restrictions impose an undue burden in a large fraction of cases rather than only in isolated applications.
California requires persons loitering to provide credible identification on demand. A defendant arrested for failing to comply contends the statute is facially unconstitutional because it grants officers unfettered discretion and reaches innocent conduct. The court evaluates whether the law is vague in all or nearly all applications.
California requires employers to provide leave for pregnancy-related disabilities. An employer argues the statute is facially unconstitutional because it discriminates on the basis of sex. The court examines whether the law conflicts with federal antidiscrimination requirements in all or substantially all of its applications.
The challenger must show that the law prohibits a substantial amount of protected speech when judged against the statute's plainly legitimate sweep. Isolated unconstitutional applications are insufficient. The burden rests on the challenger.
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Yes. If the overbreadth is not substantial relative to legitimate applications, the statute may be applied to unprotected conduct even though some hypothetical applications would affect protected speech.
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A facial challenge seeks to invalidate the statute in all or most applications. An as-applied challenge seeks relief only for the particular facts before the court. A statute may survive a facial attack yet still be invalid in specific applications.
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…v. United States , 395 U. S. 185 (1969). Mrs. Moore defends against the State's prosecution on the ground that the ordinance is facially invalid, an issue that the zoning review board lacks competency to resolve. In any event, this Court has never held that a general principle of exhaustion could foreclose a criminal defendant from…