Also known as: facial voidness · facially invalid · void on its face · facially unconstitutional
Written by attorneys · grounded in primary & secondary sources — see below
A determination that a statute or instrument is invalid based solely on examination of its text. The conclusion follows when the document itself reveals a constitutional defect such as substantial overbreadth that reaches protected speech relative to any legitimate applications.
A city housing authority maintained a trespass policy limiting access to its property. Hicks was arrested after distributing flyers on the premises. He could not show that the policy prohibited a substantial amount of protected speech compared with its valid applications, so the court upheld the policy against his facial challenge.
A federal statute restricted certain corporate expenditures in elections. McConnell argued the provision reached substantial protected political speech. The Court examined the text and found the restriction did not prohibit a substantial amount of protected expression relative to its legitimate sweep, so the provision survived the facial attack.
Select any source to read its text and confirm it supports the definition.
A statute barred registration of trademarks that disparaged persons or groups. Tam sought registration of a mark that some found offensive. The Court reviewed the statutory text and held it facially invalid because it suppressed a substantial amount of protected expression on its face.
A state medical school reserved a fixed number of seats for minority applicants. Bakke challenged the program after his application was rejected. The Court examined the admissions policy on its face and found the rigid quota violated equal protection without regard to individual circumstances.
A state law required newspapers to publish replies from political candidates they criticized. The Miami Herald refused to print a reply demanded by Tornillo. The Court inspected the statute's text and concluded it compelled speech on its face, rendering the law invalid without further factual development.
A city ordinance prohibited all off-site commercial billboards. Metromedia challenged the ban after its permit applications were denied. The Court reviewed the ordinance's language and held it facially invalid because it eliminated a substantial category of protected commercial speech on its face.
The challenger must demonstrate that the regulation prohibits a substantial amount of protected speech when judged against the regulation's plainly legitimate sweep. Isolated or hypothetical applications to protected speech are insufficient. The burden rests on the challenger to make this showing from the text of the regulation itself.
Supporting sources
Yes. When a statute is not substantially overbroad on its face, it may be applied to unprotected conduct even if some hypothetical applications would affect protected speech. The facial challenge fails unless the overbreadth is substantial relative to legitimate applications.
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A facial challenge asks whether the statute's text itself is invalid in all or substantially all applications. An as-applied challenge examines whether the statute is unconstitutional as enforced against the particular facts of the challenger's case. The facial inquiry looks only at the document's language.
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…capable of raising large amounts in private funds. For the reasons stated, we reject appellants' claims that Subtitle H is facially unconstitutional. C. Severability The only remaining issue is whether our holdings invalidating 18 U. S. C. §§ 608 (a), (c), and (e) (1) (1970 ed., Supp. IV) require the conclusion that Subtitle H is…