Also known as: overinclusiveness · underinclusiveness · over-inclusiveness · under-inclusiveness · overinclusive · underinclusive · overbreadth · underbreadth
Written by attorneys · grounded in primary & secondary sources — see below
A feature of a statute or ordinance that sweeps more broadly than its justifying purpose requires while simultaneously leaving unregulated some conduct that the purpose would encompass.
Octavia Okonkwo challenges a state statute that bans all online discussion of political protests. The statute reaches substantial protected speech far beyond its stated goal of preventing incitement. Yet the statute leaves unregulated in-person rallies that pose identical risks. The court finds the law facially invalid because the overbreadth is substantial relative to its legitimate sweep.
Odilia Okamura, a lawyer, attacks a bar rule that prohibits all lawyer advertising. The rule covers protected commercial speech that poses no risk of deception. It simultaneously permits in-person solicitation by non-lawyers that raises the same concerns. Because the overbreadth doctrine does not apply to commercial speech, Odilia must show the rule is unconstitutional as applied to her own advertisement.
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Olivia Owens owns a company that seeks to erect political signs. A city ordinance bans most off-site billboards but exempts on-site commercial signs. The ban reaches protected noncommercial speech unrelated to traffic safety. It leaves unregulated on-site signs that create the same visual clutter. The mismatch renders the ordinance underinclusive and overinclusive.
Odessa Okada posts a protest sign in her window. A town ordinance bans all residential signs except those identifying the owner or warning of hazards. The rule reaches protected political expression while permitting commercial signs on vehicles. The underinclusiveness and overinclusiveness show the ordinance is not narrowly tailored to aesthetic interests.
Owen Ortega operates a theater showing adult films. A city zoning ordinance disperses such theaters but allows other entertainment venues that draw similar crowds. The rule reaches protected expression while leaving unregulated comparable non-adult businesses. The mismatch demonstrates the ordinance is both overinclusive and underinclusive relative to its secondary-effects rationale.
Olive Okafor advertises routine legal services in a newspaper. A bar rule bans all lawyer advertising except certain narrow categories. The prohibition reaches protected commercial speech that poses no deception risk. It simultaneously permits in-person solicitation by accountants that raises identical concerns. The rule is both overinclusive and underinclusive.
Under rational basis review, a law may be both overinclusive and underinclusive so long as it is rationally related to a legitimate purpose. Courts defer to legislative judgments and uphold imperfect classifications as permissible first steps toward a goal.
A speech regulation is facially invalid for overbreadth only if it prohibits a substantial amount of protected speech relative to its plainly legitimate sweep. The challenger must demonstrate substantial overbreadth. Underinclusiveness can also show the regulation is not narrowly tailored under strict scrutiny.
The First Amendment overbreadth doctrine does not apply to restrictions on commercial speech. Challengers must show the law is unconstitutional as applied to their own speech rather than relying on facial overbreadth arguments.
…District Court in the present case, have held state laws unconstitutional, at least in part, because of vagueness or because of overbreadth and abridgment of rights. Abele v. Markle , 342 F. Supp. 800 (Conn. 1972), appeal docketed, No. 72-56; Abele v. Markle , 351 F. Supp. 224 (Conn. 1972), appeal docketed, No. 72-730;…