Also known as:overinclusiveness · underinclusiveness · overinclusive · underinclusive · overbreadth · underbreadth
Written by attorneys · grounded in primary & secondary sources — see below
A characteristic of a legal rule that reaches conduct beyond its intended purpose or fails to reach all conduct within that purpose.
Sources & Authorities
How it applies
Common Examples
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Speech Regulation Challenged as Overbroad
Owen Ortega challenges a city ordinance banning all leafleting near government buildings after he is cited for distributing political flyers. The ordinance also reaches some protected speech in public forums but the city shows its core applications target litter and congestion without sweeping in a substantial amount of protected expression. The court upholds the ordinance because the challenger failed to prove substantial overbreadth relative to legitimate enforcement.
Association Rule Reaches Protected Conduct
Orson Ochoa, an NAACP organizer, faces prosecution under a statute that criminalizes any group meeting discussing legal rights. The rule sweeps in core political association protected by the First Amendment even though the state claims it targets only solicitation abuses. The court finds the statute overinclusive because it prohibits a substantial amount of protected activity beyond its asserted aim.
Select any source to read its text and confirm it supports the definition.
Cases
Casebooks
N.A.A.C.P. v. Button371 U.S. 415, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963)
Sign Ban Covers Too Much Expression
Odin Obeng displays a political sign in his yard and is cited under a total ban on residential signs. The ordinance reaches all signs regardless of content or impact yet the city asserts only aesthetic goals. The court holds the rule overinclusive because it prohibits far more protected speech than necessary to achieve the stated interest.
City of Ladue v. Gilleo512 U.S. 43 (1994)
Billboard Ordinance Misses Some Signs
Oriana Oberman erects a political billboard and the city enforces a rule banning most off-site commercial billboards while allowing on-site signs. The ordinance reaches some protected noncommercial speech but leaves similar commercial messages untouched. The court finds the rule underinclusive relative to its traffic-safety purpose and therefore invalid under the First Amendment.
Metromedia, Inc. v. City of San Diego453 U.S. 490 (1981)
Zoning Rule Targets Only Some Theaters
Olive Okafor opens an adult theater and the city applies a zoning ordinance that restricts only theaters showing sexually explicit films while allowing other entertainment venues nearby. The rule reaches protected expression in some locations but ignores comparable secondary effects from non-adult businesses. The court upholds the ordinance because its underinclusiveness does not undermine the legitimate interest in preserving neighborhood character.
City of Renton, et al. v. Playtime Theatres, Inc., et al.475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986)
Advertising Restriction Applies Unevenly
Onyx O'Reilly, an attorney, advertises routine legal services and is disciplined under a bar rule that bans only certain forms of lawyer advertising. The rule reaches some protected commercial speech but leaves other promotional methods untouched. The court finds the restriction underinclusive relative to its asserted consumer-protection goal and therefore unconstitutional.
O’Steen v. State Bar of Arizona433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977)
Common questions
Frequently Asked
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When does overinclusiveness invalidate a speech regulation?+
A speech regulation is facially invalid for overbreadth only when it prohibits a substantial amount of protected speech relative to its plainly legitimate sweep. The challenger must carry the burden of demonstrating that substantial overbreadth. If the statute is not substantially overbroad it remains enforceable against unprotected conduct.
Does rational-basis review tolerate over- and underinclusiveness?+
Yes. Under rational-basis review courts defer to legislative judgments and uphold laws that are underinclusive or overinclusive so long as they are rationally related to a legitimate purpose. A city ordinance banning most vehicle advertisements but permitting owner-business ads was upheld as a permissible first step.
How does underinclusiveness affect strict-scrutiny analysis?+
Underinclusiveness undermines the claim that a rule is narrowly tailored to a compelling interest. A judicial-candidate speech restriction was struck down because it was woefully underinclusive relative to asserted interests in judicial impartiality.
Can commercial-speech restrictions rely on overbreadth standing?+
No. The First Amendment overbreadth standing 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.
410 U.S. 113 (1973)Constitutional Law
…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;…
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