Also known as: overinclusive · over-inclusivity · overinclusiveness · overbreadth
Written by attorneys · grounded in primary & secondary sources — see below
A classification or regulation that reaches more persons, conduct, or speech than necessary to advance the government's asserted interest. The over-inclusiveness is evaluated under the applicable level of scrutiny as part of the means-ends fit analysis.
Orion Technologies challenges a state statute that bans all online discussion of certain financial topics. The company shows that the statute reaches substantial protected speech by journalists and analysts far beyond the state's interest in preventing fraud. Because the statute prohibits a substantial amount of protected speech relative to its legitimate sweep, the court finds it facially invalid.
Otto Osman is prosecuted under a statute that punishes only males for statutory rape. The law reaches all males regardless of age difference or consent capacity. The court finds the classification overinclusive because it applies even when the male is the same age as the female and the risk of pregnancy is absent.
Select any source to read its text and confirm it supports the definition.
Outback Mining challenges a ban on all promotional advertising by utilities. The regulation reaches truthful speech about energy conservation that does not mislead consumers. The court holds the ban overinclusive because it suppresses protected commercial speech without advancing the state's interest in fair rates.
Onyx Pharmaceuticals objects to a federal rule limiting all corporate political expenditures. The rule reaches independent issue advocacy that poses no risk of corruption. The court concludes the restriction is overinclusive because it burdens protected speech beyond the government's interest in preventing quid pro quo corruption.
Oakridge Manufacturing challenges a city zoning rule that bars all adult theaters from certain districts. The ordinance reaches theaters showing only a small fraction of adult content. The court finds the rule overinclusive because it suppresses protected expression without a close fit to the city's interest in preserving neighborhood character.
Orla O'Malley challenges a federal law that criminalizes any transmission of indecent material over the Internet. The statute reaches protected adult speech that minors might encounter. The court holds the law overinclusive because it effectively bans substantial protected expression for adults without narrow tailoring to the interest in protecting children.
Over-inclusiveness occurs when a classification reaches more persons or conduct than necessary to achieve the government's purpose. Under-inclusiveness occurs when the classification fails to reach all persons or conduct that would advance the purpose. Both are evaluated as part of the means-ends fit under the applicable level of scrutiny.
Supporting sources
A speech regulation is facially invalid for overbreadth only if it prohibits a substantial amount of protected speech judged in relation to its plainly legitimate sweep. The challenger bears the burden of demonstrating that substantial overbreadth.
Supporting sources
No. Under rational basis review, laws may be underinclusive or overinclusive so long as they are rationally related to a legitimate purpose. Courts defer heavily to legislative judgments about the proper scope of regulation.
Supporting sources
No. The First Amendment overbreadth standing doctrine does not apply to restrictions on commercial speech. Challengers must show that the law is unconstitutional as applied to their own speech rather than relying on facial overbreadth.
Supporting sources
…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;…