Also known as: overbreadth · overbreadth doctrine
Written by attorneys — see sources below.
A doctrine permitting facial invalidation of a speech regulation under the First Amendment when the law prohibits a substantial amount of protected speech relative to its plainly legitimate sweep. The challenger bears the burden of demonstrating that substantial overbreadth. A statute that is not substantially overbroad remains enforceable against unprotected conduct even if some hypothetical applications would reach protected speech.
Opal Okoro, a political activist, challenged a state statute regulating campaign contributions that also incidentally restricted some issue advocacy. She argued the law reached protected speech in hypothetical scenarios involving small donors. The court upheld the statute because Okoro could not demonstrate that the protected speech affected was substantial when measured against the law's core applications to actual corruption risks.
Orlando Okafor, an online publisher, attacked a federal law criminalizing transmission of indecent material to minors over the internet. The statute swept in vast amounts of adult-to-adult communication with no effective age-screening mechanism. The court invalidated the law on its face because the overbreadth substantially burdened protected speech beyond the government's interest in shielding children.
In 1996 Congress enacted the Communications Decency Act as Title V of the Telecommunications Act of 1996. Immediately after the President signed the bill, twenty plaintiffs including the American Civil Liberties Union filed suit in the Eastern District of Pennsylvania against the Attorney General challenging the constitutionality of 47 U.S.C. §§ 223(a)(1)(B) and 223(d). A week later a second suit was filed by twenty-seven additional plaintiffs; the cases were consolidated and a three-judge district court was convened. The district court conducted an evidentiary hearing based on a detailed stipulation of 356 paragraphs plus live testimony and made 410 findings of fact. Those findings described the Internet as an international network of interconnected computers that had grown from roughly 300 host computers in 1981 to approximately 9,400,000 by the time of trial, with about 40 million users expected to reach 200 million by 1999. The findings detailed communication methods including e-mail, mail exploders, newsgroups, chat rooms, and the World Wide Web, noting that any person or organization with Internet access could publish information and that the content available was as diverse as human thought. The district court further found that sexually explicit material on the Internet included text, pictures, and chat extending from the modestly titillating to the hardest-core, that such material was widely available but users seldom encountered it accidentally because a series of affirmative steps was required to access specific content, and that almost all sexually explicit images were preceded by warnings. The court determined there was no effective way to determine the identity or age of a user accessing material through e-mail, mail exploders, newsgroups, or chat rooms and that credit-card or adult-password verification systems were not economically feasible for most noncommercial providers and would impose significant burdens including the exclusion of adults without credit cards. The district court entered a preliminary injunction against enforcement of the two challenged provisions. The Government appealed directly to the Supreme Court under the CDA's special review provisions, and the Court noted probable jurisdiction.
Odin Obeng, an adult theater owner, challenged a city zoning rule limiting locations for adult businesses. He claimed the ordinance could theoretically bar protected expression in many neighborhoods. The court enforced the law because the restriction targeted secondary effects and did not prohibit a substantial volume of protected speech relative to its legitimate applications.
In May 1980, the Mayor of Renton, Washington, a city of approximately 32,000 people located just south of Seattle, suggested to the City Council that it consider zoning legislation dealing with adult entertainment uses, as no such uses existed in the city at that time. The Council referred the matter to the Planning and Development Committee, which held public hearings, reviewed the experiences of Seattle and other cities, and received a report from the City Attorney's Office. The Council adopted Resolution No. 2368, which imposed a moratorium on the licensing of any business whose primary purpose was the selling, renting, or showing of sexually explicit materials. In April 1981, acting on the Committee's recommendation, the City Council enacted Ordinance No. 3526. The ordinance prohibited any adult motion picture theater from locating within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, or park, and within one mile of any school. It defined an adult motion picture theater as an enclosed building used for presenting motion picture films, video cassettes, cable television, or other visual media distinguished by an emphasis on matter depicting, describing, or relating to specified sexual activities or anatomical areas. While the federal action was pending, the City Council amended the ordinance in several respects, adding a statement of reasons for its enactment and reducing the minimum distance from any school to 1,000 feet. In early 1982, Playtime Theatres, Inc., and Sea-First Properties, Inc., acquired two existing theaters in downtown Renton, with the intention of using them to exhibit feature-length adult films. The theaters were located within the area proscribed by the ordinance. At about the same time, the respondents filed an action in the United States District Court for the Western District of Washington. They sought a declaratory judgment that the ordinance violated the First and Fourteenth Amendments and a permanent injunction against its enforcement. The District Court adopted a magistrate's recommendation and entered a preliminary injunction, after which respondents began showing adult films at their two theaters. The parties then agreed to submit the case for a final decision on whether a permanent injunction should issue on the basis of the record as already developed. The District Court vacated the preliminary injunction, denied the requested permanent injunction, and entered summary judgment in favor of Renton. The Court of Appeals for the Ninth Circuit reversed. The Court of Appeals remanded the case to the District Court for reconsideration of Renton's asserted interests. The Supreme Court noted probable jurisdiction and reviewed the judgment of the Ninth Circuit.
Oscar Ortiz, a sign company, attacked a municipal ban on off-site commercial billboards that also reached some noncommercial messages. He argued the rule was facially invalid due to its breadth. The court severed the unconstitutional applications and upheld the core prohibition because the overbreadth was not substantial when judged against the ordinance's valid traffic-safety purposes.
San Diego enacted Ordinance No. 10795 prohibiting outdoor advertising display signs. The California Supreme Court defined such signs as rigidly assembled signs permanently affixed to the ground or attached to buildings or other permanent structures and used for displaying a commercial or other advertisement to the public. The ordinance created exceptions for onsite signs designating the name of the owner or occupant or advertising goods manufactured or services rendered on the premises. It also exempted twelve additional categories that included government signs, signs at public bus stops, commemorative historical plaques, religious symbols, for-sale and for-lease signs, signs on public and commercial vehicles, time-temperature-news signs, approved temporary off-premises subdivision directional signs, and temporary political campaign signs. Appellants Metromedia, Inc. and other companies engaged in the outdoor advertising business owned approximately 500 to 800 billboards within San Diego. All were located in areas zoned for commercial and industrial use, and most were situated on property leased specifically for maintaining the signs. Each billboard had a remaining useful income-producing life exceeding 25 years and a fair market value between $2,500 and $25,000. Space on the signs was made available to all comers, with copy changed regularly, usually monthly. The billboards had been used to convey both commercial messages and a broad range of noncommercial political and social messages. The parties entered a stipulation of facts stating that enforcement of the ordinance as written would eliminate the outdoor advertising business in San Diego. The stipulation also stated that outdoor advertising increases sales of products and produces numerous public benefits, that valuable commercial, political, and social information reaches the public through such displays, and that many businesses and politicians rely on outdoor advertising because other forms are insufficient, inappropriate, and prohibitively expensive. Appellants brought suit in state court to enjoin enforcement of the ordinance. After extensive discovery the parties filed cross-motions for summary judgment. The trial court held the ordinance unconstitutional as an exercise of police power and an abridgment of First Amendment rights. The California Court of Appeal affirmed on the police power ground alone. The California Supreme Court reversed, upholding the ordinance as a proper exercise of municipal zoning authority. Appellants sought review in the United States Supreme Court, which noted probable jurisdiction.
Oswald Orozco, a political donor, challenged federal election rules restricting certain corporate expenditures. He contended the provisions could chill protected advocacy in numerous hypothetical settings. The court rejected the facial attack because Orozco failed to prove the protected speech affected was substantial compared with the rules' legitimate anti-corruption applications.
The Bipartisan Campaign Reform Act of 2002 amended the Federal Election Campaign Act of 1971, the Communications Act of 1934, and other statutes to address the role of soft money and issue advocacy in federal elections. Plaintiffs included a diverse group of entities and individuals such as the National Rifle Association and the American Civil Liberties Union who alleged that BCRA was unconstitutional. Defendants included the Federal Election Commission and the Attorney General of the United States. The case was filed in the United States District Court for the District of Columbia and heard by a three-judge panel pursuant to special procedures in BCRA Section 403. The District Court received a voluminous record from the parties and issued a judgment on May 1, 2003, that upheld some provisions of BCRA and invalidated others. All losing parties filed direct appeals to the Supreme Court within ten days, and the Court noted probable jurisdiction on June 5, 2003, ordering expedited briefing and argument on September 8, 2003. More than a century of federal legislation preceded BCRA, beginning with the Tillman Act of 1907 that banned corporate contributions in connection with federal elections. Congress later extended prohibitions to unions, required disclosure of contributions and expenditures, and enacted FECA in 1971 with further amendments in 1974 that imposed contribution limits, expenditure ceilings, and created the FEC. The Supreme Court addressed constitutional challenges to the 1974 amendments in Buckley v. Valeo. After Buckley, the FEC permitted political parties to fund mixed-purpose activities such as voter registration and generic advertising in part with soft money not subject to FECA's source and amount limits. Soft-money fundraising by the national parties grew from $21.6 million in 1984 to $498 million in 2000, with large corporate and union donations often motivated by a desire for access to federal candidates. National parties transferred substantial soft money to state parties, which could use higher percentages for mixed activities under FEC allocation rules. The use of soft money also supported so-called issue ads that avoided express advocacy of a candidate's election or defeat and therefore fell outside FECA's disclosure and source restrictions. These ads frequently aired in the 60 days before federal elections, referred to clearly identified candidates, and were funded by corporations, unions, and tax-exempt organizations using misleading names. A Senate investigation into 1996 federal election practices documented both parties' use of soft money to obtain special access for large donors and the coordination of issue ads with candidates. The District Court compiled extensive evidence from declarations, expert reports, and internal party documents showing that federal officeholders solicited soft-money donations, that parties maintained tallies crediting donors to particular candidates, and that large soft-money contributions were often made to secure influence rather than for ideological reasons.
Olivia Ochoa, a religious organization member, challenged an airport resolution banning all First Amendment activity in the terminal. She showed the rule reached protected leafleting and solicitation by non-travelers. The court invalidated the policy on its face because the overbreadth substantially exceeded any legitimate interest in terminal operations.
The challenger must show that the law prohibits a substantial amount of protected speech when judged against its plainly legitimate sweep. The burden rests on the challenger to demonstrate that substantial overbreadth. A statute that fails this test remains enforceable against unprotected conduct.
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.
…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;…
…to justify the limited effect upon First Amendment freedoms caused by the $1,000 contribution ceiling. (b) Appellants' first overbreadth challenge to the contribution ceilings rests on the proposition that most large contributors do not seek improper influence over a candidate's position or an officeholder's action. Although…
…Rights Act was limited to those cases in which constitutional violations were most likely (in order to reduce the possibility of overbreadth), the coverage under the Act would terminate "at the behest of States and political subdivisions in which the danger of substantial voting discrimination has not materialized during the…
…wake, it could not have been squared with the precedent’s reasoning and analysis. The Buckley Court did not invoke the overbreadth doctrine to suggest that §608(e)’s expenditure ban would have been constitutional had it applied to corporations and unions but not individuals. Notwithstanding this precedent, Congress soon…
…Cox v. Louisiana , 379 U. S. 559, 562-564. Cf. NAACP v. Button , 371 U. S. 415, 438. See also Note, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844 (1970). : In addition, witnesses customarily are not allowed to object to questions on the grounds of materiality or relevance, since the scope of the grand…
A litigant has standing to challenge a law restricting expressive activity as substantially overbroad on its face even if the litigant's own expression might not be protected. This prevents chilling of protected speech by others.
A prior restraint that lacks narrow tailoring and suppresses far more speech than necessary will be facially invalid under overbreadth because it chills protected expression by third parties beyond the restraint's legitimate scope.
A law is invalid on its face only if it prohibits a substantial amount of protected speech relative to its plainly legitimate sweep. The challenger must meet that burden. Otherwise the statute survives even if some applications would affect protected speech.