Also known as: overbroad regulations · overbreadth · overbroad law
Written by attorneys · grounded in primary & secondary sources — see below
A regulation of speech that prohibits a substantial amount of protected expression when judged against the regulation's plainly legitimate sweep. The challenger must demonstrate that the overbreadth is substantial. A regulation that is not substantially overbroad remains enforceable against unprotected conduct.
Orla O'Malley circulated a newsletter criticizing bank oversight practices. State regulators obtained an injunction under a rule barring any public statement questioning local bank stability. Orla showed that the rule could reach some protected journalism in theory. The court upheld the injunction because Orla did not prove that the rule swept in a substantial volume of protected speech relative to its core applications against market manipulation.
Optima Health posted an advertisement promising lower premiums for certain wellness plans. A state rule barred all health-plan advertising that mentioned specific pricing. Optima challenged the rule on its face. The court rejected the facial attack because the overbreadth doctrine does not apply to commercial speech and Optima had to show the rule was unconstitutional as applied to its own advertisement.
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Overland Transport placed billboards advertising its services near a residential zone. A city ordinance limited all signs within 500 feet of schools and parks. Overland argued the ordinance reached too much protected commercial speech. The court upheld the ordinance because the company failed to show that the legitimate traffic-safety applications were outweighed by any substantial protected speech chilled.
Olympus Banking erected a large sign promoting its new loan products on a downtown building. A municipal code banned all off-site commercial signs. Olympus claimed the code was overbroad because it reached protected noncommercial messages. The court rejected the facial challenge after finding that the code's legitimate applications to traffic safety and aesthetics were not substantially outweighed by protected speech it might reach.
Oriana Oberman operated a website offering adult educational materials. A federal statute required age verification for any site containing material that could be deemed indecent for minors. Oriana showed that the verification requirement effectively blocked adult access to protected content. The court invalidated the statute on its face because the burden on protected adult speech was substantial relative to the statute's legitimate sweep.
Outback Mining contributed to a political action committee that ran issue ads. Federal election rules limited corporate contributions used for electioneering communications close to elections. Outback argued the limits reached too much protected corporate speech. The court sustained the rules because the company did not demonstrate that any overbreadth was substantial when measured against the rules' legitimate anti-corruption applications.
The challenger must show that the regulation prohibits a substantial amount of protected speech when judged against its plainly legitimate sweep. The burden rests on the challenger. A regulation that is not substantially overbroad may still be enforced against unprotected conduct.
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No. Litigants challenging commercial speech rules must demonstrate that the regulation is unconstitutional as applied to their own speech. They cannot rely on facial overbreadth arguments that protected speech of third parties might be chilled.
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A litigant may challenge a law restricting expressive activity as substantially overbroad on its face even if the litigant's own expression is unprotected. This standing rule prevents the chilling of protected speech by others.
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A total ban on expressive conduct in a traditional public forum is facially invalid when it suppresses a substantial amount of protected speech without narrow tailoring. The arcade directive in the essay facts illustrated this principle because it left no room for any leafleting or discussion.
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…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;…