Also known as:substantially overbroad · overbreadth doctrine
Written by attorneys · grounded in primary & secondary sources — see below
A requirement in First Amendment overbreadth doctrine that a speech regulation be invalid on its face only when 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. A regulation that fails this test remains enforceable against unprotected conduct even if some hypothetical applications would reach protected expression.
Sources & Authorities
How it applies
Common Examples
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Lease Authorization Challenge Fails
The City of Kansas City granted a nonprofit an exclusive lease over a downtown plaza. The lease authorized removal of anyone engaging in hostile speech about charitable programs. Felicity was arrested after criticizing the nonprofit and brought a facial challenge. She presented no evidence quantifying how much protected speech the authorization actually chills relative to its valid applications. The court therefore upheld the lease because Felicity had not shown substantial overbreadth.
Billboard Ordinance Upheld
The City of San Diego enacted an ordinance restricting off-site commercial billboards while permitting on-site signs. Metromedia challenged the ordinance on First Amendment grounds. The court examined whether the ordinance swept in a substantial amount of protected noncommercial speech compared with its legitimate applications to traffic safety and aesthetics. Because the challenger could not demonstrate that level of overbreadth, the ordinance remained enforceable.
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Cases
Casebooks
Course Outlines
Study Supplements
Metromedia, Inc. v. City of San Diego453 U.S. 490 (1981)
Loitering Statute Invalidated
A California statute required persons who loiter or wander on the streets to provide credible and reliable identification to a peace officer. Edward Lawson was repeatedly detained under the statute and challenged it facially. The statute reached a substantial amount of innocent conduct protected by the First Amendment with no limiting construction available. The court therefore struck the statute down for substantial overbreadth.
Kolender v. Lawson461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)
Solicitation Ordinance Struck Down
The Village of Schaumburg prohibited solicitation of contributions by charitable organizations that did not use at least seventy-five percent of their receipts for charitable purposes. Citizens for a Better Environment challenged the ordinance after being denied a permit. The ordinance reached a substantial amount of protected charitable solicitation with only minimal legitimate applications to fraud prevention. The court invalidated the ordinance on its face.
Village of Schaumburg v. Citizens for a Better Environment444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980), reh. denied 445 U.S. 972, 100 S.Ct. 1668, 64 L.Ed.2d 250
Campaign Finance Provision Sustained
Congress enacted a provision of the Bipartisan Campaign Reform Act restricting certain electioneering communications. Multiple parties brought a facial overbreadth challenge. The challengers failed to show that the provision prohibited a substantial amount of protected speech relative to its legitimate applications in preventing corruption. The court therefore upheld the provision against the facial attack.
McConnell v. Federal Election Commission540 U.S. 93, 226–27 (2003)
Internet Indecency Ban Invalidated
Congress passed the Communications Decency Act prohibiting the transmission of indecent material to minors over the internet. Providers and users challenged the statute facially. The statute effectively banned a substantial amount of protected adult speech because no reliable age-verification technology existed. The court struck the statute down for substantial overbreadth.
Reno v. American Civil Liberties Union521 U.S. 844 (1997)
Common questions
Frequently Asked
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What must a plaintiff prove to prevail on a facial overbreadth challenge to a speech regulation?+
The plaintiff must demonstrate that the regulation prohibits a substantial amount of protected speech when judged against the regulation's plainly legitimate sweep. Isolated unconstitutional applications are insufficient. The burden rests on the challenger rather than the government.
Supporting sources
Can a speech regulation be enforced against unprotected conduct even if it has some unconstitutional applications?+
Yes. A regulation that is not substantially overbroad may still be applied to unprotected conduct. Facial invalidation requires proof that the overbreadth is substantial relative to legitimate applications.
Supporting sources
Does the overbreadth doctrine allow a litigant to challenge a law based on its effect on third parties?+
Yes. The doctrine provides an exception to ordinary standing rules so that a litigant may assert the rights of others whose protected speech would be chilled. This exception applies only when the overbreadth is substantial.
Supporting sources
505 U.S. 377 (1992)First Amendment Law
…conduct and shall be guilty of a misdemeanor.” R.A.V. moved to have the case dismissed on the ground that the ordinance was substantially overbroad and impermissibly content-based, but the trial court rejected that contention. The Minnesota Supreme Court reversed, concluding that, while the ordinance was not impermissibly…