Also known as: substantial overbreadth · overbreadth doctrine
Written by attorneys · grounded in primary & secondary sources — see below
A doctrine under which a law regulating speech is facially invalid only if it prohibits a substantial amount of protected speech judged in relation to its plainly legitimate sweep. The challenger bears the burden of showing substantial overbreadth. If a statute is not substantially overbroad it can be enforced against unprotected conduct even if some hypothetical applications would affect protected speech.
Stella Shapiro organized a protest on a downtown plaza leased to a nonprofit that barred hostile speech about charitable programs. She was arrested after criticizing the nonprofit's operations. Shapiro sued claiming the lease terms were facially invalid. The court rejected the challenge because she presented no evidence that the terms swept in a substantial volume of protected speech beyond the lease's valid applications.
Sierra Santos was stopped at a county agricultural fair while handing out animal-welfare leaflets. The fair board's policy banned all speech petitions signs and other expressive activity anywhere on the grounds. Santos brought a facial challenge. The court struck down the policy because it reached virtually every form of protected expression with almost no legitimate applications.
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Sabrina Shah was arrested under a city ordinance that criminalized certain fighting words directed at protected groups. She challenged the ordinance on its face after her own speech was unprotected. The court upheld the ordinance because Shah failed to show that the law prohibited a substantial amount of protected speech relative to its valid reach.
Sarah Sullivan's environmental group was denied a permit because it spent too little on direct program services. The city ordinance required charities to devote seventy-five percent of receipts to program activities. Sullivan sued claiming the rule chilled protected solicitation. The court invalidated the ordinance because it swept in a substantial amount of protected charitable speech beyond any legitimate regulatory interest.
Solomon Silver was prosecuted under a federal statute banning images that appeared to depict minors in sexual conduct even if no actual minors were involved. He challenged the law on its face. The court struck down the statute because it reached a substantial amount of protected expression involving adult actors or computer-generated images relative to its legitimate applications.
Sylvia Santos a utility company sought to run promotional ads encouraging energy conservation. A state commission rule barred all promotional advertising by utilities. Santos challenged the rule. The court invalidated it because the ban prohibited a substantial amount of protected commercial speech beyond the commission's legitimate interests in rate regulation.
The challenger must show that the law prohibits a substantial amount of protected speech judged in relation to the law's plainly legitimate sweep. Isolated or hypothetical applications reaching protected speech are insufficient. The burden rests on the challenger not the government.
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Yes. If the statute is not substantially overbroad it remains enforceable against unprotected conduct. Facial invalidation is reserved for cases where the overbreadth is both real and substantial relative to the statute's valid applications.
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Yes. A litigant may challenge a law as substantially overbroad on its face even if the litigant's own expression is unprotected. This exception prevents chilling of protected speech by others who may not bring suit.
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…ante , at 387. Therefore, the Court's insistence on inventing its brand of First Amendment underinclusiveness puzzles me. The overbreadth doctrine has the redeeming virtue of attempting to avoid the chilling of protected expression, Broadrick v. Oklahoma , 413 U. S. 601, 612 (1973); Osborne v. Ohio , 495 U. S. 103, 112, n. 8…