Also known as: substantial overbreadth · overbreadth doctrine
Written by attorneys — see sources 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.
Edward Lawson was detained or arrested on approximately fifteen occasions by San Diego police officers between March 1975 and January 1977 while walking on the streets of the city. On each occasion, officers stopped Lawson and requested that he produce a driver's license or other identification. When he was unable to comply, the officers arrested him under California Penal Code section 647(e). Lawson was prosecuted twice under the statute and convicted once. The second charge was dismissed. Lawson filed a civil action in the United States District Court for the Southern District of California against various officers and officials, including Deputy Chief Commander H. A. Porazzo of the California Highway Patrol. The complaint sought a declaratory judgment that section 647(e) was unconstitutional, a mandatory injunction restraining its enforcement, and compensatory and punitive damages. The District Court held the statute overbroad, enjoined its enforcement, and denied damages on the ground that the officers had acted in good faith. The Court of Appeals for the Ninth Circuit affirmed the District Court's determination that the statute was unconstitutional. It concluded that the statute violated the Fourth Amendment, contained a vague enforcement standard susceptible to arbitrary enforcement, and failed to give fair notice of the conduct prohibited. The Ninth Circuit also reversed the denial of a jury trial on the damages issue and remanded the case for trial. The officers appealed to the Supreme Court from the portion of the judgment declaring the statute unconstitutional and enjoining its enforcement. The Supreme Court noted probable jurisdiction. California Penal Code section 647(e) (West 1970) provides that every person who loiters or wanders upon the streets or from place to place without apparent reason or business is guilty of disorderly conduct, a misdemeanor. The statute further requires that such a person refuse to identify himself and to account for his presence when requested by any peace officer if the surrounding circumstances indicate to a reasonable man that the public safety demands such identification. California courts have construed the statute to require that a detained person provide credible and reliable identification. This identification must carry reasonable assurance that it is authentic and provide means for later contact with the person who has identified himself. The District Court made no specific findings concerning the circumstances of each stop, but the trial transcript contains descriptions given by both Lawson and the officers. One officer testified that he stopped Lawson on an otherwise vacant street late at night because the area was isolated and near a high-crime zone. Another testified that he detained Lawson while walking at a late hour in a business area where burglaries had occurred. Lawson stated that he had never been stopped by police for any reason apart from these detentions under the statute.
View caseSabrina 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.
In the predawn hours of June 21, 1990, petitioner R.A.V., then a juvenile, and several other teenagers assembled a crudely made cross by taping together broken chair legs and burned the cross inside the fenced yard of a black family that lived across the street from the house where R.A.V. was staying. Although this conduct could have been punished under several Minnesota statutes carrying significant penalties, the City of St. Paul chose to charge R.A.V. under the St. Paul Bias-Motivated Crime Ordinance. The ordinance provides that whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including but not limited to a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor. R.A.V. moved to dismiss the charge on the ground that the ordinance was substantially overbroad and impermissibly content-based and therefore facially invalid under the First Amendment, and the trial court granted the motion. The Minnesota Supreme Court reversed, construing the ordinance to reach only fighting words and concluding that it was not impermissibly content-based. This Court granted certiorari.
View caseSarah 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.
The Village of Schaumburg is a suburban community located 25 miles northwest of Chicago, Illinois. On March 12, 1974, the Village adopted an ordinance regulating the activities of peddlers and solicitors. Every charitable organization that solicits or intends to solicit contributions from persons in the village by door-to-door solicitation or the use of public streets and public ways must apply for a permit prior to such solicitation. The ordinance prohibits solicitation without a permit and imposes a fine of up to $500 for each offense. It further requires that permit applications contain satisfactory proof that at least seventy-five percent of the proceeds of such solicitations will be used directly for the charitable purpose of the organization. Salaries or commissions paid to solicitors and administrative expenses of the organization, including salaries, attorneys' fees, rents, telephone, advertising expenses, contributions to other organizations, and related overhead items, are excluded from the definition of charitable purposes. Citizens for a Better Environment is an Illinois not-for-profit corporation organized for the purpose of promoting the protection of the environment. It is registered with the Illinois Attorney General's Charitable Trust Division and has been afforded tax-exempt status by the United States Internal Revenue Service. The Village denied CBE a permit because it could not demonstrate that seventy-five percent of its receipts would be used for charitable purposes as defined. CBE then sued the Village in the United States District Court for the Northern District of Illinois. In its amended complaint, CBE alleged that it was organized to protect the Illinois environment. Its canvassers engage in door-to-door activity to distribute literature on environmental topics, answer questions, solicit contributions, and receive grievances. The Village's answer alleged that CBE is primarily devoted to raising funds for the benefit and salary of its employees. The Village also alleged that more than sixty percent of the funds collected by CBE have been spent for benefits of employees and not for any charitable purposes. CBE moved for summary judgment and filed affidavits describing its purposes and the activities of its canvassers. The affidavits stated that in 1975 the organization spent 23.3 percent of its income on fundraising and 21.5 percent on administration, with similar figures in 1976. The Village opposed the motion but filed no counteraffidavits. The District Court awarded summary judgment to CBE, declaring the seventy-five percent requirement void on its face and enjoining its enforcement. The Court of Appeals for the Seventh Circuit affirmed the judgment in 590 F. 2d 220 (1978). The Supreme Court granted certiorari in 441 U. S. 922 (1979) to review the Court of Appeals' determination.
View caseSolomon 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.
In 1996 Congress enacted the Child Pornography Prevention Act, which expanded the federal prohibition on child pornography beyond images made using actual children. The CPPA retains the prohibition on actual-child pornography and adds three other prohibited categories of speech, of which the first, § 2256(8)(B), and the third, § 2256(8)(D), are at issue in this case. Any visual depiction that is or appears to be of a minor engaging in sexually explicit conduct became unlawful, as did any image advertised, promoted, presented, described, or distributed in a manner that conveys the impression it depicts a minor engaging in sexually explicit conduct. The new provisions reached computer-generated images, images produced with youthful-looking adults, and materials pandered as child pornography even if no children were involved in their creation. The Free Speech Coalition, a California trade association for the adult-entertainment industry, joined by Bold Type, Inc., publisher of a book advocating the nudist lifestyle, painter Jim Gingerich, and photographer Ron Raffaelli, filed suit in the United States District Court for the Northern District of California. The plaintiffs alleged that their members and they themselves produced sexually explicit works without using minors yet feared the works could fall within the Act's expanded definition, chilling protected expression. The district court granted summary judgment to the government. The Court of Appeals for the Ninth Circuit reversed, holding the challenged provisions substantially overbroad. Four other courts of appeals had upheld the statute, creating a conflict that prompted the Supreme Court to grant certiorari in 2001. Congressional findings accompanying the Act noted that computer technology now permits creation of realistic images of children who do not exist and that such images could be used to seduce children, whet pedophiles' appetites, and complicate prosecution of cases involving real children. The respondents' works included paintings, photographs, and publications that did not involve minors, and the suit was brought to prevent application of the Act to those materials. The procedural path ran from the Northern District of California through the Ninth Circuit to the Supreme Court for resolution of the facial challenge.
View caseSylvia 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.
In December 1973, the Public Service Commission ordered electric utilities in New York State to cease all advertising that promoted the use of electricity because the interconnected utility system lacked sufficient fuel stocks for the 1973-1974 winter. The order rested on the Commission's finding that the system did not have sufficient fuel stocks or sources of supply to meet customer demands. Three years later, when the fuel shortage had eased, the Commission requested comments from the public on its proposal to continue the ban on promotional advertising. Central Hudson Gas & Electric Corp. opposed the ban on First Amendment grounds. After reviewing the public comments, the Commission extended the prohibition in a Policy Statement issued on February 25, 1977. The Policy Statement divided advertising expenses into promotional and institutional categories. It permitted informational advertising designed to encourage shifts of consumption from peak demand times to periods of low electricity demand. The Commission banned promotional advertising because additional electricity would be more expensive to produce and promotional advertising would give misleading signals to the public. Central Hudson challenged the order in state court. The order was upheld through the New York Court of Appeals. The Supreme Court noted probable jurisdiction and reversed.
View caseThe 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…