Broadrick v. Oklahoma 413 U.S. 601 (1973)

• Author: Kenneth L. Karst
• Pages: 250-251

Page 250

The FIRST AMENDMENT doctrine of OVERBREADTH, developed by the WARREN COURT in the 1960s, came under increasing criticism from within the Supreme Court. In Broadrick, that criticism culminated in the invention of a "substantial overbreadth" DOCTRINE.

Oklahoma law restricted the political activities of state civil servants; such employees were forbidden to "take part in the management or affairs of any political party or in any political campaign," except to vote or express opinions privately. Three civil servants sued in a federal district court for a declaration that the law was unconstitutional for VAGUENESS and overbreadth. The district court upheld the law, and on direct review the Supreme Court affirmed, 5?4.

Justice BYRON R. WHITE, for the majority, concluded that the overbreadth doctrine should not be used to invalidate

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a statute regulating conduct (as opposed to the expression of particular messages or viewpoints) unless the law's over-breadth is "substantial, ? judged in relation to the statute's plainly legitimate sweep." Although Oklahoma's law was theoretically capable of constitutionally impermissible application to some activities (the use of political buttons or bumper stickers were arguable examples), it was not substantially overbroad?not likely to be applied to a substantial number of cases of constitutionally protected expression. Thus the law's overbreadth did not threaten a significant CHILLING EFFECT on protected speech, and could be cured through "case-by-case analysis" rather than invalidation on its face. Appellants had conceded that their own conduct (campaigning for a superior state official) could be prohibited under a narrowly drawn statute.

Justice WILLIAM J. BRENNAN, for three...