Overbreadth

• Author: Johnathan D. Varat
• Pages: 1866-1868

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Judges frequently encounter the claim that a law, as drafted or interpreted, should be invalidated as overbroad because its regulatory scope addresses not only behavior that constitutionally may be punished but also constitutionally protected behavior. The normal judicial response is confined to ruling on the law's constitutionality as applied to the litigant's behavior, leaving the validity of its application to other people and situations to subsequent adjudication. Since THORNHILL V. ALABAMA (1940), however, the Supreme Court has made an exception, most frequently in FIRST AMENDMENT cases but applicable to other precious freedoms, when it is convinced that the very existence of an overbroad law may cause knowledgeable people to refrain from freely exercising constitutional liberties because they fear punishment and are unwilling to litigate their rights. In such cases, the aggregate inhibition of guaranteed freedom in the regulated community is thought to justify both holding the overbroad law INVALID ON ITS FACE and allowing one to whom a narrower law could be applied constitutionally to assert the overbreadth claim. Unlike the alternative of narrowing the unconstitutional portions of an overbroad statute case by case, facial invalidation prevents delay in curing the improper deterrence. Moreover, courts most effectively can address the inhibition of those who neither act nor sue by allowing those who do to raise the overbreadth challenge.

Like a VAGUENESS challenge, an overbreadth challenge implicates judicial governance in two controversial ways. First, if successful, the challenge completely prohibits the law's enforcement, even its constitutional applications, until it is narrowed through reenactment or authoritative interpretation. Second, the challenge requires a court to gauge the law's applications to unidentified people in circumstances that must be imagined, often ignoring the

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facts of the situation before them?a practice of hypothesizing that is at odds with the court's usual application of law to the facts of concrete CASES OR CONTROVERSIES.

Overbreadth differs from vagueness in that the constitutional defect is a law's excessive reach, not its lack of clarity; yet the defects are related. A law that punished "all speech that is not constitutionally protected" would, by definition, not be overbroad, but it would be unduly vague because people would have to speculate about what it outlawed. A law that prohibited "all speaking" would be unconstitutionally overbroad, but it also might be vague. Although clear enough if taken literally, it might be understood that the legislature did not intend the full reach of its broadly drafted law, and the public would have to speculate about what the contours of the intended lesser reach might be. A law that banned "all harmful speech" would be both overbroad and vague on its face. The key connection, however, is the...