The "strong medicine" of the overbreadth doctrine: when statutory exceptions are no more than a placebo.

• Author: Pierce, Christopher A.

1. INTRODUCTION II. THE MILLER OBSCENITY STANDARD AND STATUTORY EXCEPTIONS A. Overview B. Nonobscenity Contexts III. THE OVERBREADTH DOCTRINE IN FIRST AMENDMENT JURISPRUDENCE IV. IMPACT OF UNITED STATES V. STEVENS A. Background B. Supreme Court Review C. The Rejection of Statutory Exceptions D. Justice Alito's Dissent E. Congress's Response to Stevens V. THE IMPORTANCE OF THE EXCEPTIONS CLAUSE A. Relevance B. The Exceptions Clause's Failure to Protect from Overbreadth 1. Differences in Statutory Subject Matter 2. The Limited Narrowing Function of the Exceptions Clause 3. The Exceptions Clause is Meaningless 4. Different Standards of Overbreadth Analysis 5. Strategic Judicial Behavior C. Usefulness of the Exceptions Clause VI. CONCLUSION I. INTRODUCTION

   In United States v. Stevens, the Supreme Court refused to consider depictions of animal cruelty as a form of speech outside of First Amendment protection. (1) Consequently, the Court struck down the federal statute criminalizing such depictions as overbroad. (2) Stevens is largely cited to demonstrate the Supreme Court's reluctance to create a new category of speech that is outside of First Amendment protection. (3) However, Stevens demonstrates another important proposition in First Amendment jurisprudence--that a statutory exception modeled after the Miller v. California obscenity standard is not a dependable way to protect a nonobscenity statute. (4)

   Legislatures whose regulations are likely to be challenged on free speech grounds sometimes include statutory exceptions as a way to limit the scope of the regulation and avoid constitutional invalidation from the "strong medicine" (5) of the overbreadth doctrine. Often, statutory exceptions borrow language from the obscenity standard formulated in Miller. The Miller exceptions clause prevents a statute from criminalizing behavior that has serious religious, political, scientific, educational, journalistic, historical, or artistic value. (6) The Stevens holding significantly undermines the usefulness of the Miller statutory exceptions in nonobscenity statutes and calls into question the constitutionality of existing statutes using these statutory exceptions.

   Part II of this Note will discuss the use and prevalence of statutory exceptions modeled after the Miller obscenity test. Part III of this Note will review the role of the overbreadth doctrine in First Amendment jurisprudence. Part IV of this Note will examine the reasoning and implications of the Supreme Court's ruling in Stevens. Finally, Part V of the Note will explore the possibility that, in light of recent Supreme Court action, statutes that borrow from the exceptions clause in the Miller standard may be at risk of invalidation. Therefore, legislatures should consider modifying some existing statutes and not using the Miller exceptions clause in new legislation.

2. THE MILLER OBSCENITY STANDARD AND STATUTORY EXCEPTIONS

   1. Overview

      The Supreme Court has a storied history of struggling to formulate a proper definition of obscenity. (7) Most notoriously, Justice Stewart, in a concurrence, had the following comments on this process: "perhaps I could never succeed in intelligibly [defining obscenity].... But I know it when I see it...." (8) Eventually, the Court formulated the present-day obscenity standard in Miller v. California.

      In Miller, California convicted the defendant of obscenity for mailing unsolicited brochures that contained descriptive printed material and

      pictures of men and women engaged in a variety of sexual activities. (9) In a previous decision, the Court recognized that obscene materials are not protected by the First Amendment, (10) but the Court struggled to formulate a proper definition for obscenity. By declaring obscenity a special category of speech outside of First Amendment protection, the Court allows obscenity statutes to be scrutinized with a rational basis standard of review. (11) In contrast, protected categories of speech are reviewed with a strict scrutiny standard. (12) Under the rational basis standard, the regulatory scheme must be reasonably related to a legitimate state interest to enhance the general welfare of its population. (13) In Miller, the Court finally developed an obscenity standard immune from First Amendment invalidation.

      The Court in Miller held that the following elements must be satisfied for a statute to constitutionally regulate obscenity:

      (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. (14)

      This Note primarily focuses on the last element of the Miller standard, which will be referred to as the exceptions clause. As discussed in the next section of this Note, legislatures occasionally borrow the language from this exceptions clause and adapt it to statutes regulating other categories of speech besides obscenity, especially in circumstances where the category of speech has not been judicially declared to be outside of First Amendment protection. By borrowing from the Supreme Court-endorsed standard for obscenity, legislatures attempt to both increase legitimacy and protect their regulation of speech.

   2. Nonobscenity Contexts

      Understandably, the Miller standard's exceptions clause is adopted most frequently by legislatures regulating obscenity. However, in limited situations, legislatures have also adopted the clause in nonobscenity contexts. As Stevens demonstrates, Congress adopted the exceptions clause for a statute that criminalizes depictions of animal cruelty. (15)

      Another context in which legislatures have adopted the obscenity standard's exceptions clause is in statutes regulating the depictions of violence in video games and movies. (16) In fact, the Supreme Court recently invalidated a California statute regulating the depictions of violence in Brown v. Entertainment Merchants Association. (17) Similar to the statute in Stevens, the California legislature included an exceptions clause (18) modeled after the obscenity standard. (19) Other than depictions of violence, there are statutes and municipal ordinances that target behavior more comparable to obscenity by regulating prurient interests. (20) But, arguably, these statutes and ordinances may not target behavior that rises to the level of obscenity, especially since they do not adopt the entire obscenity standard, even though they model the Miller obscenity standard and contain an exceptions element. (21)

      Although these statutes and ordinances apply to three general areas of regulation outside of obscenity--depictions of animal cruelty, depictions of violence, and adult entertainment--it is likely that future legislative bodies will find new targets of speech for regulation that they believe is of low value and undeserving of First Amendment protection. In Stevens, Justice Roberts even noted, "[w]e need not foreclose the future recognition of such additional categories [of unprotected speech]." (22) Thus, the majority in Stevens left open the possibility for the creation of new categories of unprotected speech. Admittedly, this possibility is more difficult based on the majority's stipulation that any future categories be "historically unprotected, but have not yet been specifically identified or discussed as such in our case law." (23) Still, legislative bodies will most likely attempt to increase the number of unprotected categories of speech with the rise of new legislative agendas, and may even use an exceptions clause to narrow the scope of the statute.

3. THE OVERBREADTH DOCTRINE IN FIRST AMENDMENT JURISPRUDENCE

   If a law is overinclusively drafted, a party whose conduct is within the statute's intended proscription still benefits with an overbreadth challenge by effectively asserting the rights of other hypothetical persons whose protected activity falls within the sweep of the statute. (24) Normally, a party seeking to challenge a statute's constitutionality must demonstrate that his or her personal rights were violated in order to have standing. However, the overbreadth doctrine is a "narrow exception to [the] general [standing] rule" because "an overly broad law may deter constitutionally protected speech...." (25) In more colorful language, the overbreadth doctrine has been described as "strong medicine ... a potion that generally should be administered only as a last resort." (26)

   Two purposes have been suggested for the overbreadth doctrine. First, overbroad laws can chill constitutionally protected speech. The overbreadth doctrine prevents the chilling of constitutionally protected speech by creating a distinct exception to the standing requirement, which, in effect, allows any litigant willing to challenge an allegedly overbroad statute to bring suit. (27) Second, the overbreadth doctrine encourages legislatures to be aware of free speech issues when drafting legislation because the statute will be especially vulnerable to constitutional challenges. (28) The threat of a court invalidating a statute as overbroad incentivizes the legislatures to narrowly tailor their statutes.

   According to the Supreme Court, the overbreadth doctrine was first recognized in the 1940 case of Thornhill v. Alabama. (29) Thus, the doctrine is relatively new to American jurisprudence. Interestingly, the overbreadth doctrine can be applied to both statutes that regulate categories of speech receiving First Amendment protection (30) and categories of speech outside First Amendment protection. (31) Many scholars embrace the overbreadth doctrine and advocate using the doctrine beyond the First Amendment context. (32)

   By applying the overbreadth doctrine, a court considers the constitutionality of a...