The doctrine of substantial overbreadth: a better prescription for "strong medicine" in Missouri.

• Author: Holland, Keith H.
• Position: Case note

State v. Vaughn, 366 S.W.3d 513 (Mo. 2012) (en banc)

1. INTRODUCTION

   The doctrine of substantial overbreadth allows a person who has engaged in impermissible conduct to argue for the rights of innocent individuals not before the court whose First Amendment free speech rights could be "chilled" by the application of an overbroad statute. If the court indeed finds that the statute is overbroad, and the statute cannot be construed narrowly to avoid possible unconstitutional application, the law will be struck down. As such, the doctrine of substantial overbreadth is commonly referred to as "strong medicine" because it involves striking down a law and allows a guilty party to go free for the benefit of the innocent. (1)

   At first blush, the case of State v. Vaughn (2) appears to be a straightforward application of the doctrine of substantial overbreadth. The case arose out of Mr. Vaughn's repeated attempts to contact his ex-wife by telephone and in person. (3) The statute under which Mr. Vaughn was charged clearly implicated the right to free speech because it prohibited "knowingly mak[ing] repeated unwanted communication to another person." (4) In considering Mr. Vaughn's argument that the statute was substantially overbroad, the court examined two possible limiting constructions in an attempt to narrow the statute and save it from unconstitutionality. Finding that the limiting constructions were insufficient to protect the free speech rights of law-abiding individuals, the court held the law unconstitutional and struck it down.

   Considering prior cases where Missouri courts have applied the doctrine of substantial overbreadth, however, State v. Vaughn may represent a significant step towards a more well-defined and consistent approach to the doctrine. Even though Vaughn does not clearly resolve all of the inconsistencies in Missouri's application of the overbreadth doctrine, it represents a necessary and important development in the way the doctrine is applied by Missouri courts.

2. FACTS AND HOLDING

   In October of 2010, Danny Vaughn (Mr. Vaughn) was charged with one count of burglary (5) and one count of harassment (6) arising out of interactions with his former wife. (7) The prosecution stated that Mr. Vaughn had entered his ex-wife's home while she was away for the purpose of frightening her. (8) Upon discovering Mr. Vaughn in her home, his ex-wife became frightened, ran from the house, and called the police. (9) This occurrence gave rise to the first count against Mr. Vaughn, for burglary, where he was alleged to have entered his ex-wife's home with intent to commit the crime of harassment therein. (10) Furthermore, Mr. Vaughn made repeated unwanted telephone calls to his ex-wife even though she had asked him not to contact her again. (11) This gave rise to the second count against Mr. Vaughn, for harassment. (12)

   Mr. Vaughn filed a motion to dismiss both the burglary and harassment counts with the circuit court. (13) At the hearing, Mr. Vaughn argued that both sections of Missouri's criminal harassment statute under which he was charged violated his First Amendment free speech rights (14) because both sections of the statute were substantially overbroad. (15) He also contended that both sections of the statute were so vague as to violate his right to due process. (16) The circuit court agreed with Mr. Vaughn that both sections of the statute were unconstitutionally overbroad and dismissed both counts against him. (17)

   The State appealed directly to the Supreme Court of Missouri. (18) The State argued that the court should interpret both sections of the criminal harassment statute narrowly to avoid finding them unconstitutionally overbroad. (19) For subdivision (5), which prohibits "repeated, unwanted" communication, (20) the State asked the court to interpret the law to mean that a defendant must "know that the communication is both repeated and unwanted." (21) The State also argued that this subdivision should be interpreted to apply only when the defendant directed the communication to "an individual and particularized person." (22) For subdivision (6), the State argued that the language of the statute should be read to apply only to conduct that is outside the scope of the First Amendment. (23)

   Applying the doctrine of substantial overbreadth, the court held that subdivision (5) of the harassment statute criminalizing "repeated unwanted communication" (24) was substantially overbroad under the First Amendment because its scope proscribed constitutionally protected speech while attempting to criminalize disfavored speech and conduct. (25) The court further held that subdivision (6) of the criminal harassment statute, which provided the predicate felony for Mr. Vaughn's burglary charge, was not substantially overbroad because the language of the statute could be limited to conduct that is wholly outside the First Amendment's protections. (26) Neither section was found to be unconstitutionally vague. (27)

3. LEGAL BACKGROUND

   State v. Vaughn analyzes and reaffirms the boundaries between the right of free speech under the First Amendment, on the one hand, and that which the law can legitimately proscribe. Throughout a long line of cases, the Supreme Court of the United States has been called upon to determine when society's desire to proscribe certain speech or expressive conduct, announced in statutory law, runs afoul of the constitutional guarantee of free speech. Likewise, the Supreme Court of Missouri has often had occasion to rule on whether a Missouri statute is unconstitutionally overbroad due to the potential chilling effect of the statute on First Amendment free speech rights. While the doctrine of substantial overbreadth is a federal constitutional doctrine, overbreadth challenges most often arise when a defendant has been charged with a crime under state law. Because the Supreme Court of Missouri has exclusive jurisdiction over cases challenging the validity of a state statute, (28) overbreadth challenges in the state are heard by that court. Thus, an understanding of the constitutional doctrine as it has been developed over the years is critical to understanding the Supreme Court of Missouri's holding in Vaughn.

   1. Categories of "Disfavored" Speech

      While the First Amendment protects the right of free speech, (29) this right is not absolute. (30) Thus, the Supreme Court has developed certain "well-defined and narrowly limited classes of speech" that the state may proscribe. (31) Put succinctly, the Supreme Court has held that the First Amendment does not protect, and so the state may criminalize, obscenity, (32) defamation, (33) fighting words, (34) true threats, (35) and words advocating imminent lawless action. (36)

      To determine that a certain category of speech deserves less First Amendment protection, or none at all, the Court has typically examined the "historical, political, and philosophical purposes that underlie the First Amendment." (37) Only upon finding that "a particular class of speech does not sufficiently further the underlying purposes of [that] amendment" will the Court proceed to accord such speech less protection. (38) In other words, each category of disfavored speech shares a common attribute: the reasons for protecting such speech under the First Amendment are substantially outweighed by the legitimate reasons society has for limiting it.

      In the seminal case of Chaplinsky v. New Hampshire, (39) for example, the Supreme Court conducted just such a balancing to determine that so-called "fighting words" are not protected by the First Amendment. (40) There, the court stated that words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace ... are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." (41) Therefore, the Court held, fighting words may be prohibited by the state. (42)

   2. The Doctrine of Substantial Overbreadth (43)

      Just because a statute prohibits a category of disfavored speech does not mean that the First Amendment is satisfied. The doctrine of substantial overbreadth requires that a statute prohibiting disfavored speech be overturned if a great deal of innocent, fully protected speech falls within the scope of the statute's prohibition. In other words, "[t]he overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process." (44) "We have provided this expansive remedy," the Court has explained,

      out of concern that the threat of enforcement of an overbroad law may deter or "chill" constitutionally protected speech--especially when the overbroad statute imposes criminal sanctions. Many persons, rather than undertake the considerable burden (and sometimes risk) of vindicating their rights through case-by-case litigation, will choose simply to abstain from protected speech, harming not only themselves but society as a whole, which is deprived of an uninhibited marketplace of ideas. Overbreadth adjudication, by suspending all enforcement of an overinclusive law, reduces these social costs caused by the withholding of protected speech." (45) The purpose of the doctrine of substantial overbreadth is to ensure that the right of free speech is not diluted even when disfavored speech is proscribed.

      At its core, the doctrine of substantial overbreadth is an exception to the general rule that an individual may only challenge a statute because of constitutional harm suffered by that individual. (46) This doctrine thus permits an individual "to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from...