BROCKETT v. SPOKANE ARCADES, INC. 472 U.S. 491 (1985)

The Brockett opinion refined the doctrine of over-breadth in first amendment cases. A Washington statute provided both civil and criminal sanctions against "moral nuisances"—businesses purveying "lewd" matter. Various purveyors of sexually oriented books and films sued in federal district court for a declaratory judgment that the law was unconstitutional and an injunction against its enforcement. That court denied relief, but the court of appeals held the law invalid on its face. The defect, the court said, was the law's definition of "lewd" matter, which followed the Supreme Court's formula defining obscenity, but defined the term "prurient" to include material that "incites lasciviousness or lust." That definition was substantially overbroad, the court said, because it included material that aroused only a normal, healthy interest in sex.

A 6–2 Supreme Court reversed, in an opinion by Justice byron r. white. The Court agreed that, under miller v. california (1973), a work could not be held obscene if its only appeal were to "normal sexual reactions" and accepted the lower court's interpretation that "lust" would embrace such a work. However, Justice White said, these plaintiffs were not entitled to a facial invalidation of the law. They had alleged that their own films and books were not obscene, but were constitutionally protected. In such a case, there is "no want of a proper party to challenge the statute, no concern that an attack on the statute will be unduly delayed or protected speech discouraged." The proper course would be to declare the statute's partial invalidity—here, to declare that the law would be invalid in application to material appealing to "normal … sexual appetites." In contrast, when the state seeks to enforce such a partially invalid statute against a person whose own speech or conduct is constitutionally unprotected, the proper course, assuming the law's substantial overbreadth, is to invalidate the law entirely. The result is ironic, but explainable. In the latter case, if the court did not hold the law invalid on its face, there would be a serious risk of a chilling effect on the potential protected speech of others who were not in court.

The propriety of partial invalidation depended on the severability of the Washington statute, but that issue was easily resolved: the law contained a severability clause, and surely the legislature would not have abandoned the statute just because it could not be applied to material appealing to normal sexual interests.

Justice sandra day o'connor joined the opinion of the court but argued separately, joined by Chief Justice warren e. burger and Justice william h. rehnquist, that the case was appropriate for federal court abstention, awaiting guidance from the state courts on the statutory meaning of "lust." Justice william j. brennan, joined by Justice thurgood marshall, dissented, agreeing with the court of appeals.

Kenneth L. Karst
(1986)