OVERBREADTH

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 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

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 improper inhibiting effect of the broad or vague law.

As with vagueness, the federal courts approach over-breadth challenges to state and federal laws differently. A federal court must interpret a federal law before judging its constitutionality. In doing so, the court may reduce the law's scope, if it can do so consistently with Congress's intent, a course that may minimize constitutional problems of overbreadth. Only state courts may authoritatively determine the reach of state laws, however. Consequently, when the Supreme Court reviews an overbreadth challenge to a state law on appeal from a state court—which review usually occurs because the challenger raised the claim in defense of state court proceedings against him—the Court must accept the state court's determination of the law's scope and apply its own constitutional judgment to the law as so construed. By contrast, if parties threatened with enforcement of a state statute sue in federal court to have the law declared unconstitutionally over-broad before they are prosecuted or sued in state court, the federal court faces the additional complication of determining the overbreadth question without the guidance of any state court interpretation of the law in this case. If past interpretations of the law's terms make its breadth clear, there is no more difficulty than in Supreme Court review of a state court case. But if there is some question whether a state court might have narrowed the state law, especially in light of constitutional doubts about it, the federal court faces the possibility of making its own incorrect interpretation and basing an overbreadth judgment on that unstable premise.

With other constitutional claims involving uncertain state laws, a federal court normally will abstain from deciding the constitutional question until clarification is sought in state court. However, because the prolongation of chilling effects on constitutionally protected conduct is the basis of the vagueness of overbreadth doctrines, the Supreme Court indicated in dombrowski v. pfister (1965) and Baggett v. Bullitt (1964) that abstention is generally inappropriate if the problem would take multiple instances of adjudication to cure. Babbitt v. United Farm Workers (1979) followed the implicit corollary, requiring abstention where a single state proceeding might have obviated the need to reach difficult constitutional issues. But brockett v. spokane arcades, inc. (1985) shunned abstention in a case where state court clarification was feasible in an expeditious single proceeding, but where the litigants objecting to overbreadth were not people to whom the law could be validly applied but people who desired to engage in constitutionally protected speech. In that circumstance, at least where the unconstitutional portion of the statute was readily identifiable and severable from the remainder, the Court chose to strike that portion rather than abstain to see if the state court would remove it by interpretation.

Brockett also expressed a preference for partial over facial invalidation whenever challengers assert that application of a statute to them would be unconstitutional. The Court's ultimate objective is to invalidate only a statute's overbroad features, not the parts that legitimately penalize undesirable behavior. It permits those who are properly subject to regulation to mount facial overbreadth attacks only to provide an opportunity for courts to eliminate the illegitimate deterrent impact on others. Partial invalidation would do such people no good, and those who are illegitimately deterred from speaking may never sue. In order to throw out the tainted bathwater, the baby temporarily must go too, until the statute is reenacted or reinterpreted with its flaws omitted. Where, as in Brockett, one asserts his own right to pursue protected activity, however, no special incentive to litigate is needed. The Court can limit a statute's improper reach through partial invalidation and still benefit the challenger. Brockett 's assumption that the tainted part of the statute does not spoil the whole also undercuts Henry Monaghan's important argument that allowing the unprotected to argue overbreadth does not depart from normal standing rules because they always assert their own right not to be judged under an invalid statute. The part applied to them is valid, and they are granted standing to attack the whole only to protect others from the invalid part. Finally, the claim that a law is invalid in all applications because based on an illegitimate premise has elements of both partial and facial invalidation. As the invalid premise affects the challenger as well as everyone else, there is no need to provide a special incentive to litigate, but because the whole law is defective, total invalidation is appropriate.

The seriousness of striking the whole of a partially invalid law at the urging of one to whom it validly applies, together with doubts about standing and the reliability of constitutional adjudication in the context of imagined applications, renders overbreadth an exceptional and controversial doctrine. The determination of what circumstances are sufficiently compelling to warrant the doctrine's use has varied from time to time and among judges. The warren court focused mainly on the scope of the laws' coverage, the chilling effect on protected expression, and the ability of the legislature to draw legitimate regulatory boundaries more narrowly. The Court seemed convinced that overbroad laws inhibited freedom substantially, and thus made that inhibition the basis of invalidation, especially when the laws were aimed at dissidents and the risk of deliberate deterrence was high, as in aptheker v. secretary of state (1964), United States v. Robel (1967), and Dombrowski v. Pfister (1965). The burger court has continued to employ the overbreadth doctrine when deterrence of valued expression seems likely, as in Lewis v. New Orleans (1974), which struck down a law penalizing abusive language directed at police, and in schad v. mt. ephraim (1981), which struck down an extremely broad law banning live entertainment.

justice byron r. white has led that Court, however, in curtailing overbreadth adjudication. As all laws occasionally may be applied unconstitutionally, there is always a quantitative dimension of overbreadth. White's majority opinion in broadrick v. oklahoma (1973) held that the overbroad portion of a law must be "real and substantial" before it will be invalidated. That standard highlights the magnitude of deterrent impact, which depends as much on the motivations of those regulated as on the reach of the law. Broadrick also emphasized the need to compare and offset the ranges of a statute's valid and invalid applications, rather than simply assess the dimensions of the invalid range. This substituted a judgment balancing a statute's legitimate regulation against its illegitimate deterrence of protected conduct for a judgment focused predominantly on the improper inhibition.

Broadrick initially limited the "substantial over-breadth" approach to laws seemingly addressed to conduct, leaving laws explicitly regulating expression, especially those directed at particular viewpoints, to the more generous approach. In Ferber v. New York (1982) and Brockett, however, substantial overbreadth was extended to pure speech cases as well. That these cases involved laws regulating obscenity might suggest that some Justices find the overbreadth doctrine an improper means to counter deterrence of marginally valued expression. More likely, however, the Court generally is abandoning its focus on the subject of a law's facial coverage in favor of a comparative judgment of the qualitative and quantitative dimensions of a law's legitimate and illegitimate scope, whatever speech or conduct be regulated.

Still, the reality of deterrence and the value of the liberty deterred probably remain major factors in over-breadth judgments, even if more must be considered. For example, the Court's pronouncement in Bates v. State Bar of Arizona (1977) that overbreadth analysis generally is inappropriate for profit-motivated advertising rested explicitly on a judgment that advertising is not easily inhibited and implicitly on the historic perception of commercial speech as less worthy of protection.

Overbreadth controversies nearly always reflect different sensitivities to the worth of lost expression and of lost regulation of unprotected behavior, or different perceptions of the legitimacy and reliability of judicial nullification of laws that are only partially unconstitutional, or different assessments of how much inhibition is really likely, how easy it would be to redraft a law to avoid overbreadth, and how important broad regulation is to the effective control of harmful behavior. Despite controversy and variations in zeal for application of the overbreadth doctrine, however, its utility in checking repression that too sweepingly inhibits guaranteed liberty should assure its preservation in some form.

Johnathan D. Varat
(1986)