Substantial Overbreadth

I. Short Summary

The amount of overbreadth must be real and substantial, when judged in relation to the statute’s legitimate scope.

For a statute to be substantially overbroad, a substantial number of the applications of the statute must be impermissible under the First Amendment both in terms of absolute numbers and in relation to law’s legitimate applications (the ratio of permissible to impermissible applications).

The existence of some impermissible applications of the statute isn’t enough.
The existence of some impermissible applications that amount to a tiny fraction of the statute’s reach isn’t enough.
The legitimate applications can’t dwarf the impermissible applications.

Must:
(1) identify the categories of First Amendment activities that are prohibited by the statute;
(2) Divide those categories into regulations of speech that are permissible under the First Amendment and those that are impermissible under the First Amendment; and   
(3) To identify whether there is substantial overbreadth, evaluate the frequency of impermissible applications as well as evaluate the proportion of applications that are impermissible as compared to those that are permissible (ratio of bad to good applications).

II. Long Description

An overbreadth challenge is one form of facial attack on a statute, although not the only form of facial challenge. An overbreadth challenge allows the challenger (even though the challenger's own speech could be regulated by a narrower statute without violating the First Amendment) to raise the First Amendment rights of hypothetical third parties not currently before the court (persons whose speech the statute would also apply to and whose speech could not be regulated by a narrower statute without violating the First Amendment). If successful, an overbreadth argument results in the statute being struck down in its entirety, and for this reason the Supreme Court describes striking down a statute on overbreadth grounds as "strong medicine." This kind of facial attack is allowed because an overbroad statute has a substantial chilling effect on protected expression and it is desirable for the statute to be challenged as quickly as possible.

A significant limitation on the overbreadth doctrine is the ability of state courts to narrowly construe state statutes to avoid their being struck down on overbreadth grounds. Federal courts have a similar ability to narrowly construe federal statutes to avoid invalidation on overbreadth grounds. Therefore, courts faced with an overbreadth challenge to a law they have the authority to interpret must first interpret the statute being challenged to see if it is susceptible to a narrowing construction that will cure the overbreadth. One example of this is found in United States v. Stevens where a federal statute was challenged as overbroad. In that case, Chief Justice Roberts first construed the federal statute, but could not rid the statute of its overbreadth by a narrowing construction because “[t]o read § 48 as the Government desires requires
rewriting, not just reinterpretation.”   

A challenger will raise an overbreadth argument if a statute has both legitimate and illegitimate applications. The challenger will attempt to convince the court that a significant number of possible applications of the statute are impermissible under the First Amendment and that the statute should therefore be invalidated in its entirety, and the government will attempt to convince the court that a very small number of possible applications are impermissible under the First Amendment and that those applications can be dealt with one at a time in as-applied challenges. Identifying a potential application as impermissible or permissible requires an analysis of whether the law being challenged can be applied to that situation consistent with the First Amendment. This means using all of the available techniques for First Amendment analysis (whether the speech at issue falls within an unprotected category, whether, if protected, the law regulates the speech in a content-neutral way justifying the application of intermediate scrutiny review, whether, applying the appropriate standard of review, the government can meet its burden to justify the regulation based on an assessment of the objectives of the law and the degree of fit between means and ends, etc.).

To show that a statute is unconstitutionally overbroad, a challenger must show that the law is substantially overbroad and not merely slightly overbroad. That showing requires an identification of the total reach of the law (all of the situations to which the statute applies) and a comparison of the legitimate reach of the statute (the permissible or legitimate applications of the statute) with the unconstitutional reach of the statute (the impermissible or illegitimate applications of the statute). In that comparison, the impermissible applications must be substantial in order for the statute to be struck down on the ground of overbreadth. In assessing the degree of overbreadth, courts do not simply identify all of the situations in which the statute applies, classify each one as legitimate or illegitimate and decide whether the number of illegitimate applications is substantial. Instead, courts factor in the frequency of each situation. If a statute outlawing child pornography, as in New York v. Ferber, is likely to be applied 94 % of the time to hard core child pornography because of the prevalence of that material, and only 2 % of the time to pictorials in serious magazines such as the National Geographic, 2 % of the time to pictures in medical textbooks, and 2 % of the time to classic family photographs like bathing a baby, that statute is not substantially overbroad based on the fact that as many as 3 of the 4 situations in which the statute applies may be impermissible applications. Instead, it is the fact that 93 % of the likely applications are permissible and at most 6 % are impermissible that is controlling. As the Court stated in Ferber, “we seriously doubt [that] these arguably impermissible applications of the statute amount to more than a tiny fraction of the materials within the statutes reach.” If the statute has only a small percentage of illegitimate applications, they can each be challenged in as-applied challenges.

While I have attached percentages to each category of possible applications of the statute, no such numbers are likely to exist in actual litigation. Instead, courts base their analysis on assumptions about the frequency of the various forms of expression that the statute regulates and the percentage of the time the statute will be used to regulate the various categories of behavior within the reach of the statute.

A second unrealistic assumption is also contained in the child pornography example. It assumes that there is always a clear answer to the question of whether the application of the law to a particular situation is a permissible or impermissible application. In fact, that is not always the case. There are many situations in which the issue of whether the government is allowed to regulate speech is far from clear. Therefore, in many overbreadth situations there are really three types of applications of the law: situations where it is clear that its application is legitimate because it does not violate the First Amendment, situations where it is clear that its application is illegitimate because it does violate the First Amendment, and gray area situations where it is uncertain whether the law can be applied without violating the First Amendment. In many cases, courts can decide whether a law is or isn’t substantially overbroad without resolving those gray area situations. This is because one of two things is true. One possibility is that there are a sufficient number of situations where it is clear that the application of the law is legitimate and those situations represent a sufficient percentage of the total reach of the law so that a court can conclude that the law is not substantially overbroad without resolving the gray area situations. The other possibility is that there are a sufficient number of situations where it is clear that the application of the law is illegitimate and those situations represent a sufficient percentage of the total reach of the law so that a court can conclude that the law is substantially overbroad without resolving the gray area situations. In the course of deciding whether a law is substantially overbroad, courts often avoid deciding gray area applications of the law being challenged.   

Overbreadth challenges, as a form of facial challenge, are contrasted with narrower as-applied challenges. A challenger who has available an as-applied challenge, because the statute is unconstitutional as applied to the challenger's own conduct, will often not succeed in raising an overbreadth claim because the court will decide the case on narrower as-applied grounds. Nevertheless, challengers in such a situation will argue both that: (1) the law violates the First Amendment because it is overbroad, and (2) the application of the law to the challenger violates the First Amendment. 

Overbreadth analysis rests on the assumption that some of the applications of a law are permissible under the First Amendment and others are impermissible. If all of the applications of a statute are impermissible, overbreadth is not the appropriate argument. In that circumstance, a different form of facial challenge will be used to argue the law is unconstitutional. For example, the challenger may argue that the law is a content-based regulation of speech and the government cannot satisfy the strict scrutiny test because it lacks a compelling governmental interest to justify infringing on free speech rights.