A Broad Attack on Overbreadth

56 Pages Posted: 9 Jan 2011

See all articles by Luke Meier

Luke Meier

Baylor University - Law School

Date Written: 2005

Abstract

Under the free speech overbreadth doctrine, a litigant is allowed to bring a facial challenge to a statute despite the fact that the application of the statute to the litigant under the facts of the case does not violate the Constitution. The litigant argues that the entire statute should be struck down because the statute could be applied unconstitutionally in certain hypothetical fact patterns.

The overbreadth doctrine is a dramatic departure from “the traditional rules governing constitutional adjudication.” The Supreme Court has repeatedly held that “constitutional rights are personal and may not be asserted vicariously.” However, under the overbreadth doctrine a litigant is allowed to challenge the constitutionality of a statute even if the application of the statute to the litigant does not violate the litigant's personal constitutional rights. Furthermore, courts typically avoid, if possible, considering the constitutionality of a statute on its face. Yet, under the overbreadth doctrine courts aggressively pursue the opportunity to consider whether the statute in question should be struck down in its entirety, even though the case could theoretically be decided by ruling that the litigant's constitutional right to freedom of speech was not violated. Finally, although there is presently much discussion over the proper standard for a court to apply when it considers a facial attack on a statute, it is clear that the standard used by the courts in considering a facial attack under the overbreadth doctrine is substantially different than the normal standard for facial challenges.

Since the relatively recent adoption of the free speech overbreadth doctrine, the Supreme Court has struggled to apply the doctrine, often attempting to limit the doctrine by enacting various limitations on when it should be applied. Meanwhile, academic commentators have generally applauded the doctrine; some have even proposed that the doctrine be extended to cases involving other constitutional rights beyond freedom of speech. There is extensive debate, both in the courts and by commentators, over whether the Supreme Court has already extended the overbreadth doctrine to abortion cases. Recently, the Court seemed to concede that it has applied an overbreadth analysis in contexts outside the Free Speech Clause. There has been no academic discussion calling for the Supreme Court to abandon the overbreadth doctrine. That is the purpose of this Article.

Keywords: overbreadth doctrine, facial challenges, as-applied challenges, free speech, Article III, Meier

Suggested Citation

Meier, Luke, A Broad Attack on Overbreadth (2005). Valparaiso University Law Review, Vol. 40, p. 113, 2005, Available at SSRN: https://ssrn.com/abstract=1735393

Luke Meier (Contact Author)

Baylor University - Law School ( email )

Sheila & Walter Umphrey Law Center
1114 South University Parks Drive
Waco, TX 76706
United States

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