Overbreadth Doctrine

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Overbreadth Doctrine

A principle of Judicial Review that holds that a law is invalid if it punishes constitutionally protected speech or conduct along with speech or conduct that the government may limit to further a compelling government interest.

Legislatures sometimes pass laws that infringe on the First Amendment freedoms of religion, speech, press, and peaceable assembly. When a legislature passes such a law, a person with a sufficient interest affected by the legislation may challenge its constitutionality by bringing suit against the federal, state, or local sovereignty that passed it. One common argument in First Amendment challenges is that the statute is overbroad.

Under the overbreadth doctrine, a statute that affects First Amendment rights is unconstitutional if it prohibits more protected speech or activity than is necessary to achieve a compelling government interest. The excessive intrusion on First Amendment rights, beyond what the government had a compelling interest to restrict, renders the law unconstitutional.

If a statute is overbroad, the court may be able to save the statute by striking only the section that is overbroad. If the court cannot sever the statute and save the constitutional provisions, it may invalidate the entire statute.

The case of Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 105 S. Ct. 2794, 86 L. Ed. 2d 394 (1985), illustrates how the overbreadth doctrine works. At issue in Brockett was an Obscenity statute passed by the state of Washington. The statute declared to be a moral Nuisance any place where lewd films were shown as a regular course of business and any place where lewd publications constituted a principal part of the stock in trade. Lewd matter was defined as being obscene matter, or any matter that appeals to the prurient interest. Under the statute the term prurient was defined as tending to incite lasciviousness or lust.

The Supreme Court in Brockett ruled that the Washington statute was overbroad because it prohibited lust-inciting materials. According to the Court, because lust is a normal sexual appetite, materials that include an appeal to lust enjoy First Amendment protection. Therefore, a statute that prohibits any material arousing lust is constitutionally overbroad.

The remedy in the Brockett case was not complete invalidation of the moral nuisance law. The Court directed that the reference to lust be excised from the statute and stated that the rest of the statute was valid. The statute, though originally overbroad, was still valid because it contained a severability clause and was still effective after its overbroad portion was struck.


Compelling State Interest; Freedom of Speech; Freedom of the Press.

References in periodicals archive ?
To minimize this risk, companies should take a hard look at their fair competition agreements for signs of overbreadth, overreaching or other indicators that the proposed restraints on competition are not reasonably crafted to protect the employer's legitimate business interests.
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constitutional challenges for vagueness or overbreadth.
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Blocker, (48) the court simply referred to the overbreadth doctrine as developed by the United States Supreme Court and, without further ado, concluded that "it is proper" to evaluate challenges under article I, section 27, the same way.
In particular, two deficiencies are present: (1) a lack of mens rea in many "public welfare" criminalized regulations; and (2) the vagueness and overbreadth of many of the statutes on the books.
The claimants argued that the provisions deprived sex workers of their life, liberty and security of the person in a manner that was not in accordance with the principles of fundamental justice that prohibit overbreadth, arbitrariness and gross disproportionality.
This Article offers a novel explanation of the root cause of this overbreadth.
Finally, the definition of sexual assault will include a broader definition of sexual conduct and sexual acts, thus potentially enabling more prosecutions in cases that do not involve sexual intercourse (and potentially making it a target for constitutional overbreadth challenges).
Those minimum standards include the concepts of arbitrariness, overbreadth and gross disproportionality.