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 ?
stating that the doctrines of vagueness and overbreadth derive from
30) Some courts have, however, held the warrant language to the higher "scrupulous exactitude" standard of particularity due to First Amendment and overbreadth concerns.
Such overbreadth ignores the better and simpler evidence against the hijackers: Regardless of arrest records or flying schools, they were carrying four-inch knives and no one caught it.
The overbreadth of the child pornography law is found in the law's definition of child pornography.
fear-of-litigation standard and permissible overbreadth combine to give
Constitution; vagueness and overbreadth violation of those amendments; violation of the Commerce Clause; federal preemption; deprivation of constitutional rights; and injunctive relief.
The Court did not weigh the three recognized governmental interests against the resulting burden on political speech, but instead cited vagueness and overbreadth problems with the FECA provision requiring "[e]very person (other than a political committee or candidate) who makes contributions or expenditures" (197) "for the purpose of .
The Supreme Court, however, has tolerated some overbreadth in the past in the name of necessary regulation.
The court held that seizure of letters from his jail cell and mail was valid despite the overbreadth of warrants that authorized seizure.
Examples include the Overbreadth Doctrine, which forbids regulation of speech that is broader than necessary to accomplish its goal (e.
The paparazzi bills, if passed, might be invalidated by a court on any one of the following constitutional grounds: vagueness, overbreadth, differential treatment of the press, and unconstitutional regulation of speech.
In response to concerns expressed by online service providers and telephone companies about the potential overbreadth of this right, the conference approved a statement that interprets the treaty as rejecting the idea that merely providing facilities for transmission of digital works should be the basis for liability.