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.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
References in periodicals archive ?
Kaardal told Minnesota Lawyer he hopes the justices will rule that the First Amendment overbreadth doctrine applies to Minnesota's polling-place apparel ban because it squelches free speech and forces election judges to become First Amendment arbiters.
(23) The Court refused to apply the overbreadth doctrine, which invalidates laws that may seek to cover conduct, but encompass, and thereby chill, a significant measure of protected speech.
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.
"So for these two reasons, the void for vagueness doctrine and overbreadth doctrine, I humbly submit that the Supreme Court ruling, on this particular provision, is erroneous and I call on all netizens to magnify all our efforts and to speed it up as soon as possible so that we can either file a motion for reconsideration with respect to this particular libel provision or we can speed it up here in the Senate on that new law that I have filed from crowdsourcing," Santiago said.
Santiago said the SC decision also violates two widely accepted principles of constitutional law - the "void for vagueness doctrine" and the "overbreadth doctrine."
Even though Vaughn does not clearly resolve all of the inconsistencies in Missouri's application of the overbreadth doctrine, it represents a necessary and important development in the way the doctrine is applied by Missouri courts.
(225) Overbreadth doctrine allows parties to raise facial challenges to speech restrictions that are overbroad in that they reach a substantial amount of protected speech in relation to their legitimate scope, even if the challenging party's speech may in fact be unprotected.
In 1940, the Court created First Amendment overbreadth doctrine in Thornhill v.
Overbreadth doctrine is notoriously puzzling, and I cannot list
Second, I use the word "overbroad" here to mean something similar to "overinclusive." (110) Thus, as I use the term, it is not limited to those situations where a litigant tries to assert the claims of a third party, which is a common description of the overbreadth doctrine in the First Amendment area.
Why go right for the "strong medicine" of the overbreadth doctrine? Besides, Alito went on, a proper application of the over breadth doctrine requires "that substantial overbreadth exist," not just a richly imagined tableau of possible problems.