In American jurisprudence, the overbreadth doctrine is primarily concerned with facial challenges to laws under the First Amendment.
When federal or state laws are challenged in the United Stated court system for their constitutionality, they may be either be challenged based on a facial challenged, challenging the whole of the law or provision and all applications of it, or may be through an as-applied challenge for a specific case or set of circumstances. Outside of First Amendment cases, most constitutional challenges are based on as-applied challenges, the facial challenge being "the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid", as stated in United States v. Salerno.[1]
However, for laws involving the First Amendment, the Courts will consider a law invalidated as though through a facial challenge "if a substantial number of its applications are unconstitutional" as stated in United States v. Stevens.[1] American courts have recognized several exceptions to the speech protected by the First Amendment (for example, obscenity, fighting words, and libel or defamation), and states therefore have some latitude to regulate unprotected speech. A statute doing so is overly broad (hence, overbreadth) if, in proscribing unprotected speech, it also proscribes protected speech. Because an overly broad law may deter constitutionally protected speech, the overbreadth doctrine allows a party to whom the law may constitutionally be applied to challenge the statute on the ground that it violates the First Amendment rights of others. See, e.g., Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 483 (1989), and R. A. V. v. City of St. Paul, 505 U.S. 377 (1992). Overbreadth is closely related to vagueness; if a prohibition is expressed in a way that is too unclear for a person to reasonably know whether or not their conduct falls within the law, then to avoid the risk of legal consequences they often stay far away from anything that could possibly fit the uncertain wording of the law. The law's effects are thereby far broader than intended or than the U.S. Constitution permits, and hence the law is overbroad.
The "strong medicine" of overbreadth invalidation need not and generally should not be administered when the statute under attack is unconstitutional as applied to the challenger before the court. See U.S. v. Stevens, 130 S.Ct. 1577, 1592 (Alito, J., dissenting). The overbreadth doctrine is to "strike a balance between competing social costs". U.S. v. Williams, 553 U.S. 285, 292. Specifically, the doctrine seeks to balance the "harmful effects" of "invalidating a law that in some of its applications is perfectly constitutional" as a possibility that "the threat of enforcement of an overbroad law deters people from engaging in constitutionally protected speech".
In determining whether a statute's overbreadth is substantial, the courts consider a statute's application to real-world conduct, not fanciful hypotheticals. See, for example, id., at 301–302. Accordingly, the courts have repeatedly emphasized that an overbreadth claimant bears the burden of demonstrating, "from the text of [the law] and from actual fact" that substantial overbreadth exists. Virginia v. Hicks, 539 U.S. 113 (2003). Similarly, "there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds". Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984). In Hoffman Estates v. The Flipside, Hoffman Estates, Inc., the Court held that the doctrine does not apply to commercial speech.[2]
Lewis Sargentich first analyzed and named the doctrine in 1970, in a famous note published in the Harvard Law Review, The First Amendment Overbreadth Doctrine (83 Harv. L. Rev. 844). Citing Sargentich's note, the U.S. Supreme Court explicitly recognized the doctrine in 1973 in Broadrick v. Oklahoma, where the Court stated "the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes".[1]
In U.S. constitutional law, a facial challenge is a challenge to a statute in which the plaintiff alleges that the legislation is always unconstitutional, and therefore void. It is contrasted with an as-applied challenge, which alleges that a particular application of a statute is unconstitutional.
If a facial challenge is successful, a court will declare the statute in question facially invalid, which has the effect of striking it down entirely. This contrasts with a successful as-applied challenge, which will result in a court narrowing the circumstances in which the statute may constitutionally be applied without striking it down. In some cases—e.g., Gonzales v. Carhart or Crawford v. Marion County Election Board, a facial challenge has been rejected with either the court or concurring Justices intimating that the upheld statute might be vulnerable to an as-applied challenge.
In First Amendment cases, another type of facial challenge is enunciated in the overbreadth doctrine. If a statute reaches to include substantially protected conduct and speech in relation to the legitimate reach of the statute, then it is overbroad and thus void on its face.
Facial versus as-applied challenges
As discussed above, one primary distinction between the two methods of challenging legislation in court is that a facial challenge to a statute seeks to invalidate it in its entirety because every application is unconstitutional, whereas an as-applied challenge seeks to invalidate a particular application of a statute. A second distinction between the two is that a facial challenge may be brought soon after a statute's passage in a legislature; however, an as-applied challenge, as the name suggests, can only be brought once it has been enforced. In this sense, a facial challenge is prospective, or forward looking, because it seeks to prevent a law from being enforced and thus violating someone's constitutional rights, and an as-applied challenge is retrospective, or backward looking, because it seeks to redress a constitutional violation that has already occurred. Since facial challenges have the potential to invalidate a statute in its entirety, they are said to be disfavored.[1] Professor Richard Fallon of Harvard Law School has argued that both terms are ambiguous and not as easily distinguishable from one another.[2] Indeed, the U.S. Supreme Court has acknowledged this fact. In Citizens United v. Federal Election Commission, it stated, "the distinction between facial and as-applied challenges is not so well defined that it has some automatic effect or that it must always control the pleadings and disposition in every case involving a constitutional challenge".[3]
Because a successful facial challenge carries with it greater consequences than an as-applied challenge, i.e., the entire legislation is invalidated, the U.S. Supreme Court has declared facial challenges disfavored, which should, therefore, be used rarely. In Washington State Grange v. Washington State Republican Party,[4] the U.S. Supreme Court stated several reasons for disfavoring facial challenges.
Due to the speculative, possibly premature, and anti-democratic nature of judicial review of a facial challenge, the Supreme Court has placed a higher burden on those wishing to establish a facial challenge. In U.S. v. Stevens, it stated, "To succeed in a typical facial attack, [the respondent] would have to establish “that no set of circumstances exists under which [the statute] would be valid”, United States v. Salerno, 481 U.S. 739, 745 (1987), or that the statute lacks any “plainly legitimate sweep", Washington v. Glucksberg, 521 U.S. 702, 740, n. 7 (1997) (Stevens, J., concurring in judgments) (internal quotation marks omitted).[6]
Contrary position
Despite the claims of Supreme Court Justices that facial challenges should be rare, empirical studies have been carried out that seem to prove otherwise.[7] In 2011, Richard Fallon wrote an article claiming that the Supreme Court does not resort to facial challenges to decide upon the validity of statutes more regularly than it claims. For instance, the court applied facial challenges to invalidate challenged statutes in Brown v. Board of Education under the Equal Protection Clause, Brandenburg v. Ohio under the First Amendment, and United States v. Lopez under the Commerce Clause. Also, the article asserts that contrary to popular belief, facial challenges are not framed by only a few aberrant constitutional tests. As claimed by the article, facial challenges are constituted by important constitutional tests such as the "rational basis test", which may sometimes indicate that a statute is invalid on its face because it does not posit any rational relation to a legitimate state interest.[2]
In 2011 there was a facial challenge to the insurance mandate portion of the Patient Protection and Affordable Care Act.[8]
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