Overbreadth and Overly Broad Laws

Cite this article as: Jason Mance Gordon, "Overbreadth and Overly Broad Laws," in The Business Professor, updated January 2, 2015, last accessed April 9, 2020, https://thebusinessprofessor.com/knowledge-base/overbreadth-and-overly-broad-laws/.
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Overbreadth and Overbroad Laws
What is overbreadth? The 1st Amendment protects freedom of speech affected by broad laws.

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Back to: CONSTITUTIONAL LAW

What is “overbreadth” or an “overbroad” law affecting freedom of speech?

To pass constitutional muster, the government must have a compelling interest in passing a law regulating free speech. The law is deemed overly broad if, in the process of regulating unprotected speech, it negatively impacts protected speech that was not intended. In this way, it affects more speech than is necessary to achieve the government’s compelling interest. While the law may be constitutional in some applications, the possibility that it could negatively affect the protected free speech means that it is unconstitutional.

  • Example: A state passes a law that restricts individuals from urging support for a political candidate at a polling location. The purpose of the statute is to prevent undue pressure of individuals in exercising their right to vote. The statute, however, is likely too broad in that it could prohibit individuals from having casual conversations about their voting activity. As such, the law would have to be more “narrowly tailored” for it not to violate 1st Amendment protections.

Discussion: Do you believe that overly broad statutes could have the effect of causing individuals refrain from speech or expression that would otherwise be constitutionally protected?

Discussion Input

  • A law is deemed overly broad if, in the process of regulating unprotected speech, it negatively impacts protected speech that was not intended. In this was, it affects more speech than is necessary to achieve the government’s compelling interest. While the law may be constitutional in some applications, the possibility that it could negatively affect the protected free speech means that it is unconstitutional. An example would be, when a state passes a law that restricts individuals from urging support for a political candidate at a polling location. The purpose of the statute is to prevent undue pressure on individuals in exercising their right to vote. The statute, however, is likely too broad in that it could prohibit individuals from having casual conversations about their voting activity. As such, the Law would have to be more narrowly tailored for it not to violate 1st Amendment protections.

Practice Question: ABC Town passes an ordinance that prohibits any form of nudity in public. The local theater wants to put on a production of a famous ballet that requires the lead ballerina to temporarily expose her breasts during the performance. If the theater brings a court action challenging the ordinance, what will the court consider in determining whether the ordinance is constitutional?

Proposed Answer

  • First, all statutes and ordinances are given a strong presumption of constitutionality. Courts have a duty to construe a statute as constitutional unless unconstitutionality is clearly apparent. The court can only determine the validity of an act based on the facts before it. Second, the court should examine the entire text of the statute and give words of the statute their ordinary meaning. It is the burden of the party challenging the validity of the ordinance to establish that the ordinance is clearly unconstitutional. A statute may qualify as void for vagueness if: It is overbroad and impinges on First Amendment freedoms;   It does not provide fair notice of the conduct it regulates;  It gives the trier of fact unstructured and unlimited discretion in determining whether the statute has been violated. Here, the statute potentially prohibits a broad array of conduct. Some of that conduct may be protected speech (in this case, speech that was not meant to be regulated by the statute). It is likely that a court would find this sort of statute overbroad based upon the wide array of protected speech potentially affected.

Academic Research

Mulroy, Steven J., Sunlight’s Glare: How Overbroad Open Government Laws Chill Free Speech and Hamper Effective Democracy (August 24, 2010). Tennessee Law Review, Vol. 78, p. 309, 2011; University of Memphis Legal Studies Research Paper No. 59. Available at SSRN: https://ssrn.com/abstract=1664646 or http://dx.doi.org/10.2139/ssrn.1664646

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