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Overbreadth and Overly Broad Laws

15. 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?

•    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?

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