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By David L. Hudson, Jr., Associate Professor of Law at Belmont University

Overbreadth is a supremely important concept in First Amendment law and a key tool for constitutional litigators. A law is too broad—or overbroad—when it not only covers speech that ought to be proscribed but also penalizes speech that should be safeguarded.   

For example, let’s say that a public school dress code policy prohibits any student clothing that is “inappropriate or offensive.” This broad provision could chill students from wearing any t-shirts with political messages for fear that those messages might offend another student or be considered inappropriate by an overzealous school official. Such a provision would be considered overbroad. The provision also is too vague, because the terms “inappropriate” and “offensive” are not defined and do not provide fair notice to students.   

Overbroad laws cause concern for free speech advocates because such laws create a chilling effect. Individuals are chilled from engaging in expression that might be deemed unlawful.

The U.S. Supreme Court has used the overbreadth doctrine many times to invalidate broad laws. In Gooding v. Wilson (1972), for example, the Court reversed a draft protestor’s breach-of-the-peace conviction because of the breadth of the Georgia law (Georgia Code Ann. § 26-6303) that prohibited individuals from uttering “opprobrious words or abusive language.” The defendant contended that the law was overbroad, while the state countered that the law only applied to unprotected fighting words.

In his majority opinion, Justice William Brennan found the law overbroad, stating, “The dictionary definitions of ‘opprobrious’ and ‘abusive’ give them greater reach than ‘fighting words.’” In other words, the Georgia law was simply too open-ended.  

Sometimes a law that appears overbroad is interpreted more narrowly by a court using what is known as a limiting construction. A law that prohibits “offensive, annoying, or harassing” speech to another in a public place may appear overbroad, but a state high court may have limited that law to apply only to unprotected fighting words.  

A defendant can assert an overbreadth challenge even if his or her own speech could be criminalized. In Gooding, Johnny C. Wilson had yelled at a law enforcement officer “White son of a bitch, I'll kill you" and "You son of a bitch, I'll choke you to death.” Such threatening language could lead to a valid criminal prosecution, but not under this overly broad Georgia law.  

Another example of an overbroad regulation comes from Board of Airport Commissioners of the City of Los Angeles v. Jews for Jesus, Inc. (1987). The Board of Airport Commissioners had passed a resolution prohibiting all “First Amendment activities” at the airport.  

Airport officials sought to prohibit solicitation at the airport. However, the regulation they drafted was comically overbroad. It technically would prohibit writing, speaking, wearing campaign buttons, and other forms of protected expression. Justice Sandra Day O’Connor in her unanimous opinion for the Court declared, “[o]n its face, the resolution at issue in this case reaches the universe of expressive activity, and, by prohibiting all protected expression, purports to create a virtual ‘First Amendment Free Zone’ at LAX.”

The overbreadth doctrine is “strong medicine” and should be applied only when the overbreadth is “substantial.” The Court explained in Broadrick v. Oklahoma (1973) that the law’s overbroad applications must be substantial in relation to the law’s “plainly legitimate sweep.” Coming up with one or two hypothetical applications of a law’s overbreadth is not enough. There must be numerous situations where the law is too broad.   

The Court found substantial overbreadth in United States v. Stevens (2010) where the constitutionality of a federal law criminalizing the creation, sale, or use of depictions of animal cruelty was challenged. Authorities charged a Pennsylvania man who produced pitbull videos that depicted violence involving pit bulls.

Chief Justice John G. Roberts, Jr. wrote in Stevens that the federal law pertaining to animal cruelty videos was a “criminal prohibition of alarming breadth” that could be applied to even magazines or videos about lawful hunting activities. Hence, the law was deemed constitutionally invalid by an 8–1 majority of the Court.

Additional Reading  

Fallon, Richard. “Making Sense of Overbreadth.” Yale Law Journal 100 (1991): 853.

Hudson, David. First Amendment: Freedom of Speech. Eagan, MN: West, a Thomson Reuters Business (2012).

Monaghan, Henry. “Overbreadth.” Supreme Court Review 1 (1981).

Redish, Martin. “The Warren Court, the Burger Court, and the First Amendment Overbreadth Doctrine.” Northwestern University Law Review 78 (1983): 1031.

Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 (1980).