BY ADEYEMI OSHUNRINADE
September 19, 2013
Under this doctrine, it is unconstitutional for the government to meet its valid purpose by means that goes beyond that constitutionally recognized such that, the means used goes so far as to reach both constitutionally protected as well as unprotected activity. The result is that when a statute is broadly applied, a person who could be convicted were the statute applied narrowly, is acquitted because others whose expression is protected would be subject to the overly broad statute.
The court may declare a statute vague or overly broad because of its application or the use of language within the statute. Under this approach, a judicial finding of unconstitutionality will not make the statute itself invalid but only consider void the particular application of the law.
Under the standing rule, the law must be unconstitutional as applied to the person challenging its constitutionality and pursuant to the third-party standing rule. A litigant may not challenge possible but unrelated unconstitutional applications to others of an otherwise valid law.
Besides challenging the broadness of a statute, a litigant may also challenge the statute based on vagueness that is, a claim that the statute is facially unconstitutional because it is vague and unclear in meaning and application. A court’s finding of overreach and lack of clarity results in invalidation of the statute.
Under the doctrine of vagueness, a law must be drawn with sufficient clarity such that it properly, informs people of what they must do to avoid possible sanction or punishment based on the particular law. A law regulating speech must be clear because if vague it may go as far as to suppress protected expression.
The doctrine of overbreadth deals with the target of a law. A law that is clear facially could be subject to constitutional challenge just because it indiscriminately reaches both protected and unprotected expression. In Coates v. Cincinnati (1971), a law prohibiting three or more people from congregating on a street corner and engaging in activities that is “annoying” to passers-by was struck down because the law was vague and overbroad. Also, because protected expression could be suppressed by such law and therefore, it must not stand.
Irrespective, the parties involved might be engaged in unprotected expression, the statute could be applied to protected expression thereby, reaching those who could be protected had the law been properly drawn.
The First Amendment demands that even when the government has a compelling interest in making a law, it must use alternative means less burdensome to free expression. If the aim could be achieved through a better-tailored means that creates no burden on free expression, the First Amendment demands that such less drastic means be applied.
The overbreadth doctrine has been a subject of criticism by those who argued that the courts are given too much power to apply the doctrine to anticipated events that may never occur. That is, the court may invalidate a statute based on possible use of the statute to attack protected expression that may never take place. The principle is that for the courts to properly use the doctrine, it must be based on case by case situation as presented to the court and not be used in anticipation of future events.
In Broadrick v. Oklahoma (1973) the Supreme Court created an exemption to the doctrine, when it said that “where conduct and not merely speech is involved, we believed that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep. Here, the court meant that in reviewing a law burdening expression, the challenger must show that the law is substantially overbroad and that the strength of the law is real.
In Virginia v. Hicks (2003), a public housing authority in trying to curb access of criminal into the housing complex, instituted a no trespass policy. Under the policy, the police was authorized to tell non-resident with no legitimate business in the complex to leave and not return to avoid arrest for trespass.
A defendant returned despite notification and on his arrest, challenged the policy as unconstitutionally overbroad. He claimed that the policy as used excludes person engaged in protected speech. Justice Scalia, answering for the court, ruled that the defendant had not shown the policy to be substantially overbroad in relation to its legitimate sweep.
Thus, the defendant failed to prove that the no-return policy had been extended to anyone engaged in protected speech. The court stated that the policy could be constitutionally applied to a substantial number of people such as loiterers and drug dealers who were not engaged in such speech. The defendant got arrested not because he intended to engage in a speech but because he violated the “no-return notice” of the housing authority The court reiterated that a violation of the First Amendment by any application of the policy could be dealt with on as applied basis than trying to attack the overbreadth doctrine.
The decision in Virginia v. Hicks reflects the decision in Broadrick where the court, emphasize on the principle that a person to whom a statute could be constitutionally applied, will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others… Although such laws, if broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect at best a prediction cannot, with confidence justify invalidating a statute on its face and so prohibiting a state from enforcing the statute against conduct that is admittedly within its power to proscribe. (See Broadrick v. Oklahoma, 413 U.S. 601 (1973)
There are instances where the court may declare a law unconstitutionally overbroad such as, where the court found no justification for the law in question or where it could find no governmental interest to justify a ban on expression or speech. In Board of Airport Commissioners v. Jews for Jesus the court found unconstitutionally overbroad a resolution by the Los Angeles Board of Airport Commissioners, prohibiting the Central Terminal Area at Los Angeles International Airport for First Amendment activities by an individual and/or entity.
Justice O’Connor, speaking for the court, noted “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 resolution does not merely regulate expressive activity in the central terminal area that might create problems such as congestion or the disruption of the activities of those who use LAX;” “even talking and reading, or the wearing of campaign button or symbolic clothing.”
“Under such a sweeping ban, virtually every individual who enters LAX may be found to violate the resolution by engaging in some First Amendment activity. We think it obvious that such a ban cannot be justified even if LAX were a nonpublic forum because no conceivable governmental interest would justify such an absolute prohibition of speech.”
To better understand the doctrine of overbreadth and vagueness, please see City of Chicago v. Morales, 527 U.S. 41 (1999).
Dr. Adeyemi Oshunrinade [E. JD] is the author of ‘Wills Law and Contests,’ ‘Constitutional Law-First Amendment’ and ‘SAVING LOVE’ available at http://www.amazon.com/author/adeyemioshunrinade. Follow on Twitter @san0670.
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Categories: Constitutional Law