The concern in constitutional law with "overbreadth" is generally understood to denote a conscious departure from conventional standing concepts in free-expression cases. Assertedly justified by the special vulnerability of protected expression to impermissible deterrence, overbreadth doctrine invites litigants to attack the facial validity of rules which burden expressive interests. A litigant whose expression is admittedly within the constitutionally valid applications of a statute is permitted to assert the statute's potentially invalid applications with respect to other persons not before the court and with whom the litigant stands in no special relationship. Judicial focus is not on the protected character, vel non, of the litigant's expression but on the terms of the statutory rule being invoked to regulate that expression.
Overbreadth methodology has its charms. Avowedly speech protective, it simultaneously fosters at least the illusion of comparative judicial restraint because it holds out the prospect that other means may exist to achieve legislative objectives. But charm is not its only attribute. Overbreadth's facial scrutiny approach has been seen as "strong medicine," and both the Court and commentators have struggled with various limiting conceptions. The result of these efforts is a body of doctrine widely perceived to be erratic and confusing. It seems appropriate, therefore, to take stock. What does overbreadth analysis entail? Specifically, how does its analytic structure differ from that of the "conventional" constitutional challenge with which it supposedly stands in contrast? Examined from this perspective, an increasingly wide gap appears between the views of the commentators and holdings of the Court, a gap obscured by the rhetoric accompanying the doctrine.
Constitutional Law | Law
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Henry P. Monaghan,
Sup. Ct. Rev.
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