Also known as: categorical ban · categorical banning · blanket bans
Written by attorneys — see sources below.
A constitutional doctrine under which courts invalidate absolute prohibitions on protected conduct or speech when the ban sweeps too broadly relative to the government's asserted interests. The doctrine requires that restrictions on rights be tailored rather than imposed across an entire category without regard to individual circumstances or less restrictive alternatives.
Caleb Chang, a solo practitioner, placed a newspaper notice listing his flat fee for uncontested divorces. State regulators sought to discipline him under a rule barring all lawyer price advertising. The court held the rule invalid because Chang's truthful disclosure of routine services did not justify a complete prohibition on commercial speech.
Cassandra Cooper listed her CPA and CFP designations on her firm website. The state bar charged her with misconduct for using professional titles in advertising. The court rejected the charge because the designations were verifiable and the blanket prohibition on truthful certifications lacked evidence of inherent deception.
Carlos Castillo, age seventeen, received a mandatory life-without-parole term after a fatal shooting during a store robbery. The sentencing court applied the statute without considering his youth or prospects for reform. The court vacated the sentence because a categorical prohibition on such penalties for juveniles in homicide cases was required.
In November 1999, fourteen-year-old Kuntrell Jackson and two other boys decided to rob a video store in Arkansas. En route, Jackson learned that one of the boys carried a sawed-off shotgun. Jackson initially stayed outside the store but later entered while the robbery was underway. When the clerk, Laurie Troup, refused to hand over money and threatened to call the police, one of Jackson's co-defendants shot and killed her. The three boys fled without taking any money. Arkansas prosecutors exercised their discretion to charge Jackson as an adult with capital felony murder and aggravated robbery. A jury convicted him of both offenses. The trial court imposed the statutorily mandated sentence of life imprisonment without the possibility of parole. Jackson did not challenge the sentence on direct appeal, and the Arkansas Supreme Court affirmed the convictions. In 2003, fourteen-year-old Evan Miller and a friend, Colby Smith, spent an evening drinking alcohol and smoking marijuana with Miller's neighbor, Cole Cannon, at Cannon's trailer in Alabama. After Cannon passed out, Miller stole his wallet. Cannon awoke and grabbed Miller by the throat. Smith struck Cannon with a baseball bat, and Miller then repeatedly hit Cannon with the bat. The boys set two fires in the trailer before leaving. Cannon died from his injuries and smoke inhalation. Miller had previously been in and out of foster care, regularly used drugs and alcohol, and had attempted suicide four times. Alabama law initially required that Miller be charged as a juvenile, but the district attorney sought and obtained removal of the case to adult court. A jury convicted Miller of murder in the course of arson. The trial court imposed the statutorily mandated sentence of life imprisonment without the possibility of parole. The Alabama Court of Criminal Appeals affirmed the conviction and sentence. Following this Court's decisions in Roper v. Simmons and Graham v. Florida, Jackson filed a state habeas petition arguing that his mandatory life-without-parole sentence violated the Eighth Amendment. The circuit court dismissed the petition, and the Arkansas Supreme Court affirmed. Miller's direct appeal was likewise unsuccessful. The Supreme Court granted certiorari in both cases.
View caseCatherine Carter sought to introduce favorable polygraph results to support her duress defense at a court-martial. Military rules imposed a per se bar on all polygraph evidence. The court upheld the exclusion because the categorical prohibition was a reasonable means of guarding against unreliable testimony.
In March 1992, Edward G. Scheffer, an airman stationed at March Air Force Base in California, volunteered to work as an informant on drug investigations for the Air Force Office of Special Investigations. His OSI supervisors advised him that they would ask him to submit to drug testing and polygraph examinations from time to time during his undercover work. In early April, one of the OSI agents supervising Scheffer requested that he submit to a urine test. Shortly after providing the urine sample, but before the results were known, Scheffer agreed to take a polygraph test administered by an OSI examiner, who concluded that the test indicated no deception when Scheffer denied using drugs since joining the Air Force. On April 30, Scheffer unaccountably failed to appear for work and could not be found on the base. He remained absent without leave until May 13, when an Iowa state patrolman arrested him following a routine traffic stop and held him for return to the base. OSI agents later learned that Scheffer's urinalysis revealed the presence of methamphetamine. Scheffer was tried by general court-martial on charges of using methamphetamine, failing to go to his appointed place of duty, wrongfully absenting himself from the base for 13 days, and, with respect to an unrelated matter, uttering 17 insufficient funds checks. At trial Scheffer testified on his own behalf, relying upon an innocent ingestion theory and denying that he had knowingly used drugs while working for OSI. On cross-examination the prosecution attempted to impeach him with inconsistencies between his trial testimony and earlier statements he had made to OSI. Scheffer sought to introduce the polygraph evidence in support of his testimony that he did not knowingly use drugs, but the military judge denied the motion and excluded the evidence pursuant to Military Rule of Evidence 707. Scheffer was convicted on all counts and sentenced to a bad-conduct discharge, confinement for 30 months, total forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. The Air Force Court of Criminal Appeals affirmed in all material respects. By a 3-to-2 vote the United States Court of Appeals for the Armed Forces reversed. The Supreme Court granted certiorari.
View caseCedar Creek Farms, a nonprofit corporation, produced a film critical of a political candidate and sought to air it within sixty days of an election. Federal law banned corporate independent expenditures on electioneering communications. The court struck down the ban because the absolute prohibition on corporate speech violated the First Amendment.
Citizens United is a nonprofit corporation with an annual budget of about $12 million. Most of its funds come from donations by individuals, though it accepts a small portion from for-profit corporations. In January 2008, Citizens United released a 90-minute documentary film entitled Hillary: The Movie. The film mentions Senator Hillary Clinton by name and depicts interviews with political commentators, most of them critical of her. Hillary was released in theaters and on DVD, but Citizens United wanted to increase distribution by making the film available through video-on-demand. In December 2007, a cable company offered to make Hillary available on a video-on-demand channel called Elections '08 for a payment of $1.2 million. The proposal was to make the film available to viewers free of charge. To promote the video-on-demand offering, Citizens United produced two 10-second ads and one 30-second ad. Each ad includes a short statement about Senator Clinton followed by the name of the movie and the movie's website address. Citizens United desired to promote the offering by running the advertisements on broadcast and cable television within 30 days of primary elections. Before the Bipartisan Campaign Reform Act of 2002, federal law prohibited corporations from using general treasury funds to make independent expenditures that expressly advocate the election or defeat of a candidate in connection with certain federal elections. BCRA §203 amended the law to prohibit any electioneering communication. An electioneering communication is any broadcast, cable, or satellite communication that refers to a clearly identified candidate for federal office and is made within 30 days of a primary or 60 days of a general election when publicly distributed so that it can be received by 50,000 or more persons in a relevant state. Concerned about possible civil and criminal penalties for violating 2 U.S.C. §441b, Citizens United filed suit in the United States District Court for the District of Columbia in December 2007. It sought declaratory and injunctive relief, arguing that §441b is unconstitutional as applied to Hillary and that BCRA's disclaimer, disclosure, and reporting requirements are unconstitutional as applied to Hillary and the ads. The District Court denied Citizens United's motion for a preliminary injunction and granted the Federal Election Commission's motion for summary judgment. The Supreme Court noted probable jurisdiction. The case was reargued after the Court requested supplemental briefs addressing whether Austin v. Michigan Chamber of Commerce and the relevant portion of McConnell v. Federal Election Commission should be overruled.
View caseColin Chambers applied for a license to carry a handgun for self-defense after moving to a state that required a special showing of need. The state denied the application under its discretionary permitting scheme. The court invalidated the scheme because the categorical restriction on the right to bear arms outside the home lacked historical support.
New York has regulated public carriage of handguns since the early twentieth century. The Sullivan Law of 1911 made possession of a handgun without a license a crime. It was later amended to require that applicants for a license to have and carry concealed a pistol or revolver prove good moral character and other statutory criteria. The present scheme makes it a crime to possess any firearm without a license, whether inside or outside the home. Possessing a loaded firearm outside one’s home or place of business without a license is a felony. A license to possess a firearm at home or in a place of business requires a licensing officer to be satisfied as to good moral character and other statutory criteria. To carry a firearm outside the home for self-defense, an applicant must obtain an unrestricted license to have and carry a concealed pistol or revolver by proving that proper cause exists. If an applicant does not demonstrate proper cause, he may receive only a restricted license allowing carry for limited purposes such as hunting, target shooting, or employment. No New York statute defines proper cause. New York courts have held that an applicant shows proper cause only if he can demonstrate a special need for self-protection distinguishable from that of the general community. Brandon Koch and Robert Nash are law-abiding adults from Rensselaer County. Both sought unrestricted licenses to carry handguns in public for self-defense without claiming any special individualized threats. Each was denied an unrestricted license and given a restricted license instead. Koch and Nash sued state licensing officials under 42 U.S.C. § 1983, claiming the denials violated the Second and Fourteenth Amendments. The District Court dismissed the complaint. The United States Court of Appeals for the Second Circuit affirmed, relying on its prior decision upholding New York’s proper-cause standard.
View caseCourts adopt categorical bans when a class of offenders or speakers shares characteristics that make a punishment or restriction disproportionate or unjustified across the board. This approach avoids individualized inquiries that would still produce unconstitutional results in most applications.
Both doctrines invalidate rules that prohibit substantially more protected activity than necessary. A categorical ban is struck down when the government cannot justify suppressing an entire category of speech or conduct, while overbreadth focuses on the rule's reach relative to its legitimate applications.
Administrative ease alone does not justify a categorical ban when the prohibition eliminates protected rights without regard to individual circumstances. Courts require the government to show that narrower, less restrictive measures cannot achieve the asserted interest.
…Ibid. Two strands of precedent reflecting the concern with proportionate punishment come together here. The first has adopted categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty. See, e.g., Kennedy v. Louisiana , 554 U. S. 407. Several cases in…