Also known as: facially invalid · facial invalidity · invalid on its face
Written by attorneys · grounded in primary & secondary sources — see below
A constitutional doctrine under which a statute or regulation is struck down in its entirety. The doctrine applies when the law prohibits a substantial amount of protected speech judged against its plainly legitimate sweep.
A housing authority bars non-residents unless they have a specific invitation. Hicks enters to hand out leaflets and is arrested under the policy. He sues, proving the rule reaches large amounts of protected speech. The court holds the policy facially invalid because it prohibits a substantial amount of protected speech judged against its plainly legitimate sweep.
A city ordinance bans opprobrious or abusive language toward police officers. Fabian Flynn shouts an insult at an officer during a traffic stop. Flynn challenges the ordinance after arrest. The court declares the ordinance facially invalid because its broad language sweeps in protected speech even though Flynn's words might be unprotected.
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The challenger must demonstrate that the law prohibits a substantial amount of protected speech relative to its plainly legitimate sweep. The burden rests on the challenger to make this showing. A statute that is not substantially overbroad remains enforceable against unprotected conduct.
Yes. When a statute is not substantially overbroad, it can be enforced against unprotected conduct. The existence of hypothetical applications that would reach protected speech does not render the statute facially invalid.
Facial invalidity requires showing substantial overbreadth across the statute's applications. An as-applied challenge focuses only on the statute's enforcement against the particular plaintiff. A statute that survives facial review may still be invalid as applied to specific facts.