Also known as: facially invalid · facial invalid · facial unconstitutionality
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 measure is invalid in all applications or prohibits a substantial amount of protected speech relative to its plainly legitimate sweep.
The City of Kansas City granted a nonprofit an exclusive lease over a downtown plaza. The lease authorized removal of anyone engaging in hostile speech about charitable programs. Felicity was arrested after criticizing the nonprofit. She brought a facial challenge but presented no evidence quantifying how much protected speech the authorization reached relative to legitimate applications.
Texas enacted criminal abortion statutes that banned nearly all procedures. Jane Roe challenged the laws on behalf of women seeking abortions. The Court held the statutes facially invalid because they swept too broadly and lacked exceptions necessary to protect maternal health.
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The University of California reserved sixteen spots in each medical school class for minority applicants. Allan Bakke, a white applicant with higher scores, sued after two rejections. The Court found the rigid quota system facially invalid under the Equal Protection Clause.
A school district allowed after-hours use of its facilities for social, civic, and recreational meetings but denied access to a church group seeking to show a film on family values. The church sued. The Court held the exclusion policy facially invalid as viewpoint discrimination.
Congress granted bankruptcy courts broad jurisdiction over all civil proceedings related to bankruptcy cases. Northern Pipeline sued Marathon in bankruptcy court over a contract dispute. The Court held the jurisdictional grant facially invalid because it conferred Article III power on non-Article III judges.
Federal law barred registration of trademarks that disparaged persons or groups. Simon Tam sought to register The Slants as the name of his Asian-American band. The Court held the disparagement clause facially invalid as a viewpoint-based restriction on speech.
The challenger must show that the law prohibits a substantial amount of protected speech judged in relation to its plainly legitimate sweep. The burden rests on the challenger. A law that is not substantially overbroad may still be enforced against unprotected conduct.
Supporting sources
No. Facial invalidity requires substantial overbreadth. Isolated or hypothetical applications to protected speech do not suffice when the regulation has a plainly legitimate sweep that predominates.
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Yes. When the unconstitutional applications are substantial relative to legitimate ones, the statute is facially invalid. Courts may still enforce the statute against unprotected conduct if overbreadth is not substantial.
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…entirely. Pp. 163-166. 7. Measured against these standards, the Texas abortion laws are unconstitutional. Pp. 164-166. 8. The facial invalidity of the Texas abortion laws does not require that all state abortion laws be invalidated. Pp. 166-167. Majority opinion Opinion of Blackmun, J. We forthwith acknowledge our…