Also known as: facially unconstitutional · facial challenge · facially invalid
Written by attorneys — see sources below.
A determination that a statute or regulation violates the Constitution because the prohibition reaches a substantial amount of protected conduct when measured against the measure's plainly legitimate sweep. The challenger must demonstrate that the overbreadth is substantial. A statute that is not substantially overbroad remains enforceable against unprotected conduct even if some applications would reach protected activity.
A county ordinance bans any display on public roads that shows agriculture negatively. An advocate distributing leaflets criticizing factory farms is cited. The advocate sues claiming the ordinance reaches far more protected criticism than any legitimate regulation of true threats or interference with farm operations. The court evaluates whether the prohibition sweeps in a substantial volume of protected speech relative to valid applications.
Washington prohibits assisting suicide. Physicians and terminally ill patients seek to invalidate the statute entirely rather than only in particular applications. The court examines whether the prohibition is invalid in all or most cases in which it might be applied before considering narrower as-applied claims.
Washington has prohibited assisting suicide since its territorial days. In 1854, the first Territorial Legislature outlawed assisting another in the commission of self-murder. The current statute, Wash. Rev. Code § 9A.36.060, provides that a person is guilty of promoting a suicide attempt when he knowingly causes or aids another person to attempt suicide, and classifies it as a class C felony punishable by up to five years imprisonment and a $10,000 fine. Washington's Natural Death Act, enacted in 1979, states that the withholding or withdrawal of life-sustaining treatment at a patient's direction shall not constitute a suicide, but the state has consistently rejected efforts to legalize physician-assisted suicide, including a 1991 ballot initiative defeated by voters. The respondents in this case are four physicians who practice in Washington and treat terminally ill patients, three terminally ill patients who sought to end their lives with physician assistance and have since died, and Compassion in Dying, a nonprofit organization that counsels people considering physician-assisted suicide. The physicians declared that they would assist their patients in ending their lives if not for the assisted-suicide ban. Petitioners are the State of Washington and its Attorney General. In January 1994, the respondents filed this action in the United States District Court for the Western District of Washington. They sought a declaration that Wash. Rev. Code § 9A.36.060 is unconstitutional on its face and an injunction against its enforcement. The District Court held that the statute was unconstitutional. A panel of the Court of Appeals for the Ninth Circuit reversed that decision, but the full court sitting en banc reversed the panel and affirmed the District Court. The Supreme Court granted certiorari to review the case.
View caseVirginia criminalizes cross burning with intent to intimidate. A defendant convicted under the statute argues the law is invalid on its face because it covers protected expressive conduct in addition to true threats. The court assesses whether the statute's reach into protected speech is substantial enough to require facial invalidation.
Virginia Code Annotated § 18.2-423 makes it unlawful for any person, with the intent of intimidating any person or group of persons, to burn or cause to be burned a cross on the property of another, a highway, or other public place. The statute further provides that any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons. In 1998 three individuals were separately convicted under this statute in two incidents. Barry Black was convicted for leading a cross burning at a Ku Klux Klan rally on private property in Carroll County. Richard Elliott and Jonathan O'Mara were convicted for burning a cross on the lawn of their African-American neighbor James Jubilee in Virginia Beach. The Court of Appeals of Virginia affirmed the convictions of both Elliott and O'Mara. The Supreme Court of Virginia consolidated the appeals and held the statute unconstitutional on its face. The United States Supreme Court granted certiorari in 2002 to review the decision.
View caseTexas imposes admitting-privileges and surgical-center requirements on abortion providers. Clinics challenge the provisions as facially invalid because they would close most facilities statewide. The court determines whether the restrictions impose an undue burden in a large fraction of cases rather than only in isolated applications.
In July 2013 the Texas Legislature enacted House Bill 2. The bill contained an admitting-privileges requirement for physicians performing abortions and a surgical-center requirement for abortion facilities. Before the law took effect a group of Texas abortion providers filed the Abbott case seeking facial invalidation of the admitting-privileges provision. The district court initially enjoined the provision but the Fifth Circuit vacated the injunction and later upheld the requirement on the basis of evidence presented before enforcement. On April 6 2014 petitioners a group of abortion providers that included some Abbott plaintiffs filed this suit in federal district court. They sought as-applied relief against the admitting-privileges requirement for facilities in McAllen and El Paso and a statewide injunction against the surgical-center requirement claiming violations of the Fourteenth Amendment. The district court held a four-day bench trial and received stipulations expert depositions and testimony. It found that the number of facilities providing abortions dropped in half from about 40 to about 20 after the admitting-privileges requirement began to be enforced. It found that the number of women of reproductive age living more than 50 miles from a clinic doubled. The number living more than 100 miles away increased by 150 percent. The number living more than 150 miles away increased by more than 350 percent. The number living more than 200 miles away increased by about 2,800 percent. It found that the number of facilities would drop to seven or eight if the surgical-center provision took effect. It found that before H. B. 2's passage abortion was an extremely safe procedure with very low rates of complications and virtually no deaths. It found that abortion was safer than many more common procedures not subject to the same level of regulation. It found that the cost of compliance with the surgical-center requirement would most likely exceed 1.5 million dollars to 3 million dollars per clinic. On the basis of these findings the district court enjoined enforcement of both provisions. The Fifth Circuit reversed in significant part holding that res judicata barred the challenges and that both requirements were constitutional. The case reached the Supreme Court.
View caseCalifornia requires persons loitering to provide credible identification on demand. A defendant arrested for failing to comply contends the statute is facially unconstitutional because it grants officers unfettered discretion and reaches innocent conduct. The court evaluates whether the law is vague in all or nearly all applications.
Edward Lawson was detained or arrested on approximately fifteen occasions by San Diego police officers between March 1975 and January 1977 while walking on the streets of the city. On each occasion, officers stopped Lawson and requested that he produce a driver's license or other identification. When he was unable to comply, the officers arrested him under California Penal Code section 647(e). Lawson was prosecuted twice under the statute and convicted once. The second charge was dismissed. Lawson filed a civil action in the United States District Court for the Southern District of California against various officers and officials, including Deputy Chief Commander H. A. Porazzo of the California Highway Patrol. The complaint sought a declaratory judgment that section 647(e) was unconstitutional, a mandatory injunction restraining its enforcement, and compensatory and punitive damages. The District Court held the statute overbroad, enjoined its enforcement, and denied damages on the ground that the officers had acted in good faith. The Court of Appeals for the Ninth Circuit affirmed the District Court's determination that the statute was unconstitutional. It concluded that the statute violated the Fourth Amendment, contained a vague enforcement standard susceptible to arbitrary enforcement, and failed to give fair notice of the conduct prohibited. The Ninth Circuit also reversed the denial of a jury trial on the damages issue and remanded the case for trial. The officers appealed to the Supreme Court from the portion of the judgment declaring the statute unconstitutional and enjoining its enforcement. The Supreme Court noted probable jurisdiction. California Penal Code section 647(e) (West 1970) provides that every person who loiters or wanders upon the streets or from place to place without apparent reason or business is guilty of disorderly conduct, a misdemeanor. The statute further requires that such a person refuse to identify himself and to account for his presence when requested by any peace officer if the surrounding circumstances indicate to a reasonable man that the public safety demands such identification. California courts have construed the statute to require that a detained person provide credible and reliable identification. This identification must carry reasonable assurance that it is authentic and provide means for later contact with the person who has identified himself. The District Court made no specific findings concerning the circumstances of each stop, but the trial transcript contains descriptions given by both Lawson and the officers. One officer testified that he stopped Lawson on an otherwise vacant street late at night because the area was isolated and near a high-crime zone. Another testified that he detained Lawson while walking at a late hour in a business area where burglaries had occurred. Lawson stated that he had never been stopped by police for any reason apart from these detentions under the statute.
View caseCalifornia requires employers to provide leave for pregnancy-related disabilities. An employer argues the statute is facially unconstitutional because it discriminates on the basis of sex. The court examines whether the law conflicts with federal antidiscrimination requirements in all or substantially all of its applications.
California amended its Fair Employment and Housing Act in September 1978 to prohibit certain forms of employment discrimination on the basis of pregnancy. The amendment, codified at California Government Code section 12945(b)(2), requires employers subject to Title VII to provide female employees an unpaid pregnancy disability leave of up to four months. The state agency interpreting the statute has construed it to require reinstatement to the same or a substantially similar job upon return from leave, unless business necessity prevents it. Petitioner California Federal Savings & Loan Association maintains a facially neutral leave policy permitting employees with three months of service to take unpaid leaves for disability and pregnancy. The policy attempts to provide a similar position upon return but reserves the right to terminate the employee if no similar position is available. In January 1982, employee Lillian Garland took pregnancy disability leave from her receptionist position at Cal Fed. Upon notifying the employer in April 1982 that she was able to return, Garland learned that her job had been filled and no similar positions were available. Garland filed a complaint with the Department of Fair Employment and Housing. The Department issued an administrative accusation against Cal Fed on her behalf charging violation of the state leave provision. Before the scheduled hearing, Cal Fed, along with the Merchants and Manufacturers Association and the California Chamber of Commerce, brought an action in the United States District Court for the Central District of California seeking a declaration that the state statute is preempted by Title VII and an injunction against its enforcement. The District Court granted summary judgment to the petitioners. The United States Court of Appeals for the Ninth Circuit reversed that judgment. The Supreme Court granted certiorari to consider the preemption issue.
View caseThe challenger must show that the law prohibits a substantial amount of protected speech when judged against the statute's plainly legitimate sweep. Isolated unconstitutional applications are insufficient. The burden rests on the challenger.
Supporting sources
Yes. If the overbreadth is not substantial relative to legitimate applications, the statute may be applied to unprotected conduct even though some hypothetical applications would affect protected speech.
Supporting sources
A facial challenge seeks to invalidate the statute in all or most applications. An as-applied challenge seeks relief only for the particular facts before the court. A statute may survive a facial attack yet still be invalid in specific applications.
Supporting sources
…v. United States , 395 U. S. 185 (1969). Mrs. Moore defends against the State's prosecution on the ground that the ordinance is facially invalid, an issue that the zoning review board lacks competency to resolve. In any event, this Court has never held that a general principle of exhaustion could foreclose a criminal defendant from…