Also known as: plainly legitimate sweeps · overbreadth doctrine · legitimate sweep
Written by attorneys · grounded in primary & secondary sources — see below
A comparative metric in First Amendment overbreadth analysis that measures the range of a speech regulation's valid applications against the amount of protected expression it reaches. A regulation is facially invalid only when the protected speech it covers is substantial relative to that metric. The challenger must demonstrate the substantial overbreadth.
Piper Patel was arrested for handing out consumer-criticism flyers in a pedestrian mall. The mall rule barred annoying or disparaging comments about retailers. Patel showed that the rule reached peaceful leafleting and criticism far more often than any valid applications to harassment or obstruction. The court upheld the rule because Patel failed to prove the protected speech was substantial compared to the rule's plainly legitimate sweep.
Peak Performance erected signs criticizing local taxes in a commercial zone. The city ordinance restricted all off-site billboards. Peak Performance proved the ordinance suppressed far more protected commercial and political speech than any legitimate aesthetic or safety uses. The court struck the ordinance because the protected applications substantially exceeded its plainly legitimate sweep.
Select any source to read its text and confirm it supports the definition.
Pierce Patterson burned a cross on private property during a rally. The city ordinance banned cross burning that aroused anger on the basis of race. Patterson showed the law reached protected symbolic speech well beyond any valid fighting-words applications. The court invalidated the ordinance because the protected speech was substantial relative to its plainly legitimate sweep.
Portia Price was stopped for walking in a public area without identification. The ordinance required individuals to provide identification on demand. Price demonstrated that the rule chilled protected movement and association far more than any valid crime-prevention uses. The court found the ordinance facially overbroad because the protected conduct substantially exceeded its plainly legitimate sweep.
Penelope Price organized door-to-door fundraising for a nonprofit. The village required permits and banned certain solicitation methods. Price showed the permit scheme suppressed protected charitable speech more than any legitimate fraud-prevention applications. The court struck the scheme because the protected speech was substantial relative to its plainly legitimate sweep.
Pacific Bank hosted an online forum allowing adult discussions. The federal statute banned indecent material accessible to minors. Pacific Bank proved the law reached vast amounts of protected adult speech compared with any legitimate child-protection uses. The court invalidated the statute because the protected applications substantially exceeded its plainly legitimate sweep.
The challenger must demonstrate that the law prohibits a substantial amount of protected speech judged in relation to its plainly legitimate sweep. The government need not prove the absence of overbreadth.
A court may enforce the statute against unprotected conduct if the overbreadth is not substantial relative to the plainly legitimate sweep. Hypothetical protected applications alone do not justify facial invalidation.
The analysis permits a litigant to challenge a law on behalf of third parties whose protected speech might be chilled even if the litigant's own conduct is unprotected. This exception is narrow and requires proof of substantial overbreadth.
…statute only when the overbreadth of the statute is not only "real, but substantial as well, judged in relation to the statute's plainly legitimate sweep," Broadrick , 413 U. S., at 615, and when the statute is not susceptible to limitation or partial invalidation, id. , at 613; Board of Airport Comm'rs of Los Angeles v. Jews for Jesus,…