Overbreadth Challenges to Statutes

[Gene Summerlin]

Bobby,

I believe that overbreadth challenges only apply in the first amendment
context, though courts sometimes get confused between overbreadth challenges
and vagueness challenges.  I pulled the following out of a brief we filed
several years ago, so the law may well have changed since then, but I
believe the following is a correct statement of the applicable law

Begin quoted portions:

The overbreadth doctrine permits litigants to challenge a law’s facial
validity on the ground that it unconstitutionally restricts the first
amendment rights of third parties not before the court.  Schaumburg v.
Citizens for Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed.2d 73
(1980).  The justification for this exception to the “traditional rules
governing constitutional adjudication” is a “judicial prediction or
assumption that the statute’s very existence may cause others not before the
court to refrain from constitutionally protected speech or expression.”
Broadrick v. Oklahoma, 413 U.S. 601, 610-12, 93 S.Ct. 2908, 2914-16, 37
L.Ed.2d 830 (1973).

To challenge the facial overbreadth of a statute, “there must be a realistic
danger that the statute itself will significantly compromise recognized
First Amendment protections of parties not before the Court . . .”  Van
Bergen v. Minnesota, 59 F.3d 1541, 1549 (8th Cir. 1995) (quoting City
Council v. Taxpayers for Vincent, 466 U.S. 789, 799 (1984)).  However, “in
order to support a claim of [facial] overbreadth, the party before the court
must identify a significant difference between his claim that the statute is
invalid on overbreadth grounds, and his claim that it is unconstitutional as
applied to his particular activity.”  Van Bergen, 59 F.3d at 1549.

Vague laws, on the other hand, lack “ascertainable standards of guilt,”
Winters v. New York, 333 U.S. 507, 515 (1948), such that “men of common
intelligence must necessarily guess at its meaning and differ as to its
application.”  Connally v. General Construction Co., 269 U.S. 385, 391
(1926).  Due process is offended by vague laws because the statute’s lack of
specificity “may trap the innocent by not providing fair warning.”  Grayned
v. City of Rockford, 408 U.S. 104, 108-09 (1972).  A second due process
violation is created because “[a] vague law impermissibly delegates basic
policy matters to policemen, judges, and juries for resolution on an ad hoc
and subjective basis, with the attendant dangers of arbitrary and
discriminatory application”  Id.

Vague laws may be facially challenged when “the law restricts
constitutionally protected conduct.”  Garner v. White, 726 F.2d 1274, 1277
(8th Cir. 1984).  “In a vagueness challenge, both the degree of clarity
required and the relative importance of fair warning and discriminatory
enforcement depend on the nature of the law in question.”  Id.  “Greater
specificity is required of laws imposing criminal penalties and those
infringing on constitutionally protected rights.”   Id. at 1278.

Gene Summerlin
Ogborn Summerlin & Ogborn P.C.
210 Windsor Place
330 So. 10th St.
Lincoln, NE  68508
(402) 434-8040
(402) 434-8044 (FAX)
(402) 730-5344 (Mobile)
www.osolaw.com
gene at osolaw.com


-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of RJLipkin at aol.com
Sent: Friday, February 27, 2004 12:24 PM
To: CONLAWPROF at lists.ucla.edu
Subject: Overbreadth Challenges to Statutes


    A colleague teaching criminal law asks whether overbreadth counts as a
challenge only to First Amenmdent cases or has general use for challenging a
statute's constitutionality.


Bobby


Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware
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