Toni M. Massaro


A persistent trope in free speech doctrine is that overbroad laws chill protected expression and compromise the breathing room needed for a vibrant marketplace of ideas. The conventional restrictions on facial challenges of measures that sweep beyond legitimate regulatory zones are relaxed. Whether and to what extent this liberal approach to judicial review actually governs in free speech law and not elsewhere, and whether this is constitutionally or normatively defensible, have been the subject of considerable and exceptionally insightful scholarship. Yet the United States Supreme Court has given the best of this work slight notice.

This Article proposes a new path forward. It first describes the constitutional and normative puzzle presented by the conventional account of the overbreadth doctrine of the First Amendment and synthesizes the leading works that address this puzzle. It also identifies emerging doctrinal trends that may compel the Court to square its rhetoric with its doctrinal reality and to align both with constitutional dictates.

This Article then sets forth a straightforward test, under which facial challenges of overbroad laws that chill fundamental rights are treated uniformly. Free speech overbreadth doctrine illustrates the proper approach to analyzing all facial challenges to unconstitutionally overbroad laws. Moreover, this approach is grounded in due process principles that would govern in federal and state courts alike. The proposed test would not trigger a cascade of successful facial challenges, but would provide a constitutionally sound, rigorous, and intellectually accessible tool for courts to uproot patently and egregiously overbroad laws that threaten to ice fundamental rights.