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Overbreadth and Overly Broad Laws - Explained

What is Overbreadth?

Written by Jason Gordon

Updated at September 23rd, 2021

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Table of Contents

What is overbreadth or an overbroad law affecting freedom of speech?How do determine if a law is over overbroad?Discussion QuestionPractice QuestionAcademic Research

What is Overbreadth of a Law?

An overbroad law is one that affects or regulates more conduct than is intended to be regulated by the statute or regulation.

A law that affects an individual's freedom of speech potentially violates the individual's rights under the 1st Amendment. 

This is the case when a law is overbroad. That is, it affects or limits more speech than is originally intended when passing the law.


Next Article: Freedom of Press Back to: CONSTITUTIONAL LAW

How do determine if a law is over overbroad?

To pass constitutional muster, the government must have a compelling interest in passing a law regulating free speech. 

The law is deemed overly broad if, in the process of regulating unprotected speech, it negatively impacts protected speech that was not intended. 

In this way, it affects more speech than is necessary to achieve the government's compelling interest. 

While the law may be constitutional in some applications, the possibility that it could negatively affect the protected free speech means that it is unconstitutional.

  • Example: A state passes a law that restricts individuals from urging support for a political candidate at a polling location. The purpose of the statute is to prevent undue pressure on individuals in exercising their right to vote. The statute, however, is likely too broad in that it could prohibit individuals from having casual conversations about their voting activity. As such, the law would have to be more narrowly tailored for it not to violate 1st Amendment protections.

Related Concepts

  • What is the 1st Amendment?
  • What are the Establishment Clause and Free Exercise Clause
  • How does freedom of religion affect business practice?
  • What is the protection of Freedom of Speech?
  • Speech with Limited or No Protection
  • What is Obscene Speech?
  • What are Fighting Words?
  • What is Commercial Speech?
  • What is Defamation?
  • What is Political Speech?
  • Freedom of the Press
  • Freedom of Assembly

Discussion Question

Do you believe that overly broad statutes could have the effect of causing individuals to refrain from speech or expression that would otherwise be constitutionally protected? 

  • A law is deemed overly broad if, in the process of regulating unprotected speech, it negatively impacts protected speech that was not intended. In this way, it affects more speech than is necessary to achieve the government's compelling interest. While the law may be constitutional in some applications, the possibility that it could negatively affect the protected free speech means that it is unconstitutional. An example would be when a state passes a law that restricts individuals from urging support for a political candidate at a polling location. The purpose of the statute is to prevent undue pressure on individuals in exercising their right to vote. The statute, however, is likely too broad in that it could prohibit individuals from having casual conversations about their voting activity. As such, the Law would have to be more narrowly tailored for it not to violate 1st Amendment protections.

Practice Question

ABC Town passes an ordinance that prohibits any form of nudity in public. The local theater wants to put on a production of a famous ballet that requires the lead ballerina to temporarily expose her breasts during the performance. If the theater brings a court action challenging the ordinance, what will the court consider in determining whether the ordinance is constitutional? 

  • First, all statutes and ordinances are given a strong presumption of constitutionality. Courts have a duty to construe a statute as constitutional unless unconstitutionality is clearly apparent. The court can only determine the validity of an act based on the facts before it. Second, the court should examine the entire text of the statute and give words of the statute their ordinary meaning. It is the burden of the party challenging the validity of the ordinance to establish that the ordinance is clearly unconstitutional. A statute may qualify as void for vagueness if: It is overbroad and impinges on First Amendment freedoms; It does not provide fair notice of the conduct it regulates; It gives the trier of fact unstructured and unlimited discretion in determining whether the statute has been violated. Here, the statute potentially prohibits a broad array of conduct. Some of that conduct may be protected speech (in this case, speech that was not meant to be regulated by the statute). It is likely that a court would find this sort of statute overbroad based upon the wide array of protected speech potentially affected.

Academic Research

  • Mulroy, Steven J., Sunlights Glare: How Overbroad Open Government Laws Chill Free Speech and Hamper Effective Democracy (August 24, 2010). Tennessee Law Review, Vol. 78, p. 309, 2011; University of Memphis Legal Studies Research Paper No. 59. Available at SSRN: https://ssrn.com/abstract=1664646 or http://dx.doi.org/10.2139/ssrn.1664646


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