Abstract
The doctrine of First Amendment overbreadth instructs judges to treat certain statutes as unenforceable even if they have lawful applications. The theory is that if a statute restricts too much protected speech, it is invalid on its face. The fact that it has some lawful applications will not save it.
This Article seeks to redefine the relationship between overbreadth, facial invalidity, and judicial review of speech restrictions. It disentangles overbreadth concerns from facial defects, shifting the focus to the underlying sources of constitutional infirmity. The Article's central claim is that it is impossible for a statute to fail as overbroad. Overbreadth is a threshold inquiry that determines whether a statute covers protected speech. Even if it does, the statute might nevertheless be lawful if the government can satisfy the requisite degree of scrutiny. It is premature to assume that a statute is invalid simply because it limits protected speech. The fundamental issue is whether the government's restriction of speech is appropriately justified and suitably tailored.
This revised conception of overbreadth responds to claims that First Amendment jurisprudence violates rules of standing and flouts Article III's limitation of the judicial power to cases and controversies. It also yields a more coherent framework for adjudication by distinguishing the preliminary question of First Amendment coverage from the ultimate issue of governmental enforcement authority.
Citation
Randy J. Kozel,
Overbreadth, Facial Validity, and the Nature of First Amendment Rights,
76 Duke Law Journal
181-222
(2026)
Available at: https://scholarship.law.duke.edu/dlj/vol76/iss2/1