Parallel Doctrinal Bars: The Unexplained Relationship Between Facial Overbreadth and 'Scrutiny' Analysis in the Law of Freedom of Speech

Abstract

In resolving a First Amendment issue when no special rules govern, when should a court employ the facial overbreadth doctrine, and when should it employ “scrutiny” analysis (i.e., strict or intermediate scrutiny)? What relationship do these two modes of analysis have to each other? To this author’s knowledge, no satisfactory answers to these questions have ever been provided by the United States Supreme Court. The result, predictably, is confusion, which manifests itself in three ways: in the choice of analysis, the redundant use of the two modes of analysis within a single opinion, and the blending of the language of the two approaches within a single decision. This Article demonstrates the existence of this doctrinal confusion, explains why it matters, and calls for judicial clarification of these rules.