Overbreadth Doctrine Research Articles

Putting the First Amendment in Play: Name, Image, and Likeness Policies and Athlete Freedom of Speech

Following a unanimous defeat at the Supreme Court in National Collegiate Athletic Association (NCAA) v. Alston and facing an impending start date for various state laws that would force action on athletes’ ability to profit off their name, image, and likeness (NIL), the NCAA recently made the decision to simply allow states and member colleges and universities to promulgate NIL restrictions on their own. But while such a delegation helps the NCAA stave off relevant antitrust action against them, placing regulatory authority over college athlete endorsement and sponsorship deals in the hands of government actors like state legislators, governors, and public educational institutions brings constitutional analysis into play in a way that has not previously been seen in sports due to the wholly private natures of sports leagues and the NCAA.
 Along these lines, this Article applies First Amendment jurisprudence to three recurring NIL restrictions imposed by states and schools: (1) restrictions on athlete deals that conflict with institutional endorsement deals; (2) restrictions on athlete deals with vice industries like gambling and alcohol; and (3) broad restrictions on deals that conflict with undefined “institutional values.” To do so, we apply several First Amendment doctrinal frameworks—those concerning commercial speech, student speech, public employee speech, and the overbreadth doctrine—to provide a range of different means by which courts may interpret how the rights of college athletes are affected by NIL policies. In the end, we find that the nature of these restrictions as overbroad prior restraints of free speech creates significant doubt as to the constitutionality of many of these restrictions under the First Amendment. We conclude that such restrictions in no uncertain form “present a ‘realistic danger’ [that these actors] could significantly compromise recognized First Amendment protections,” including the advanced protections for political speech.

Putting the First Amendment in Play: Name, Image, and Likeness Policies and Athlete Freedom of Speech

Following their unanimous defeat at the Supreme Court in National Collegiate Athletic Association (NCAA) v. Alston and facing an impending start date for various state laws that would force action on athletes’ ability to profit off of their name, image, and likeness (NIL), the NCAA recently made the decision to simply allow states and member colleges and universities to promulgate NIL restrictions on their own. But while such a delegation helps the NCAA stave off relevant antitrust action against them, placing regulatory authority over college athlete endorsement and sponsorship deals in the hands of government actors like state legislators, governors, and public educational institutions brings constitutional analysis in play in a way that has not been seen in sports due to the wholly private natures of sports leagues and the NCAA. Along these lines, this Article applies First Amendment jurisprudence to three recurring NIL restrictions imposed by states and schools: restrictions on athlete deals that conflict with institutional endorsement deals, restrictions on athlete deals with vice industries like gambling and alcohol, and broad restrictions on deals that conflict with undefined “institutional values.” To do so, we apply several First Amendment doctrinal frameworks—those concerning commercial speech, student speech, public employee speech, and the overbreadth doctrine—to provide a range of different means by which courts may interpret how the rights of college athletes are affected by NIL policies. In the end, we find that the nature of these restrictions as overbroad prior restraints of free speech creates significant doubt as to the constitutionality of many of these restrictions under the First Amendment. We conclude that such restrictions in no uncertain form “present a ‘realistic danger’ [that these actors] could significantly compromise recognized First Amendment protections,” including the advanced protections for political speech.

Overbreadth in Canadian Patent Law

Under the overbreadth doctrine, a claim that exceeds the scope of the invention disclosed in the specification is invalid. While the doctrine is well established, it is redundant in the great majority of cases in which it is invoked, as an overbroad claim typically encompasses subject-matter which is not new, lacks utility, or is obvious. When overbreadth is not redundant, a puzzle arises: what is the principled justification for striking down a claim to an invention which is in fact new, useful, non-obvious and sufficiently disclosed? In such a case, how can it be said that the claim is broader than the invention? This article argues that overbreadth properly arises as an independent ground of invalidity in the context of the “roads to Brighton” problem, in which the question is whether the first inventor to achieve a result known to be desirable may claim the result itself or only their particular method of achieving it, but current Canadian law on this point does not require or invoke an independent overbreadth doctrine. Overbreadth was also applied as a truly independent ground of invalidity by the Federal Court of Appeal in Amfac Foods Inc. v Irving Pulp & Paper, Ltd. This article argues that Amfac was wrongly decided, both on its facts, and in its approach to overbreadth. The article warns that the Amfac approach, if widely adopted, risks invalidating patents for inventions which are new, useful and non-obvious, on the basis of an arbitrary parsing of the disclosure, in a manner reminiscent of the promise doctrine.

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

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.

Measuring the Chilling Effect

Supreme Court doctrine grants special protection against laws that “chill” protected speech, most prominently via the overbreadth doctrine. The overbreadth doctrine permits persons whose own speech is unprotected to challenge laws that infringe the protected speech of third parties. The Court has not generally applied overbreadth and the other speech-protective doctrines to other constitutional rights even though other rights could also be subject to a chilling effect. The case law simply assumes that the chilling effect only acts on the exercise of speech, and that this justifies treating speech differently from other rights.We tested these assumptions with respect to abortion rights. By comparing abortion rates with state laws over a two-decade-plus period, we found a statistically significant correlation between laws forbidding late-term abortions and the reduction of not only late-term but also “near-late-term” abortions, i.e., abortions in the roughly one month before the period in which abortions are forbidden. That effect persists even after controlling for potentially confounding variables, such as the number of abortion providers and pro-life public opinion. Moreover, the effect is not limited to the year of enactment or associated with failed policy initiatives, suggesting that the impact is due to the law itself rather than associated publicity. These findings are consistent with, and strongly suggestive of, a chilling effect on abortion providers and/or women seeking abortions. This result undermines the implicit assumption that the chilling effect is unique to laws regulating speech and vindicates the general proposition that laws can chill the exercise of constitutional rights beyond their literal coverage.

Judging the Constitutionality of Social Cost

The tiers of judicial scrutiny represent the Supreme Court’s attempts to balance three important concerns–individual liberty, collective safety, and social cost. The relationship between liberty and safety has been ably explored; however, considerations of social cost — a factor that has been integral in the Supreme Court’s balancing of liberty and security — has been neglected. Understanding the interaction between liberty, safety, and social costs, reveals insight into how the Supreme Court has fashioned the tiers of scrutiny, and judicial review more broadly.The Supreme Court has recognized two types of social cost, that I have labeled liberty costs and security costs. First, liberty costs, refer to the risk of negative externalities to society as a whole that can result from individuals exercising liberty. Second, safety costs, refer to the risk of negative externalities to individual liberty that can result from the state providing for collective safety. The Supreme Court employs the tiers of scrutiny when the liberty interests of an individual (or group of individuals) are weighed against the interests of the state to provide for collective safety (defined broadly as the police powers — health, safety, and morals). Scrutiny is effectively a question of burdens — which party’s interests receive judicial deference, and which party’s interests are met with judicial skepticism. Or, to state it differently, which party bears the burden of justifying its high social costs. These relationships are plotted on a graph I labeled the Social Cost Frontier. The frontier depicts judicial review and the relationship between the tiers of scrutiny and social cost, with respect to Miranda, the exclusionary rule, the overbreadth doctrine, unprotected speech, and commercial speech.Social cost further explains how the court shifts between the counter-majoritarian difficulty and representation reinforcement. Which branch of government is in the better position to assess social costs — the legislature, or the courts? Or more precisely, should the court defer to the state’s assessment of social cost, or defer to the individual’s assessment, or engage in an independent inquiry. Ultimately, this determination is largely informed by a given Justice’s view of liberty and safety costs with respect to Footnote Four of United States v. Carolene Products, and Professor John Hart Ely’s “representation reinforcement” theory of the Constitution. Even with the judiciary’s assumption of this role, certain cognitive and confirmation biases dictate that, in the words of Frederic Bastiat, there are seen, and unseen costs by the Justices. The costs that are unseen, are often the costs that the Justice is inclined to disregard. How a Justice choose to see, and not see, certain social costs — rather than abstract terms like tiers of scrutiny, or equal protection, or due process — explains how some of the most important constitutional issues of our time can be so divisive.The Supreme Court’s reliance on social cost, without ever fully defining it, illustrates the normative appeal of this rubric. No one likes costs, they’re bad. Identifying costs, and using them as a rationale for a judicial decision is quite attract. Yet, by failing to define these costs — and what considerations go into calculating them — the Court, and the academy, has unfortunately elided over an important jurisprudential step in numerous cases involving the Constitution. Further, by assuming the role of assessing social cost, and either grating the costs deference or skepticism, the Court has succeeded at its institutional aim at minimizing social cost in the absence of judicial intervention. For when either cost grows too large, the role — and need — of courts disappears. In their efforts to keep this balance in check, courts aim to maintain their legitimacy, and indeed relatedly, their need for existence. If courts step too far in either direction, their legitimacy, and place in society decreases

On the Uses of Interpretive 'Charity': Some Notes on Application, Avoidance, Equality, and Objective Unconstitutionality from the 2007 Term of the Constitutional Court of South Africa

This essay will appear in volume 1 of Constitutional Court Review, a new South African annual devoted to discussion of the prior year's work of the Constitutional Court of that country. The essay undertakes close examination and analysis of two of the Court's 2007 decisions - and also engages with some recent Court-watching debates in South Africa - from a hybrid, insider/outsider perspective. A main focus is on problems and puzzles arising from the South African system's widely-noted commitment to exposing the country's law governing private legal relations (including common law) to thorough and continuing re-examination for harmoniousness with the Bill of Rights (horizontal application); and, further, from the combination of that commitment with the country's historic and continuing reliance on common-law revision (along with legislation) for law reform in the field of defining criminal conduct. Topics more-than-incidentally treated include retrospective/prospective of judicially declared new criminal law, the idea of objective unconstitutionality (a kind of overbreadth doctrine), sex discrimination under the Constitution, and the debate over judicial minimalism and interbranch relations.

BCRA's Assault on the First Amendment: The Death of the Overbreadth Doctrine?

BCRA's Assault on the First Amendment: The Death of the Overbreadth Doctrine?

A Few Questions About Cross Burning, Intimidation, and Free Speech

This article is a critique of the Court's new category of speech and how that new category of speech fits into the series of ongoing judicial attempts to undermine basic First Amendment protections of radical political speech and dissent. Section one describes in more detail the many inconsistent themes of Virginia v. Black. Section two addresses the contradictions between settled doctrine regarding content and viewpoint discrimination, and the Court's willingness to uphold such discrimination against cross burners. Section three discusses yet another doctrine mangled by the Court's decision in Virginia v. Black: the overbreadth doctrine. Section four addresses the relationship of intimidating speech and the concept of the true threat, focusing on the Supreme Court's consistent refusal to define the latter category and the continuing efforts in the lower courts to define a true threat in the face of the Supreme Court's silence. Section five addresses the heart of the matter: How can speech be denied First Amendment protection in light of the fact that several major First Amendment free speech cases decided during the last century dealt with speech that contained overtones of intimidation indistinguishable from those in Virginia v. Black?

'Narrow Tailoring' Is Not the Opposite of 'Overbreadth': Defending BCRA's Definition of 'Electioneering Communications'

This article defends the primary definition of electioneering that Congress recently adopted in the Bipartisan Campaign Reform Act, commonly known as BCRA or McCain-Feingold, and which is currently before the U.S. Supreme Court (oral argument heard on Sept. 8, 2003). The article makes two points, either of which suffices to sustain the primary definition's constitutionality against the claim that it is substantially overbroad. First, the article argues that the primary definition is valid in all its applications and, therefore, the substantial overbreadth doctrine, which compares the extent of a statute's invalid coverage in relation to its valid scope, is inapposite. Second, the article contends that, even if the definition has some invalid applications, the extent of its invalid coverage is significantly smaller than what has been asserted by either the plaintiffs or the district court in the BCRA litigation. In support of the first point, which is the main one, the article explains why the definition, with respect to all its applications, is narrowly tailored to achieve two combined goals simultaneously: (1) clarity of the definition's coverage, and (2) efficacy of the regulations that use this definition to determine their scope. The article discusses the relevant U.S. Supreme Court precedents that support the constitutionality of legislation designed to achieve both clarity and efficacy at the same time. The article further explains that, to determine whether a particular communication within the definition implicates the goal of regulatory efficacy, it is necessary to consider the communication's potential electoral effects as well as its motivation. Once the potential electoral effects of communications are considered, the range of communications within the definition that do not implicate the goal of regulatory efficacy - and thus must be justified under narrow tailoring analysis by the simultaneous goal of definitional clarity - diminishes significantly.

Stranger in a Strange Land: The Use of Overbreadth in Abortion Jurisprudence

Plaintiffs seeking to avoid prosecution under an allegedly unconstitutional statute can ask a court to do one of two things: award facial relief, in which case any enforcement of the offending statutory provision is enjoined, or award as-applied relief, in which case enforcement of the provision against the plaintiff is enjoined, but officials may attempt to apply the statute to others. As-applied relief might also take the form of partial facial invalidation: The provision may not be applied to others similarly situated to the plaintiff. In United States v. Salerno, the Court ruled that judges should only provide total facial invalidation if there is "no set of circumstances" under which the statute could be applied consistent with the Constitution. This general rule, however, has had a historical exception for First Amendment jurisprudence, known as the overbreadth doctrine, and more recently Planned Parenthood v. Casey extended a similar exception to abortion jurisprudence. Most literature has been supportive of this extension, and some have suggested replacing the Salerno rule with the Casey rule as a general matter. This Note argues that the reasons given for the Casey exception are unpersuasive, that Salerno as a matter of history and doctrine is the correct rule to apply to facial challenges, and for that reason that Salerno should remain the general rule and Casey's "large fraction" test should be eliminated.

The Thorny Path to Thornhill: The Origins at Equity of the Free Speech Overbreadth Doctrine

The Thorny Path to Thornhill: The Origins at Equity of the Free Speech Overbreadth Doctrine

Facial Challenges to State and Federal Statutes

Courts can hold a statute unconstitutional either on its face or as-applied, and the standards courts use significantly affect the likelihood of a successful constitutional challenge. In this article, Professor Dorf analyzes the Supreme Court's facial challenge doctrine, which purports to restrict facial challenges to those cases in which a statute can be constitutionally applied in "no set of circumstances." Professor Dorf argues first that all persons have a right to be judged by a valid rule of law, and that the Court's current facial challenge doctrine can only be squared with this right if the Court is employing a presumption of severability-that unconstitutional aspects of a statute can be severed from constitutional ones by a process of judicial interpretation. Professor Dorf then discusses the limits imposed on this presumption of severability by both substantive constitutional law and institutional concerns. In analyzing the former, he argues that the First Amendment overbreadth doctrine, which the Court has recognized limits the applicability of the "no set of circumstances" test, should be and in fact has been applied outside the First Amendment context in a manner inconsistent with the facial challenge rule. He also argues that the facial challenge rule is inconsistent with principles of federalism, as it prevents federal courts from giving proper deference to state courts on issues of state law. Professor Dorf concludes that the Court's "no set of circumstances" test does not accurately reflect the Court's facial challenge doctrine, and recommends that the Court eschew categorizing constitutional challenges as either facial or as-applied, focusing instead on the underlying substantive and institutional issues.

The First Amendment Overbreadth Doctrine: A Comparison of Dellinger and Baranski

The First Amendment Overbreadth Doctrine: A Comparison of Dellinger and Baranski

The First Amendment Overbreadth Doctrine

The First Amendment Overbreadth Doctrine