Vagueness and Overbreadth Doctrines

Challenges to the constitutionality of a particular law may result from the fact that, as written, it punishes or discourages constitutionally protected speech (this notion is often called a chilling effect). The problem here stems from how the law is drafted—that is, how the law appears on its face. Once again, it is easiest to understand these doctrines through examples.

Vagueness Doctrine

It may seem like common sense to think that people should be able to read a law and immediately know what speech is prohibited and what speech is allowed. Alas, that is not always the case. Fortunately, the First Amendment requires such clarity, and laws that do not measure up are declared void for vagueness. The vagueness doctrine is based, in part, on the notion of due process—that people should have the proper notice that their speech is violating the law. Let’s suppose that Penn State creates a regulation that says, “Students may not use offensive language during class.” The problem with such a rule is that the term “offensive" has many different meanings.” Moreover, it is subjective: What is offensive to you might not be offensive to me, and vice versa. Most importantly, a student reading this regulation would not be able to discern from the rule what language can be used during class and what is prohibited. In such instances, the laws or regulations are struck down as unconstitutional on vagueness grounds.

Overbreadth Doctrine

Sometimes the drafters of a law want to prohibit a particular type of speech, but the words used in the law reach far beyond the intended targeted expression. In situations where the law proscribes a particular form of expression but sweeps in a substantial amount of protected speech as well, the law will be struck down on overbreadth grounds. Here’s an example: Congress wants to stop the distribution of pornography over the Internet, so it passes a law that prohibits “sexually explicit expression” on the Internet. Set aside for the moment that the law would be virtually (no pun intended) impossible to enforce. Clearly, pornography would be considered “sexually explicit expression,” so in that sense the law would reach its intended target. Nevertheless, it would also sweep up a substantial amount of other speech on the Internet—speech that is fully protected by the First Amendment, such as communication on medical websites, literature, and sex education materials, just to name a few.

Vagueness and overbreadth may be raised as facial challenges. That means the party making the challenge in court may not be raising the claim for personal interests, but instead may be asking the court to strike down the law entirely because of a general or broad application that could adversely affect others. This is a deviation from the ordinary rule that an individual must have standing to sue-in other words, ordinarily, the plaintiff must be directly affected by the law. Courts are more willing to entertain facial challenges when First Amendment interests are at stake.