Joel Dillard & Associates

Representing Working People

Overbreadth: even legitimate speech rules can become unconstitutional if they sweep too broadly.

This is the third in a series of posts inspired by the free speech case of Gunter v. Jackson Public Schools.

The First Amendment prohibits the government from interfering with or deterring the speech of citizens. But some speech can be dangerous, and rules may be necessary to protect people or preserve the peace. For example, it may make sense to outlaw threats to kill police officers.

But even a good rule limiting speech can become unconstitutional if it is too vague or broad. If it is too vague it will be hard to tell what speech is and is not allowed, and in this uncertainty people will be afraid to engage in important protected speech. Similarly, if the rule is too broad it will prohibit a great deal of speech that does not cause a problem, thus interfering with speech rights.

For this reason, the Courts say that a speech rule is unconstitutional if it covers a substantial number of unconstitutional applications judged in relation to the statute's plainly legitimate sweep. Seals v. McBee, 898 F. 3d 587, 593 (5th Cir. 2018); US v. Stevens, 559 U.S. 460 (2010).

In Seals, for example, a statute prohibiting threats to a police officer was found unconstitutionally overbroad. Although there was no problem with banning true threats of bodily harm, the word threat could be understood to cover other kinds of threats, such as the threat to sue or to boycott. These kinds of threats cannot be banned. The Court therefore said the rule was unconstitutionally overbroad.


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