Chilling Rights

64 Pages Posted: 7 Mar 2016 Last revised: 30 Jan 2017

See all articles by Toni M. Massaro

Toni M. Massaro

University of Arizona College of Law

Date Written: January 20, 2017

Abstract

A persistent trope in free speech doctrine is that overbroad laws chill protected expression and compromise the breathing room needed for a vibrant marketplace of ideas. The conventional restrictions on facial challenges of measures that sweep beyond legitimate regulatory zones are relaxed. Whether and to what extent this liberal approach to jurisdiction actually governs in free speech law and not elsewhere, and whether this is constitutionally or normatively defensible, have been the subject of considerable and exceptionally insightful scholarship. Yet the United States Supreme Court has given the best of this work slight notice.

This Article proposes a new path forward. It first describes the constitutional and normative puzzle presented by the conventional account of the overbreadth doctrine of the First Amendment and synthesizes the leading works that address this puzzle. It also identifies emerging doctrinal trends that may compel the Court to square its rhetoric with its doctrinal reality and to align both with constitutional dictates.

This Article then sets forth a straightforward test, under which facial challenges of overbroad laws that chill fundamental rights are treated uniformly. Free speech overbreadth doctrine illustrates the proper approach to analyzing all facial challenges to unconstitutionally overbroad laws. Moreover, this approach is grounded in due process principles that would govern in federal and state courts alike. The proposed test would not trigger a cascade of successful facial challenges, but would provide a constitutionally sound, rigorous, and intellectually accessible tool for courts to uproot patently and egregiously overbroad laws that threaten to ice fundamental rights.

Keywords: free speech, first amendment, facial challenge, overbreadth doctrine, fundamental rights, standing doctrine, justiciability, federal courts, separation of powers

Suggested Citation

Massaro, Toni Marie, Chilling Rights (January 20, 2017). 88 University of Colorado Law Review 33 (2016); Arizona Legal Studies Discussion Paper No. 16-08. Available at SSRN: https://ssrn.com/abstract=2741866

Toni Marie Massaro (Contact Author)

University of Arizona College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States
520-626-2687 (Phone)
520-621-9140 (Fax)

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