The Problems of Overbreadth and What to Do About Them

42 Pages Posted: 5 Apr 2022

See all articles by R. George Wright

R. George Wright

Indiana University Robert H. McKinney School of Law

Date Written: March 29, 2022

Abstract

Few important areas of the law exhibit the sheer unpredictability of the free speech overbreadth cases. The Supreme Court has recognized that the idea of substantial overbreadth cannot be reduced to any precise formulation. But this is a dramatic understatement. In reality, overbreadth claims are often resolved in ways that seem readily contestable, if not arbitrary. Several distinct pathological moves are involved in creating this judicial state of affairs. This Article identifies these moves, illustrates the resulting unpredictability of case outcomes, and presents several independent suggestions for arriving at more consistently defensible results in the overbreadth cases.

Keywords: free speech, overbreadth

JEL Classification: K10, K30, K40

Suggested Citation

Wright, R. George, The Problems of Overbreadth and What to Do About Them (March 29, 2022). Available at SSRN: https://ssrn.com/abstract=4069463 or http://dx.doi.org/10.2139/ssrn.4069463

R. George Wright (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States

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