The Problems of Overbreadth and What to Do About Them
42 Pages Posted: 5 Apr 2022
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: Suggested Citation