Start the Death Watch for the Overbreadth Doctrine

United States v. Hansen signals the Court is not willing to "strike down" laws that may, hypothetically, burden someone else's speech rights.

On Friday, the Supreme Court decided United States v. Hansen. In this case, the defendant promised aliens that they could obtain citizenship through "adult adoption." In the process, the defendant induced the aliens to stay in the country illegally. Hansen was convicted of violating a federal statute that forbids "encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such [activity] is or will be in violation of law." On appeal, Hansen argued that this statute violated the Free Speech Clause of the First Amendment. To be sure, Hansen's own conduct was not protected speech. Rather, Hansen asserted that the entire statute was "invalid" under the so-called overbreadth doctrine.

Generally, a person only has "standing" to challenge a law when it violates that person's rights. However, an overbreadth challenge allows a person to assert that the government has violated the free speech rights of third parties who are not before the court. In other words, the overbreadth doctrine allows someone whose speech can be prohibited to assert that a statute is unconstitutional. This approach allows courts to vigorously scrutinize laws that may violate the freedom of speech — even for those people who might never be prosecuted for violating these laws.

This doctrine, which was developed by (you guessed it) the Warren Court, never quite fit into constitutional law. All the usual rules of standing are thrown out the window, and a defendant can be acquitted even if his own conduct is unprotected by the First Amendment. Civil rights litigants often rely on the overbreadth doctrine, which allows them to challenge statutes on their face, even if they are not subject to a present-day injury. The 3D-printed gun litigation, which I've been involved with for some time, has invoked the overbreadth doctrine.

But I've long suspected that the overbreadth doctrine was on borrowed time. In 2020, the Supreme Court decided United State v. Sineneng-Smith. This case concerned the same statute at issue in Hansen. But the Court ducked the overbreadth question because of the bizarre way that the Ninth Circuit decided a question that none of the parties presented. In a concurrence, Justice Thomas expressed his doubts on the overbreadth doctrine.

Although I have previously joined the Court in applying this doctrine, I have since developed doubts about its origins and application. It appears that the overbreadth doctrine lacks any basis in the Constitution's text, violates the usual standard for facial challenges, and contravenes traditional standing principles. I would therefore consider revisiting this doctrine in an appropriate case.

Well, Hansen wouldn't be that "appropriate case," but a majority of the Court seems to share Justice Thomas's doubts. Justice Barrett refers to the doctrine with some skepticism.

First, she described the doctrine as "unusual" and explains that generally criminal defendants cannot assert someone else's constitutional rights.

An overbreadth challenge is unusual. For one thing, litigants typically lack standing to assert the constitutional rights of third parties. See, e.g., Powers v. Ohio, 499 U. S. 400, 410 (1991).

Barrett is a stickler for standing. This entire approach must not sit well with her.

Second, generally the standard for a facial challenge is extremely demanding. But the standard for overbreadth challenge is exceedingly simplified:

For another, litigants mounting a facial challenge to a statute normally "must establish that no set of circumstances exists under which the [statute] would be valid." United States v. Salerno, 481 U. S. 739, 745 (1987) (emphasis added). Breaking from both of these rules, the overbreadth doctrine instructs a court to hold a statute facially unconstitutional even though it has lawful applications, and even at the behest of someone to whom the statute can be lawfully applied.

Third, Barrett points out that the overbreadth doctrine has unusual interactions with the constitutional avoidance doctrine–criminal defendants have every incentive to read statutes broadly, which would result in facial invalidation, while the government has incentives to read statutes narrowly, to save the statute:

This [constitutional avoidance] canon is normally a valuable ally for criminal defendants, who raise the prospect of unconstitutional applications to urge a narrower construction. But Hansen presses the clause toward the most expansive reading possible, effectively asking us to apply a canon of "'constitutional collision.'" 40 F. 4th, at 1059 (opinion of Bumatay, J.). This tactic is understandable in light of the odd incentives created by the overbreadth doc-trine, but it is also wrong. When legislation and the Constitution brush up against each other, our task is to seek harmony, not to manufacture conflict.

Ultimately, the Court reads the criminal statute in such a way as to avoid the overbreadth doctrine. Specifically, Justice Barrett finds that the key words–"encourage and "induce"–refer to criminal solicitation, which is not protected speech. Barrett's opinion is like a textbook for statutory interpretation, with some lovely prose:

To see how this works, consider the word "attempts," which appears in clause (iv)'s next-door neighbors.

In concluding otherwise, the Ninth Circuit stacked the deck in favor of ordinary meaning. . . . But it should have given specialized meaning a fair shake.

Here, the context of these words—the water in which they swim—indicates that Congress used them as terms of art.

When Congress transplants a common-law term, the " 'old soil' " comes with it.

At the risk of sounding like a broken record, "encourage" and "induce," as terms of art, carry the usual attributes of solicitation and facilitation— including, once again, the traditional mens rea.

When we turn to the other side of the ledger, we find it pretty much blank.

Yet none of Hansen's examples are filtered through the elements of solicitation or facilitation—most importantly, the requirement (which we again repeat) that a defendant intend to bring about a specific result. Clause (iv) does not have the scope Hansen claims, so it does not produce the horribles he parades.

In the alternative, the Court finds that any speech covered by the statute would facilitate crime, which is not protected.

To the extent that clause (iv) reaches any speech, it stretches no further than speech integral to unlawful con-duct.4 "[I]t has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed." Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 502 (1949). Speech intended to bring about a particular unlawful act has no social value; therefore, it is unprotected.

The defendant, and co-blogger Eugene Volokh's amicus brief, contend that the so-called crime-facilitating speech doctrine does not apply with a civil offense like illegal immigration. Justice Barrett criticized what she called a "mismatch" theory. (That theory, in another context, may be on her mind in the affirmative action cases.)

Justice Thomas's dissent provides a rich history of New York's Council of Revision. This body could review a law based on its legality, as well as for policy reasons. The Framers of the federal Constitution were well aware of the Council of Revision, and expressly rejected a similar model for the federal system. Thomas explains that the overbreadth doctrine forces federal judges to emulate the long-defunct Council of Revision, by considering hypothetical scenarios that may violate the Constitution.

When courts apply the facial overbreadth doctrine, they function in a manner strikingly similar to the federal council of revision that the Framers rejected. The doctrine contemplates that courts can declare laws unconstitutional in the abstract without the law ever being applied against any individual in an unconstitutional manner. Along the way, courts must examine the sum total of the law's application to people who are not parties to any proceeding; courts then weigh the law's various applications to determine if any un-constitutional applications outweigh the law's constitutional sweep or might "chill" protected speech. That is nothing short of a society-wide policy determination of the sort that legislatures perform. Yet, the Court has never even attempted to ground this doctrine "in the text or history of the First Amendment." Sineneng-Smith (concurring opinion). Instead, it has icy considerations and value judgments" about "what serves the public good." As the debate over the federal council of revision demonstrates, this approach is fundamentally inconsistent with judicial duty. This case demonstrates just how far courts have drifted from their original station of adjudicating the rights of the parties before them in accordance with law.[FN3] In an appropriate case, we should carefully reconsider the facial over-breadth doctrine.

And Justice Thomas is not stopping with overbreadth. He flags five other ares of the law where courts have deviated from their traditional role, and function like the council of revision: void for vagueness, suspect classifications, substantive due process, due process for welfare benefits, and time/place/manner doctrine.

[FN3] The facial overbreadth doctrine is but one manifestation of the Court's larger drift away from the limited judicial station envisioned by the Constitution. See J[oyce Lee] Malcolm, Whatever the Judges Say It Is? The Founders and Judicial Review, 26 J. L. & Politics 1, 36–37 (2010). Justices have long noted that doctrines tasking judges with passing upon the policy of laws in the abstract resemble the council of revision the Framers rejected. See, e.g., Lewis v. New Orleans, 415 U. S. 130, 136 (1974) (Blackmun, J., joined by Burger, C. J., and Rehnquist, J., dissent-ing) (overbreadth and vagueness doctrines); see also Trimble v. Gordon, 430 U. S. 762, 778 (1977) (Rehnquist, J., dissenting) (suspect classifications under the Fourteenth Amendment); Griswold v. Connecticut, 381 U. S. 479, 513–515 (1965) (Black, J., joined by Stewart, J., dissenting) (substantive due process); Goldberg v. Kelly, 397 U. S. 254, 273–274 (1970) (Black, J., dissenting) (due process for welfare benefits); Saia v. New York, 334 U. S. 558, 571 (1948) (Jackson, J., dissenting) (review of time, place, and manner speech regulations).

Thomas is a one-man wrecking crew for doctrines made up by the Supreme Court.

By contrast, Justice Jackson in dissent extolled the value of the overbreadth doctrine.

In any event, I think it is prudent to start the death watch for the overbeadth doctrine. I'm not sure which vehicle will squarely present the question of whether overbreadth should be abandoned. The federal government won't seek that remedy. Perhaps a conservative state might call for precedent to be reversed in a challenge to a state law on speech grounds. Then again, the overbreadth doctrine seems to have standing problems. And courts can always raise jurisdiction sua sponte. That could be one vehicle to revisit the doctrine, in an appropriate case.