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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.
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Fortunately, it takes five votes to wreck precedent, and Thomas can't get five votes because he's such a radical extremist.
Actually, fortunately he doesn't need to "get" five votes, he merely needs to provide the fifth vote in order to get four justices inclined to rescue the Constitution from a bogus precedent to pull the trigger and do that.
I.e., you just need five one-man wrecking crews, or a four-man wrecking crew plus Thomas, or any other combination of wrecking crews that add up to five.
Professor Blackman does have a good turn of phrase, with that one.
Is Justice Thomas really a radical extremist? Was Justice Brennan? Or Chief Justice Warren? Or Justice Chase?
Is Justice Thomas really a radical extremist?
Yes.
Thomas even in this 6-3 Court never garners any votes for his positions, while all your other examples, especially Brennan, did.
Doesn't that just show that, contrary to what we hear from the (lying, pro-Democrat) media, the current court is not "radical" or "extreme"?
Bill Brennan will be remembered as a giant of the Court and of American progress.
Clarence Thomas will be remembered as half of a clownish tag team whose antics (on the wrong side of history) precipitated ethics reform and Court enlargement.
Although I disagree with the overbreadth doctrine, which has sometimes led courts to adapt implausibly stretched readings of statutes in order to strike them down, I don’t see it as causing a standing problem when it is asserted in an appeal of a criminal conviction. The defendant has been snetenced to go to jail. That’s an injury. The conviction is caused by the allegedly unconstitutional statute. That’s causality. And a court is capbable of redressing the injury by reversing the conviction. That’s redressability.
A criminal defendant challenging a conviction ALWAYS has standing, no matter what legal theory for why the conviction is invalid is asserted. This case is no exception. Any disagreement with the legal theory asserted in a criminal appeal solely concerns the merits, not standing. The defendant’s overbreadth theory in this case is no exception.
That said, I do disagree with the doctrine. Courts should give speech related statutes a reasonable interpretation, and as in every other case where there is a constitutional difficulty, should construe statutes narrowly to avoid it if they can give the statute a reasonable reading that does so, rather than rushing to strike them down.
Courts should give speech related statutes a reasonable interpretation, and as in every other case where there is a constitutional difficulty, should construe statutes narrowly to avoid it if they can give the statute a reasonable reading that does so, rather than rushing to strike them down.
My problem with this argument you made is with the word “reasonable”. I would expect that a large number of constitutional rights violations would never happen if government officials would always act in ways that are reasonable. I see the overbreadth doctrine as protecting rights from the chilling effect that results when people worry that the government will interpret the law in an unreasonable way. Without that doctrine, you’re left with people willing to take a chance and get prosecuted and then contest the government’s action in court. If no one is willing to take that chance, so they choose not to engage in what would be constitutionally protected conduct out of fear of the consequences, then the government that wanted to suppress their rights gets away with it.
Edit: There could be a middle ground where the courts evaluate how likely it is that conduct that is constitutionally protected might be penalized by the government. If it would take some truly radical idiot DA to try and prosecute someone under a statute for it to be used against people, then, sure. I could see not worrying about that and leaving the law as is. But if it isn't outside the realm of the plausible, then you've got something that needs to be addressed.
“A criminal defendant challenging a conviction ALWAYS has standing, no matter what legal theory for why the conviction is invalid is asserted.”
Respectfully, that’s not entirely correct. For instance, one doesn’t have standing to assert someone else’s Fourth Amendment rights. So if D says the car isn’t his, and the police search it and find incriminating evidence against D, he doesn’t have standing to challenge the search even if it was illegal.
Defendant’s also can’t challenge violations of other people’s testimonial privileges. So, if witness is forced to testify in violation of his Fifth Amendment rights and implicates D, D doesn’t have standing to then assert the privilege as a ground for reversal.
Your example doesn't really contradict the quote from ReaderY. That D has standing to challenge his conviction doesn't guarantee that he has a case for undoing his conviction on, in your example, 4A grounds. That's two different issues.
He said a criminal defendant always has standing to challenge a conviction no matter the legal theory. But that’s not true. In the 4A example, it’s not just that his challenge might fail. Rather, he doesn’t have standing to bring it at all. If it were the most blatant illegal search ever, he couldn’t bring the challenge. If he did come to court with that theory to reverse his conviction, it would be swatted down despite the clear illegality.
The most recent appearance that I noticed of the overbreadth doctrine was in the BDS case, Arkansas Times LP v. Waldrip (8th Cir. 2022) (en banc) https://reason.com/volokh/2023/06/23/challenge-to-georgia-bds-law-loses-on-qualified-immunity-grounds/, where the dissent correctly notes that the statute as written and in its plain meaning is directed in part at First-Amendment-protected speech. (The majority opinion kind of admits this in a footnote, but proceeds to not apply overbreadth doctrine on patently spurious grounds).
Not that this is not a criminal case.
My take on it is that courts are supposed to deal with the cases and controversies actually before them and have no business opining on possibly unconstitutional applications of a statute if, as applied in the case before it, there is no such problem.
* Note that…
Yeah, framing the discussion about "overbreadth" with "standing" terms is an intentionally obfuscatory rhetorical trick, designed to make the "overbreadth" doctrine seem more objectionable than it actually is.
There's a sad irony here. We have the "overbreadth" doctrine for precisely the same reason that Josh is enthusiastic about overturning it - it makes it harder for state legislatures to pass bans on drag, CRT, etc. Governors and legislators want to chill certain kinds of speech, to ban it from public spaces entirely. So they pass these laws that are ostensibly about pornographic displays and teaching kids that white kids should feel racial guilt for slavery, but drafted much more broadly. They bring a few select prosecutions (or not), and count on a broader group of speakers to self-censor rather than risk prosecution.
The "overbreadth" doctrine exists because exercising our First Amendment rights should not be contingent upon our willingness to risk exposure to selective, spurious prosecutions that might ultimately be thrown out, but only after years of litigation time and expense. But that is exactly the kind of risk and expense that legislators in Texas, Florida, and other states want to impose on disfavored speakers. And Josh is on their side.
I notice that the opinion of the court doesn’t appear to have mentioned the word “overbreadth” or the overbreadth precedents. It just said that Congress intended, as a matter of statutory interpretation, to use terms of art confined to obviously prohibitable conduct rather than dictionary meanings, hence there was no First Amendment problem. It never addressed the repondant’s argument that under the doctrine, Congress has to use dictionary meanings rather than terms of art if it wants to regulate speech. It just pretended the precedents supporting the doctrine were never there.
Given that the question presented was specifically whether the statute was unconstitutional under the overbreadth doctrine, it was disingenuous of the Court not to have discussed it.
I agree with Professor Blackman that this case, by pretending the overbreadth doctrine was never there, essentially overruled it sub silentio. But whatever I think of the overbreadyh doctrine, the court ahiuld not treat its precedents that disrespectfully. If it wants to narrow the doctrine, it should say why it doesn’t apply to this case. If wants to overrule the doctrine entirely, it should say so plainly, and explajn why it thinks the doctrine was wrong.
Justice Barrett does mention the doctrine at the end. It seems that the Court is not (at least at this point) overruling the doctrine entirely, but is narrowing it considerably. It’s become harder to discern the difference between overbreadth and standard facial invalidity.
"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."
Sounds like a scam.
As the second sentence in the syllabus says, “But that was a scam.”
I think this case is like the one exempting fish from the Sarbanes-Oxley Act. There are other convictions not worthy of the Supreme Court's time. The question is whether the government pursued one charge too many.
To be clear, in this case 1. The court of appeals held that a federal statute was unconstitutional (which is a decision the Supreme Court will pretty much always review) and 2. On that review, the Supreme Court concluded that the statute was constitutional, and that the defendant’s conduct was not protected.
If a criminal statute is "overbroad" when its language could sweep in protected activity along with unprotected, then isn't the real problem with it that there is no way to know *which* the jury found to be proven beyond a reasonable doubt?
It is easy to say that, clearly, Hansen willfully facilitated a violation (unprotected). But a jury must so find beyond a reasonable doubt. But he also -- beyond any doubt -- at the very least "encouraged" the violation in the non-technical colloquial sense (which, without more, is protected speech).
So how do we know the jury did not rely on the latter, much simpler, basis for its guilty verdict?