At Volokh Conspiracy, Josh Blackman: Start The Death Watch For The Overbreadth Doctrine. From the introduction:
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.
…
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. …
As Professor Blackman explains, Justice Barrett's majority opinion avoided the issue by reading the statute narrowly — but with some critical comments about the overbreadth doctrine along the way.
(Aside: The majority opinion vindicates the opinion dissenting from denial of rehearing en banc by originalist-oriented Ninth Circuit Judge Patrick Bumatay.)
Justice Thomas concurred with some even harsher comments:
I join the Court’s opinion in full. I write separately to emphasize how far afield the facial overbreadth doctrine has carried the Judiciary from its constitutional role. The facial overbreadth doctrine “purports to grant federal courts the power to invalidate a law” that is constitutional as applied to the party before it “‘if a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’” Americans for Prosperity Foundation v. Bonta, 594 U. S. ___, ___ (2021) (THOMAS, J., concurring in part and concurring in judgment) (slip op., at 2) (quoting United States v. Sineneng Smith, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring) (slip op., at 1)). As I have explained, this doctrine “lacks any basis in the text or history of the First Amendment, relaxes the traditional standard for facial challenges,” and distorts the judicial role. Id., at ___ (slip op., at 9).
Justice Jackson defended overbreadth in dissent (joined by Justices Kagan and Sotomayor), but only briefly, on policy grounds:
Absent overbreadth doctrine, “the contours of regulation[s]” that impinge on the freedom of
speech “would have to be hammered out case by case—and tested only by those hardy enough to risk criminal prosecution to determine the proper scope of regulation.” Id., at 487.
Professor Blackman concludes:
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.
Posted at 6:04 AM