Academic journal article Harvard Law Review

Overbreadth and Listeners' Rights

Academic journal article Harvard Law Review

Overbreadth and Listeners' Rights

Article excerpt


According to the conventional understanding of standing doctrine, an individual cannot raise legal challenges unless she can show an injury to a legally protected interest. (1) The doctrinal origins of this so-called injury-in-fact requirement are said to lie in the Article III reference to "cases or controversies." (2) This explanation, however, can make the doctrine seem obscure and technical, whereas the basic idea is actually quite intuitive. Put simply, the doctrine ensures that individuals can only raise concerns that are both real and their own. (3) Just as one's everyday complaint can fall flat if the subject is "none of your business," a legal complaint will fall flat if it is not based on one's own legal entitlements. The standing inquiry is, in a sense, the legal equivalent of asking, "What's it to you?"

Despite some intuitive appeal, the conventional rule against asserting the rights of others appears to come with a panoply of exceptions so extensive that it calls the rule into question entirely. The Supreme Court has permitted third parties to assert the legal rights of others who are their customers, (4) clients, (5) patients, (6) jurors, (7) and even voters. (8) All of these cases, however, are united by two features: (1) the rights violation injures the third party at least indirectly, and (2) the party whose rights are violated faces at least some impediment to raising the challenge. (9) So, while these cases raise exceptions to a general prohibition on third-party standing, they do pass the intuitive "what's it to you?" test.

In this light, a more perplexing apparent exception to normal standing doctrine is the First Amendment overbreadth doctrine. When a statute proscribes constitutionally protected speech, a party whose speech the statute forbids may level a constitutional challenge against the statute even if the party's own speech could constitutionally be prohibited. (10) In other words, speakers can challenge a statute on the basis that it would be impermissible as applied to others, not themselves. This form of third-party standing is especially perplexing for three reasons. First, overbreadth appears to be a procedural rule that is unique to a particular substantive area of law, namely the First Amendment. Second, whereas other cases of third-party standing involve at least an indirect injury to the complaining party, it is not clear that a party making an overbreadth challenge suffers any injury--after all, the party's conduct could have been covered even by a permissible statute. Third, overbreadth cases uniquely seem to involve hypothetical rights violations, not actual rights violations of non-present parties. (11)

Because overbreadth appears to be an ad hoc exception in tension with normal standing principles, scholars have understandably sought to reinterpret the doctrine in a manner compatible with the idea that one only has standing to challenge violations of one's own legal rights. (12) Such accounts focus on a right not to be subjected to punishment on the basis of an unconstitutional rule of law. This Note adopts a different approach to the same problem. Because of the overbreadth doctrine's unique presence in the First Amendment context, this Note focuses on the distinctive First Amendment rights associated with an open marketplace of ideas. According to this account, individuals can challenge overbroad statutes in the First Amendment context because they have a right to receive open discourse from others. That is, First Amendment overbreadth derives from a party's rights as a listener, not as a speaker. This approach is admittedly not the Supreme Court's avowed justification for the overbreadth doctrine, but it explains the doctrine in a more systematic way that preserves the core intuitive idea that one cannot complain without receiving an injury oneself.

This Note proceeds as follows. Part II outlines the overbreadth doctrine and three approaches to explaining the doctrine in relation to traditional standing principles. …

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