Case: 21-51178
Document: 00516474571
Page: 12
Date Filed: 09/16/2022
No. 21-51178
which is deprived of an uninhibited marketplace of ideas.” Virginia v. Hicks,
539 U.S. 113, 119 (2003) (citation omitted).
Consistent with the overbreadth doctrine’s rationale, the Supreme
Court has only applied it where there is a substantial risk that the challenged
law will chill protected speech or association. See, e.g., Bigelow v. Virginia, 421
U.S. 809, 817–18 (1975) (declining to address facial overbreadth challenge
where statutory amendment removed risk that statute “will chill the rights of
others”); Law Students C.R. Rsch. Council, Inc. v. Wadmond, 401 U.S. 154,
167 (1971) (denying facial relief where “careful administration” of state
regulatory scheme could avoid “chilling effects upon the exercise of
constitutional freedoms”). The Court has also instructed that “the
overbreadth doctrine is strong medicine” that should be employed “only as
a last resort.” L.A. Police Dep’t v. United Reporting Pub. Corp., 528 U.S. 32,
39 (1999) (quotation omitted). And the overbreadth doctrine’s function
“attenuates” as the regulated expression moves from “pure speech toward
conduct.” Id. at 40 (quotation omitted).
2.
The overbreadth doctrine does not apply to Section 7. That’s for three
reasons.
First, the primary concern of overbreadth doctrine is to avoid chilling
speech. But Section 7 does not chill speech; instead, it chills censorship. So there
can be no concern that declining to facially invalidate HB 20 will inhibit the
marketplace of ideas or discourage commentary on matters of public concern.
Perhaps as-applied challenges to speculative, now-hypothetical enforcement
actions will delineate boundaries to the law. But in the meantime, HB 20’s
prohibitions on censorship will cultivate rather than stifle the marketplace of
ideas that justifies the overbreadth doctrine in the first place.
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