16
MOODY v. NETCHOICE, LLC
THOMAS, J., concurring in judgment
utes as unconstitutionally vague is consistent with the original meaning of the Due Process Clause.” Dimaya, 584
U. S., at 206 (opinion of THOMAS, J.); see Johnson, 576
U. S., at 622 (opinion of THOMAS, J.).
The vagueness doctrine was the direct ancestor of one
subset of modern facial challenges, the overbreadth doctrine. See United States v. Sineneng-Smith, 590 U. S. 371,
385 (2020) (THOMAS, J., concurring) (noting that the overbreadth doctrine “developed as a result of the vagueness
doctrine’s application in the First Amendment context”). In
Thornhill v. Alabama, 310 U. S. 88 (1940), the Court
deemed an antipicketing statute “invalid on its face” due to
its “sweeping proscription of freedom of discussion.” Id., at
101–106. The Thornhill Court did so “[w]ithout considering
whether the defendant’s actual conduct was entitled to
First Amendment protection,” instead invalidating the law
because it “ ‘swept within its ambit . . . activities that in ordinary circumstances constitute an exercise of freedom of
speech or of the press.’ ” Sineneng-Smith, 590 U. S., at 383
(opinion of THOMAS, J.) (quoting Thornhill, 310 U. S., at 97;
alteration omitted).
Thornhill’s approach quickly gained traction in the First
Amendment context. In the years to follow, the Court “invoked [its] rationale to facially invalidate a wide range of
laws” concerning First Amendment rights—a practice that
became known as the overbreadth doctrine. SinenengSmith, 590 U. S., at 383. Under that doctrine, a court can
invalidate a statute if it “prohibits a substantial amount of
protected speech,” “relative to the statute’s plainly legitimate sweep.”5 Williams, 553 U. S., at 292. The Court has
never attempted to ground the overbreadth doctrine “in the
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5 Although the Court’s precedents describe an unconstitutionally overbroad statute as facially “invalid,” “federal courts have no authority to
erase a duly enacted law from the statute books.” J. Mitchell, The Writof-Erasure Fallacy, 104 Va. L. Rev. 933, 936 (2018); see Sineneng-Smith,
590 U. S., at 387 (opinion of THOMAS, J.).