¶ 89
The first amendment overbreadth doctrine looks not at whether a law
improperly regulates speech based on viewpoint or content but at the appropriate
scope of the regulation. See Osborne v. Ohio, 495 U.S. 103, 112 (1990)
(recognizing that, where a statute regulates expressive conduct, it may be found to
be unconstitutionally overbroad if it “criminalizes an intolerable range of
constitutionally protected conduct”). Generally, a defendant seeking to assert a
facial challenge would be required to establish that there is no set of circumstances
under which the statute would be valid. Minnis, 2016 IL 119563, ¶ 24. However,
the overbreadth doctrine permits a party to challenge a statute as a facial violation
of the first amendment, even if that party’s conduct would not fall within the
amendment’s protection. Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973); see
also People v. Relerford, 2017 IL 121094, ¶ 50; Minnis, 2016 IL 119563, ¶¶ 14, 24.
A facial challenge based on first amendment overbreadth is permitted out of
concern that the threat of enforcement of an overbroad law may chill or deter
constitutionally protected speech, particularly where the statute imposes criminal
penalties. Virginia v. Hicks, 539 U.S. 113, 119 (2003); see also Minnis, 2016 IL
119563, ¶ 24; People v. Melongo, 2014 IL 114852, ¶ 24.
¶ 90
Under the first amendment’s overbreadth doctrine, “a statute is facially invalid
if it prohibits a substantial amount of protected speech.” United States v. Williams,
553 U.S. 285, 292 (2008); see also Relerford, 2017 IL 121094, ¶ 50 (citing Grayned
v. City of Rockford, 408 U.S. 104, 114 (1972)). The doctrine operates to balance
two competing social costs—the chilling effect on constitutionally protected speech
against the invalidation of a law that is entirely constitutional in some of its
applications. Williams, 553 U.S. at 292 (citing Hicks, 539 U.S. at 119-20). In order
to be unconstitutional, the overbreadth must be “substantial, not only in an absolute
sense, but also relative to the statute’s plainly legitimate sweep.” (Emphasis
omitted.) Id. at 292-93 (citing Board of Trustees of the State University of New York
v. Fox, 492 U.S. 469, 485 (1989), and Broadrick, 413 U.S. at 615); see also Stevens,
559 U.S. at 473. “The ‘mere fact that one can conceive of some impermissible
applications of a statute is not sufficient to render it susceptible to an overbreadth
challenge.’ ” Williams, 553 U.S. at 303 (quoting Members of City Council of the
City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984)). Under
intermediate scrutiny, a content-neutral statute is overbroad only when it burdens
substantially more speech than necessary to advance its substantial governmental
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