Justice Thomas's Faux-Originalist Critique of Overbreadth is Radically Underinclusive (and Wrongheaded in Other Ways Too)

by Michael C. Dorf

On Thursday, in US v. Sinening-Smith, the Supreme Court, speaking through Justice Ginsburg, unanimously reversed a decision of the Ninth Circuit on the ground that that court so over-stepped its role in the adversary system as to have abused its discretion. According to the SCOTUS, by inviting amici to argue points not directly presented by counsel without adequate justification (such as the need to assure itself of proper subject matter jurisdiction, which courts must raise sua sponte), the court impermissibly took over the appeal. To be sure, "a court is not hide-bound by the precise arguments of counsel," Justice Ginsburg acknowledged, "but the Ninth Circuit’s radical transformation of this case goes well beyond the pale."

Yet just ten days earlier, the Supreme Court itself had issued an order in the pending cases involving Donald Trump's financial records, seeking briefing on the political question doctrine. No doubt to head off charges of hypocrisy, the Court's opinion contains an Appendix describing and seeking to distinguish its own practice, beginning with the order in the financial records litigation. Readers can judge for themselves whether the differences between the Court's practice and what the Ninth Circuit did in Sinening-Smith are so substantial as to justify the reversal. Here I want to pivot to discuss a different aspect of the case. In the course of a solo concurrence chastising the Ninth Circuit for reaching out to decide an issue not presented, Justice Thomas reaches out to address another issue not presented: whether to retain the First Amendment overbreadth doctrine. I shall not comment further on that irony, however, as there is enough that's wrong with the substance of what Justice Thomas says in his concurrence to occupy me.
According to the overbreadth doctrine, a litigant whose own speech could be proscribed by a more narrowly drawn statute may nonetheless succeed in challenging a law on the ground that it is too broad in scope. The doctrine disallows challenges where a law is valid in most applications, requiring successful litigants to demonstrate "substantial" overbreadth. Justice Thomas offers three objections to overbreadth doctrine. None is persuasive.

(1) Extremely Selective Originalism

Justice Thomas approvingly quotes an important 2017 Yale Law Journal article by Professor Jud Campbell for the proposition that, at the founding, the public did not think "that the First Amendment empowered judges to determine whether particular restrictions of speech promoted the general welfare.” Speaking in his own voice, Justice Thomas adds: "This makes sense given that the Founders viewed value judgments and policy considerations to be the work of legislatures, not unelected judges."

Yet First Amendment doctrine is pervasively nonoriginalist. Campbell's article doesn't even mention the overbreadth doctrine. Insofar as it identifies lessons for modern doctrines, they are substantive ones. Campbell writes: "If an originalist wanted First Amendment doctrine to track Founding Era judicial reasoning, the Supreme Court’s decisions in Texas v. Johnson, Boy Scouts of America v. Dale, Citizens United v. FEC, and Snyder v. Phelps, among many, many others, would likely have to go." Justice Thomas joined the majority opinion in every one of the specifically listed cases except Johnson, which was decided before he joined the Court but which he has applied without reservation. Unless and until Justice Thomas abandons the modern First Amendment entirely, one should regard with extreme skepticism his call for the re-examination of specific doctrines--like overbreadth and the rule of NY Times v. Sullivan that he criticized last year.

To be clear, I am not suggesting that it would be a good idea for the Court to abandon the modern First Amendment on originalist or other grounds. The Court's bipartisan consensus around the value of free speech--despite important disagreements about its implementation in various contexts--is one of the great success stories of modern constitutional law. Nor is it even clearly nonoriginalist in the sense that self-described originalist scholars use that term. Although the founding generation neither intended nor expected modern free speech doctrine, that doctrine is a plausible understanding of the original public meaning of the term "freedom of speech," if conceived at a sufficiently high level of generality. Whether understood as the logical implication of ideals promoted by Madison and Jefferson or the brainchild of Holmes and Brandeis, free speech doctrine--including the overbreadth doctrine--plays a vital role in our constitutional order.

(2) Facial Challenges

Justice Thomas laments that "the overbreadth doctrine violates the usual standard for facial challenges. Typically, this Court will deem a statute unconstitutional on its face only if 'no set of circumstances exists under which the Act would be valid.' United States v. Salerno, 481 U. S. 739, 745 (1987)." Yet, as I explained in a 1994 Stanford Law Review article, the Court has never applied the draconian Salerno test strictly. In a 2011 article in the California Law Review, Professor Richard Fallon reports the result of an empirical study of the Court's cases, which finds that facial challenges are ubiquitous and successful much more often than the Salerno test would suggest. Like me, Professor Fallon explains that this pattern is normatively justified. Justice Thomas does not even acknowledge, much less attempt to rebut, the substantial literature that contradicts the conventional wisdom about facial challenges outside the free speech overbreadth doctrine.

(3) Third-Party Standing

Justice Thomas also decries overbreadth as resting on an exception to the Court's limits on third-party standing. Here too he simply ignores the extremely powerful evidence contrary to his position.

(a) One need not conceptualize overbreadth doctrine as involving the rights of third parties at all. Here's how Justice Thomas describes the application of overbreadth doctrine in a landmark case: "Without considering whether the defendant’s actual conduct was entitled to First Amendment protection, the Court concluded that the law was unconstitutional." What exactly does Justice Thomas mean by "actual conduct  . . . entitled to First Amendment protection?"

Consider Texas v. Johnson, which was not an overbreadth case but an as-applied challenge to a Texas law that forbade "desecration of [the U.S.] flag." Johnson doused a U.S. flag in kerosene and lit it on fire on a crowded Dallas street. Was his actual conduct entitled to First Amendment protection? No, it was not. Had Johnson been charged under a law forbidding endangering public safety or a law prohibiting lighting a fire in public without a permit, then, absent censorial motivation on the part of the police and prosecutors, he could have been convicted consistent with the First Amendment. What entitled Johnson to a successful First Amendment defense was the interaction between the law and his conduct. Like most rights, the right to free speech is, as Professor Mathew Adler explained in a 1998 Michigan Law Review Article, a right against certain kinds of rules, not a right to engage in particular conduct regardless of the government's reason for forbidding that conduct. 

Accordingly, in one of the earliest and most important articles on the subject, Professor Henry Monaghan wrote in the Supreme Court Review that overbreadth doctrine does not need to rely on third-party standing at all. Rather, he said, "a litigant has always had the right to be judged in accordance with a constitutionally valid rule of law." Judging Johnson under a public-safety law would be permissible where judging him under a flag desecration law is not. And that's without even invoking the overbreadth doctrine.

To be sure, I contended in my Stanford article that Monaghan's argument only goes so far. Principles of severability will sometimes allow courts to say that the portion or application of a law used in a particular cases is valid as to the litigant challenging it, even if the law in other parts or applications would not be, and thus severing the invalid portions leaves a valid law applied to the litigant. The hard question that the literature by Adler, Fallon, myself, and others addresses in the wake of Monaghan's important contribution is when the Constitution permits or limits severability. But despite his interest in severability in other contexts, Justice Thomas's concurrence in Sinening-Smith shows no awareness of the issue's relevance to overbreadth.

(b) Even more surprisingly, Justice Thomas completely ignores the conventional justification for overbreadth conceived as an exception to a general rule barring third-party standing--the so-called chilling effect. Stating and justifying the conventional justification, Professor Daniel Farber wrote in the 1991 Harvard Law Review: "the threat of enforcement of an overbroad law deters people from engaging in constitutionally protected speech, inhibiting the free exchange of ideas.” He added: “Speech is more likely to be chilled than other activities because most of its benefits are not captured by the speaker."

Does Justice Thomas think that free speech is not susceptible to being chilled in the way that the cases assume and Professor Farber elaborated? Does Justice Thomas think that free speech is not special in being susceptible to a chilling effect? If so, he would be right. Professor Brandice Canes-Wrone and I published the results of our empirical research in a 2015 article in the NYU Law Review. We found persuasive evidence that abortion restrictions also chill more conduct than they specifically forbid. Of course, our finding is more readily a basis for applying a chilling-effect-focused overbreadth doctrine beyond the realm of free speech, rather than for restricting the free speech overbreadth doctrine itself, which is hardly a result Justice Thomas would endorse. However, it is hard to know what response Justice Thomas would provide, given that he ignores the chilling effect. Indeed, despite selectively citing enough of the academic literature to give his concurrence a patina of scholarly respectability, Justice Thomas ignores the very large volume of scholarly literature offering arguments contrary to his position.

* * *
In my essay on Friday, I argued that the telephonic oral arguments are beneficial in inducing Justice Thomas to participate much more than in regular times. I noted that he has a "distinctive set of views." Today underscores that "distinctive" hardly means "correct." On overbreadth, Justice Thomas's views are distinctively wrong.