• Document: The First Amendment Doctrine of Underbreadth
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Washington University Law Review Volume 71 | Issue 3 1993 The First Amendment Doctrine of Underbreadth William E. Lee Follow this and additional works at: http://openscholarship.wustl.edu/law_lawreview Part of the Constitutional Law Commons, and the First Amendment Commons Recommended Citation William E. Lee, The First Amendment Doctrine of Underbreadth, 71 Wash. U. L. Q. 637 (1993). Available at: http://openscholarship.wustl.edu/law_lawreview/vol71/iss3/4 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact digital@wumail.wustl.edu. THE FIRST AMENDMENT DOCTRINE OF UNDERBREADTH WILLIAM E. LEE* A familiar First Amendment doctrine is the requirement that laws af- fecting freedom of expression be precisely tailored. One part of precise tailoring, overbreadth, invalidates laws that include within their reach actors or circumstances that do not present the danger the government seeks to avoid.1 But laws can also be improperly tailored because they are too narrow. 2 The concern for underinclusion-when a law targets some conduct or actors for adverse treatment, yet leaves untouched con- duct or actors that are indistinguishable in terms of the law's purpose- originated as an equal protection concept, but since the 1970s has be- come an increasingly important aspect of First Amendment methodology.3 * Professor, Henry W. Grady College of Journalism and Mass Communication, University of Georgia. 1. See, eg., Lewis v. City of New Orleans, 415 U.S. 130 (1974) (fighting words ordinance invalid because it is susceptible of application to protected speech). See generally Martin H. Redish, The Warren Court, the Burger Court and the FirstAmendment OverbreadthDoctrine, 78 Nw. U. L. REV. 1031 (1983). A law can also be improperly tailored because it does not use the least restrictive means that will accomplish the government's end. See, eg., Shelton v. Tucker, 364 U.S. 479, 488 (1960) (valid gov- ernmental purpose cannot be pursued by broad means if the end can be more narrowly achieved). See generally Note, Less DrasticMeans and the FirstAmendment, 78 YALE L.J. 464 (1969); Robert M. Bastress, Jr., Note, The Less RestrictiveAlternative in ConstitutionalAdjudication:An Analysis, A Justification, and Some Criteria, 27 VAND. L. REV. 971 (1974). Also, a law can be improperly tailored because the means chosen do not adequately serve the governmental interest. See, e.g., Vil- lage of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 636 (1980) (striking down an ordinance that only peripherally promoted the village's substantial interest in protecting the public from fraudulent solicitations). 2. Professor Nimmer called such laws "overnarrow". MELVILLE B. NIMMER, NIMMER ON FREEDOM OF SPEECH § 2.06[B] at 2-93 to 97 (1984). See generally Kenneth W. Simons, Overinclu- sion and Underinclusion:A New Model, 36 UCLA L. REv. 447 (1989). 3. See, eg., Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975). In Erznoznik, the city sought to justify as a traffic regulation an ordinance prohibiting drive-in theaters from exhibiting films containing nudity. The Court noted that while legislatures can generally deal with one part of a problem without addressing the entire problem, regulations that discriminate on the basis of con- tent are impermissible unless clear reasons exist for the distinctions. Because a wide variety of scenes in movies would also distract motorists, no justification existed for distinguishing movies containing nudity. Id. at 215. Following the Supreme Court, lower courts began to incorporate underinclusiveness as part of First Amendment analysis. See, e.g., Green v. Ferrell, 801 F.2d 765 (5th Cir. 1986) (ban on inmates Washington University Open Scholarship 638 WASHINGTON UNIVERSITY LAW QUARTERLY [Vol. 71:637 This is a highly controversial methodology; a law's narrowness may be attacked as insufficiently promoting a governmental interest, or it may be defended because of its limited reach. The application of this methodol- ogy is also puzzling. Sometimes laws that create a slight burden on First Amendment rights are invalidated because only a few actors are targeted. In other instances, if the law imposes a minimal burden on free expres- sion the Court defers to legislative judgments concerning which sources of a problem the government should regulate. Recently, in R.A. V v. City of St. Paul,4 the Court invalidated a law t

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