3. Facial Challenges and Overbreadth Doctrine

FACIAL CHALLENGES AND OVERBREADTH DOCTRINE

Overbreadth Doctrine

Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protected freedoms.

Prohibiting placing of campaign decals on private cars is overbroad, and thus invalid prohibition. (Adiong v. COMELEC, G.R. No. 103956 March 31, 1992)

Banning the publishing of survey results is also overbroad because it does not meet the O’Brien test, since it suppresses one type of expression while allowing others like editorials. (SWS v. COMELEC, G.R. No. 147571, May 5, 2001)

Summary of Rules

General Rule: The overbreadth doctrine is chiefly used in free-speech cases. Facial challenges to penal statutes are generally disfavored, but may be entertained where protected expression is implicated and the requirements for judicial review are met. A penal statute may also be challenged as vague as applied.

Rationale: All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem effect or the fear of possible prosecution. But to prevent the State from legislating criminal laws because they instill such kind of fear is to render the state powerless in addressing and penalizing socially harmful conduct.

Exceptions:

• A penal statute may be challenged as applied to the litigant; this is distinct from a facial challenge.
• When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the overbreadth and vagueness doctrine is acceptable. (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014)

The facial challenge has expanded its scope to cover statutes not only regulating free speech, but also those involving religious freedom, and other fundamental rights because of the expanded scope of judicial power. (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014)

As Applied v. Facial Challenge

Distinguished from an as-applied challenge which considers only extant facts affecting real litigants, a facial invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities.

General Rule: In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise any constitutional ground – absence of due process, lack of fair notice, lack of ascertainable standards, overbreadth, or vagueness. Here, one can challenge the constitutionality of a statute only if he asserts a violation of his own rights. It prohibits one from assailing the constitutionality of the statute based solely on the violation of the rights of third persons not before the court. This rule is also known as the prohibition against third-party standing.

Exception: A petitioner may for instance mount a "facial" challenge to the constitutionality of a statute even if he claims no violation of his own rights under the assailed statute where it involves free speech on grounds of overbreadth or vagueness of the statute.

Rationale: To counter the "chilling effect" on protected speech that comes from statutes violating free speech. (Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 2014)

Overbreadth Doctrine

The overbreadth doctrine decrees that “a governmental purpose may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms” [Southern Hemisphere v. Anti-Terrorism Council, G.R. No. 178552 (2010)].

Facial challenge is allowed because of the possible chilling effect upon protected speech.

Both the void for vagueness doctrine and the overbreadth doctrine are subject to the same principles. For one, it is also an analytical tool for a “facial” challenge of statutes in free speech cases. Like overbreadth, it is said that a litigant may challenge a statute on its face only if it is vague in all its possible applications.

As-Applied vs. Facial Challenges

A facial invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its actual operation to the parties, but also on the assumption or prediction that its very existence may cause others not before the court to refrain from constitutionally protected speech or activities. On the other hand, an as-applied challenge considers only extant facts affecting real litigants [Disini v. Sec. of Justice, supra].

Facial Challenges and Overbreadth Doctrine

Exception: Facial Challenge

A facial challenge may be directed against a vague statute or to one which is overbroad because of the possible “chilling effect” the statute will have on protected speech. The theory is that “[w]hen statutes regulate or proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow specificity” [Gooding v. Wilson, 405 U.S. 518 (1972)].

This rationale does not apply to penal statutes without a free speech aspect. Criminal statutes have general in terrorem effect resulting from their very existence and, if facial challenges were allowed for this reason alone, the State may well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot take chances as in the area of free speech [Southern Hemisphere v. Anti- Terrorism Council, supra].

However, said doctrine applies to penal statutes when:

• The statute involves free speech [Disini v. Sec. of Justice, supra].

A penal statute may also be challenged as applied, but an as-applied challenge is distinct from a facial challenge.

Overbreadth Doctrine

The statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression [Gooding v. Wilson, supra].

A law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep [US v. Stevens, 559 U.S. 460 (2010)].

A governmental purpose may not be achieved through means which sweep too broadly and thereby invade the area of protected freedoms.