A federal court should not extend the invalidation of a statute further than is necessary to dispose of the case before it.
After a Washington state obscenity statute was declared facially invalid by the Court of Appeals for its definition of 'prurient' as inciting 'lust,' the Supreme Court addressed whether such a broad invalidation was appropriate. The Court held that a federal court should not extend the invalidation of a statute further than necessary to dispose of the case. Because the statute contained a severability clause and the identified overbreadth could be cured by a limiting construction, the Court determined that partial invalidation was the proper course rather than striking the entire act.
At page 504 Partial invalidation versus facial invalidation of statutes67 citing cases“normal rule that partial, rather than facial, invalidation is the required course.”
- In re D.L., 310 Cal. Rptr. 3d 562 (Cal. Ct. App. 2023).published (the normal rule [is] that partial, rather than facial, invalidation is the required course)
- Henry v. Marshall, 532 F. Supp. 3d 1181 (M.D. Ala. 2021).published(the normal rule that partial, rather than facial, invalidation is the required course.)
- Bair v. Shippensburg Univ., 280 F. Supp. 2d 357 (M.D. Pa. 2003).published “where the parties challenging the statute are those who desire to engage in protected speech that the overbroad statute purports to punish ... there is no want of a proper party to challenge the statute”
- Am. Booksellers Found. v. Dean, 342 F.3d 96 (2d Cir. 2003).published “where the parties challenging the statute are those who desire to engage in protected speech that the overbroad statute purports to punish ... the statute may forthwith be declared invalid to the extent that it reaches…”
- Constitutionality of the Foreign Serv. Grievance Bd.'s Oversight Auth. (OLC 2026).publishedThe “normal rule” is that “partial, rather than facial, invalidation is the required course.” Id. (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985)).
- Aimbridge Emp. Serv. Corp. v. Nat'l Labor Relations Bd., No. 4:25-cv-01014 (E.D. Tex. July 27, 2026).“We start from the ‘normal rule that partial, rather than facial, invalidation is the required course”
- Merriott v. City of Bossier City, 179 F.4th 393 (5th Cir. 2026).published In Hicks, this court held that “an overbreadth challenge is not appropriate if the [F]irst [A]mendment rights asserted by a party attacking a statute are essentially coterminous with the expressive rights of third parties.” Id. at 969 (fir…
- Darbi Boddy v. Mary Grech, 178 F.4th 264 (6th Cir. 2026).published“shameful or morbid interest in sex”
- Pharm. Rsch. & Mfrs. of Am. v. Stolfi, 153 F.4th 795 (9th Cir. 2025).published We note, however, that when striking down a state statute as unconstitutional, “‘the normal rule’ is that ‘partial, rather than facial, invalidation is the required course.’” Project Veritas v. Schmidt, 125 F.4th 929, 960 n.29 (9th Cir. 20…
- Proj. Veritas v. Michael Schmidt, 125 F.4th 929 (9th Cir. 2025).published “partial, rather than facial, invalidation is the required course”
Show 49 more citing cases
- Valdez v. United States, 320 A.3d 339 (D.C. 2024).publishedId. at 329 (brackets omitted) (quoting Regan v. Time, Inc., 468 U.S. 641 , 102 652 (1984) (plurality opinion)). 90 a ‘statute may . . . be declared invalid to the extent that it reaches too far, but otherwise left intact.’” 103 In pursuing…
- Cmty. Success Initiative v. Moore, 384 N.C. 194 (2023).publishedOversight Bd., 561 U.S. 477 , 508 (2010) (“[T]he ‘normal rule’ is ‘that partial, -89- rather than facial, invalidation is the required course.’ ” (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985))).
- Powers v. City of Richmond, 893 P.2d 1160 (Cal. 1995).published
- PETA v. NC Farm Bureau, 60 F.4th 815 (4th Cir. 2023).published
- PETA v. Josh Stein, No. 20-1807 (4th Cir. Feb. 23, 2023).published
- PETA v. Josh Stein, No. 20-1777 (4th Cir. Feb. 23, 2023).published
- Camelot Banquet Rooms Inc v. United States Small Bus. Admin., No. 2:21-cv-00447, 2021 WL 3680369 (E.D. Wis. Aug. 19, 2021).
- Citizens for Responsible Gov't State Political Action Comm. Steve Durham Phil Pankey Colorado State Repub. Cent. Comm. Colorado Republicans for Choice, an Unincorporated Colorado Political Comm. Crown Point Commc'ns, Inc., a Colorado Corp. Dorothy S. Wham William Thiebaut, Jr. Donna Mullins Good Colorado Educ. Ass'n Educ. Political Action Comm., a Colorado Nonprofit Corp., & & Colorado Right to Life Comm., Inc. Citizens for Responsible Gov't, Inc. Libertarian Party of Colorado Libertarian Party of Denver Sandra Johnson Douglas E. Anderson David Aitken Fred Greene Firearms Coalition of Colorado, Inc. William Pittman Greg Walerius, Plaintiffs-Cross-Appellants v. Donetta Davidson, in Her Off. Capacity as the Sec'y of State for the State of Colorado, & Cross-Appellee. Repub. Nat'l Comm. Common Cause League of Women Voters of Colorado Ass'n of Cmty. Organizations for Reform Now, Colorado Chapter, Amici Curiae. Terry L. Phillips, & v. Donetta Davidson, Sec'y of State of the State of Colorado, & Cross-Appellee, 236 F.3d 1174 (10th Cir. 2000).published
- Kopp v. Fair Political Practices Comm'n, 905 P.2d 1248 (Cal. 1995).published
- Reno v. Am. Civil Liberties Union, 521 U.S. 844 (1997).published
- Nationalist Movement v. City of Cumming, 934 F.2d 1482 (11th Cir. 1991).published
- Citizens United v. Fed. Election Comm'n, 558 U.S. 310 (2010).published
- U.S. v. Hicks, No. 91-6272 (5th Cir. Dec. 23, 1992).published
- Ayotte v. Planned Parenthood, 546 U.S. 320 (2006).published
- Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477 (2010).published
- Nat'l Treasury Employees Union v. United States of Am., Nat'l Treasury Employees Union v. United States of Am., Peter G. Crane v. United States of Am., Nat'l Treasury Employees Union v. United States of Am., Am. Fed'n of Gov't Employees, Afl-Cio v. United States of Am., Peter G. Crane v. United States, 990 F.2d 1271 (D.C. Cir. 1993).published
- United States v. Various Articles of Merch., 230 F.3d 649 (3d Cir. 2000).published
- Nat'l Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012).published
- William MacDonald v. Tim Moose, 710 F.3d 154 (4th Cir. 2013).published
- Mahoney v. Dist. of Columbia, No. 2009-0105 (D.D.C. Sept. 30, 2009).published
- Wazir v. Rumsfeld, No. 2006-1697 (D.D.C. Apr. 2, 2009).published
- Toghill v. Commonwealth, 289 Va. 220 (2015).published
- Cincinnati Women's Servs., Inc. v. Taft, 468 F.3d 361 (6th Cir. 2006).published
- Steven Warshak v. United States, 490 F.3d 455 (6th Cir. 2007).published
- United States v. Various Articles, No. 00-5124 (3d Cir. Oct. 23, 2000).
- Khouzam v. Atty Gen USA, No. 07-2926 (3d Cir. Dec. 5, 2008).published
- Am. Fed'n of State v. Rick Scott, 717 F.3d 851 (11th Cir. 2013).published
- Commonwealth v. Mienkowski, 79 N.E.3d 1066 (Mass. App. Ct. 2017).published
- Centro De La Comunidad Hispana De Locust Valley v. Town of Oyster Bay, 868 F.3d 104 (2d Cir. 2017).published
- Clayton Byrd v. Tenn. Wine & Spirits Retailers Ass'n, 883 F.3d 608 (6th Cir. 2018).published
- Aapc, Inc. v. FCC, No. 18-1588 (4th Cir. Apr. 24, 2019).published
- Patrick Collins v. Steven Mnuchin, Secretar, 938 F.3d 553 (5th Cir. 2019).published
- State of Texas v. USA, 945 F.3d 355 (5th Cir. 2019).published
- United States v. Arthrex, Inc., 594 U.S. 1 (2021).published
- Karen Fann v. State of Arizona, 493 P.3d 246 (Ariz. 2021).published
- State v. Watts, 2021 UT 38, 498 P.3d 365.published
- People v. Dietze, 549 N.E.2d 1166 (N.Y. 1989).published
- In re C.S., 27 Pa. D. & C.5th 87 (2012).published
- Picard v. Magliano, 42 F.4th 89 (2d Cir. 2022).published
- Nat'l Treasury Employees Union v. United States, 990 F.2d 1271 (D.C. Cir. 1993).published
- Miller v. City of Excelsior, 618 F. Supp. 3d 820 (D. Minn. 2022).published
- Mey v. Medguard Alert, Inc., No. 5:19-cv-00315 (N.D. W. Va. Apr. 27, 2021).
- Merriott v. Bossier City, No. 5:23-cv-01421 (W.D. La. May 2, 2025).
- Ripplinger v. Collins, 868 F.2d 1043 (9th Cir. 1989).published
- Little Rock Fam. Plan. Servs., P.A. Curtis E. Stover, M.D. Fayetteville Women's Clinic Tom Tvedten, M.D., on Behalf of Themselves & the Medicaid-Eligible Women of the State of Arkansas to Whom They Provide Health Care v. Thomas Dalton, Dir. of the Arkansas Dep't of Human Servs., in His Off. Capacity Kenny Whitlock, Deputy Dir. of the Arkansas Div. of Econ. & Med. Servs., in His Off. Capacity Jim Guy Tucker, Governor of the State of Arkansas in His Off. Capacity, & Their Successors, G. William Orr, M.D., on Behalf of Himself & the Medicaid-Eligible Women Seeking Abortions He Serves Womens Servs., P.C. v. E. Benjamin Nelson, in His Off. Capacity as Governor of the State of Nebraska Donald Stenberg, in His Off. Capacity as Attorney Gen. of the State of Nebraska Mary Dean Harvey, in Her Off. Capacity as Dir. of the Nebraska Dep't of Soc. Servs., 60 F.3d 497 (8th Cir. 1995).published
- Little Rock Fam. Plan. Servs., P.A. v. Dalton, 60 F.3d 497 (8th Cir. 1995).published
- Citizens for Responsible Gov't State Political Action Comm. v. Davidson, 236 F.3d 1174 (10th Cir. 2000).published
- Michael Smith v. Robert A. Butterworth, Jr., 866 F.2d 1318 (11th Cir. 1989).published
- J.R. v. Utah, 261 F. Supp. 2d 1268 (D. Utah 2002).published
At page 503 Permitting facial challenge to overbroad speech restrictions50 citing cases“those who desire to engage in legally protected expression ... may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid.”
- Bair v. Shippensburg Univ., 280 F. Supp. 2d 357 (M.D. Pa. 2003).published (where the parties challenging the statute are those who desire to engage in protected speech that the overbroad statute purports to punish ... [t]here is no want of a proper party to challenge the statute)
- Am. Booksellers Found. v. Dean, 342 F.3d 96 (2d Cir. 2003).published ([W]here the parties challenging the statute are those who desire to engage in protected speech that the overbroad statute purports to punish ... [t]he statute may forthwith be declared invalid to the extent that it rea…)
- Hinton v. Devine, 633 F. Supp. 1023 (E.D. Pa. 1986).published
- Binkowski v. State, 731 A.2d 64 (N.J. Super. Ct. App. Div. 1999).published
- IDK, Inc. v. Cnty. of Clark, 836 F.2d 1185 (9th Cir. 1988).published
- Bd. of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569 (1987).published
- Massachusetts v. Oakes, 491 U.S. 576 (1989).published
- Renne v. Geary, 501 U.S. 312 (1991).published
- Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123 (1992).published
- R. A. v. v. City of St. Paul, 505 U.S. 377 (1992).published
Show 36 more citing cases
- Colorado Repub. Fed. Campaign Comm. v. Fed. Election Comm'n, 518 U.S. 604 (1996).published
- Reno v. Am. Civil Liberties Union, 521 U.S. 844 (1997).published
- Nationalist Movement v. City of Cumming, 934 F.2d 1482 (11th Cir. 1991).published
- Richard Waterman v. John Farmer, Jr., 183 F.3d 208 (3d Cir. 1999).published
- John Ways v. City of Lincoln, 274 F.3d 514 (8th Cir. 2001).published
- Benito Acosta v. City of Costa Mesa, 694 F.3d 960 (9th Cir. 2012).published
- State of Idaho v. John Doe (Idaho Ct. App. 2009).published
- State v. Dugan, 2013 MT 38, 303 P.3d 755.published
- City of Milwaukee v. Wroten, 466 N.W.2d 861 (Wis. 1991).published
- Bernstein v. United States Dep't of State, 945 F. Supp. 1279 (N.D. Cal. 1996).published
- Wettach v. Iowa Bd. of Dental Examiners, 524 N.W.2d 168 (Iowa 1994).published
- State v. Janssen, 570 N.W.2d 746 (Wis. Ct. App. 1997).published
- Lounge Mgmt., Ltd. v. Town of Trenton, 580 N.W.2d 156 (Wis. 1998).published
- J.L.N. v. State, 894 So. 2d 738 (Ala. Crim. App. 2003).published
- State v. Todd, 468 N.W.2d 462 (Iowa 1991).published
- Laudermilk v. Fordice, 948 F. Supp. 596 (N.D. Miss. 1996).published
- Gatto v. Cnty. of Sonoma, 98 Cal. App. 4th 744 (Cal. Ct. App. 2002).published
- In re Englebrecht, 67 Cal. App. 4th 486 (Cal. Ct. App. 1998).published
- Berry v. City of Santa Barbara, 40 Cal. App. 4th 1075 (Cal. Ct. App. 1995).published
- Kreimer v. Bureau of Police for Town of Morristown, 765 F. Supp. 181 (D.N.J. 1991).published
- State v. Wees, 58 P.3d 103 (Idaho Ct. App. 2002).published
- State v. Korsen, 69 P.3d 126 (Idaho 2003).published
- State v. Bonner, 61 P.3d 611 (Idaho Ct. App. 2002).published
- United States v. Douglas Chappell, 691 F.3d 388 (4th Cir. 2012).published
- Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022 (9th Cir. 2006).published
- Op. Atty. Gen. 82t (Minn. Att'y Gen. 1997).published
- Nationalist Movement v. Comm'r, 102 T.C. 558 (Tax Ct. 1994).published
- Melvin Diggs v. City of St. Louis, 613 S.W.3d 858 (Mo. Ct. App. 2020).published
- Larson v. City & Cnty. of San Francisco, 192 Cal. App. 4th 1263 (Cal. Ct. App. 2011).published
- Commonwealth v. Casey, 678 N.E.2d 436 (Mass. App. Ct. 1997).published
- J.L.N. v. State, 894 So. 2d 738 (Ala. Crim. App. 2002).published
- Commonwealth v. Cruz, 28 Mass. L. Rptr. 546 (Mass. Super. Ct. 2011).published
- Rodgers v. Stachey, No. 6:17-cv-06054 (W.D. Ark. Apr. 1, 2019).
- O'Connell v. City of New Bern, 447 F. Supp. 3d 466 (E.D.N.C. 2020).published
- Roulette v. City of Seattle, 78 F.3d 1425 (9th Cir. 1996).published
- Roulette v. City of Seattle, 97 F.3d 300 (9th Cir. 1996).published
At page 502 Limiting facial invalidation of statutes under first amendment37 citing cases“a federal court should not extend its invalidation of a statute further than necessary to dispose of the case before it.”
- Iowa Right To Life Comm. v. Megan Tooker, 717 F.3d 576 (8th Cir. 2013).published ([A] federal court should not extend its invalidation of a statute further than necessary to dispose of the case before it.)
- Bateman v. Perdue, 881 F. Supp. 2d 709 (E.D.N.C. 2012).published ([A] federal court should not extend its invalidation of a statute further than necessary to dispose of the case before it.)
- Pers. PAC v. McGuffage, 858 F. Supp. 2d 963 (N.D. Ill. 2012).published (Nor does the First Amendment involvement in this case render inapplicable the rule that a federal court should not extend its invalidation of a statute further than necessary to dispose of the case before it.)
- Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353 (4th Cir. 1991).published (Facial invalidation of the statute was ... improvident" and "a federal court should not extend its invalidation of a statute further than necessary to dispose of the case before it.)
- Joseph Fischer v. Karen Thomas, 176 F.4th 470 (6th Cir. 2026).published “a federal court should not extend its invalidation of a statute further than necessary to dispose of the case before it”
- Nw. Ass'n of Indep. Schs. v. Labrador, No. 25-2491 (9th Cir. Feb. 12, 2026).published “a federal court should not extend its invalidation of a statute further than necessary to dispose of the case before it”
- Brown v. Smith, No. 1:24-cv-00477 (E.D. Va. Sept. 30, 2025). “the rule [is] a federal court should not extend its invalidation of a statute further than necessary to dispose of the case before it”
- Greater Chautauqua Fed. Credit Union v. Quattrone, No. 1:22-cv-02753, 2023 WL 6037949 (S.D.N.Y. Sept. 15, 2023).By modifying the preliminary injunctive relief to include only the Named Plaintiffs, the Court is ensuring it does not “extend its invalidation of a statute further than necessary to dispose of the case before it.” Kane 19 F.4th at 174 (qu…
- Citizens for Responsible Gov't State Political Action Comm. Steve Durham Phil Pankey Colorado State Repub. Cent. Comm. Colorado Republicans for Choice, an Unincorporated Colorado Political Comm. Crown Point Commc'ns, Inc., a Colorado Corp. Dorothy S. Wham William Thiebaut, Jr. Donna Mullins Good Colorado Educ. Ass'n Educ. Political Action Comm., a Colorado Nonprofit Corp., & & Colorado Right to Life Comm., Inc. Citizens for Responsible Gov't, Inc. Libertarian Party of Colorado Libertarian Party of Denver Sandra Johnson Douglas E. Anderson David Aitken Fred Greene Firearms Coalition of Colorado, Inc. William Pittman Greg Walerius, Plaintiffs-Cross-Appellants v. Donetta Davidson, in Her Off. Capacity as the Sec'y of State for the State of Colorado, & Cross-Appellee. Repub. Nat'l Comm. Common Cause League of Women Voters of Colorado Ass'n of Cmty. Organizations for Reform Now, Colorado Chapter, Amici Curiae. Terry L. Phillips, & v. Donetta Davidson, Sec'y of State of the State of Colorado, & Cross-Appellee, 236 F.3d 1174 (10th Cir. 2000).published
- Kopp v. Fair Political Practices Comm'n, 905 P.2d 1248 (Cal. 1995).published
Show 23 more citing cases
- Dalton v. Little Rock Fam. Plan. Servs., 516 U.S. 474 (1996).published
- IDK, Inc. v. Cnty. of Clark, 836 F.2d 1185 (9th Cir. 1988).published
- AKA v. Jefferson Hosp. Ass'n, 42 S.W.3d 508 (Ark. 2001).published
- Nat'l Treasury Employees Union v. United States, 788 F. Supp. 4 (D.D.C. 1992).published
- ACLU v. Reno, 117 S. Ct. 2829 (3d Cir. 2000).published
- Halpern 2012, LLC v. City of Ctr. Line, Mich., 806 F. App'x 390 (6th Cir. 2020).unpublished
- Sally Ness v. City of Bloomington, 11 F.4th 914 (8th Cir. 2021).published
- Kane v. De Blasio Keil v. City of New York, 19 F.4th 152 (2d Cir. 2021).published
- Shark Club, Inc. v. City of New Bedford, 4 Mass. L. Rptr. 158 (Mass. Super. Ct. 1995).published
- Gannett Satellite Info. Network, Inc. v. Berger, 894 F.2d 61 (3d Cir. 1990).published
- New Jersey Bankers Ass'n v. Grewal, No. 3:18-cv-15725 (D.N.J. June 21, 2021).unpublished
- Upsolve, Inc. v. James, No. 1:22-cv-00627 (S.D.N.Y. May 24, 2022).
- Ireland v. Williamson Cnty. Hosp. Dist., No. 3:20-cv-00502 (M.D. Tenn. May 4, 2022).
- Dawgs & Dingoes, LLC v. City of Pooler, No. 4:22-cv-00176 (S.D. Ga. Sept. 28, 2026).
- United States v. Popa, Ion Cornel, 187 F.3d 672 (D.C. Cir. 1999).published
- Ripplinger v. Collins, 868 F.2d 1043 (9th Cir. 1989).published
- Little Rock Fam. Plan. Servs., P.A. Curtis E. Stover, M.D. Fayetteville Women's Clinic Tom Tvedten, M.D., on Behalf of Themselves & the Medicaid-Eligible Women of the State of Arkansas to Whom They Provide Health Care v. Thomas Dalton, Dir. of the Arkansas Dep't of Human Servs., in His Off. Capacity Kenny Whitlock, Deputy Dir. of the Arkansas Div. of Econ. & Med. Servs., in His Off. Capacity Jim Guy Tucker, Governor of the State of Arkansas in His Off. Capacity, & Their Successors, G. William Orr, M.D., on Behalf of Himself & the Medicaid-Eligible Women Seeking Abortions He Serves Womens Servs., P.C. v. E. Benjamin Nelson, in His Off. Capacity as Governor of the State of Nebraska Donald Stenberg, in His Off. Capacity as Attorney Gen. of the State of Nebraska Mary Dean Harvey, in Her Off. Capacity as Dir. of the Nebraska Dep't of Soc. Servs., 60 F.3d 497 (8th Cir. 1995).published
- Indiana Voluntary Firemen's Ass'n v. Pearson, 700 F. Supp. 421 (S.D. Ind. 1988).published
- Howerton v. United States, 964 A.2d 1282 (D.C. 2009).published
- Powell's Books, Inc. v. Myers, 599 F. Supp. 2d 1226 (D. Or. 2008).published
- Little Rock Fam. Plan. Servs., P.A. v. Dalton, 60 F.3d 497 (8th Cir. 1995).published
- Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908 (9th Cir. 2004).published
- Occupy Fort Myers v. City of Fort Myers, 882 F. Supp. 2d 1320 (M.D. Fla. 2011).published
At page 501 Analyzing overbreadth and cardinal rules of constitutional law25 citing casessevering a state statute after striking down part of it on First Amendment grounds
- United States v. Wright, 696 F. Supp. 164 (E.D. Va. 1988).published “never anticipate a question of constitutional law in advance of the necessity of deciding it”
- Bruce Henry v. Sheriff of Tuscaloosa Cnty., 180 F.4th 1294 (11th Cir. 2026).publishedGlucksberg, 521 U.S. at 720 . “[T]he scope of the asserted right—and thus the parameters of the inquiry—must be dictated ‘by the precise facts’ of the immediate case.” Williams v. Att’y Gen. of Ala., 378 F.3d 1232, 1240 (11th Cir. 2004) (q…
- IA Migrant Movement for Just. v. Brenna Bird, 157 F.4th 904 (8th Cir. 2025).published“formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied”
- Hankins v. Lyght - dissent, 441 F.3d 96 (2d Cir. 2006).published
- City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985).published
- City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750 (1988).published
- Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993).published
- Heller v. Doe ex rel. Doe, 509 U.S. 312 (1993).published
- United States v. Booker, 543 U.S. 220 (2004).published
- Paul Wright v. Ronald Van Boening, 958 F.2d 380 (9th Cir. 1992).unpublished
Show 15 more citing cases
- Comite De Jornaleros De Redondo Beach v. City of Redondo Beach, 657 F.3d 936 (9th Cir. 2011).published
- Comite De Jornaleros v. City of Redondo, No. 06-55750 (9th Cir. Sept. 16, 2011).published
- Citizens for Responsible Gov't State Political Action Comm. Steve Durham Phil Pankey Colorado State Repub. Cent. Comm. Colorado Republicans for Choice, an Unincorporated Colorado Political Comm. Crown Point Commc'ns, Inc., a Colorado Corp. Dorothy S. Wham William Thiebaut, Jr. Donna Mullins Good Colorado Educ. Ass'n Educ. Political Action Comm., a Colorado Nonprofit Corp., & & Colorado Right to Life Comm., Inc. Citizens for Responsible Gov't, Inc. Libertarian Party of Colorado Libertarian Party of Denver Sandra Johnson Douglas E. Anderson David Aitken Fred Greene Firearms Coalition of Colorado, Inc. William Pittman Greg Walerius, Plaintiffs-Cross-Appellants v. Donetta Davidson, in Her Off. Capacity as the Sec'y of State for the State of Colorado, & Cross-Appellee. Repub. Nat'l Comm. Common Cause League of Women Voters of Colorado Ass'n of Cmty. Organizations for Reform Now, Colorado Chapter, Amici Curiae. Terry L. Phillips, & v. Donetta Davidson, Sec'y of State of the State of Colorado, & Cross-Appellee, 236 F.3d 1174 (10th Cir. 2000).published
- Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor of Baltimore, 683 F.3d 539 (4th Cir. 2012).published
- Kopp v. Fair Political Practices Comm'n, 905 P.2d 1248 (Cal. 1995).published
- Hohe v. Casey, 740 F. Supp. 1092 (M.D. Pa. 1989).published
- Binkowski v. State, 731 A.2d 64 (N.J. Super. Ct. App. Div. 1999).published
- United States v. Brennan, 650 F.3d 65 (2d Cir. 2011).published
- J.B. v. New Jersey State Parole Bd., 79 A.3d 467 (N.J. Super. Ct. App. Div. 2013).published
- In re Taylor, 343 P.3d 867 (Cal. 2015).published
- Exec. Arts Studio, Inc. v. City of Grand Rapids, 391 F.3d 783 (6th Cir. 2004).published
- United States v. Josue Vargas, 915 F.3d 417 (7th Cir. 2019).published
- United States v. Eric Haensgen, No. 17-50392 (9th Cir. May 29, 2019).unpublished
- Child. of Bedford, Inc. v. Petromelis, 143 Misc. 2d 999 (N.Y. Sup. Ct. 1989).published
- Lonnie Billard v. Charlotte Catholic High Sch., 101 F.4th 316 (4th Cir. 2024).published
At page 506 Determining severability based on legislative intent20 citing cases“partial invalidation would be improper if it were contrary to legislative intent in the sense that the legislature had passed an inseverable act or would not have passed it had it known the challenged provision was invalid.”
- Decatur Liquors, Inc. v. Dist. of Columbia, 384 F. Supp. 2d 58 (D.D.C. 2005).published “partial invalidation would be improper if it were contrary to legislative intent in the sense that the legislature had passed an inseverable act or would not have passed it had it known the challenged provision was inva…”
- Bush v. Holmes, 886 So. 2d 340 (Fla. 1st DCA 2004).published “partial invalidation would be improper if it were contrary to legislative intent in the sense that the legislature had passed an inseverable act or would not have passed it had it known the challenged provision was inva…”
- Netchoice, LLC v. Bonta, 152 F.4th 1002 (9th Cir. 2025).published“unconstitutional in its entirety”
- Barnett v. Raoul, 709 F. Supp. 3d 589 (S.D. Ill. 2023).publishedCo. v. Doyle, 186 F.3d 790 , 804 (7th Cir. 1999) (citing Leavitt v. Jane L., 116 S. Ct. 2068, 2069 (1996); Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 506 (1985)).
- Fed. Firearms Licensees of Illinois v. Pritzker, No. 3:23-cv-00215 (S.D. Ill. Dec. 22, 2023).Co. v. Doyle, 186 F.3d 790 , 804 (7th Cir. 1999) (citing Leavitt v. Jane L., 116 S. Ct. 2068, 2069 (1996); Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 506 (1985)).
- Barnett v. Raoul, No. 3:23-cv-00209 (S.D. Ill. Dec. 14, 2023).Co. v. Doyle, 186 F.3d 790 , 804 (7th Cir. 1999) (citing Leavitt v. Jane L., 116 S. Ct. 2068, 2069 (1996); Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 506 (1985)).
- Fed. Firearms Licensees of Illinois v. Pritzker, No. 3:23-cv-00215 (S.D. Ill. Apr. 28, 2023).Co. v. Doyle, 186 F.3d 790 , 804 (7th Cir. 1999) (citing Leavitt v. Jane L., 116 S.Ct. 2068, 2069 (1996); Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 506 (1985)).
- Langley v. Kelly, No. 3:23-cv-00192 (S.D. Ill. Apr. 28, 2023).Co. v. Doyle, 186 F.3d 790 , 804 (7th Cir. 1999) (citing Leavitt v. Jane L., 116 S.Ct. 2068, 2069 (1996); Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 506 (1985)).
- Kopp v. Fair Political Practices Comm'n, 905 P.2d 1248 (Cal. 1995).published
- People v. Dietze, 549 N.E.2d 1166 (N.Y. 1989).published
Show 8 more citing cases
- United States v. Nat'l Treasury Employees Union, 513 U.S. 454 (1995).published
- Denver Area Educ. Telecomm. Consortium, Inc. v. Fed. Commc'ns Comm'n, 518 U.S. 727 (1996).published
- Burlington N. & Santa Fe Ry. Co. v. James E. Doyle, 186 F.3d 790 (7th Cir. 1999).published
- Partnoy v. Shelley, 277 F. Supp. 2d 1064 (S.D. Cal. 2003).published
- Connection Distr v. Gonzales, No. 06-3822 (6th Cir. Oct. 23, 2007).published
- Ass'n of Am. Railroads v. U.S. Dep't of Transp., 896 F.3d 539 (D.C. Cir. 2018).published
- Barnett v. Raoul, 671 F. Supp. 3d 928 (S.D. Ill. 2023).published
- Harrel v. Raoul, No. 3:23-cv-00141 (S.D. Ill. Apr. 28, 2023).
At page 510 Avoiding federal interference with state law adjudication15 citing cases“the court of appeals erred in holding that the broadrick ... substantial overbreadth requirement is inapplicable where pure speech rather than conduct is at issue. ferber specifically held to the contrary.”
- United States v. Alvarez, 617 F.3d 1198 (9th Cir. 2010).published “the court of appeals erred in holding that the broadrick ... substantial overbreadth requirement is inapplicable where pure speech rather than conduct is at issue. ferber specifically held to the contrary.”
- Stanford v. Brandon Nursing, No. 24-60509 (5th Cir. Nov. 20, 2025).publishedBrockett v. Spokane Arcades, Inc., 472 U.S. 491, 510 (1985) (O’Connor, J., concurring).
- HM Florida-ORL, LLC v. Sec'y of the Florida Dep't of Bus. & Prof'l Reg., 137 F.4th 1207 (11th Cir. 2025).published “Speculation by a federal court about the meaning of a state statute in the absence of prior state court adjudication is particularly gratuitous when . . . the state courts stand willing to address questions of state law on certification f…
- Johnson v. Miller, 98 F.4th 580 (5th Cir. 2024).publishedEng. v. Arizona, 520 U.S. 43, 79 (1997) (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 510 (1985) (O’Connor, J., concurring)). 8 IV We certify20 the following question of state law to the Supreme Court of Mississippi: When a pla…
- Polykoff v. Collins, 816 F.2d 1326 (9th Cir. 1987).published
- Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005).published
- Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655 (5th Cir. 2006).published
- City of Houston v. Hill, 482 U.S. 451 (1987).published
- Arizonans for Off. English v. Arizona, 520 U.S. 43 (1997).published
- United States v. Ellen Swenson, 971 F.3d 977 (9th Cir. 2020).published
Show 4 more citing cases
- Wallen Lawson v. PPG Arch. Finishes, Inc., 982 F.3d 752 (9th Cir. 2020).published
- Díaz Carrasquillo v. García Padilla, 191 P.R. 97 (2014).published
- Roldan v. Lewis, No. 1:20-cv-03580 (E.D.N.Y. Mar. 3, 2025).
- Jesse Near v. Enerco Grp., Inc., 182 F.4th 341 (4th Cir. 2026).unpublished
At page 500 Deferring to state court interpretations of state law10 citing casesdistrict courts and courts of appeals are better schooled in and more able to interpret the laws of their respective States
- Whitewater West Indus. v. Alleshouse, 981 F.3d 1045 (Fed. Cir. 2020).published(district courts and courts of appeals are better schooled in and more able to interpret the laws of their respective States)
- Leavitt v. Jane L., 518 U.S. 137 (1996).published ([W]e surely have the authority to differ with the lower federal courts as to the meaning of a state statute)
- Coda Dev. S.R.O. v. Goodyear Tire & Rubber Co., 160 F.4th 1350 (Fed. Cir. 2025).published(Unless the home circuit has ‘disregarded clear signals emanating from the state’s highest court pointing towards a different rule’ we will avoid creating ‘the oddity of a split in the circuits over the correct applicat…)
- Webster v. Reproductive Health Servs., 492 U.S. 490 (1989).published
- Stenberg v. Carhart, 530 U.S. 914 (2000).published
- City of St. Louis v. Praprotnik, 485 U.S. 112 (1988).published
- Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004).published
- Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005).published
- Cit Grp./Consum. Fin., In v. Beverly Burden, 318 F. App'x 354 (6th Cir. 2009).unpublished
- Expressions Hair Design v. Schneiderman, 32 N.Y.3d 382 (2018).published
At page 499 Interpreting obscenity statutes and first amendment protection8 citing casesmoral nuisance law
- Pembaur v. City of Cincinnati, 475 U.S. 469 (1986).published
- Edwards v. Aguillard, 482 U.S. 578 (1987).published
- Virginia v. Am. Booksellers Assn., Inc., 484 U.S. 383 (1988).published
- Frisby v. Schultz, 487 U.S. 474 (1988).published
- Bowen v. Massachusetts, 487 U.S. 879 (1988).published
- Webster v. Reproductive Health Servs., 492 U.S. 490 (1989).published
- Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).published
- Stenberg v. Carhart, 530 U.S. 914 (2000).published
At page 498 Defining prurient interest under obscenity standards9 citing casesnoting that descriptions and discussions of normal sexual interests are not prurient; the First Amendment protects "material that, taken as a whole, does no more than arouse, 'good, old fashioned, healthy' interest in sex.
- Sable Commc'ns of California, Inc. v. Fed. Commc'ns Comm'n, 492 U.S. 115 (1989).published
- Hart v. Commonwealth, 441 S.E.2d 706 (Va. Ct. App. 1994).published
- Lo, Ex Parte John Christopher, 424 S.W.3d 10 (Tex. Crim. App. 2013).published
- United States v. Loy, No. 99-3827 (3d Cir. Jan. 4, 2001).
- Shue (joshua) Vs. State, 2017 NV 99 (Nev. 2017).published
- Sprowson, Jr. (Melvyn) v. State, No. 73674 (Nev. July 1, 2019).unpublished
- Gillen (Martin) Vs. State, 486 P.3d 725 (Nev. 2021).published
At page 507 Severability as an obstacle to partial invalidation of statutes8 citing casesholding that “the Court of Appeals should have pursued . . . partial invalidation
- Pharm. Rsch. & Mfrs. of Am. v. Stolfi, 153 F.4th 795 (9th Cir. 2025).published We note, however, that when striking down a state statute as unconstitutional, “‘the normal rule’ is that ‘partial, rather than facial, invalidation is the required course.’” Project Veritas v. Schmidt, 125 F.4th 929, 960 n.29 (9th Cir. 20…
- Kopp v. Fair Political Practices Comm'n, 905 P.2d 1248 (Cal. 1995).published
- Benito Acosta v. City of Costa Mesa, 694 F.3d 960 (9th Cir. 2012).published
- Centro De La Comunidad Hispana De Locust Valley v. Town of Oyster Bay, 868 F.3d 104 (2d Cir. 2017).published
- Proj. Veritas v. Michael Schmidt, 72 F.4th 1043 (9th Cir. 2023).published
- Nat'l Ass'n for Gun Rights v. Lamont, 153 F.4th 213 (2d Cir. 2025).published
- Ripplinger v. Collins, 868 F.2d 1043 (9th Cir. 1989).published
At page 494 Defining prurient material under state obscenity statute6 citing casesconstruing phrase “that which incites lasciviousness or lust
- Rachel Welty v. Bryant Dunaway, No. 25-5739 (6th Cir. Sept. 24, 2026).publishedWashington criminalized the public sale of pornography, defined to cover material that “incites . . . lust.” Id. at 494 (quotation omitted).
- PETA v. NC Farm Bureau, 60 F.4th 815 (4th Cir. 2023).published
- PETA v. Josh Stein, No. 20-1807 (4th Cir. Feb. 23, 2023).published
- PETA v. Josh Stein, No. 20-1777 (4th Cir. Feb. 23, 2023).published
- In re Erik Brunetti, 877 F.3d 1330 (Fed. Cir. 2017).published
- Philex Enter., Inc. v. Lanzner, 131 A.D.2d 452 (N.Y. App. Div. 2d Dep't 1987).published
At page 493 Defining obscene matter under state moral nuisance statutes4 citing cases“where lewd films are publicly exhibited as a regular course of business.”
- PETA v. NC Farm Bureau, 60 F.4th 815 (4th Cir. 2023).published
- PETA v. Josh Stein, No. 20-1807 (4th Cir. Feb. 23, 2023).published
- PETA v. Josh Stein, No. 20-1777 (4th Cir. Feb. 23, 2023).published
- Camelot Banquet Rooms Inc v. United States Small Bus. Admin., No. 2:21-cv-00447, 2021 WL 3680369 (E.D. Wis. Aug. 19, 2021).
At page 508 Federal court abstention from state law constitutional questions4 citing cases“this court has long recognized that concerns for comity and federalism may require federal courts to abstain from deciding federal constitutional issues that are entwined with the interpretation of state law”
- Van Zandt v. Thompson, 839 F.2d 1215 (7th Cir. 1988).published “this court has long recognized that concerns for comity and federalism may require federal courts to abstain from deciding federal constitutional issues that are entwined with the interpretation of state law”
- Spirit Aerosystems v. Paxton, 142 F.4th 278 (5th Cir. 2025).publishedJoseph Abbey v. Castille, 700 F.3d 154, 167 (5th Cir. 2012) (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 508 (1985) (O’Connor, J., concurring)).
- St. Joseph Abbey v. Paul Castille, 700 F.3d 154 (5th Cir. 2012).published
- St. Joseph Abbey v. Paul Castille, No. 11-30756 (5th Cir. Nov. 23, 2012).published
86 L. Ed. 2d at 406 Determining scope of overbreadth challenge to statute3 citing cases
- State v. Leferink, 992 P.2d 775 (Idaho 1999).published
- Powers v. City of Richmond, 893 P.2d 1160 (Cal. 1995).published
- Hinton v. Devine, 633 F. Supp. 1023 (E.D. Pa. 1986).published
105 S. Ct. at 2804 Analyzing statutory challenges and appellate stays4 citing cases
- Van Zandt v. Thompson, 839 F.2d 1215 (7th Cir. 1988).published Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501-04 , 105 S.Ct. 2794, 2801-02 , 86 L.Ed.2d 394 (1985); see also id. at 508 , 105 S.Ct. at 2804 (O’Connor, J., concurring) (“this Court has long recognized that concerns for comity and fed…
- Polykoff v. Collins, 816 F.2d 1326 (9th Cir. 1987).published
Partial invalidation would be improper if it were contrary to legislative intent in the sense that the legislature had passed an inseverable Act or would not have passed it had it known the challenged provision was invalid.
- Decatur Liquors, Inc. v. Dist. of Columbia, 384 F. Supp. 2d 58 (D.D.C. 2005).published (Partial invalidation would be improper if it were contrary to legislative intent in the sense that the legislature had passed an inseverable Act or would not have passed it had it known the challenged provision was inv…)
- Bush v. Holmes, 886 So. 2d 340 (Fla. 1st DCA 2004).published (Partial invalidation would be improper if it were contrary to legislative intent in the sense that the legislature had passed an inseverable Act or would not have passed it had it known the challenged provision was inv…)
At page 505 normal interest in sex, the statute would pass constitutional muster and would validly reach the whole range of obscene publications. Furthermore, had the…2 citing cases
- Rees v. State, 909 S.W.2d 264 (Tex. App.—Austin 1995).published
- Gareth Rees v. State, No. 03-94-00290-CR (Tex. App.—Austin Oct. 18, 1995).published
Other citing cases
- Jon C. Caldera v. City of Boulder, 341 F. Supp. 3d 1241 (D. Colo. 2018).published
- Paul v. State of Indiana Election Bd., 743 F. Supp. 616 (S.D. Ind. 1990).published
- Estes v. State, 546 S.W.3d 691 (Tex. Crim. App. 2018).published
v.
SPOKANE ARCADES, INC., Et Al.
Lead Opinion
delivered the opinion of the Court.
The question in these cases is whether the Court of Appeals for the Ninth Circuit erred in invalidating in its entirety a Washington statute aimed at preventing and punishing the publication of obscene materials.
On April 1, 1982, the Washington state moral nuisance law became effective. Wash. Rev. Code §§7.48A.010-7.48A.900 (1983).[1] It sets forth a comprehensive scheme establishing criminal and civil penalties for those who deal in obscenity or prostitution. The statute declares to be a “moral nuisance” any place “where lewd films are publicly exhibited as a regular course of business” and any place of business “in which lewd publications constitute a principal part of the stock in trade.” §§7.48A.020(1), (3). Subsection (2) of the “Definitions” section of the statute provides that “lewd matter” is synonymous with “obscene matter,” and defines these terms to mean any matter:
“(a) Which the average person, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient, interest; and
“(b) Which explicitly depicts or describes patently offensive representations or descriptions of:
“(i) Ultimate sexual acts, normal or perverted, actual or simulated; or
“(ii) Masturbation, fellatio, cunnilingus, bestiality, excretory functions, or lewd exhibition of the genitals or genital area; or
[*494] “(in) Violent or destructive sexual acts, including but not limited to human or animal mutilation, dismemberment, rape or torture; and
“(c) Which, when considered as a whole, and in the context in which it is used, lacks serious literary, artistic, political, or scientific value.” §7.48A.010(2).
The word “prurient,” as used in subsection (2)(a), is defined in subsection (8) to mean “that which incites lasciviousness or lust.” §7.48A.010(8).
On April 5, four days after the effective date of the statute, appellees — various individuals and corporations who purvey sexually oriented books and movies to the adult public[2] — challenged the constitutionality of the statute in Federal District Court, seeking injunctive and declaratory relief. One of their assertions was that the statute’s definition of “prurient” to include “that which incites . . . lust” was unconstitutionally overbroad because it reached material that aroused only a normal, healthy interest in sex and that the statute was therefore to be declared invalid on its face.[3] Appellees alleged that the sexually oriented films and books they sold were protected by the First Amendment, and that the state authorities would enforce the new legislation against them unless restrained by the Court. App. 33. On April 13, the District Court for the Eastern District of Washington issued a preliminary injunction against enforcement of the statute. Id., at 35.
After trial, the District Court rejected all of appellees’ constitutional challenges to the validity of the statute. 544 F.[*495] Supp. 1034 (1982).[4] A divided panel of the Court of Appeals for the Ninth Circuit reversed. 725 F. 2d 482 (1984). It first held that a facial challenge to the allegedly overbroad statute was appropriate despite the fact that the law had not yet been authoritatively interpreted or enforced. This was necessary when First Amendment rights were at stake lest the very existence of the statute have a chilling effect on protected expression. The Court of Appeals acknowledged that facial invalidation required “substantial overbreadth,” Broadrick v. Oklahoma, 413 U. S. 601 (1973), but concluded that the requirement applies only when the challenged statute regulates conduct, as opposed to “pure speech.” 725 F. 2d, at 487. Nor did the court find this to be an appropriate case for abstention. See Railroad Comm’n v. Pullman Co., 312 U. S. 496 (1941).
Reaching the merits, the Court of Appeals held that by including “lust” in its definition of “prurient,” the Washington state legislature had intended the statute to reach material that merely stimulated normal sexual responses, material that it considered to be constitutionally protected. Because in its view the statute did not lend itself to a saving construction by a state court and any application of the statute would depend on a determination of obscenity by reference to the “unconstitutionally overbroad” definition, the Court of Appeals declared the statute as a whole to be null and void.[5]
[*496] The defendant state and county officials separately appealed to this Court. We noted probable jurisdiction in both cases, 469 U. S. 813 (1984).[6]
HH I — I
The Court of Appeals was of the view that neither Roth v. United States, 354 U. S. 476 (1957), nor later cases should be read to include within the definition of obscenity those materials that appeal to only normal sexual appetites. Roth held that the protection of the First Amendment did not extend to obscene speech, which was to be identified by inquiring “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” Id., at 489 (footnote omitted). Earlier in its opinion, id., at 487, n. 20, the Court had defined “material which deals with sex in a manner appealing to prurient interest” as:
“I. e., material having a tendency to excite lustful thoughts. Webster’s New International Dictionary (Unabridged, 2d ed., 1949) defines prurient, in pertinent part, as follows:
“ ‘. . . Itching; longing; uneasy with desire or longing; of persons, having itching, morbid, or lascivious longings; of desire, curiosity, or propensity, lewd. . . .’
“Pruriency is defined, in pertinent part, as follows:
“ . . Quality of being prurient; lascivious desire or thought. . . .’
“ See also Mutual Film Corp. v. Industrial Comm’n, 236 U. S. 230, 242, where this Court said as to motion pictures: ‘. . . They take their attraction from the general interest, eager and wholesome it may be, in their subjects, but a prurient interest may be excited and appealed to. . . .’ (Emphasis added.)
[*497] “We perceive no significant difference between the meaning of obscenity developed in the case law and the definition of the A. L. I., Model Penal Code, §207.10(2) (Tent. Draft No. 6, 1957), viz.:
. .A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. . . .’ See Comment, id., at 10, and the discussion at page 29 et seq.”
Under Roth, obscenity was equated with prurience and was not entitled to First Amendment protection. Nine years later, however, the decision in Memoirs v. Massachusetts, 383 U. S. 413 (1966), established a much more demanding three-part definition of obscenity, a definition that was in turn modified in Miller v. California, 413 U. S. 15 (1973).[7] The Miller guidelines for identifying obscenity are:
“(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, [408 U. S.,] at 230, quoting Roth v. United States, supra, at 489; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Id., at 24.
Miller thus retained, as had Memoirs, the Roth formulation as the first part of this test, without elaborating on or dis[*498]agreeing with the definition of “prurient interest” contained in the Roth opinion.
The Court of Appeals was aware that Roth had indicated in footnote 20 that material appealing to the prurient interest was “material having a tendency to excite lustful thoughts” but did not believe that Roth had intended to characterize as obscene material that provoked only normal, healthy sexual desires. We do not differ with that view. As already noted, material appealing to the “prurient interest” was itself the definition of obscenity announced in Roth; and we are quite sure that by using the words “lustful thoughts” in footnote 20, the Court was referring to sexual responses over and beyond those that would be characterized as normal. At the end of that footnote, as the Court of Appeals observed, the Roth opinion referred to the Model Penal Code definition of obscenity — material whose predominate appeal is to “a shameful or morbid interest in nudity, sex, or excretion” and indicated that it perceived no significant difference between that definition and the meaning of obscenity developed in the case law. This effectively negated any inference that “lustful thoughts” as used earlier in the footnote was limited to or included normal sexual responses.[8] It would require more[*499] than the possible ambiguity in footnote 20 to lead us to believe that the Court intended to characterize as obscene and exclude from the protection of the First Amendment any and all speech that aroused any sexual responses, whether normal or morbid.
Appellants urge that because Roth defined prurience in terms of lust, the Washington obscenity statute cannot be faulted for defining “prurient” as that which “incites lasciviousness or lust.” Whatever Roth meant by “lustful thoughts” — and the State agrees that the Court did not intend to include materials that provoked only normal sexual reactions — that meaning should be attributed to the term “lust” appearing in the state law. On this basis, the State submits that the statute cannot be unconstitutional for defining prurience in this manner.
The Court of Appeals rejected this view, holding that the term “lust” had acquired a far broader meaning since Roth was decided in 1957. The word had come to be understood as referring to a “healthy, wholesome, human reaction common to millions of well-adjusted persons in our society,” rather than to any shameful or morbid desire. 725 F. 2d, at 490. Construed in this way, the statutory definition of prurience would include within the first part of the Miller definition of obscenity material that is constitutionally protected by the First Amendment: material that, taken as a whole, does no more than arouse, “good, old fashioned, healthy” interest in sex. Id., at 492. The statute, the Court of Appeals held, was thus overbroad and invalid on its face.
Appellants fault the Court of Appeals for construing the statute in this manner. Normally, however we defer to the construction of a state statute given it by the lower federal courts. Chardon v. Fumero Soto, 462 U. S. 650, 654-655, n. 5 (1983); Haring v. Prosise, 462 U. S. 306, 314, n. 8 (1983); Pierson v. Ray, 386 U. S. 547, 558, n. 12 (1967); General Box [*500] Co. v. United States, 351 U. S. 159, 165 (1956). We do so not only to “render unnecessary review of their decisions in this respect,” Cort v. Ash, 422 U. S. 66, 73, n. 6 (1975), but also to reflect our belief that district courts and courts of appeals are better schooled in and more able to interpret the laws of their respective States. See Bishop v. Wood, 426 U. S. 341, 345-346 (1976); Gooding v. Wilson, 405 U. S. 518, 524, and n. 2 (1972). The rule is not ironclad, however, and we surely have the authority to differ with the lower federal courts as to the meaning of a state statute.[9] It may also be that, other things being equal, this would not be a case for deferring to the Court of Appeals.[10] But we pretermit this[*501] issue, for the Court of Appeals fell into another error when it invalidated the statute on its face because of its “unconstitutionally overbroad” definition of obscenity.
HH HH HH
Appellants insist that the error was in finding any invalidity in the statute, even accepting the court’s construction of the word “lust.” To be obscene under Miller, a publication must, taken as a whole, appeal to the prurient interest, must contain patently offensive depictions or descriptions of specified sexual conduct, and on the whole have no serious literary, artistic, political, or scientific value. Appellants submit that the latter two Miller guidelines, which the Washington statute faithfully follows, will completely cure any over-breadth that may inhere in the statute’s definition of prurience as construed by the Court of Appeals. We are not at all confident that this would always be the case. It could be that a publication that on the whole arouses normal sexual responses would be declared obscene because it contains an isolated example of conduct required by the second guideline and because it also fails to have the redeeming value required by the third. Under the existing case law, material of that kind is not without constitutional protection.[11]
Facial invalidation of the statute was nevertheless improvident. We call to mind two of the cardinal rules governing the federal courts: “ ‘[o]ne, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’” United States v. Raines, 362 U. S. 17, 21[*502] (1960), quoting Liverpool, New York & Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U. S. 33, 39 (1885). Citing a long line of cases, Raines also held that “[k]indred to these rules is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.” These guideposts are at the bottom of the “elementary principle that the same statute may be in part constitutional and in part unconstitutional, and that if the parts are wholly independent of each other, that which is constitutional may stand while that which is unconstitutional will be rejected.” Allen v. Louisiana, 103 U. S. 80, 83-84 (1881), quoted with approval in Field v. Clark, 143 U. S. 649, 695-696 (1892). Absent “weighty countervailing” circumstances, Raines, supra, at 22, this is the course that the Court has adhered to. Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362, 395-396 (1894); Champlin Refining Co. v. Corporation Comm’n, 286 U. S. 210, 234-235 (1932); Watson v. Buck, 313 U. S. 387, 395-396 (1941); Buckley v. Valeo, 424 U. S. 1, 108 (1976). Just this Term, in Tennessee v. Garner, 471 U. S. 1 (1985), we held unconstitutional a state statute authorizing the use of deadly force against fleeing suspects, not on its face, but only insofar as it authorized the use of lethal force against unarmed and nondangerous suspects.
Nor does the First Amendment involvement in this case render inapplicable the rule that a federal court should not extend its invalidation of a statute further than necessary to dispose of the case before it. Buckley v. Valeo, supra, illustrates as much. So does Cantwell v. Connecticut, 310 U. S. 296 (1940), where the Court did not invalidate the state offense of “breach of the peace” on its face but only to the extent that it was construed and applied to prevent the peaceful distribution of religious literature on the streets. In Marsh v. Alabama, 326 U. S. 501 (1946), the Court struck[*503] down a state trespass law only “[i]nsofar as the State has attempted to impose criminal punishment” on those distributing literature on the streets of a company town. Id., at 509. NAACP v. Button, 371 U. S. 415 (1963), did not facially invalidate the State’s rules against solicitation by attorneys but only as they were sought to be applied to the activities of the NAACP involved in that case. Id., at 419, 439. More recently, in United States v. Grace, 461 U. S. 171 (1983), we declined to invalidate on its face a federal statute prohibiting demonstrations on the Supreme Court grounds and confined our holding to the invalidity of the statute as applied to picketing on the public sidewalks surrounding the building. Id., at 175.
For its holding that in First Amendment cases an over-broad statute must be stricken down on its face, the Court of Appeals relied on that line of cases exemplified by Thornhill v. Alabama, 310 U. S. 88 (1940), and more recently by Village of Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 (1980). In those cases, an individual whose own speech or expressive conduct may validly be prohibited or sanctioned is permitted to challenge a statute on its face because it also threatens others not before the court — those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid. If the overbreadth is “substantial,”[12] the law may not be enforced against anyone, including the party before the court, until it is narrowed to reach only unprotected activity, whether by[*504] legislative action or by judicial construction or partial invalidation. Broadrick v. Oklahoma, 413 U. S. 601 (1973).
It is otherwise where the parties challenging the statute are those who desire to engage in protected speech that the overbroad statute purports to punish, or who seek to publish both protected and unprotected material. There is then no want of a proper party to challenge the statute, no concern that an attack on the statute will be unduly delayed or protected speech discouraged. The statute may forthwith be declared invalid to the extent that it reaches too far, but otherwise left intact.
The cases before us are ones governed by the normal rule that partial, rather than facial, invalidation is the required course. The Washington statute was faulted by the Court of Appeals only because it reached material that incited normal as well as unhealthy, interest in sex, and appellees, or some of them, desiring to publish this sort of material, claimed that they faced punishment if they did so. Unless there are countervailing considerations, the Washington law should have been invalidated only insofar as the word “lust” is to be understood as reaching protected materials.
The Court of Appeals was of the view that the term “lust” did not lend itself to a limiting construction and that it would not be feasible to separate its valid and invalid applications. Even accepting the Court of Appeals’ construction of “lust,” however, we are unconvinced that the identified overbreadth is incurable and would taint all possible applications of the statute, as was the case in Secretary of State of Maryland v. Joseph H. Munson Co., 467 U. S. 947 (1984). See also City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 796-799, and nn. 12-16 (1984). If, as we have held, prurience may be constitutionally defined for the purposes of identifying obscenity as that which appeals to a shameful or morbid interest in sex, Roth v. United States, 354 U. S. 476 (1957), it is equally certain that if the statute at issue here is invalidated only insofar as the word “lust” is taken to include[*505] normal interest in sex, the statute would pass constitutional muster and would validly reach the whole range of obscene publications. Furthermore, had the Court of Appeals thought that “lust” refers only to normal sexual appetites, it could have excised the word from the statute entirely, since the statutory definition of prurience referred to “lasciviousness” as well as “lust.” Even if the statute had not defined prurience at all, there would have been no satisfactory ground for striking the statute down in its entirety because of invalidity in all of its applications.[13]
[*506] Partial invalidation would be improper if it were contrary to legislative intent in thé sense that the legislature had passed an inseverable Act or would not have passed it had it known the challenged provision was invalid. But here the statute itself contains a severability clause;[14] and under Washington law, a statute is not to be declared unconstitutional in its entirety unless “the invalid provisons are un-severable and it cannot reasonably be believed that the legislature would have passed the one without the other, or unless the elimination of the invalid part would render the remainder of the act incapable of accomplishing the legislative purposes.” State v. Anderson, 81 Wash. 2d 234, 236, 501 P. 2d 184, 185-186 (1972).[15] It would be frivolous to suggest, and[*507] no one does, that the Washington Legislature, if it could not proscribe materials that appealed to normal as well as abnormal sexual appetites, would have, refrained from passing the moral nuisance statute. And it is quite evident that the remainder of the statute retains its effectiveness as a regulation of obscenity. In these circumstances, the issue of severability is no obstacle to partial invalidation, which is the course the Court of Appeals should have pursued.
The judgment of the Court of Appeals is accordingly reversed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
Justice Powell took no part in the decision of these cases.An earlier moral nuisance law, Wash. Rev. Code §7.48.052 et seq. (1988), adopted as an initiative measure in 1977, was struck down as an impermissible prior restraint. See Spokane Arcades, Inc. v. Brockett, 631 F. 2d 135 (CA9 1980), summarily aff’d, 454 U. S. 1022 (1981).
Seven separate suits were originally filed in the District Court for the Eastern District of Washington, where they were consolidated.
Appellees also challenged the Washington statute’s paraphrasing of the second and third parts of the test set forth in Miller v. California, 413 U. S. 15 (1973). See infra, at 497. The District Court rejected these attacks, and the Court of Appeals did not address them. Appellees have not renewed these claims in this Court.
The District Court stayed its judgment to allow appellees to seek a stay pending appeal from the Court of Appeals, which the Court of Appeals subsequently granted. 725 F. 2d 482, 485 (1984). Thus, the statute was not enforced pending appeal.
Having struck down the statute in toto on overbreadth grounds, the Court of Appeals nevertheless went on to conclude that the statute’s civil fine provisions were constitutionally invalid, on the theory that “the legislature will undoubtedly try again.” 725 F. 2d, at 493. This part of the opinion was obviously unnecessary to the Court of Appeals’ holding, and in view of our disposition of this case, will require reconsideration on remand.
Because there are no significant differences between the two cases, we do not distinguish between them in our discussion.
The basic difference between the Memoirs test and the Miller test was the Memoirs requirement that in order to be judged obscene, a work must be “utterly without redeeming social value.” 383 U. S., at 418. Miller settled on the formulation, “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” 413 U. S., at 24.
This conclusion is bolstered by a subsequent footnote, 354 U. S., at 489, n. 26, referring to a number of eases defining obscenity in terms of “lust” or “lustful.” See Parmelee v. United States, 72 App. D. C. 203, 210, 113 F. 2d 729, 736 (1940) (material is protected if “the erotic matter is not introduced to promote lust”); United States v. Dennett, 89 F. 2d 564, 569 (CA2 1930) (sex education pamphlet not obscene because tendency is to “rationalize and dignify [sex] emotions rather than to arouse lust”); United States v. One Book Called “Ulysses,” 5 F. Supp. 182, 184 (SDNY 1933), aff’d, 72 F. 2d 705 (CA2 1934) (meaning of the word “obscene” is “[tjending to stir the sex impulses or to lead to sexually impure and lustful thoughts”); Commonwealth v. Isenstadt, 318 Mass. 543, 549-550, 62 N. E. 2d 840, 844 (1945) (material is obscene if it has “a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desire”); Missouri v. Becker, 364 Mo. 1079, 1085, 272 S. W. 2d 283, 286 (1954) (materials are obscene if they “incite lascivious thoughts, arouse lustful desire”); Adams Theatre Co. v. Keenan, 12 N. J. 267, 272, 96 A. 2d 519, 521[*499] (1953) (Brennan, J.) (question is whether “dominant note of the presentation is erotic allurement ‘tending to excite lustful and lecherous desire’ ”).
The Court has stated that it will defer to lower courts on state-law issues unless there is “plain” error, Palmer v. Hoffman, 318 U. S. 109, 118 (1943); the view of the lower court is “clearly wrong,” The Tungus v. Skovgaard, 358 U. S. 588, 596 (1959); or the construction is “clearly erroneous,” United States v. Durham Lumber Co., 363 U. S. 522, 527 (1960), or “unreasonable,” Propper v. Clark, 337 U. S. 472, 486-487 (1949). On occasion, then, the Court has refused to follow the views of a lower federal court on an issue of state law. In Cole v. Richardson, 405 U. S. 676, 683-684 (1972), e. g., we refused to accept a three-judge District Court’s construction of a single statutory word based on the dictionary definition of that language where more reliable indicia of the legislative intent were available.
Appellants make a strong argument that the Court of Appeals erred in construing the Washington statute. The Court of Appeals relied on dictionary definitions of “prurient” and “lust,” saying that the most recent edition of Webster’s Third New International Dictionary (Unabridged, 4th ed. 1976) did not include the word “lust” in its definition of “prurient.” But neither did the edition of Webster cited by the Roth court. Webster’s Second Edition defined “lust” as (excluding the obsolete meanings):
“sensuous desire; bodily appetite; specif, and most commonly, sexual desire, as a violent or degrading passion.” Webster’s New International Dictionary (Unabridged, 2d ed., 1949).
Furthermore, and of some significance, the word “lust” is defined in Webster’s Third New International (Unabridged, 5th ed., 1981) in pertinent part as follows:
“1 obs. a: PLEASURE, GRATIFICATION, DELIGHT . . . b: personal inclination: WISH, WHIM . . . c: VIGOR, FERTILITY ... 2: sexual de[*501]sire esp. of a violent self-indulgent character: LECHERY, LASCIVIOUSNESS ... 3 a: an intense longing: CRAVING . . . b: EAGERNESS, ENTHUSIASM.”
Roth specifically rejected a standard of obscenity that “allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons.” 354 U. S., at 488-489 (discussing Queen v. Hicklin, [1868] L. R. 3 Q. B. 360).
The Court of Appeals erred in holding that the Broadrick v. Oklahoma, 413 U. S. 601 (1973), substantial overbreadth requirement is inapplicable where pure speech rather than conduct is at issue. New York v. Ferber, 458 U. S. 747, 772 (1982), specifically held to the contrary. Because of our disposition of these cases, we do not address the issue whether the overbreadth of the Washington statute, in relation to its legitimate reach, is substantial and warrants a declaration of facial invalidity. See Secretary of State of Maryland v. Joseph H. Munson Co., 467 U. S. 947, 964-965 (1984); CSC v. Letter Carriers, 413 U. S. 548, 580-581 (1973).
According to appellees, the vast majority of state statutes either leave the word “prurient” undefined or adopt a definition using the words “shameful or morbid.” Brief for Appellees 26-27. One State, New Hampshire, defines prurient interest as “an interest in lewdness or lascivious thoughts.” N. H. Rev. Stat. Ann. §§ 650:(1)(I) — (IV)(a) (Supp. 1983). Mississippi is apparently the only State other than Washington to use the word “lust” in its definition of “prurient.” Miss. Code Ann. §97-29-103(l)(a) (Supp. 1984) (“a lustful, erotic, shameful, or morbid interest in nudity, sex or excretion”). The District Court for the Northern District of Mississippi has issued a preliminary injunction against enforcement of the statute, partly on the ground that “[t]he inclusion of the terms lustful and erotic [in the definition of prurient] would permit the application of the statute to arguably protected materials.” Goldstein v. Attain, 568 F. Supp. 1377, 1385 (1983), appeal stayed pending trial on the merits, Case No. 83-4452 (CA5, June 20, 1984).
Some lower courts considering the issue have used the words “shameful or morbid” in describing the “prurient interest” that distinguishes obscene materials. See, e. g., Red Bluff Drive-In, Inc. v. Vance, 648 F. 2d 1020, 1026 (CA5 1981), cert. denied sub nom. Theatres West, Inc. v. Holmes, 455 U. S. 913 (1982); Leach v. American Booksellers Assn., Inc., 582 S. W. 2d 738, 749-750 (Tenn. 1979). Others, however, have used “lust” in connection with definitions of “prurient,” reading the word as connoting a sense of shame or debasement, or relying on its use in Roth. See, e. g., United States v. 35 MM. Motion Picture Film Entitled “Language of Love,” 432 F. 2d 705, 711-712 (CA2 1970); Childs v. Oregon, 431 F. 2d 272, 275 (CA9 1970); Flying Eagle Publications, Inc. v. United States, 273 F. 2d 799, 803 (CA1 1960).
An obscenity statute that leaves the word “prurient” undefined, or rather, defined only by case law has been sustained. See Red Bluff Drive-In, Inc. v. Vance, supra, at 1026. See also Ward v. Illinois, 431[*506] U. S. 767, 775 (1977) (state obscenity statute not overbroad for failure to expressly describe the kinds of sexual conduct intended to be referred to under part (b) of Miller guidelines, where state court had construed statute to incorporate the examples of sexual conduct mentioned in Miller). A predecessor of the Washington statute at issue here similarly used the word “prurient” without defining it. Wash. Rev. Code § 7.48.050 et seq. (1983). The Court of Appeals for the Ninth Circuit struck down the statute on other grounds, but apparently the use of the word “prurient” was not challenged. See Spokane Arcades v. Brockett, 631 F. 2d, at 136, n. 1. An earlier predecessor statute used only the word “obscene,” without any further definition whatsoever. The Washington Supreme Court construed the statute to incorporate the Roth-Miller test, saving it from unconstitutional vagueness. See State v. J-R Distributors, Inc., 82 Wash. 2d 584, 602-603, 512 P. 2d 1049, 1061 (1973). The evident likelihood that the Washington courts would construe the instant statute to conform with the Miller standards also counsels against facial invalidation in this case. Cf. Time, Inc. v. Hill, 385 U. S. 374 (1967).
“If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.” Wash. Rev. Code § 7.48A.900 (1983).
This standard is similar to that which we would apply in determining the severability of a federal statute: “ ‘Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what[*507] is left is fully operative as a law.’” See Buckley v. Valeo, 424 U. S. 1, 108-109 (1976), quoting Champlin Refining Co. v. Corporation Comm’n, 286 U. S. 210, 234 (1932).
Concurrence
concurring.
Only days after the State of Washington adopted the moral nuisance law at issue here, appellees launched a constitutional attack in Federal District Court. Although the statute has never been enforced or authoritatively interpreted by a state court, appellees allege that it applies to constitutionally protected expression and is facially invalid. Because I believe that the federal courts should have abstained and allowed the Washington courts an opportunity to construe the state law in the first instance, I think the proper disposition of these cases would be to vacate the judgment of the Court of Appeals on that ground. The Court, however, rejects that course and reaches the merits of the controversy. I join the opinion of the Court because I agree that the Court of Appeals erred in declaring the statute invalid on its face.
[*508] Although federal courts generally have a duty to adjudicate federal questions properly before them, this Court has long recognized that concerns for comity and federalism may require federal courts to abstain from deciding federal constitutional issues that are entwined with the interpretation of state law. In Railroad Comm’n v. Pullman Co., 312 U. S. 496 (1941), the Court held that where uncertain questions of state law must be resolved before a federal constitutional question can be decided, federal courts should abstain until a state court has addressed the state questions. Id., at 501; see also Hawaii Housing Authority v. Midkiff, 467 U. S. 229, 236-237 (1984). This doctrine of abstention acknowledges that federal courts should avoid the unnecessary resolution of federal constitutional issues and that state courts provide the authoritative adjudication of questions of state law.
Attention to the policies underlying abstention makes clear that in the circumstances of these cases, a federal court should await a definitive construction by a state court rather than precipitously indulging a facial challenge to the constitutional validity of a state statute. There can be no doubt that a state obscenity statute concerns important state interests. Such statutes implicate “the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself.” Paris Adult Theatre I v. Slaton, 413 U. S. 49, 58 (1973). The nature of the overbreadth claim advanced by appellees suggests that abstention was required because the Washington statute is “fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question.” Harman v. Forssenius, 380 U. S. 528, 535 (1965).
The First Amendment overbreadth doctrine allows a challenge to the validity of a statute on its face only if the law is substantially overbroad. City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 799-801 (1984); New York v. Ferber, 458 U. S. 747, 769-773 (1982). Thus, analysis of the constitutional claims advanced by appellees neces[*509]sarily requires construction of the Washington statute to assess its scope. Id., at 769, n. 24; Broadrick v. Oklahoma, 413 U. S. 601, 618, n. 16 (1973) (“[A] federal court must determine what a state statute means before it can judge its facial constitutionality”). Furthermore, a narrowing construction of a statute might obviate any challenge on over-breadth grounds. E. g., id., at 617-618 (relying on interpretation of State Personnel Board and Attorney General to reject overbreadth claim). Where a state statute has never been construed or applied, it seems rather obvious that interpretation of the statute by a state court could substantially alter the resolution of any claim that the statute is facially invalid under the Federal Constitution.
The Court of Appeals opined that the Washington statute is not susceptible to a limiting construction and therefore any interpretation by the state court would “neither eliminate nor materially change the constitutional issues presented here.” 725 F. 2d 482, 488 (1984). This assertion is simply implausible. As noted in the opinion of this Court, the conclusion below that the state statute reaches any expression protected by the First Amendment rests on a dubious interpretation of the word “lust” as used in the statute. Ante, at 500-501, n. 10. Both the text and the background of the Washington statute indicate that the state legislature sought to conform the moral nuisance law to the constitutional standards outlined by this Court in Miller v. California, 413 U. S. 15 (1973). Moreover, the state courts have demonstrated their willingness to construe state obscenity laws in accord with Miller. See State v. J-R Distributors, Inc., 82 Wash. 2d 584, 512 P. 2d 1049 (1973), cert. denied, 418 U. S. 949 (1974).
Apart from its unwarranted belief that the statute is not fairly subject to a limiting construction, the Court of Appeals asserted that Pullman abstention should “almost never” apply where a state statute is challenged on First Amendment grounds “because the constitutional guarantee of free expression is, quite properly, always an area of particular[*510] federal concern.” 725 F. 2d, at 488. This Court has never endorsed such a proposition. See Babbitt v. Farm Workers, 442 U. S. 289, 306-312 (1979). On the contrary, even in cases involving First Amendment challenges to a state statute, absention may be required “‘in order to avoid unnecessary friction in federal-state relations, interference with important state functions, tentative decisions on questions of state law, and premature constitutional adjudication.’” Id., at 306, quoting Harman v. Forssenius, supra, at 534; see also Harrison v. NAACP, 360 U. S. 167, 176-178 (1959).
The decision of the Court of Appeals represents a premature and avoidable interference with the enforcement of state law in an area of special concern to the States. Speculation by a federal court about the meaning of a state statute in the absence of prior state court adjudication is particularly gratuitous when, as is the case here, the state courts stand willing to address questions of state law on certification from a federal court. Wash. Rev. Code §§ 2.60.010-2.60.900 (1983); Wash. Rule App. Proc. 16.16. Cf. Bellotti v. Baird, 428 U. S. 132, 150-151 (1976). In my view, the state courts should have been afforded an opportunity to construe the Washington moral nuisance law in the first instance.
Dissent
dissenting.
We granted certiorari to consider the holding of the United States Court of Appeals for the Ninth Circuit that the Washington state obscenity law, Wash. Rev. Code §§7.48A.010-7.48A.900 (1983), is substantially overbroad and therefore invalid on its face under the First Amendment because it defines “prurient” in such a way as to reach constitutionally protected material that stimulates no more than a healthy interest in sex. This statute is, in my view, unconstitutionally overbroad and therefore invalid on its face for the reasons given in my dissent in Paris Adult Theatre I v. Slaton, 413 U. S. 49, 73 (1973). I would therefore affirm the judgment of the Court of Appeals.