overbreadth doctrine in Tennessee

2026“Application of the overbreadth doctrine . . . is, manifestly, strong medicine[,]” so courts should “employ[ it] sparingly and only as a last resort.” Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973).

2012Application of the overbreadth doctrine has been described as “strong medicine.” Id. at 613 , 93 S.Ct. 2908 .

2026To succeed on an overbreadth challenge, the challenger must “first show that the statute challenged involves constitutionally protected conduct.” Id. (citing Hoffman Estates, Inc., 455 U.S. at 494 ).

2000The United States Supreme Court has “cautioned that the doctrine of overbreadth is ‘strong medicine’ to be used ‘sparingly and only as a last resort.’ ” State v. Lakatos, 900 S.W.2d 699, 701 (Tenn.Crim.App.1994) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 , 93 S.Ct. 2908 , 37 L.Ed.2d 830 (1973)). “[T]o succeed in a challenge based on overbreadth a defendant must demonstrate from the text of the law and actual fact that there are a substantial number of instances where the law cannot be applied constitutionally.” State v. Lyons, 802 S.W.2d 590, 593 (Tenn.1990); see also Village of Hoffman

2026If he carries this first burden, he must then “‘demonstrate from the text of the law and actual fact that there are a substantial number of instances where the law cannot be applied constitutionally.’” Id. (quoting State v. Lyons, 802 S.W.2d 590, 593 (Tenn. 1990)).

2000The United States Supreme Court has “cautioned that the doctrine of overbreadth is ‘strong medicine’ to be used ‘sparingly and only as a last resort.’ ” State v. Lakatos, 900 S.W.2d 699, 701 (Tenn.Crim.App.1994) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 , 93 S.Ct. 2908 , 37 L.Ed.2d 830 (1973)). “[T]o succeed in a challenge based on overbreadth a defendant must demonstrate from the text of the law and actual fact that there are a substantial number of instances where the law cannot be applied constitutionally.” State v. Lyons, 802 S.W.2d 590, 593 (Tenn.1990); see also Village of Hoffman

2022We disagree. “‘[U]nder no circumstances ... does the overbreadth doctrine relieve a plaintiff of its burden to show constitutional standing.” Tennesseans for Sensible Election Laws v. Slatery, No. M2020-01292- COA-R3-CV, 2021 WL 4621249 , at *7 (Tenn. Ct. App. Oct. 7, 2021) (quoting Advantage Media, L.L.C. v. City of Eden Prairie, 456 F.3d 793, 799 (8th Cir. 2006)); see also Birmingham v. Nessel, No. 21-1297, 2021 WL 5712150 , at *3 (6th Cir. Dec. 2, 2021) (noting that the overbreadth doctrine provides “an exception to only prudential standing requirements, not constitutional standing requirem

2021That said, “[u]nder no circumstances . . . does the overbreadth doctrine relieve a plaintiff of its burden to show constitutional standing.” Advantage Media, L.L.C. v. City of Eden Prairie, 456 F.3d 793, 799 (8th Cir. 2006).

2004Further, the United States Supreme Court has “cautioned that the doctrine of overbreadth is ‘strong medicine’ to be used ‘sparingly and only as a last resort.’” State v. Lakatos, 900 S.W.2d 699, 701 (Tenn. Crim.

2000The United States Supreme Court has “cautioned that the doctrine of overbreadth is ‘strong medicine’ to be used ‘sparingly and only as a last resort.’ ” State v. Lakatos, 900 S.W.2d 699, 701 (Tenn.Crim.App.1994) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613 , 93 S.Ct. 2908 , 37 L.Ed.2d 830 (1973)). “[T]o succeed in a challenge based on overbreadth a defendant must demonstrate from the text of the law and actual fact that there are a substantial number of instances where the law cannot be applied constitutionally.” State v. Lyons, 802 S.W.2d 590, 593 (Tenn.1990); see also Village of Hoffman

2021Village of Hoffman Estates, 455 U.S. at 494 ; see State v. Pickett, 211 S.W.3d 696, 702 (Tenn. 2007) (“The constitutional test for overbreadth is whether the statute’s language overreaches unlawful conduct and encompasses activity that is constitutionally protected.”).

2012In contrast, our state supreme court upheld a similar child pornography law against an overbreadth challenge in State v. Pickett on grounds that, in that case, “the plain language [the statute at issue] require[d] that the image be of ‘a minor.’” 211 S.W.3d at 703 (quoting T.C.A. § 39-17-1003(a) (2003)).

2021Res., LLC, 166 S.W.3d 650, 662 (Tenn. 2005) (Drowota, C.J., concurring) (quoting 16 Am.

2005Jur. 2d Constitutional Law § 140 (1998) (emphasis added); see also Davis-Kidd Booksellers, Inc., 866 S.W.2d at 525 .

2005Moreover, the majority’s willingness to hold the Ordinance facially unconstitutional cannot be justified as a proper application of the overbreadth doctrine. 3 The overbreadth doctrine is an exception to normal standing principles which, despite the general rule disfavoring facial constitutional challenges, permits a litigant “to challenge the [facial] constitutionality of a statute which is not unconstitutional as applied but which may be unconstitutional in some cases in order to protect the right of free speech.” 16 Am.Jur.2d Constitutional Law § 140 (1998) (emphasis added); see also Davis-

2005See Young, 427 U.S. at 59 n. 17, 96 S.Ct. 2440 (citing cases and discussing the circumstances in which the Court had considered facial overbreadth challenges even though the statutes had been constitutionally applied to the challengers). .

2005See Young, 427 U.S. at 59 n. 17, 96 S.Ct. 2440 (citing cases and discussing the circumstances in which the Court had considered facial overbreadth challenges even though the statutes had been constitutionally applied to the challengers). .

2001See United States v. McKinnin Bridge Co., Inc., 514 F.Supp. 546 - 548 (M.D.