overbreadth doctrine in Pennsylvania

2025“The overbreadth doctrine applies equally to a search of digital space [such as a cell phone] as it does for a physical search.” Commonwealth v. Moser, 283 A.3d 850, 857 (Pa.Super. 2022) (citation and internal quotation marks omitted).

2025An overbreadth challenge, however, “fails if a warrant for a search of an entire digital device has ‘self-limiting language’ that allows police to search only for evidence of the crime for which there is probable cause.” Id.

2009Where, as here, protected expression is at issue, both the U.S. Supreme Court and this Court have recognized that “the overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when judged in relation to the statute’s plainly legitimate sweep.” Commonwealth v. Ickes, 582 Pa. 561 , 873 A.2d 698, 702 (2005) (quoting City of Chicago v. Morales, 527 U.S. 41, 52 , 119 S.Ct. 1849 , 144 L.Ed.2d 67 (1999)); see also Wash State Grange, 128 S.Ct. at 1191 n. 6 (same).

2009Where, as here, protected expression is at issue, both the U.S. Supreme Court and this Court have recognized that “the overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when judged in relation to the statute’s plainly legitimate sweep.” Commonwealth v. Ickes, 582 Pa. 561 , 873 A.2d 698, 702 (2005) (quoting City of Chicago v. Morales, 527 U.S. 41, 52 , 119 S.Ct. 1849 , 144 L.Ed.2d 67 (1999)); see also Wash State Grange, 128 S.Ct. at 1191 n. 6 (same).

2020In order to prevail on an overbreadth challenge, “the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 615 , (1973).

2014Under the overbreadth doctrine, “statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society.” Broadrick v. Oklahoma, 413 U.S. 601, 611-12 , 93 S.Ct. 2908 , 37 L.Ed.2d 830 (1973).

2022In other words, the Commonwealth maintains that consideration of the contents of the affidavit of probable cause was required not only in the initial part of the overbreadth analysis, i.e., determining “for what items probable cause existed,” but also in the second phase in which the court must “look to see whether the warrant described as nearly as may be those items for which there is probable cause.” Green, supra at 551, 554 (cleaned up). - 32 - J-S54002-19 J-S54003-19 Our ultimate task is to determine if there was “[a]ny unreasonable discrepancy between the items for which there was probab

2022In other words, the Commonwealth maintains that consideration of the contents of the affidavit of probable cause was required not only in the initial part of the overbreadth analysis, i.e., determining “for what items probable cause existed,” but also in the second phase in which the court must “look to see whether the warrant described as nearly as may be those items for which there is probable cause.” Green, supra at 551, 554 (cleaned up). - 32 - J-S54002-19 J-S54003-19 Our ultimate task is to determine if there was “[a]ny unreasonable discrepancy between the items for which there was probab

2023Thus, an overbreadth analysis involves first determining “for what items probable cause existed” and then measuring the “sufficiency of the description against those items.” Grossman, 555 A.2d at 900 .

2023See id. at 553-54 (“[W]e hold that the [Commonwealth v.] Grossman[, 555 A.2d 896 (Pa. 1989),] standard for an overbreadth challenge applies equally to the search of a digital space as it does for a physical search.”).

2020See also Commonwealth v. Davidson, 860 A.2d 575, 583 (Pa. Super. 2004) (“When the overbreadth of the statute is substantial, judged in relation to its legitimate sweep, it may not be enforced against anyone until it is narrowed to reach only activity unprotected by the constitution.”).

2007See also Davidson, 860 A.2d at 583 ("When the overbreadth of the statute is substantial, judged in relation to its legitimate sweep, it may not be enforced against anyone until it is narrowed to reach only activity unprotected by the constitution.”). 2 .

2023For -8- J-S09008-23 instance, in Commonwealth v. Hendrickson, 724 A.2d 315 (Pa. 1999), our Supreme Court rejected an overbreadth challenge to former 18 Pa.C.S. § 5504, which criminalized harassment via telephone.

2019See id.; see also Commonwealth v. Hendrickson, 724 A.2d 315, 318 (Pa. 1999) (evaluating an overbreadth challenge to the now-repealed harassment by communication statute and concluding that the defendant was not convicted for exercising his constitutional right to free speech; the statute at issue was directed at the harassing nature of the communications, which the legislature had a legitimate interest in proscribing).

1986Grayned v. City of Rockford, 408 U.S. 104 , 92 S.Ct. 2294 , 33 L.Ed.2d 222 (1972), rejecting an overbreadth challenge, sets forth a useful definition of the term.

1986Grayned v. City of Rockford, 408 U.S. 104 , 92 S.Ct. 2294 , 33 L.Ed.2d 222 (1972), rejecting an overbreadth challenge, sets forth a useful definition of the term.

2013Additionally, “the United States Supreme Court has described application of the overbreadth doctrine as ‘strong medicine’ which is ‘employed sparingly and only as a last resort.’ ” Id. (citation omitted).

2009Under the overbreadth standard, a statute will be found unconstitutionally overbroad only if it punishes lawful constitutionally protected activity as well as illegal activity. 2 Davidson, 938 A.2d at 208 .

2024The “standard for an overbreadth challenge applies equally to the search of a digital space as it does for a physical search.” Green, 265 A.3d at 553- 54. “[I]n any assessment of the validity of a description contained in a warrant, a court must initially determine for what items probable cause existed.” Commonwealth v. Rivera, 816 A.2d 282, 290-91 (Pa. Super. 2003).

2022See Commonwealth v. Orie, 88 A.3d 983 , 1008 (Pa. Super. 2014); see also United States v. Wecht, 619 F. Supp. 2d 213 , 246 (W.D.

2022See Commonwealth v. Orie, 88 A.3d 983, 1008 (Pa. Super. 2014); see also United States v. Wecht, 619 F. Supp. 2d 213, 246 (W.D.

2021The Heineman court further observed that the Black plurality’s overbreadth analysis was based on the understanding that the speaker must intend to place the recipient in fear: According to the plurality, at least one First Amendment flaw in the prima facie provision was that a jury could infer an “intent to intimidate” from the act of cross-burning itself. [Black, 538 U.S. at 363 ].

2021The prima facie provision, wrote Justice O’Connor, “does not distinguish between a cross burning done with the purpose of creating anger or resentment and a cross burning done with the purpose of threatening or intimidating a victim.” Id. at 366 [ ].

2021However, unlike the present facial challenge, Pacheco has never raised or preserved an overbreadth challenge. 71 Katz, 389 U.S. at 358 (omissions in original) (quoting Beck v. Ohio, 379 U.S. 89, 96 (1964)). 72 Id. at 359 (omissions in original) (quoting Osborn v. United States, 385 U.S. 323, 330 (1966)). [J-2-2021] [MO: Baer, C.J.] - 23 Thus, while I join the Majority’s extension of Carpenter’s expectation of privacy ruling to the present circumstances, I respectfully dissent from the Majority’s decision to exalt form over substance and from its derivative decision not to assess the constituti

2021However, unlike the present facial challenge, Pacheco has never raised or preserved an overbreadth challenge. 71 Katz, 389 U.S. at 358 (omissions in original) (quoting Beck v. Ohio, 379 U.S. 89, 96 (1964)). 72 Id. at 359 (omissions in original) (quoting Osborn v. United States, 385 U.S. 323, 330 (1966)). [J-2-2021] [MO: Baer, C.J.] - 23 Thus, while I join the Majority’s extension of Carpenter’s expectation of privacy ruling to the present circumstances, I respectfully dissent from the Majority’s decision to exalt form over substance and from its derivative decision not to assess the constituti

2021However, unlike the present facial challenge, Pacheco has never raised or preserved an overbreadth challenge. 71 Katz, 389 U.S. at 358 (omissions in original) (quoting Beck v. Ohio, 379 U.S. 89, 96 (1964)). 72 Id. at 359 (omissions in original) (quoting Osborn v. United States, 385 U.S. 323, 330 (1966)). [J-2-2021] [MO: Baer, C.J.] - 23 Thus, while I join the Majority’s extension of Carpenter’s expectation of privacy ruling to the present circumstances, I respectfully dissent from the Majority’s decision to exalt form over substance and from its derivative decision not to assess the constituti

2020If it does not reach both categories of activity, “then the overbreadth challenge must fail.” Commonwealth v. Costa, 861 A.2d 358, 362 (Pa. Super. 2004).

2019“An overbreadth challenge is generally limited to issues falling under the First Amendment of the United States Constitution, protecting the right to free speech.” Omar, 981 A.2d at 185 (citation omitted).

2015See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (holding issues not raised in Rule 1925 concise statement are waived); see also Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in accordance with ____________________________________________ 1 To the extent Appellant asserts an overbreadth challenge under the Pennsylvania Constitution, such challenge is abandoned because Appellant failed to raise it in the argument section of her brief.

2014See Melvin v. Doe, 575 Pa. 264 , 836 A.2d 42, 47-49 (2003) (stating that First Amendment protects anonymous speech, although States have interests in protecting against evils such as libel and fraud); see generally Reno v. American Civil Liberties Union, 521 U.S. 844, 874-79 , 117 S.Ct. 2329 , 138 L.Ed.2d 874 (1997) (applying an overbreadth analysis to a prohibition of certain online communications of sexually explicit material).

2014See Melvin v. Doe, 575 Pa. 264 , 836 A.2d 42, 47-49 (2003) (stating that First Amendment protects anonymous speech, although States have interests in protecting against evils such as libel and fraud); see generally Reno v. American Civil Liberties Union, 521 U.S. 844, 874-79 , 117 S.Ct. 2329 , 138 L.Ed.2d 874 (1997) (applying an overbreadth analysis to a prohibition of certain online communications of sexually explicit material).

2014See Melvin v. Doe, 575 Pa. 264 , 836 A.2d 42, 47-49 (2003) (stating that First Amendment protects anonymous speech, although States have interests in protecting against evils such as libel and fraud); see generally Reno v. American Civil Liberties Union, 521 U.S. 844, 874-79 , 117 S.Ct. 2329 , 138 L.Ed.2d 874 (1997) (applying an overbreadth analysis to a prohibition of certain online communications of sexually explicit material).

2014See Melvin v. Doe, 575 Pa. 264 , 836 A.2d 42, 47-49 (2003) (stating that First Amendment protects anonymous speech, although States have interests in protecting against evils such as libel and fraud); see generally Reno v. American Civil Liberties Union, 521 U.S. 844, 874-79 , 117 S.Ct. 2329 , 138 L.Ed.2d 874 (1997) (applying an overbreadth analysis to a prohibition of certain online communications of sexually explicit material).

2012It has been similarly held that one of the two ways that a vagueness challenge can be presented is that the language of the statute is “vague regarding the particular conduct of the individual challenging the statute.” Commonwealth v. Nesbitt, 575 A.2d 633, 635 (Pa.Super. 1990); Maynard v. Cartwright, 486 U.S. 356, 361 (1988) (“Vagueness challenges to statutes not threatening First Amendment interests are examined in light of the facts of the case at hand; the statute is judged on an as-applied basis.”); U.S. v. Mazurie, 419 U.S. 544, 550 (1975)(“[V] agueness challenges to statutes which do no