Column: A Key Law-Reform Tool in Peril – The End of Facial Challenges? (New York Law Journal)

By Christopher Dunn — One of the most powerful tools available to those engaged in civil rights law-reform work is the so-called “facial challenge.” Under long-standing Supreme Court precedent, advocates have been able to challenge statutes “on their face” and strike them down in their entirety, sometimes even before they were ever enforced. A notable New York example of a successful facial challenge is provided by the state’s now defunct death-penalty statute, which fell after the New York Court of Appeals found a single procedural provision of the statute to be unconstitutional.

The power of facial challenges is also their Achilles heel, in that judicial nullification of statutes raises substantial concerns about judicial activism and the role of courts in negating the work of elected legislators. In two recent decisions, these concerns have led the Supreme Court to step back from facial challenges, and a case now pending before the Court may result in even greater restrictions on these challenges.

The Basics of Facial Challenges

Reflecting their broad sweep, facial challenges are subject to quite demanding standards. As a general rule, a court can declare a statute unconstitutional on its face only upon a showing that “the law is unconstitutional in all its applications.” This poses a heavy burden on those pursuing most facial challenges.

The Supreme Court, however, has carved out an important exception to this standard when it comes to the First Amendment. In that area the Court has recognized a less stringent standard whereby one challenging a statute need only show that the statute is “overbroad” in that it impermissibly infringes on some amount of protected First Amendment expression, even if much of what the statute regulates or criminalizes can be validly regulated or criminalized (and even if the person bringing the challenge falls within the permissible scope of the statute). More specifically, one mounting a First Amendment facial challenge under the overbreadth doctrine need only demonstrate that a “substantial number” of the statute’s applications are unconstitutional “judged in relation to the statute’s plainly legitimate sweep.” Under this doctrine, the Court for years has invalidated a wide range of statutes on their face.

A prototypical example of the overbreadth doctrine at work is provided by the Supreme Court’s 1997 decision in Reno v. American Civil Liberties Union. That case challenged the federal Communications Decency Act, which sought to protect minors from obscene and indecent material by criminalizing a broad swath of Internet activity. On the day the President signed the act into law, the plaintiffs sued, alleging among other things that the statute was unconstitutional on its face under the overbreadth doctrine in that it went beyond well beyond Internet communications that would reach minors and criminalized a substantial amount of First Amendment protected speech between adults. The Court did not hesitate to declare the entire statute unconstitutional as it applied to indecent speech, barely paying any attention to the particulars of the overbreadth doctrine or to any concerns about judicial overreaching.

An Initial Step Back

The Court signaled a significant shift in its thinking about facial challenges in an abortion case decided in 2006. At issue in Ayotte v. Planned Parenthood of Northern New England was a New Hampshire law that required parental notification before minors could obtain an abortion. Notwithstanding Supreme Court law to the contrary, the statute did not provide an exception to its parental-notification requirement where an abortion was necessary to protect the health of the pregnant minor.

Before the act took effect, abortion providers sued in federal court. Relying on a recent Supreme Court decision that had invalidated another abortion statute on its face, the District Court and the First Circuit held the New Hampshire statute unconstitutional on its face and permanently enjoined it. In an opinion by Justice O’Connor, however, a unanimous Supreme Court reversed.

In Ayotte the Court purported not to change any of the substantive law governing abortion restrictions, including the requirement that statutes restricting the right to obtain an abortion contain a health exception. Rather, it focused on “the question of remedy” and in doing so held that wholesale invalidation of the statute through a facial challenge was inappropriate.

Justice O’Connor opened her analysis on this point with the observation that “[g]enerally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem. We prefer, for example, to enjoin only the unconstitutional application of a statute while leaving other applications in force.”

In support of this, she explained, “[W]e try not to nullify more of a legislature’s work than is necessary, for we know that a ruling of constitutionality frustrates the intent of the elected representatives of the people.” Consequently, “the normal rule is that partial, rather than facial, invalidation is the required course, such that a statute may be declared invalid to the extent that it reaches too far, but otherwise left intact.”

Turning to the statute before it, the Court accused the lower courts of having chosen “the most blunt remedy – permanently enjoining the enforcement of New Hampshire’s parental notification law and thereby invalidating it entirely.” To her credit, Justice O’Connor recognized that this course of action was no surprise, as the Court just six years earlier in Steinberg v. Carhart had invalidated on its face a Nebraska abortion statute because it lacked a maternal-health exception and had done so without expressing any qualms about facial challenges. The difference now, Justice O’Connor suggested, was that “the parties in Steinberg did not ask for, and we did not contemplate, relief more finely drawn.”

And though not making any broad pronouncements about facial challenges, the Court rejected the particular one before it:
In the case that is before us, however, we agree with New Hampshire that the lower courts need not have invalidated the law wholesale.

Respondents, too, recognize the possibility of a modest remedy: They pleaded for any relief “just and proper,” and conceded at oral argument that carefully crafted injunctive relief may resolve this case. Only a few applications of New Hampshire’s parental notification statute would present a constitutional problem. So long as they are faithful to legislative intent, then, in this case the lower courts can issue a declaratory judgment and an injunction prohibiting the statute’s unconstitutional application.

A More Dramatic Retreat

Just last month, the Supreme Court took a much more explicit step back from its long-standing view of facial challenges, rejecting such a challenge in a First Amendment case. At issue in Washington State Grange v. Washington State Republican Party was a Washington ballot initiative that provided that candidates for elected office would be identified on the ballot by their self-designated party preference. The Republican Party sued, claiming that its First Amendment rights were violated by the fact that it would be forcibly associated with candidates who chose to designate the party as their party of preference regardless of whether the party itself had anything to do with the candidate.

Immediately after Washington enacted regulations to implement the initiative, the party challenged the law on its face. The District Court struck down the entire scheme on First Amendment grounds, and the Ninth Circuit affirmed. The Supreme Court reversed, however, and in doing so raised substantial questions about the viability of facial challenges.

In a rare opinion by Justice Thomas, the Court opened its analysis with a recitation of the standards governing facial challenges outside the First Amendment context and the requirement that the statute be invalid in all circumstances. Oddly, the Court dropped a footnote describing the less restrictive standard governing First Amendment challenges and stated, “We generally do not apply the ‘strong medicine’ of overbreadth analysis where the parties fail to describe the instances of arguable overbreadth of the contested law.” The Court never again mentions the overbreadth doctrine, even though this was a First Amendment case.

Continuing with his discussion of facial challenges generally, Justice Thomas stated that they were “disfavored for several reasons”:

Claims of facial invalidity often rest on speculation. As a consequence, they raise the risk of premature interpretation of statutes on the basis of factually barebones records. Facial challenges also run contrary to the fundamental principle of judicial restraint that courts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. Finally, facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution. We must keep in mind that a ruling of unconstitutionality frustrates the intent of the elected representatives of the people.

With these principles in mind and without any acknowledgment of many prior facial challenges in election context, the Court then turned to the propriety of invalidating the Washington scheme on its face in light of the contention that the new ballots would confuse voters about the relationship between listed candidates and the political parties that those candidates claimed on their own behalf. A concern about such confusion, however, was, according to Justice Thomas, “sheer speculation” in the absence of a factual record about actual ballot design and the impact it would have on voters.

He then identified certain theoretical measures the state could adopt that might reduce or eliminate voter confusion and concluded, “Our conclusion that these implementations . . . would be consistent with the First Amendment is fatal to respondents’ facial challenge.” And in so concluding, he cited and quoted an earlier case for the proposition that “a facial challenge fails where at least some constitutional applications exist,” a standard that differs markedly from the long-standing overbreadth doctrine.

The Next Step

The significance of the Court’s treatment of facial challenges in Washington State Grange should become clearer very soon. Argued on January 9, Crawford v. Marion County Election Board presents a First Amendment facial challenge to an Indiana voter registration law that has been viewed as one of the most restrictive registration schemes in the country. During oral argument, however, much of the debate focused on whether a facial challenge — which long has been used in voting-rights cases — was appropriate. Given the direction the Court has been moving with respect to facial challenges in particular (and individual rights in general), many are bracing for a ruling that substantially restricts facial challenges even when First Amendment rights are at stake.

Were the Supreme Court to cut back on the availability of facial challenges, that would deprive constitutional litigators and other lawyers doing law-reform work of one of their most potent weapons. It also would create a real risk that lower courts would be powerless to act until after serious constitutional violations – such as being denied the right to vote – already had occurred, leaving the victims without any meaningful remedy.

Christopher Dunn is associate legal director of the New York Civil Liberties Union