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The concept of substantial overbreadth is not a test of the constitutionality of a statute, but a policy related to the remedy flowing from a successful facial challenge. A successful facial overbreadth challenge precludes the application of the affected statute in all circumstances. Recognizing the sweep of this remedy, the U.S. Supreme Court has stated that it will not impose such an expansive result where the chilling effect of an overbroad statute on constitutionally protected rights cannot justify prohibiting all enforcement of the law. "For there are substantial social costs created by the overbreadth doctrine when it blocks application of a law to constitutionally unprotected speech...." Thus a statute should be declared facially overbroad and unconstitutional only if the statute "punishes a 'substantial' amount of protected free speech, 'judged in relation to the statute's plainly legitimate sweep.'"
- ↑ Virginia v. Hicks, 539 U.S. 113, 119 (2003) (full-text).
- ↑ Id. at 118-19 (citing Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)).