Cite as: 558 U. S. ____ (2010)
9
Opinion of STEVENS, J.
be devised on an ad hoc basis, and then leaps from this
unfounded prediction to the unfounded conclusion that
such complexity counsels the abandonment of all normal
restraint. Yet it is a pervasive feature of regulatory sys
tems that unanticipated events, such as new technologies,
may raise some unanticipated difficulties at the margins.
The fluid nature of electioneering communications does
not make this case special. The fact that a Court can
hypothesize situations in which a statute might, at some
point down the line, pose some unforeseen as-applied
problems, does not come close to meeting the standard for
a facial challenge.6
The majority proposes several other justifications for the
sweep of its ruling. It suggests that a facial ruling is
necessary because, if the Court were to continue on its
normal course of resolving as-applied challenges as they
present themselves, that process would itself run afoul of
the First Amendment. See, e.g., ante, at 9 (as-applied
review process “would raise questions as to the courts’ own
lawful authority”); ibid. (“Courts, too, are bound by the
First Amendment”). This suggestion is perplexing. Our
colleagues elsewhere trumpet “our duty ‘to say what the
law is,’ ” even when our predecessors on the bench and our
counterparts in Congress have interpreted the law differ
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6 Our cases recognize a “type of facial challenge in the First Amend
ment context under which a law may be overturned as impermissibly
overbroad because a substantial number of its applications are uncon
stitutional.” Washington State Grange v. Washington State Republican
Party, 552 U. S. 442, 449, n. 6 (2008) (internal quotation marks omit
ted). Citizens United has not made an overbreadth argument, and
“[w]e generally do not apply the strong medicine of overbreadth analy
sis where the parties fail to describe the instances of arguable over
breadth of the contested law,” ibid. (internal quotation marks omitted).
If our colleagues nonetheless concluded that §203’s fatal flaw is that it
affects too much protected speech, they should have invalidated it for
overbreadth and given guidance as to which applications are permissi
ble, so that Congress could go about repairing the error.