Morse v. Republican Party of Va., 517 U.S. 186, 57 (1996)

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242

MORSE v. REPUBLICAN PARTY OF VA.

Scalia, J., dissenting

also on the ground that its application is void in a substantial number of other contexts that arguably fall within its scope. This principle of "overbreadth" has been applied not only in the context of freedom of speech narrowly speaking, but also in the context of the freedom to associate for the purpose of political speech. See, e. g., United States v. Robel, 389 U. S. 258, 265-266 (1967); Elfbrandt v. Russell, 384 U. S. 11, 18-19 (1966).

Thus, to satisfy oneself that the particular practice challenged here lies "well outside the area of greatest 'associational' concern," Breyer, J., ante, at 239, is to take only the first and smallest step in treating the weighty constitutional question posed by application of § 5 to political parties. In this First Amendment context, to "go no further than necessary to decide the case at hand" means going far enough to assure against overbreadth. We must do that whenever "rights of association [are] ensnared in statutes which, by their broad sweep, might result in burdening innocent associations." Broadrick v. Oklahoma, 413 U. S. 601, 612 (1973) (citing, inter alia, Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U. S. 589 (1967)). Justice Stevens does not assert that applying § 5 to party activity passes First Amendment muster except "in the case before us," ante, at 229, and Justice Breyer acknowledges that the First Amendment may bar application of § 5 to other convention activity, see ante, at 239. Yet despite these indications of overbreadth, neither opinion attempts to provide what our cases require: a "limiting construction or partial invalidation" that will "remove the seeming threat or deterrence to constitutionally protected expression," Broadrick, supra, at 613.

Besides flouting the doctrine of overbreadth, the opinions' refusal to provide "[f]urther definition" of § 5's application to political parties, Breyer, J., ante, at 240, leaves political parties without guidance as to "when [their] activities are, in effect, substitutes for state nominating primaries," ante, at

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