In Broadrick, Justice White suggests that the willingness of the Court in the past to accord standing to litigants to raise the over-broad aspects of a statute without regard to their own conduct'depended on a "judicial prediction or assumption" regarding the threat to liberty that the statute posed.' The spirit with which the Court makes such predictions would appear to be determinative not only of the underlying standing issue but of the overbreadth claimas well." The key to discovering the paths by which the Court is "retreating" from its overbreadth holiday of the sixties lies in the recognition that the central dynamic of overbreadth is the peril posed by standardless administration rather than the threat of a chilling effect on first amendment rights. That recognition enables one to see that past cases are cluttered with sources other than the statutes themselves that were searched by the Court in an effort to "predict" whether the danger of overbreadth was great enough to call for radical treatment.
J. W. Torke,
The Future of First Amendment Overbreadth,
27 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol27/iss2/8