Lower courts have started to apply the U.S. Supreme Court’s determination in Los Angeles Police Department v. United Reporting that a facial First Amendment challenge may not be brought against a statute that limits access to certain information about arrested persons. See Los Angeles Police Dep’t v. United Reporting Publishing Corp., 120 S. Ct. 483 (1999).

    In United Reporting, the Supreme Court enforced the "traditional rule" that "a person to whom a statute may be constitutionally applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court." The Court ruled that a private publishing service could not bring a facial challenge to a state statute limiting commercial users’ access to information about arrested persons. Id. at 488.

    Although an exception to the traditional rule is permitted when a statute is overly broad and is not susceptible to challenge without the threat of criminal sanctions, the Court ruled that the exception did not apply here because the statute in question did not abridge the right to speak, but instead simply regulated access to information. Strangely, the Supreme Court did not squarely address the doctrine that a facial challenge to a law is usually permissible if the law in question is unconstitutional as applied to the party challenging it.

    In 2000, lower courts relied on the United Reporting decision to strike down other facial challenges to similar laws. For example, the U.S. Court of Appeals for the Sixth Circuit in Amelkin v. McClure, 205 F.3d 293 (6th Cir. 2000), changed its previous decision permitting a similar facial challenge after the Supreme Court vacated and remanded the Sixth Circuit’s earlier decision. Amelkin presented a facial challenge to a Kentucky statute restricting access to public information regarding police accident reports.

    Noting the Supreme Court decision explicitly, the Sixth Circuit found that "[b]ased on the reasoning set out in United Reporting, [the Kentucky statute] is similarly not subject to a facial challenge because it does not carry the threat of prosecution for violating the statute and ... does not restrict expressive speech, but simply regulates access to the state’s accident reports." Id. at 296. Based on United Reporting, the Sixth Circuit declined to permit the facial challenge to proceed. Likewise, the U.S. Court of Appeals for the Fourth Circuit cited United Reporting in declining to permit appellants to present a facial challenge, brought under the Establishment Clause, to a zoning ordinance. Ehlers-Renzi v. Connelly School of the Holy Child, Inc., 224 F.3d 283 (2000).

    Similarly, the U.S. Court of Appeals for the Tenth Circuit struck down a facial challenge to a middle school policy against racial harassment or intimidation. West v. Derby Unified School District, 206 F.3d 1358 (10th Cir. 2000). The plaintiff claimed that failure to adequately warn students that the policy prohibited much innocent conduct rendered the regulation overly broad.

    The Derby court struck down the claim on the basis that the policy does not threaten protected speech and is not unconstitutionally overbroad or vague, and relied on the general language in United Reporting referring to facial challenges as "strong medicine" used "with hesitation" and "only as a last resort." Id. See also T Backs Club, Inc. v. Seaton, 84 F. Supp. 2d 1317 (M.D. Ala. 2000) (ruling that operators of exotic dancing establishment could not bring facial challenge to Alabama statute requiring a special operating license for adult business establishments); Smith v. Greene County School Dist., 100 F. Supp. 2d 1354 (M.D. Ga. 2000) (holding that school dress code was not overbroad so as to permit facial challenge).

    However, courts have not interpreted the United Reporting decision as eliminating all First Amendment facial challenges to state action. In Young v. City of Simi Valley, 216 F.3d 807 (9th Cir. 2000), the U.S. Court of Appeals for the Ninth Circuit invalidated a zoning ordinance regulating adult businesses based on a facial challenge brought under the First Amendment. To reach its ruling, the court concluded that the ordinance was overly broad and might inhibit the First Amendment rights of parties not before the court.

    Judge O’Scannlain, citing United Reporting, dissented on the ground that the ordinance could not be invalidated based upon a facial challenge. See also North Olmstead Chamber of Commerce v. City of North Olmstead, 86 F. Supp. 2d 755 (N.D. Ohio 2000) (permitting facial challenge to municipal sign ordinance to proceed on the basis that the ordinance’s very existence may cause others to refrain from constitutionally protected speech or expression).

    Likewise, the Michigan Supreme Court permitted a facial challenge to a judicial canon that regulated campaign speech by candidates for judicial office. Citing United Reporting, the Michigan Supreme Court acknowledged that "substantial overbreadth is required" before a statute or canon may be challenged on its face. In re Chmura, 608 N.W.2d 31, 38 (Mich. 2000). The court nonetheless permitted the facial challenge to proceed, observing that there is a real danger that the judicial canon that authorizes disciplinary action for speech during an election campaign will compromise recognized First Amendment protections of parties not before the court. The court ultimately concluded that, although the judicial canon served a compelling state interest, it was not narrowly tailored. The court then narrowed the canon and permitted its application to the judge in question.