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State v. Hookstra2/8/2002
1. Constitutional Law: Ordinances: Appeal and Error. The constitutionality of an ordinance presents a question of law, in which an appellate court is obligated to reach a conclusion independent of the decision reached by the trial court.
2. Constitutional Law: Statutes. A challenge to a statute, asserting that no valid application of a statute exists because it is unconstitutional on its face, is a facial challenge.
3. Constitutional Law. The parameters of the constitutional right to freedom of speech are the same under both the federal and the state Constitutions.
4. Constitutional Law: Statutes. The doctrine of overbreadth pertains to a statute designed to burden, punish, or prohibit an activity that is not constitutionally protected, but which includes within its scope activities that are protected by the First Amendment to the U.S. Constitution.
5. Constitutional Law: Criminal Law: Ordinances. The void-for-vagueness doctrine requires that a penal ordinance define the criminal offense with sufficient definiteness so that ordinary people can understand what conduct is prohibited and so that the language of the ordinance does not encourage arbitrary and discriminatory enforcement.
6. Constitutional Law: Statutes. An enactment which is clear and precise, and therefore not vague, may nonetheless fail to pass constitutional muster by virtue of being overbroad in the sense that it prohibits the exercise of constitutionally protected conduct, such as the exercise of First Amendment rights.
7. Constitutional Law: Statutes: Appeal and Error. As a general rule, in a challenge to the overbreadth and vagueness of a law, a court's first task is to analyze overbreadth.
8. Constitutional Law: Statutes. A statute is unconstitutionally overbroad and thus offends the First Amendment if, in addition to forbidding speech or conduct which is not constitutionally protected, it also prohibits the exercise of constitutionally protected speech.
9. ____: ____. A statute may be invalidated on its face only if its overbreadth is "substantial," i.e., when the statute is unconstitutional in a substantial portion of cases to which it applies. Stated another way, in order to prevail upon a facial attack to the constitutionality of a statute, the challenger must show either that every application of the statute creates an impermissible risk of suppression of ideas or that the statute is "substantially" overbroad, which requires the court to find a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the court.
10. Constitutional Law: Statutes: Standing. The doctrine of substantial overbreadth provides an exception to the traditional rule of standing. Under the doctrine, an individual whose own speech or conduct may be prohibited is permitted to challenge an enactment on its face because it also threatens others not before the court who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid.
11. Constitutional Law: Ordinances: Presumptions. An ordinance, like a statute, is presumed to be constitutional and its unconstitutionality must be clearly established before it will be declared void.
12. Constitutional Law: Criminal Law: Statutes: Presumptions. In affording a presumption of constitutionality to legislative enactments, the Nebraska Supreme Court, while construing penal statutes strictly, nonetheless gives them a sensible construction in the context of the object sought to be accomplished, the evils and
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