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Void For Vagueness

In American constitutional law, a statute is void for vagueness and unenforceable if it is too vague for the average citizen to understand, and a constitutionally-protected interest cannot tolerate permissible activity to be chilled within the range of the vagueness (either because the statute is a penal statute with criminal or quasi-criminal civil penalties, or because the interest invaded by the vague law is a strict scrutiny constitutional right). There are several reasons a statute may be considered vague; in general, a statute might be void for vagueness when an average citizen cannot generally determine what persons are regulated, what conduct is prohibited, or what punishment may be imposed. For example, criminal laws which do not state explicitly and definitely what conduct is punishable are void for vagueness. A statute is also void for vagueness if a legislature’s delegation of authority to judges and/or administrators is so extensive that it would lead to arbitrary prosecutions.[1] Related to the “void for vagueness” concept is the “unconstitutional vagueness” concept (see below). A law can be “void for vagueness” if it imposes on First Amendment freedom of speech, assembly, or religion.

The “void for vagueness” doctrine applies only to criminal or penal laws (or quasi-criminal laws, for example laws that carry civil penalties), and laws that potentially limit “strict scrutiny” constitutional rights. The doctrine does not apply to private law (that is, laws that govern rights and obligations as between private parties), only to laws that govern rights and obligations vis-a-vis the government. The doctrine also requires that to qualify as constitutional, a law must:[1]

  • State explicitly what it mandates, and what is enforceable.
  • Define potentially vague terms.

Roots and purpose

In the case of vagueness, a statute might be considered void on constitutional grounds. Specifically, roots of the vagueness doctrine extend into the two due process clauses, in the Fifth and Fourteenth Amendments to the United States Constitution. The courts have generally determined that vague laws deprive citizens of their rights without fair process, thus violating due process.

The following pronouncement of the void for vagueness doctrine was made by Justice Sutherland in Connally v. General Construction Co., 269 U.S. 385, 391 (1926):

[T]he terms of a penal statute […] must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties… and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.

The void for vagueness doctrine is a constitutional rule. This rule requires that laws are so written that they explicitly and definitely state what conduct is punishable. The vagueness doctrine thus serves two purposes. First: All persons receive a fair notice of what is punishable and what is not. Second: The vagueness doctrine helps prevent arbitrary enforcement of the laws and arbitrary prosecutions.[1] There is however no limit to the conduct that can be criminalized, when the legislature does not set minimum guidelines to govern law enforcement.[2]: 13 

Specific application

There are at least two ways a law might be attacked for being unconstitutionally vague:

  • When a law does not specifically enumerate the practices that are either required or prohibited. In this case, the ordinary citizen does not know what the law requires.[3] See also Coates v. City of Cincinnati (1971) and FCC v. Fox Television Stations, Inc (2012).
  • When a law does not specifically detail the procedure followed by officers or judges of the law. As a guard, a law must particularly detail what officers are to do, providing both for what they must do and what they must not do. Under the doctrine, judges must have a clear understanding of how they are to approach and handle a case. See also Kolender v. Lawson (1983).

Both scienter and objective criteria that specify the harm to be protected against are necessary to limit vagueness in criminal statutes (Compare page 9 of [2]). To satisfy the Due Process Clause of the Fifth Amendment, individuals are entitled to understand the scope and nature of statutes which might subject them to criminal penalties.[4] Thus, in Skilling v. United States (2010), it was held that a “penal statute must define the criminal offense (1) with sufficient definiteness that ordinary people can understand what conduct is prohibited and (2) in a manner that does not encourage arbitrary and discriminatory enforcement.”[4]

Unconstitutional vagueness

Unconstitutional vagueness is a concept that is used to strike down certain laws and judicial actions in United States federal courts. It is derived from the due process doctrine found in the Fifth and Fourteenth Amendments to the United States Constitution. The doctrine prohibits criminal prosecution for laws where it is impossible to reasonably understand what conduct is prohibited.[5]

Examples of unconstitutional vagueness

  • The Florida Supreme Court, in Franklin v. State (Fla, 1971), ruled that the state’s felony ban on sodomy was unconstitutionally vague because an “average person of common intelligence” could not reasonably know, without speculating, whether “abominable and detestable crime against nature” included oral sex or only anal sex.[6]
  • Papachristou v. Jacksonville (1972) and Kolender v. Lawson (1983) were two U.S. Supreme Court cases where the court struck down laws against vagrancy for unconstitutional vagueness; in restricting activities like “loafing”, “strolling”, or “wandering around from place to place”, the law gave arbitrary power to the police and, since people could not reasonably know what sort of conduct is forbidden under the law, could potentially criminalize innocuous everyday activities.[5]
  • In Hoffman Estates v. The Flipside, Hoffman Estates, Inc. (1982), the Supreme Court considered a pre-enforcement challenge to a municipal ordinance imposing licensing requirements and other restrictions on stores that sold drug paraphernalia. The Court sided with the village, holding that in such a lawsuit the plaintiff must demonstrate that the law would be “impermissibly vague in all its applications”.[7]
  • The U.S. Supreme Court, in City of Akron v. Akron Center for Reproductive Health (1983), struck down a provision of Akron‘s abortion law which required that physicians dispose of fetal remains in a “humane and sanitary manner”. “Humane” was judged to be unconstitutionally vague as a “definition of conduct subject to criminal prosecution”; the physician could not be certain whether or not his conduct was legal.[8]
  • The United States Court of Appeals for the Third Circuit ruled that a supervised release condition prohibiting a defendant from possessing “all forms of pornography, including legal adult pornography” was unconstitutionally vague because it posed a real danger that the prohibition on pornography might ultimately translate to a prohibition on whatever the officer personally found titillating.[9]
  • In FCC v. Fox Television Stations, Inc (2012), the Supreme Court ruled that since the words “obscene”, “vulgar”, “profane”, and “indecent”, were not accurately defined by the FCC, it was unconstitutionally vague to enforce the restrictions against “obscene”, “vulgar”, “profane”, or “indecent” acts since any person may see different things as obscene, vulgar, profane, or indecent. This was also compounded by the fact that the FCC allowed some words such as “shit” and “fuck” permissible to utter or state in some, but unclear, circumstances; but this was only seen as an accessory to the aforementioned reason.
  • In Johnson v. United States (2015), the Supreme Court ruled that the residual clause in the Armed Career Criminal Act was unconstitutionally vague and a violation of due process. The residual clause provided for an enhanced prison sentence for people who had previously been convicted of 3 or more violent felonies, which was defined as “use of physical force against the person of another”, “burglary, arson, or extortion”, “involves use of explosives”, or “otherwise involves conduct that presents a serious potential risk of physical injury to another”. The last part is known as the residual clause.[10] The court determined that the residual clause was unconstitutionally vague because of the combination of two factors: (1) it focused on the ordinary case of a felony, rather than statutory elements or the nature of the convicted’s actions, leaving significant uncertainty about how to assess the risk posed by a crime; and (2) the clause does not give an indication of how much risk is necessary to qualify as a violent felony.[11] Johnson’s case—the fifth U.S. Supreme Court case about the meaning of the residual clause—involved whether possession of a short-barrelled shotgun was a violent felony.
  • In Sessions v. Dimaya (2018), the Supreme Court ruled that a statute defining certain “aggravated felonies” for immigration purposes, is unconstitutionally vague. Justice Neil Gorsuch, in a concurring opinion, stressed the dangers of vague laws.

See also

Notes

  1. “Vagueness doctrine definition”. Cornell University Law School Legal Information Institute. Retrieved 30 December 2012.
  2. Burrell, Lesley (3 January 2011). “The Right-to-Honest-Services Doctrine – Enron’s Final Victim: Pure Void-for-Vagueness in Skilling v. United States”. Loyola of Los Angeles Law Review. Digital Commons at Loyola Marymount University and Loyola Law School. 44 (3): 1289–1306. Retrieved 30 December 2012.
  3. Connally v. General Const. Co., 269 U.S. 385, 391 (1926)
  4. Hedges v. Obama, 12-cv-00331 (U.S. District Court, Southern District of New York (Manhattan) May 16, 2012).
  5. Free Legal Encyclopedia: Void for Vagueness Doctrine
  6. Franklin v. State, Florida Supreme Court, 17 December 1971, accessed 14 July 2011 Archived 8 July 2012 at archive.today
  7. Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982), at 495, Marshall, J.
  8. Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983)
  9. United States of America v. Ray Donald Loy, 237 F3d 251 (January 4, 2001).
  10. Johnson v. United States, 135 S.Ct. 2551 (2015)
  11. Johnson, slip op. at 5-10

References

Burger Court (1969–1986) Freedom of Speech Clause case law
Rehnquist Court (1986–2005) Freedom of Speech Clause case law
Roberts Court (2005–present) Freedom of Speech Clause case law

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From Wikipedia https://en.wikipedia.org/wiki/Vagueness_doctrine last updated July 25, 2022

From something called IBJ Criminal Defense Wiki

Void for Vagueness

A defendant in the United States may be able to challenge a statute on grounds that it violates the fundamental due process clause of the 5th and 14th Amendment of the United States Constitution because it is overly vague. The void for vagueness doctrine has its roots in the notion that everyone should have fair notice of what constitutes a crime. The requirement that statutes be narrowly tailored statutes is one of the cornerstones of the legality principle. Not every statute which appears vague will be void for vagueness. Every statute involves some degree of vagueness and rightly so because criminal codes must be narrow enough to provide notice but broad enough to capture unanticipated variations in criminal activity.

In contrast to vagueness, sometimes a statute will be ambiguous. A statute is ambiguous if it can be interpreted in two ways. If a statute is ambiguous, it should be construed in favor of the defendant.

The doctrine was explained in Jordan v. De George:

The essential purpose of the “void for vagueness” doctrine is to warn individuals of the criminal consequences of their conduct. Williams v. United States, 341 U.S. 97, decided April 23, 1951; Screws v. United States, 325 U.S. 91, 103-104 (1945). This Court has repeatedly stated that criminal statutes which fail to give due notice that an act has been made criminal before it is done are unconstitutional deprivations of due process of law. Lanzetta v. New Jersey, 306 U.S. 451 (1939); United States v. Cohen Grocery Co., 255 U.S. 81 (1921).[1]

The test for whether a given statue is vague is objective in nature and asks whether the provision “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.” [2]

“the terms of a penal statute must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.[3]

The rationale behind the void for vagueness doctrine rests on three interrelated principles:

First, citizens are entitled to notice of what is legal and what is illegal so that they can conform their conduct accordingly.

Second, statutes which are vague invest too much power in the prosecution, resulting in arbitrary and erratic arrests and convictions.[4] For instance, in Papachristou v. City of Jacksonville the U.S. Supreme Court struck down a statute the criminalized vagrancy for those who were “loafing” or “wandering and strolling.” [5] A vague law “impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.”[6]

Third, statutes which are void for vagueness provide judges with too much discretion in the application of the law.

When the defense of void for vagueness is combined with an affirmative First Amendment claim, heightened scrutiny may apply.[7]

See Defenses

Notes

  1. Jordan v. De George, 341 U.S. 223 (1951)
  2. United States v. Harriss, 347 U.S. 612, 617
  3. Connally v. General Const. Co,269 U. S. 385 (1926)
  4. Thornhill v. Alabama, 310 U.S. 88 ; Herndon v. Lowry, 301 U.S. 242
  5. Papachristou v. City of Jacksonville, 405 U.S. 156 (1972). See also Thornhill v. Alabama, 310 U.S. 88 ; Herndon v. Lowry, 301 U.S. 242
  6. Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972)
  7. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495(1952)

http://defensewiki.ibj.org/index.php?title=Void_for_Vagueness page was last edited December 2010

From Cornell Legal Information Institute – LII – Wex

Vague

Definition

Hazy, uncertain, or imprecise.  Used in reference to words — especially sentences and paragraphs — that are not clearly expressed. A criminal statute is void for vagueness if it is so vague that it fails to give a person fair notice of what conduct is prohibited or required. A statute is also void for vagueness if a legislature’s delegation of authority to judges and/or administrators is so extensive that it would lead to arbitrary prosecutions.

Illustrative caselaw

See, e.g. Skilling v. United States, 130 S.Ct. 2896 (2010).

See also

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