Amdt1.3.2.2 Vagueness, Statutory Language, and Free Speech

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Vagueness is a due process doctrine that can be brought into play with regard to any criminal and many civil statutes,1 but it has a special significance when applied to governmental restrictions of speech: fear that a vague restriction may apply to one’s speech may deter constitutionally protected speech as well as constitutionally unprotected speech.2 In the First Amendment context, vagueness concerns are often combined with claims that the law is substantially overbroad and sweeps in too much protected speech.3 Vagueness has been the basis for voiding numerous such laws, especially in the fields of loyalty oaths,4 obscenity and indecency,5 and restrictions on public demonstrations.6 However, outside of the overbreadth context, the Court has rejected vagueness challenges where “the statutory terms are clear in their application to [a plaintiff’s] proposed conduct” —even when that application may implicate speech, and when the scope of the law “may not be clear in every application.” 7

Footnotes
1
The vagueness doctrine generally requires that a statute be precise enough to give fair warning to actors that contemplated conduct is criminal, and to provide adequate standards to enforcement agencies, factfinders, and reviewing courts. See Amdt5.4.8 Void for Vagueness Doctrine. back
2
See, e.g., Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 807 (2011). back
3
Supra 1.3.2.1; see also, e.g., NAACP v. Button, 371 U.S. 415, 432–33 (1963). back
4
E.g., Cramp v. Board of Pub. Instruction, 368 U.S. 278 (1961); Baggett v. Bullitt, 377 U.S. 360 (1964); Keyishian v. Board of Regents, 385 U.S. 589 (1967). See also Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) (attorney discipline, extrajudicial statements). back
5
E.g., Winters v. New York, 333 U.S. 507 (1948); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); Interstate Circuit v. City of Dallas, 390 U.S. 676 (1968); Reno v. ACLU, 521 U.S. 844, 870–874 (1997). In National Endowment for the Arts v. Finley, 524 U.S. 569 (1998), the Court held that a “decency” criterion for the awarding of grants, which “in a criminal statute or regulatory scheme . . . could raise substantial vagueness concerns,” was not unconstitutionally vague in the context of a condition on public subsidy for speech. back
6
E.g., Cantwell v. Connecticut, 310 U.S. 296 (1940); Gregory v. City of Chicago, 394 U.S. 111 (1969); Coates v. City of Cincinnati, 402 U.S. 611 (1971). See also Smith v. Goguen, 415 U.S. 566 (1974) (flag desecration law); Lewis v. City of New Orleans, 415 U.S. 130 (1974) (punishment of opprobrious words); Hynes v. Mayor of Oradell, 425 U.S. 610 (1976) (door-to-door canvassing). back
7
Holder v. Humanitarian Law Project, 561 U.S. 1, 21 (2010); see also, e.g., Young v. Am. Mini Theatres, 427 U.S. 50, 59–61 (1976) (rejecting vagueness challenge brought by litigants who were “not affected” by “any element of vagueness” in the challenged laws, where they had not shown the statute had a real and substantial deterrent effect on protected speech). back