Procedural Matters and Freedom of Speech: Vagueness

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 vice that can be brought into play with regard to any criminal and many civil statutes,1 but it has a special signficance 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. Vagueness has been the basis for voiding numerous such laws, especially in the fields of loyalty oaths,2 obscenity and indecency,3 and restrictions on public demonstrations.4 It is usually combined with the overbreadth doctrine, which focuses on the need for precision in drafting a statute that may affect First Amendment rights;5 an overbroad statute that sweeps under its coverage both protected and unprotected speech and conduct will normally be struck down as facially invalid, although in a non- First Amendment situation the Court would simply void its application to protected conduct.6

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, e.g., Connally v. General Const. Co., 269 U.S. 385 (1926); Lanzetta v. New Jersey, 306 U.S. 451 (1939); Colautti v. Franklin, 439 U.S. 379 (1979); Village of Hoffman Estates v. The Flipside, 455 U.S. 489 (1982).

2

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).

3

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.

4

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). For an evident narrowing of standing to assert vagueness, see Young v. American Mini Theatres, 427 U.S. 50, 60 (1976).

5

NAACP v. Button, 371 U.S. 415, 432–33 (1963).

6

E.g., Kunz v. New York, 340 U.S. 290 (1951); Aptheker v. Secretary of State, 378 U.S. 500 (1964); United States v. Robel, 389 U.S. 258 (1967); Zwickler v. Koota, 389 U.S. 241 (1967); Lewis v. City of New Orleans, 415 U.S. 130 (1974); Massachusetts v. Oakes, 491 U.S. 576, 581 (1989). But see Washington State Grange v. Washington State Republican Party, 128 S. Ct. 1184, 1190 (2008) (facial challenge to burden on right of association rejected “where the statute has a 'plainly legitimate sweep'” ).