The Fifth Amendment and fourteenth amendment respectively prohibit the federal and state governments from taking life, liberty, or property without due process of law. These provisions forbid the enforcement of any law that, in the classic words of Connally v. General Construction Co. (1926), "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." Vagueness imperils the fair administration of legal sanctions in several ways. First, it threatens punishment of people who had no fair warning of what conduct to avoid. Second, by creating interpretive latitude for those who apply the law—police, prosecutors, judges, juries, and others—vagueness permits punishment to be inflicted selectively for arbitrary or improper reasons. Third, a law's vagueness hinders the efforts of reviewing courts to control such abuses in the law's enforcement; the less clear the law is, the less visible—and correspondingly more difficult to detect and correct—are irregular instances of its administration.
To minimize these dangers, the due process requirement of reasonable clarity forbids enforcement even if the legislature constitutionally could have prohibited, through a clearer law than it did enact, all the behavior its vague law might have been intended to reach. When the uncertain coverage of a vague law might extend into areas of behavior that are constitutionally protected from regulation, however, the ordinary dangers of arbitrary enforcement are heightened, and two additional concerns emerge: the risk that a vague law, which inevitably poses an uncertain risk of prosecution, will inhibit people from exercising precious liberties that the government has no right to outlaw, and the possibility that the legislature did not explicitly focus on the liberty interest and thus did not actually decide that there was compelling reason to regulate it.
The deterrence of constitutionally guaranteed activity that vagueness may produce is akin to the deterrence produced by overbroad laws that encompass both behavior that legitimately may be regulated and behavior that is constitutionally protected. Vagueness differs from over-breadth in that the source of potential inhibition is the law's lack of clarity, not its excessive reach. Yet in both cases the ultimate threat is that those who wish to exercise constitutional rights will refrain from doing so for fear of being penalized. That vagueness may have the practical effect of overbroad regulation explains the common doctrinal confusion between the two concepts. Vagueness also differs from overbreadth in another way: an uncertain law that addresses, even in its most expansive interpretation, only behavior that constitutionally may be regulated may still be void for vagueness, but, by definition, cannot be void for overbreadth.
Two questions dominate the law of vagueness: how much vagueness is tolerable before the law violates due process, and who may raise the vagueness objection. The Supreme Court appears to give different answers to each question, depending on whether or not the vagueness implicates constitutionally protected activity. Still, the constitutional issue of vagueness is always a question of degree, of how much interpretive uncertainty is tolerable before the legitimate regulatory interests of government must yield to the perils of vagueness. If the constitutional definition of vagueness is itself uncertain, the reason is that language is inherently imprecise. The public interest in regulating antisocial behavior would be sacrificed if due process mandated impossible standards of clarity before laws validly could be enforced.
The starting point for vagueness analysis is to ascertain the nature of the standard that the law sets. This inquiry requires judges to consider not only the statutory language but also all interpretive aids that may add to the law's precision, such as accepted meanings in the relevant community (or in other areas of law) for terms contained in the statute, implementing regulations, past judicial interpretations that have clarified uncertain terms, and even judicial clarification in the very case raising the vagueness objection—if this after-the-fact clarification does not disregard the legislature's intent and if the challenger reasonably could have anticipated that the law could be construed to cover his conduct. The interpretive option often allows the Supreme Court and lower federal courts to avoid invalidating vague federal laws. When federal courts confront state laws, however, they are limited to determining whether state court clarification has cured any constitutional problems of vagueness. This difference largely explains why state laws are stricken for vagueness more often than are federal laws.
Once a law has received the benefit of all available clarification, a wide range of factors affects a court's judgment whether the law's remaining vagueness renders it unconstitutional. In a case in which the vagueness does not bear on constitutionally shielded behavior, only two vagueness objections are permitted: that the law is vague as applied to the particular behavior of the individual challenger, or that the law is invalid on its face for being unduly vague as applied to anyone, including the challenger, because no one who consulted it could derive fair warning of what conduct was prohibited or could determine whether the legislature meant one thing rather than another. In Hoffman Estates v. Flipside (1982) the Supreme Court confirmed that in deciding cases in which the latter objection is raised, greater uncertainty is constitutionally permissible when the law regulates a relatively narrow subject matter; when the law regulates economic behavior (because businesses more reasonably can be expected to consult laws in advance of acting than can individuals); when the law imposes civil rather than criminal penalties (because the consequences of noncompliance are less severe); and when the law applies only to those who intentionally or knowingly violate it (because there is less risk of unfair surprise). Historically, once the Supreme Court determined that economic regulation posed no significant threat to constitutional freedoms, it became more tolerant of the imprecision in laws banning "unreasonable," "unjust," or "unfair" prices or business practices, as United States v. National Dairy Products Corp. (1963) illustrates. Moreover, the Court permits more uncertainty when it perceives the government's regulatory objective to be especially important—as screws v. united states (1945) demonstrated in upholding a rather vague civil rights law protecting individuals—and also when it would be difficult for the legislature to delineate more precisely the penalized behavior.
The Court is especially receptive to a challenge based on vagueness when a law's uncertain coverage risks inhibiting constitutionally safeguarded freedoms. In the last half-century this receptivity has been manifested primarily in first amendment cases. One indicator of the Court's increased sensitivity is the wide range of people who may now raise the vagueness objection. In cases implicating constitutionally protected activity, the Court not only entertains complaints that a law is vague as applied to the individual litigant or vague in all applications, but it sometimes permits those to whom a law clearly applies to object that it is facially invalid because it is unduly vague as to others. Despite Supreme Court rulings to the contrary both in earlier periods and in cases as recent as parker v. levy (1974) and broadrick v. oklahoma (1973), and despite continuing voices of dissent that this practice allows one as to whom enforcement is fair to assert the hypothetical rights of others and confuses vagueness and overbreadth, the Court currently maintains, in such cases as young v. american mini theatres (1976) and kolender v. lawson (1983), that such a person may have the whole law invalidated if the deterrent effect of its vagueness on others is real and substantial.
All of the factors that bear on the acceptable degree of vagueness in laws encompassing only unprotected conduct still apply, some more heavily, to laws that potentially reach constitutionally protected conduct. In addition, the Supreme Court seems to be concerned with other factors: how much protected freedom the vagueness might deter; how important the asserted freedom is; the judges' capacity to preserve the freedom through case-by-case application; the legislature's ability to reformulate the law in less inhibiting fashion; and the extent and importance of legitimate regulation that must be foregone if the law is voided for vagueness.
Although the Court does not always articulate these considerations, they appear to underlie many decisions. In Baggett v. Bullitt (1964) and Cramp v. Board of Public Instruction (1961), for example, the invalidation of loyalty oath requirements for undue vagueness arrayed important freedoms of association against dubious government needs for assurance. More generally, when the enactment's vagueness risks suppression of unpopular expression or criticism of government, the Court's tolerance level is low. Thus in Coates v. Cincinnati (1971) an ordinance barring assembly of three or more persons "annoying" passers-by was held void, as was a law prohibiting "contemptuous treatment" of the American flag in Smith v. Goguen (1974).
On the other hand, even vagueness that inhibits valued expression is sometimes indulged if regulatory interests are perceived as powerful. Good examples are the extreme vagueness Parker v. Levy permitted the military in punishing "conduct unbecoming an officer and a gentleman" and the lesser, yet undoubted, uncertainty of laws prohibiting partisan political activity by public employees that the Court upheld in Broadrick v. Oklahoma.
Similarly divergent assessments of the acceptable level of indefiniteness in statutes defining and proscribing obscenity reflect conflict within the Court over the value of sexually explicit, but constitutionally protected, materials. The judgment that deterrence of some sexually explicit adult movies was no cause for alarm led a plurality in Young v. American Mini Theatres to uphold a zoning ordinance restricting the concentration of adult theaters and bookstores in downtown Detroit. A similar judgment underlies the Court's willingness to permit inevitably vague definitions of obscenity to serve as the basis for criminal punishment. By contrast, Justice william j. brennan, who is more concerned about the potentially protected sexual expression that might be lost, declared in his important dissent in Paris Adult Theatre I v. Slaton (1973) his firm, if belated, conviction that vagueness in defining obscenity is virtually an insuperable problem. Even he, however, did not conclude that the distribution of obscene materials must consequently remain unregulated; rather, he suggested that the protection of juveniles and the privacy of unconsenting adults might render vagueness tolerable, though protection of consenting adults and community mores and aesthetics would not.
The complexity of the vagueness doctrine stems, then, from the dual nature of the constitutional protection that it offers. Individuals are protected in any case from arbitrary enforcement without a fair opportunity to conform their conduct to legitimate law, and the social interest in maximizing constitutional freedoms is central to judgments about vagueness when the law's indefiniteness threatens to inhibit those freedoms.
Jonathan D. Varat
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Bogen, David S. 1978 First Amendment Ancillary Doctrines. Maryland Law Review 37:679, 714–726.
Schauer, Frederick 1978 Fear, Risk and the First Amendment: Unravelling the "Chilling Effect." Boston University Law Review 58:685.