Linguistically, defects of language include generality, ambiguity, and vagueness. A term is ‘‘general’’ when it refers to a class. ‘‘President’’ is general; ‘‘President George Washington’’ is singular. A term is ‘‘ambiguous’’ if its referent is twofold. ‘‘Bank’’ is verbally ambiguous because it possesses two referents (for example, deposit money or stand to fish). Syntactical ambiguity arises when a word may modify two referents in a sentence for example, ‘‘Humans alone laugh.’’ Does it mean when humans are alone (adverb), they laugh, or does it mean humans alone (adjective) laugh? Contextual ambiguity arises from the context of a situation (for example, ‘‘Teach my child a game.’’ For those who abhor gambling, ‘‘game’’ extends to jump rope, not dice. For those who relish gambling, ‘‘game’’ extends to dice. Thus, disambiguating ‘‘game’’ involves looking to the community).Aterm is ‘‘vague’’ if its meaning is uncertain, that is, the edges of the concept are ‘‘fuzzy,’’ as in day or night at dawn or dusk. Cicero in Academica 94 (Loeb ed.1951) observed: ‘‘[I]f we are asked...are yonder objects many or few...we do not know [when in] the addition or subtraction [of an object] to give a definite answer.’’ Thus, all concepts that admit of degrees (most do) are uncertain, not in their cores, but at their edges.
Constitutionally, ‘‘vagueness’’ means, not ‘‘fuzzy’’ edges, as in linguistics, but ‘‘no core meaning’’ at all in the context in which in which it is used. When a concept used in legislation lacks a core meaning, the statute if ‘‘void-for-vagueness.’’ The constitutional doctrine stems from Articles I and II that separate making laws from interpreting laws. If a law is meaningless (no core), a court must not add meaning; interpretation is exegesis, not eisegesis. Similarly, the Fifth and Fourteenth Amendments mandate that the government act with ‘‘due process,’’ which requires ‘‘fair notice.’’ A law lacks fair notice if ordinary citizens cannot determine the covered persons, conduct, or sanctions. Nevertheless, words may be definite if they have a well-settled legal or technical meaning. Vagueness is also a question of degree. ‘‘Condemned to the use of words, we can never expect mathematical certainty from our language’’ (Grayned v. City of Rockford, 408 U.S. 104, 110 ). In addition, typical statutes are not vague because determining whether marginal or hypothetical cases fall within them is difficult. Generally, statutes are judges in light of the conduct of the defendant who challenges them (‘‘as applied’’); he may not complain of their indefinite character in reference to the conduct of others. Courts also give a narrower reading to statutes that impose criminal sanctions, whereas those that grant civil benefits need not be as definite. Finally, statutes that require a showing of a state of mind may also be less definite. The void-for-vagueness doctrine is well-settled law in the Supreme Court. It played an essential part of substantive due process challenges to economic regulation in the nineteenth century, but they are no longer a mainstay of the Court’s docket.
The void-for-vagueness doctrine, however, plays a substantially different role in First Amendment jurisprudence. At the time of the Founders, the First Amendment solely protected against prior restraint (for example, ‘‘licensing books’’), but a person was accountable for whatever he said or did (for example, ‘‘libel’’) In the 1920s, the Supreme Court began the long process of extending free speech protections. Today, subject to limited categories (for example, ‘‘fighting words,’’ ‘‘obscenity,’’ or ‘‘true threats’’), a person cannot be sanctioned— criminally or civilly— for speech or expressive conduct, as apposed to mere conduct, in particular based on its content (for example, ‘‘blasphemy’’ or ‘‘hate speech’’). Only if a substantial danger exists of immediate harm may speech or expressive conduct be circumscribed (that is, ‘‘excitement’’). In addition to these general free speech protections, the void-for-vagueness doctrine plays a unique role in protecting First Amendment freedoms. Here, challenges to statutes are not ‘‘as applied,’’ but to the ‘‘face’’ of a statute. A defendant (or a challenger, who is not currently charged with an offense, but reasonable fears that he might be charged) may not be able to claim constitutional protection for himself (for example, ‘‘a pornographer’’). But if he (or a challenger) can point to a substantial number of other instances of speech or expressive conduct that arguably fall within the statute, it is unconstitutional ‘‘on its face.’’ It cannot serve as a basis for his sanctioning. Its general application is subject to an injunction by the court at the behest of a proper challenger. The Supreme Court teaches that such statutes—characterized either by no core meaning, fuzzy edges, or the impermissible exercise of governmental discretion— inhibit constitutionally protected speech or expressive conduct. Thus, they are constitutionally overbroad because they ‘‘chill’’ the exercise of rights guaranteed by the First Amendment. For example, the police may not condition the granting of a parade permit on the payment in advance of the cost of protecting the demonstrators from a hostile crowd (no ‘‘heckler’s veto’’). In the face of such statutes, public speaking, writing, or otherwise communicating would not be as fully robust as envisioned by our nation’s ‘‘free market’’ in ideas that are necessary in the search for truth. We would not have the full measure of pamphleteering, parading, or public speaking. Accordingly, such statutes are void-for-vagueness, in the special sense in which the doctrine applies to the First Amendment. Thus, the modern Court uses a stricter version of the void-for-vagueness doctrine to protect civil liberties in the area of First Amendment freedoms; it also uses it as a tool to circumscribe lowlevel police-citizen contacts (for example, ‘‘loitering statutes’’) that might otherwise interfere with freedom of association or assembly.
G. ROBERT BLAKEY
References and Further Reading
Cases and Statutes Cited