Courts Already Declare Statutes "Void-For-Breadth"—They Just Do So Sub Silentio

At some level, the "void-for-breadth" doctrine already exists, but it needs to be excavated, clarified, and expanded.

The practical upshot of Very Broad Laws—a new article, which I have blogged about in two previous posts—is that courts should feel emboldened to invalidate extremely broad criminal statutes on due process grounds, because such statutes deprive ordinary people of "fair notice" of how the legal system actually works. In this final post, I wish simply to offer an I'm-not-crazy reassurance, specifically by highlighting a few places where the courts (including the Supreme Court) have already seen fit to declare statutes, in essence, "void-for-breadth." They have simply done so surreptitiously: by casting the problem in terms of vagueness. The problem with this strategy is less practical than theoretical. It certainly "gets the job done," at least in particular cases. The problem is more systemic. Because current "anti-breadth" doctrine is constrained to fly under the misleading banner of vagueness, it has little overall coherence, and one of its main normative benefits—that, properly conceived, constitutional limits of broad criminal lawmaking would encourage legislators to draft more narrowly—is all but missing in practice.

That being said, courts are already on the scent. The most famous example, I think, is Chicago v. Morales, in which the Court struck down a Chicago ordinance criminalizing "loitering" by any group of people that includes at least one "criminal street gang member." The Court invalidated the ordinance on due process grounds, arguing that it swept in too much innocuous conduct, leaving enforcement decisions—and effectively, the content of the law—in the hands of individual officers. For example, the Court imagined a fact-pattern in which two people, "a gang member and his father," are hanging out near Wrigley Field. Do they wish "to rob an unsuspecting fan or just to get a glimpse of Sammy Sosa leaving the ballpark"? There is, the Court reasoned, simply no way to know. And that is the problem: by flattening any distinction between cases like the robbery example and cases like the Sammy Sosa example, the ordinance deprived people of a meaningful opportunity to "conform[] [their] conduct to the law," because in either version of the hypothetical, "if [the] purpose [of the gang member and his father] is not apparent to a nearby police officer, she may—indeed, she 'shall'—order them to disperse."

Morales is styled as a vagueness case. But labels have a way of yielding to substance. Halfway through its opinion, the Court performed an about-face: abandoning the pretense that linguistic indeterminacy—the normal basis of vagueness challenges—was the problem. Rather,

[s]ince the city cannot conceivably have meant to criminalize each instance a citizen stands in public with a gang member, the vagueness that dooms this ordinance is not the product of uncertainty about the normal meaning of 'loitering,' but rather about what loitering is covered by the ordinance and what is not.

In other words, the Chicago ordinance was perfectly clear. It was just—to borrow Justice Kagan's memorable phrase from the Marinello argument—"ungodly broad." In the words of the Morales Court, "the broad sweep of the ordinance" caused it to "reach a substantial amount of innocent conduct." And that, alone, was enough for invalidation, because it meant that the ordinance "provided insufficient notice to a reasonable person of what was forbidden."

The Morales Court would be hard-pressed, I think, to explain how its conception of vagueness—regarding the types of loitering actually "covered by the ordinance"—is truly a species of vagueness, in the familiar linguistic sense. Yet the premise of the opinion seems undeniably right: when law takes a shotgun approach to criminal liability, sweeping in everyday conduct plainly beyond the scope of what the law was designed to combat, people are left unacceptably in the dark. In other words, legislatures need to try harder. Past a certain threshold, it becomes impermissible to pursue regulatory goals—even legitimate ones—by criminalizing large swaths of normal activity. Doing so turns virtually everyone into a criminal, at least on paper; and it leaves us without a meaningful understanding, ex ante, of the legal risks our actions invite.

Emboldened by Morales, lower federal courts have followed suit. In fact, there is a growing shadow-canon of successful breadth challenges masquerading as vagueness cases. Behold a few recent examples:

1. In 2003, the Fourth Circuit struck down a law prohibiting "loitering on bridges," which was being used to (among other things) target protestors. Citing Morales, the court argued that the problem was not "uncertainty about the normal meaning of 'loitering,'" but rather, uncertainty about "what specific conduct is covered by the statute and what is not," since the latter—no less than the former—fails to "give plaintiffs [i.e., protestors] proper notice that the core political speech . . . in which they were engaged was prohibited by law."
2. In 2007, Judge Magnuson of the District of Minnesota invalidated a garden-variety traffic ordinance that forbade trucks from "idling" but "provide[d] no reference to determine how long a [] vehicle may idle"—as they are wont to do—"before [a] violat[ion] [occurs]." The problem, as in Morales, was that truck drivers were left simply to guess "[which] idling is covered by the ordinance" and which is not: an unacceptable result under the Due Process Clause.
3. In 2008, Judge Moore of the Southern District of Florida struck down a "school safety zone" ordinances that prohibited "person[s] who [do] not have legitimate [school-related] business" from coming within 500 feet of a school. Once again, the problem was not the ordinance's language per se; school-related business may not be a perfectly sharp category, but it conveys a recognizable cluster of activities. Instead, the problem was that lots of spaces—"sidewalks, residential houses and streets, businesses, and parking lots"—formally within the school safety zone were also, in practice, spaces in which non-school-related business was likely to occur. In light of this, Judge Moore concluded that the legislature had taken too blunderbuss of an approach. Although the ordinance clearly had some valid applications, and was likely motivated by important policy goals, the result was dramatically over-inclusive; it did flouted the (minimal) requirements of due process.

And these examples, it turns out, are the tip of the proverbial iceberg. Similar trends have surfaced in state courts. And presumably the number of void-for-breadth challenges that might, in principle, have traction far exceeds those actually mounted to date—since litigants have not been on notice about the availability of breadth-focused due process claims. Further, as I said at the post's outset, there is reason to think that more frequent void-for-breadth challenges, even if they succeed only on the margins, would have salutary effects upstream, encouraging lawmakers to write narrower laws, just as limits on vagueness have long encouraged them to write more precise laws.

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Thanks, once again, to the editors for inviting me to contribute these posts. I hope the article will spark discussion, and I look forward to hearing people's thoughts.