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.

* * *

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.

NEXT: Rap Song = Punishable True Threat, Says Pennsylvania Supreme Court

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  1. ” I look forward to hearing people’s thoughts.”

    Let me give you a summary in advance:

    Very good article though.

    1. Complaining about the complainers is just as bad. I rest my case with my own complaint and how stupid you probably feel that it is.

  2. So, it sounds like you’re saying that there are some sort of inherent limitations on the laws that can be passed. (Beyond simple Constitutionality limits.)

    Take the “Loitering with a gangbanger” statute.

    It criminalizes loitering with a gangbanger. You (and the Supreme Court) criticize it as “overly broad”, but what if the people who passed it actually truly intended to make things like “waiting for Sosa while a gangbanger” illegal, for the purpose of legally harassing people who are gangbangers?

    Likewise the school zone law. Yes, it criminalizes people who simply own a house within 500 feet of the school. But goddamnit, this is FOR THE CHILDREN!!! and those homeowners are just going to have to suck it up. (Though in that case, it would at least be pretty clear that there had been a 5A taking, I think.) But that would just mean that they were required to compensate the homeowners, not that the law itself was “invalid”.

    I mean, what’s the principle at work here that allows the Court to effectively declare that when the relevant Legislature wrote their law, they put a “bug” in it (in the sense of a computer program) and that “it’s not doing what they really meant”, as opposed to presuming that the Legislature meant exactly what they said when they wrote the law, even if the practical result is very broad?

    1. Fair notice is recognized as a component of due process so this is not extraconstitutional.

      If a court considered whether a law is overbroad, you’d need the government to make the arguments you offer in order to reach the conclusion you suggest. I think those would be undesirable and difficult arguments to make with a straight face.

      There is a kernel of truth in your argument, in that the overbreadth principle could be abused in less obvious cases. A response, true if not great, to the possibility of judges abusing their power to strike down laws is that any constitutional rule can be abused and the best we can do is adopt such rules that mitigate that problem. As I explain above, there is the practical protection is that specious arguments won’t generally be made in the obvious cases.

      I think the concern is that ideologically motivated judges would use it as a new tool to protect abortion clinics or gun owners (as examples) from regulation, when it’s merely a backdoor way of doing what they can’t otherwise do. And yet, if there are the votes for the backdoor the judges are more likely to use the front door. I can’t say there is no possibility for abuse but I think the stakes are rather small, especially since relying on overbreadth doesn’t contest the permissible aim of the law which can be adopted once more narrowly tailored – if the court doesn’t do the tailoring itself.

      1. Why would a judge so inclined bother with this to protect gun owners, when we’ve already got the 2nd amendment? A judge who was inclined to protect gun owners would just use that.

        Abortion, sure, because there’s no amendment, it’s all back door.

        1. Abortion, sure, because there’s no amendment, it’s all back door.

          If it had been “all back door” they wouldn’t be needing an abortion now.

          1. I could only wish I could claim the joke was intentional…

        2. The appellate decision being discussed in the article has precisely squat to do with the gun charge on which the appellant was acquitted (I suspect jury nullification).

          This is about a completely separate charge brought based on something the appellant did while waiting for trial on the gun charge.

          1. I understood the reference to guns to be a suggested (mis)use of the concept, not about the immediate case.

    2. My problem with a such a law is ‘how the fuck do you know someone is a gang banger’, sure it’ll be well known in some cases but certainly not possible in all. They’re calling on a regular person to have God-like omniscience. That right there should be enough to declare the law unfeasible.

  3. “Past a certain threshold, it becomes impermissible to pursue regulatory goals?even legitimate ones?by criminalizing large swaths of normal activity. ”

    Could this represent a return of the malum in se/malum prohibitum distinction, which the courts have largely abandoned?

    This distinction was the origin of “Ignorance of the law is no excuse.”; The theory was that, since the law was only prohibiting things which any reasonable person would already know were wrong, you didn’t have to know there was a law against, say, rape, to know that you shouldn’t do it.

    1. Ignorance of the law is no excuse is just a saying, a rule of thumb. It’s hardly admissible in court as a reason for prosecution in all cases.

  4. “but what if the people who passed it actually truly intended to make things like “waiting for Sosa while a gangbanger” illegal, for the purpose of legally harassing people who are gangbangers?”

    That intent doesn’t matter because what they did goes far beyond that. They didn’t just make “waiting for Sosa while a gangbanger” illegal, they made “waiting for Sosa while standing next to a person you don’t know who just happens to be a gangbanger” illegal as well.

    1. This would be a good point to bring in the 9th amendment, if it hadn’t been exiled from polite judicial society.

      That’s what we’re really looking at here, with these sorts of laws: 9th amendment violations: The government making a crime of something which is a traditional right: Standing around minding your own business, or doing ordinary activities in places where they’re ordinarily done.

    2. I get where you’re trying to go with that, but there are already so many laws which are merely intended to have some sort of vague positive social effect that I’m not sure a similar argument couldn’t be made here.

      “Discouraging gangbanging is so important that we have to have this law to make being a gangbanger so unpleasant that people will stop being gangbangers.”

      I mean, it’s not really any more ill conceived than a plastic straw ban.

      1. “Discouraging gangbanging is so important that we have to have this law to make being a gangbanger so unpleasant that people will stop being gangbangers.”

        You aren’t getting it. This law as written, doesn’t just make things unpleasant for the gangangers. In fact to a far greater degree than it makes things unpleasant for gangbangers it makes things very unpleasant for completely Innocent bystanders the gangbangers choose to stand next to.

        In fact, I could see the gangbangers actually gaming this law to target people they don’t like.

        1. Ah, hrm. OK. I see your point.

      2. P.S. In fact, I would argue that as written, the known gangbangers themselves are not the primary targets of the law, the primary targets are everyone else standing around them.

    3. When did “gangbanger” start to mean “gang member” rather than “gang rapist”?

      1. I know for certain that it was used in 2004’s “Grand Theft Auto: San Andreas” in that sense (which I mention because it’s externally verifiable in a way that my memories are not), and recall it being used that way as much as 30 years ago when I first moved to New Mexico. Either it was not used in that context in Hawaii at that time, or I simply had no real interactions with gang members at that point in my life. Either is possible.

      2. As I recall from school days 1954-1966, in high school someone who participated in a gang bang was simply a rapist.
        As I recall from local option prohibition, 1953-1968, in the neighborhood there were gang gunmen.
        Much later gangbanger connoted a gunman associated with a gang. I feel it came from urban music rather than my streets.

      3. About 3 decades ago.

  5. [s]ince the city cannot conceivably have meant to criminalize each instance a citizen stands in public with a gang member,

    As I wrote earlier, they’re using the Rule Of Incredulity.

  6. When it comes to the overbreadth of the 1938 amendments to the FFDCA (and similar language in state pharmacy laws), it seems a lot of mischief is done by legislative attempts to clarify?in this case, adopting definitions of terms that were better left undefined. Common notions of “drug” & “cosmetic” come a lot closer to probable legislative intent than the actual statutory definitions did, & the general meanings of those words seem to be what both administrators and judges have usually relied on, ignoring the literal language of the overbroad definitions.

    In game rules writing, I see a lot of attempts to clarify terms that were stated originally in few words such as “unnecessary roughness” that left things to judgment, and at best those clarif’ns achieve nothing; at worst they introduce confusion that wasn’t there previously. Some definitions really do clarify, others not.

  7. While I understand this “void for breadth” doctrine, I don’t think it really is as different from void for vagueness as is asserted. Its simply a problem where a textualist would say the law is simply unconstitutional, but the judge who tries to divine the intent of the legislature says, “well clearly it doesn’t apply to THAT.”

    The examples provided are very clarifying. Under the plain meaning:

    1. Violates the right to assembly.
    2. Violates the right to travel and is probably a 5th Amendment taking.
    3. Is a 5th Amendment taking and also violates the right to travel.

  8. You’re doing good work and have fully convinced me! (Unfortunately, I’m not a Supreme Court Justice)

  9. An interesting topic, but the article mischaracterizes the Morales holding when the author writes

    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.

    The Court didn’t perform an about-face, only 3 justices did. The text that follows was in part IV of the opinion and not supported by a majority, who instead signed on to the reasoning in part V that

    the ordinance’s broad sweep violates the requirement that a legislature establish minimal guidelines to govern law enforcement. Kolender v. Lawson, 461 U.S. 352, 358. The ordinance encompasses a great deal of harmless behavior: In any public place in Chicago, persons in the company of a gang member “shall” be ordered to disperse if their purpose is not apparent to an officer. Moreover, the Illinois Supreme Court interprets the ordinance’s loitering definition?”to remain in any one place with no apparent purpose”?as giving officers absolute discretion to determine what activities constitute loitering.

    Leaving the definition of an offense to the police is vagueness, not breadth masquerading as vagueness.

  10. A lot of gun laws are overly broad and only meant to be selectively enforced.

    A man traveling in Volusia Florida was caught with a pistol in his vehicle for self-defense without a permit to carry or possess. Conviction overturned by the Florida Supreme Court in Watson v. Stone, 4 So. 2d 700 (Fla. 1941)

    Justice Rivers H. Buford opined:

    I concur in the judgment … because I think that [the permit law] is unconstitutional because it offends against the Second Amendment to the Constitution of the United States and Sec. 20 of the Declaration of Rights of the Constitution of Florida. …. I know something of the history of this legislation. The original Act of 1893 was passed when there was a great influx of negro laborers in this State drawn here for the purpose of working in turpentine and lumber camps.
    The same condition existed when the Act was amended in 1901…. The statute was never intended to be applied to the white population and in practice has never been so applied. … it is a safe guess to assume that more than 80% of the white men … have violated this statute [and] that not more than 5% of [white or negro Florida men] who own pistols and repeating rifles have ever applied … for a permit …. there has never been, within my knowledge, any effort to enforce the provisions of this statute as to white people, because it has been generally conceded to be in contravention to the Constitution and non-enforceable if contested.

  11. Consider language from a DUI statute, prohibiting driving while “impaired to the slightest degree” due to alcohol. What this means is that if you are driving with *any* amount of alcohol in your system, and have *any* “impairment” you are guilty of DUI. And, as local cops will happily testify, “any impairment” means “any – no matter how small – impairment.” There is no requirement that a person “fail” a field sobriety test to get arrested and convicted, or that “passing” one will protect you. And DUI laws are usually written so that the “per se” blood alcohol levels are an alternative means of conviction, so being under (even way under) the “per se limit” will not protect you.
    How can a person know that drinking one small beer, and driving an hour later, will not result in a conviction? They don’t. The law effectively outlaws all driving with alcohol in the system — and the executive uses under-enforcement to ensure that there isn’t public outcry.
    One of the most ridiculous (yet oft made) arguments a legislature hears is “oh, don’t worry, no prosecutor will pursue that…..” When they do, don’t expect the judiciary to get in the way (at least very often).

    1. Consider language from a DUI statute, prohibiting driving while “impaired to the slightest degree” due to alcohol.

      In most states, the statute isn’t even specific to impairment from alcohol. They can get you for DUI if you are impaired by drowsiness caused by antihistamines or prescription medications.

    2. I think this is straightforward. Tests have limits of quantitation. Below the limit, the test doesn’t provide reliable evidence of alcohol. There are two many false positives. So the issue is really evidence, not constitutionality or other fancy doctrines. If a test isn’t reliable, if it has too many false positives, than any given plaintive could easily be false. And if that’s the case, it simply doesn’t provide adequate evidence, it doesn’t prove beyond a reasonable doubt, that a crime occurred.

      So if below a certain limit there’s no reliable evidence a crime occurred, nobody (at least nobody with a competent defense lawyer able to press these issue) ought to be convictable below that limit.

  12. Seems like an apt concern 2018/08/hrw-maldives- election-threat-crackdown- dissent-180816095250583.html (spaces added)

  13. Ok, Ok, it’s time to bring up the classic “too much breadth” case and see how Professor Brennan-Marquez would handle it. That case is, of course, Dredd Scott v. Sanford.

    The Declaration of Independence technically says “all men are created equal.” Yeah, it says that. But it couldn’t possibly mean it, right? I mean, it’s way to broad. Negros are technically “men.” But no-one would seriously claim these “beings of an inferior order” are in any way equal to white men, right? So it can’t possibly mean it. Instead, what it really means is all WHITE men are created equal. Enjoy your slave, Mr. Sanford! Case closed.

    So here we have a classic “the law is too damn broad” case where the Supreme Court followed exactly the line of thinking Professor Brennan-Marquez proposes. Great outcome, right? justice at its finest? Or maybe not.

    If your answer is “not,” I think it’s fair to ask how Professor Brennan-Marquez proposes to avoid an outcome like the Dredd Scott decision. If Congress passes a law prohibiting something I don’t favor, why can’t I just say “Congress couldn’t possibly have meant that” and refuse to play ball?

    1. “The Declaration of Independence technically says “all men are created equal.” Yeah, it says that. But it couldn’t possibly mean it, right? I mean, it’s way to broad. ”

      The Declaration of Independence isn’t part of the US Constitution and isn’t “law” in any sense. Whether or not the authors of the Declaration of Independence really meant it when the said “all men are created equal” is legally irrelevant to the questions at issue in Dredd Scott v. Sanford.

    2. If you want to get technical, the problem with Dredd Scot is that history clearly demonstrated that, at the time the Constitution was adopted, there had been free blacks, and white slaves. Even free black owners of white slaves. It wasn’t the usual situation, sure, but it wasn’t unheard of.

      In fact, Taney wasn’t just wrong about American history, he was wrong about the status of blacks at the time of the ruling; At the time there were nearly 200 free black slave owners in South Carolina alone. So, no, not all blacks were slaves, even then.

      I like to think of Dredd Scot v Sanford as the original “living constitution” ruling, given the way it just made things up to suit the policy preferences of the court.

  14. Frankly, any time a police or justice department spokesperson says the phrase “Out of an abundance of caution …” the law referenced should be considered over broad until PROVEN otherwise.

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