Void-for-Vagueness Doctrine 

Fundamentals of Criminal Law by Adam J. McKee

This doctrine requires that lawmakers use clear and precise language so that people of reasonable intelligence do not have to guess the meaning of a law. The courts have determined that vague laws are a violation of due process, and such laws must be struck down. Many ordinances dealing with vagrancy, loitering, loud music, and so forth have been struck down by the courts under this doctrine.

This is very similar to the Void-for-Overbreadth Doctrine, which makes a statute unconstitutional if the way in which it is written has an unnecessarily broad sweep and invades protected freedoms.  A statute is overbroad if it criminalizes both constitutionally protected and constitutionally unprotected behavior.  The issue is technically different than void for vagueness, but the underlying logic is very similar, and some laws can be contested on both grounds. If the attack is successful on appeal, the legislature must either delete the law entirely or revise it to target only conduct that is outside the Constitution’s specifications.

Overbreadth Hypothetical

A state legislature enacts a statute that makes it a felony to “manufacture, possess, sell, transmit, or otherwise distribute” video or photographs of “nude persons who are under eighteen years of age.”  The obvious intent of the legislature is to prevent the production of child pornography, which is a constitutional objective with obvious positive social implications.

Linda and John just had a baby.  As new parents, they are very excited and are recording every moment for posterity via digital video.  John is giving baby her first bath, and Linda, as you would expect, records the moment on video. She wants to share the moment with her mother and sisters who live several states aways, so she posts the video to her Facebook page for them to see.  Within the hour, police arrest Linda for the manufacture and distribution of child pornography.

If you were Linda’s defense attorney, what argument would you present to the Court on her behalf?

References and Further Reading

Void for Vagueness Doctrine.” West’s Encyclopedia of American Law.

Modification History

File Created:  07/12/2018

Last Modified:  09/05/2023

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This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.

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