Also known as: fair notice requirements · fair notice · notice requirement
Written by attorneys · grounded in primary & secondary sources — see below
A due process principle requiring that laws and regulations provide clear warning of prohibited or required conduct so that ordinary people can conform their behavior to the law.
Fisher Foods shipped contaminated products that sickened dozens of consumers. A jury returned a large compensatory verdict and added a punitive award twenty times larger. The court reduced the punitive portion after applying the three guideposts to determine whether the manufacturer had fair notice of the potential exposure.
Floyd Franklin stood on a street corner with two acquaintances when officers ordered them to disperse under the city ordinance. Franklin refused and was arrested. The court invalidated the ordinance because its definition of loitering supplied no objective standard that would have given Franklin fair notice of the prohibited conduct.
Select any source to read its text and confirm it supports the definition.
Francois Fortier, defense counsel in a high-profile case, told reporters that his client had been framed by corrupt investigators. The disciplinary board imposed sanctions under a rule barring statements with a substantial likelihood of prejudicing the proceeding. The court vacated the sanction because the rule's vague safe-harbor language failed to give Fortier fair notice of what speech was prohibited.
Freya Freeman was convicted under a trespass statute after she remained in a store after being told to leave. The state supreme court had previously interpreted the statute to require an explicit order to depart. The Court reversed because the new interpretation deprived Freeman of fair notice that her conduct was criminal.
Fumiko Fujimoto was arrested for wandering the streets at night with no visible means of support. The ordinance contained no definition of vagrancy and gave officers complete discretion. The Court struck down the statute because it supplied no ascertainable standard that would have given Fujimoto fair notice of the prohibited conduct.
Farid Farahani was convicted for distributing materials that were not obscene under the law in effect at the time of his conduct. The Court later adopted a broader definition of obscenity. The conviction was reversed because applying the new standard retroactively denied Farahani fair notice of what the law prohibited when he acted.
The statute is unconstitutionally vague and violates due process. Courts invalidate the law because ordinary people cannot determine what conduct is prohibited and because the statute invites arbitrary enforcement.
The three guideposts ensure that defendants receive fair notice of the potential magnitude of punitive exposure before engaging in the conduct at issue.
No. The requirement is satisfied when the statute or rule is sufficiently clear that a person of ordinary intelligence would understand what conduct is prohibited.
Yes. If the safe-harbor language itself is vague, the rule still fails to give fair notice and risks discriminatory enforcement.
…who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement. The unfortunate yet persisting conditions we document above will mean that in a large fraction of the cases in which § 3209 is relevant, it will operate as a substantial obstacle to a…