Also known as: fair-warning · fair notice
Written by attorneys — see sources below.
A due process principle that requires laws imposing penalties or restrictions to define prohibited or required conduct with sufficient precision so that ordinary persons receive notice of what conduct is prohibited and enforcement officials receive guidance against arbitrary application.
Francois Fortier operated a manufacturing plant that released pollutants into a nearby river. A jury awarded the downstream homeowners $200,000 in compensatory damages and $25 million in punitive damages. Fortier argued on appeal that the size of the punitive award violated due process because the statutory penalties for comparable environmental violations were capped at $50,000 per incident.
Felix Franco stood on a street corner near a known gang area while waiting for a bus. Police officers ordered him to disperse under a city ordinance that criminalized remaining in one place with no apparent purpose. Franco was arrested after refusing to move and later challenged the ordinance as providing no clear standard for what conduct triggered enforcement.
Francesca Fiore, defense counsel in a high-profile fraud trial, told reporters that her client had been framed by overzealous prosecutors. The state bar charged her with violating a publicity rule that barred statements creating a substantial likelihood of material prejudice yet permitted statements about the general nature of the defense. Fiore moved to dismiss the charges on the ground that the rule left her without clear notice of the boundary between permissible and prohibited comments.
Farah Fox operated a bookstore that sold novels containing explicit sexual content. Federal prosecutors charged her under an obscenity statute after the Supreme Court adopted a new test focused on whether the material appealed to prurient interest and lacked redeeming social value. Fox moved to dismiss, contending that the new standard failed to give her advance notice that the books she had been selling would now be treated as criminal.
Roth conducted a business in New York in the publication and sale of books, photographs and magazines. He used circulars and advertising matter to solicit sales and was convicted by a jury in the District Court for the Southern District of New York upon 4 counts of a 26-count indictment charging him with mailing obscene circulars and advertising, and an obscene book, in violation of the federal obscenity statute. His conviction was affirmed by the Court of Appeals for the Second Circuit. Alberts conducted a mail-order business from Los Angeles. He was convicted by the Judge of the Municipal Court of the Beverly Hills Judicial District, having waived a jury trial, under a misdemeanor complaint which charged him with lewdly keeping for sale obscene and indecent books, and with writing, composing and publishing an obscene advertisement of them, in violation of the California Penal Code. The conviction was affirmed by the Appellate Department of the Superior Court of the State of California in and for the County of Los Angeles. The Supreme Court granted certiorari in the Roth case and noted probable jurisdiction in the Alberts case.
View caseFaith Fitzgerald, a tenured public-school teacher, received a letter stating only that her contract would not be renewed. The school board later cited performance concerns at a hearing but had never previously warned her that those concerns could lead to termination. Fitzgerald sued, claiming the lack of prior notice deprived her of a meaningful opportunity to respond before the decision became final.
In 1979 the Cleveland Board of Education hired James Loudermill as a security guard. On his job application Loudermill stated that he had never been convicted of a felony. Eleven months later a routine check revealed that Loudermill had been convicted of grand larceny in 1968. By letter dated November 3, 1980 the Board's Business Manager informed Loudermill that he had been dismissed for dishonesty in filling out the employment application. Loudermill received no opportunity to respond to the charge or to challenge the dismissal before it took effect. Under Ohio law Loudermill was a classified civil servant who could be discharged only for cause and who could file an administrative appeal within ten days of receiving notice of dismissal. Loudermill filed an appeal with the Cleveland Civil Service Commission on November 12, 1980. A referee held a hearing on January 29, 1981 and recommended reinstatement. On July 20, 1981 the full Commission heard argument and upheld the dismissal. Richard Donnelly was hired as a bus mechanic by the Parma Board of Education in 1979. Donnelly had been fired by the same Board in 1977 for failing an eye examination but had been reinstated after appeal. On his new application Donnelly listed his prior employment with the Board but did not disclose the earlier discharge. When the omission was discovered Donnelly was again fired for dishonesty. He received no opportunity to respond to the charge before termination. Donnelly appealed to the Civil Service Commission, which affirmed the dismissal. Loudermill and Donnelly filed separate suits in the Federal District Court for the Northern District of Ohio alleging that the dismissal procedures violated their rights to procedural due process under the Fourteenth Amendment. The District Court dismissed both complaints for failure to state a claim. The Court of Appeals for the Sixth Circuit reversed in part and remanded. The Supreme Court granted certiorari.
View caseFumiko Fujimoto walked through a neighborhood after dark carrying identification but refused a police officer's demand to produce it under a statute requiring persons on the street to provide credible and reliable identification. She was arrested and later moved to dismiss the charge, arguing that the statute supplied no objective standard for what counted as credible identification and therefore left ordinary citizens without fair notice of the required conduct.
Edward Lawson was detained or arrested on approximately fifteen occasions by San Diego police officers between March 1975 and January 1977 while walking on the streets of the city. On each occasion, officers stopped Lawson and requested that he produce a driver's license or other identification. When he was unable to comply, the officers arrested him under California Penal Code section 647(e). Lawson was prosecuted twice under the statute and convicted once. The second charge was dismissed. Lawson filed a civil action in the United States District Court for the Southern District of California against various officers and officials, including Deputy Chief Commander H. A. Porazzo of the California Highway Patrol. The complaint sought a declaratory judgment that section 647(e) was unconstitutional, a mandatory injunction restraining its enforcement, and compensatory and punitive damages. The District Court held the statute overbroad, enjoined its enforcement, and denied damages on the ground that the officers had acted in good faith. The Court of Appeals for the Ninth Circuit affirmed the District Court's determination that the statute was unconstitutional. It concluded that the statute violated the Fourth Amendment, contained a vague enforcement standard susceptible to arbitrary enforcement, and failed to give fair notice of the conduct prohibited. The Ninth Circuit also reversed the denial of a jury trial on the damages issue and remanded the case for trial. The officers appealed to the Supreme Court from the portion of the judgment declaring the statute unconstitutional and enjoining its enforcement. The Supreme Court noted probable jurisdiction. California Penal Code section 647(e) (West 1970) provides that every person who loiters or wanders upon the streets or from place to place without apparent reason or business is guilty of disorderly conduct, a misdemeanor. The statute further requires that such a person refuse to identify himself and to account for his presence when requested by any peace officer if the surrounding circumstances indicate to a reasonable man that the public safety demands such identification. California courts have construed the statute to require that a detained person provide credible and reliable identification. This identification must carry reasonable assurance that it is authentic and provide means for later contact with the person who has identified himself. The District Court made no specific findings concerning the circumstances of each stop, but the trial transcript contains descriptions given by both Lawson and the officers. One officer testified that he stopped Lawson on an otherwise vacant street late at night because the area was isolated and near a high-crime zone. Another testified that he detained Lawson while walking at a late hour in a business area where burglaries had occurred. Lawson stated that he had never been stopped by police for any reason apart from these detentions under the statute.
View caseThe doctrine requires that a statute give a person of ordinary intelligence fair notice that contemplated conduct is forbidden and that the statute not encourage arbitrary and erratic arrests and convictions.
Fair warning implements the principle of legality by ensuring that criminal liability is imposed only after the legislature has clearly defined the prohibited conduct in advance rather than through after-the-fact judicial expansion.
Yes. Even a facially clear statute may deny fair warning when official statements or prior interpretations have affirmatively misled the defendant about the conduct's legality.
The statute is void for vagueness under the Due Process Clause and any conviction obtained under it must be reversed.
…or not the speech or press interest is clearly protected under substantive First Amendment standards. Thus, we have required fair notice and opportunity for an adversary hearing before an injunction is issued against the holding of rallies and public meetings. Carroll v. Princess Anne , 393 U. S. 175. Similarly, we have…