Also known as:unconstitutional vagueness · unconstitutionally vague law · void for vagueness · vagueness doctrine
Written by attorneys — see sources below.
A constitutional defect in a penal statute or ordinance that renders it invalid under the Due Process Clause because it fails to provide fair notice of prohibited conduct or invites arbitrary and discriminatory enforcement by officials.
See Our Sources
How its tested
Common Examples
6
Loitering Ordinance Dispersal
Uriah Urban stood on a public sidewalk near a retail plaza for twenty minutes checking his phone. An officer approached and ordered him to leave under a city rule targeting anyone remaining in the area with no apparent buying purpose. Uriah sued, claiming the dispersal standard left him unable to predict when his presence would trigger enforcement. The court invalidated the rule because its subjective purpose test supplied no objective guide for citizens or officers.
Attorney Press Statement Rule
Usman Uddin, defense counsel in a high-profile case, told reporters that his client denied all charges. The state bar invoked a publicity rule barring statements with a substantial likelihood of prejudicing the proceeding unless limited to the general nature of the defense. Usman faced discipline because the safe-harbor language offered no clear boundary between permissible and punishable comments. The court struck down the application as unconstitutionally vague for failing to give fair notice of what speech risked sanction.
Uma Upadhyay, a physician, faced prosecution under a state law regulating when abortions could be performed. The statute used broad terms without defining key medical thresholds or exceptions. Uma sought declaratory relief, arguing the provisions left doctors uncertain about lawful conduct. The court permitted the facial challenge because the law's indeterminate language risked arbitrary enforcement against protected medical decisions.
Roe v. Wade410 U.S. 113 (1973)
In March 1970, Jane Roe, a single woman residing in Dallas County, Texas, instituted a federal action against the District Attorney of the county. She sought a declaratory judgment that the Texas criminal abortion statutes were unconstitutional on their face. She also sought an injunction restraining enforcement of the statutes.
Roe alleged that she was unmarried and pregnant. She wished to terminate her pregnancy by an abortion performed by a competent licensed physician under safe clinical conditions. She was unable to obtain a legal abortion in Texas because her life did not appear to be threatened by continuation of the pregnancy. She could not afford to travel to another jurisdiction to secure a legal abortion.
James Hubert Hallford, a licensed physician, sought and was granted leave to intervene in Roe's action. In his complaint he alleged that he had been arrested previously for violations of the Texas abortion statutes. Two such prosecutions were pending against him in the Criminal District Court of Dallas County. He described conditions of patients who came to him seeking abortions. He claimed that for many cases he was unable to determine whether they fell within or outside the exception recognized by Article 1196 of the Texas Penal Code.
John and Mary Doe, a married couple, filed a companion complaint also naming the District Attorney as defendant. The Does alleged that they were a childless couple. Mrs. Doe was suffering from a neural-chemical disorder. Her physician had advised her to avoid pregnancy until her condition materially improved. She had discontinued use of birth control pills pursuant to medical advice. If she should become pregnant she would want to terminate the pregnancy by an abortion performed by a competent licensed physician under safe clinical conditions.
The two actions were consolidated and heard together by a duly convened three-judge district court for the Northern District of Texas. Upon the filing of affidavits, motions were made for dismissal and for summary judgment. The court held that Roe and members of her class and Dr. Hallford had standing to sue and presented justiciable controversies. The Does had failed to allege facts sufficient to state a present controversy and did not have standing. It concluded that the Texas criminal abortion statutes were void on their face. The court dismissed the Does' complaint while denying injunctive relief.
The plaintiffs Roe and Doe and the intervenor Hallford appealed to the Supreme Court from that part of the District Court's judgment denying the injunction. The defendant District Attorney cross-appealed from the grant of declaratory relief. Both sides also took protective appeals to the United States Court of Appeals for the Fifth Circuit. That court ordered the appeals held in abeyance pending decision by the Supreme Court.
Ulf Ulfsson and his spouse relied on prayer rather than medical care for their child under a religious exemption they believed the law permitted. Prosecutors charged them with reckless endangerment after the child died. The couple argued the exemption's scope was too indeterminate to warn them of criminal liability. The court examined whether the statute provided fair warning that their conduct fell outside protected religious practice.
Commonwealth v. Twitchell416 Mass. 114, 617 N.E.2d 609 (1993)
David and Ginger Twitchell were the parents of Robyn Twitchell, who died on April 8, 1986, at the age of two and one-half years. Robyn's death resulted from peritonitis caused by the perforation of his bowel, which had been obstructed as a result of an anomaly known as Meckel's diverticulum. Evidence presented at trial indicated that this condition could be corrected by surgery with a high success rate.
The Twitchells are practicing Christian Scientists who grew up in Christian Science families and believe in healing by spiritual treatment. During Robyn's five-day illness from Friday, April 4, through Tuesday, April 8, they retained a Christian Science practitioner, a Christian Science nurse, and at one time consulted with Nathan Talbot, who held a position in the church known as the Committee on Publication. As a result of that consultation, David Twitchell read a church publication concerning the legal rights and obligations of Christian Scientists in Massachusetts.
That publication quoted a portion of G.L. c. 273, § 1, as then amended, which accepted remedial treatment by spiritual means alone as satisfying any parental obligation not to neglect a child or to provide a child with physical care. The Twitchells appealed their convictions of involuntary manslaughter, and the Supreme Judicial Court granted their request for direct appellate review.
Uriel Urban, a physician, and his patient challenged a state law criminalizing the provision of contraceptives to married couples. The statute contained no definitions clarifying the scope of prohibited medical advice or devices. Uriel argued the broad language chilled protected professional and personal conduct without clear boundaries. The court addressed whether the law's vagueness undermined fair notice of what conduct triggered liability.
Griswold v. Connecticut381 U.S. 479 (1965)
Estelle Griswold served as Executive Director of the Planned Parenthood League of Connecticut. Dr. C. Lee Buxton served as the League's Medical Director and was a professor at Yale Medical School. Together they opened and operated a center in New Haven that was open from November 1 to November 10, 1961.
At the center they gave information, instruction, and medical advice to married persons as to the means of preventing conception. They examined the wife and prescribed the best contraceptive device or material for her use. Fees were usually charged, although some couples were serviced free.
The statutes involved were sections 53-32 and 54-196 of the General Statutes of Connecticut (1958 rev.). Section 53-32 made it a crime to use any drug, medicinal article or instrument for the purpose of preventing conception. Section 54-196 punished accessories as principals. The appellants were found guilty as accessories and fined $100 each.
The Appellate Division of the Circuit Court affirmed the convictions. The Supreme Court of Errors of Connecticut affirmed that judgment in State v. Griswold, 151 Conn. 544, 200 A. 2d 479. The United States Supreme Court noted probable jurisdiction.
The appellants asserted standing to raise the constitutional rights of the married persons with whom they had a professional relationship. A criminal conviction for serving married couples removes doubts about case or controversy. The rights of husband and wife would be diluted unless considered in a suit involving those who have this kind of confidential relation to them.
Una Unger faced termination of her parental rights under a statute requiring proof of permanent neglect. The law used terms such as diligent efforts and failure to plan without further definition. Una argued the standards left parents uncertain what conduct would satisfy or violate the requirements. The court declined to reach the vagueness claim because it had not been preserved below.
Santosky v. Kramer455 U.S. 745, 758-759 (1982)
In November 1973, after incidents reflecting parental neglect, respondent Kramer, Commissioner of the Ulster County Department of Social Services, initiated a neglect proceeding under the Family Court Act and removed Tina Santosky from her natural home. About ten months later, he removed John III and placed him with foster parents. On the day John was taken, Annie Santosky gave birth to a third child, Jed, who was transferred to a foster home three days later on the ground that immediate removal was necessary to avoid imminent danger to his life or health.
In October 1978, respondent petitioned the Ulster County Family Court to terminate petitioners' parental rights in the three children. Petitioners challenged the constitutionality of the fair preponderance of the evidence standard specified in the Family Court Act. The Family Court Judge rejected this constitutional challenge, weighed the evidence under the statutory standard, acknowledged that the Santoskys had maintained contact with their children but found those visits at best superficial and devoid of any real emotional content, decided that the agency had made diligent efforts to encourage and strengthen the parental relationship, concluded that the Santoskys were incapable even with public assistance of planning for the future of their children, and after a dispositional hearing ruled that the best interests of the three children required permanent termination of the Santoskys' custody.
Petitioners appealed, again contesting the constitutionality of the standard of proof. The New York Supreme Court, Appellate Division, affirmed, holding application of the preponderance-of-the-evidence standard proper and constitutional on the ground that it recognizes and seeks to balance rights possessed by the child with those of the natural parents. The New York Court of Appeals then dismissed petitioners' appeal upon the ground that no substantial constitutional question is directly involved. The Supreme Court granted certiorari to consider petitioners' constitutional claim.
What two requirements must a law satisfy to avoid being unconstitutionally vague?
A penal law must give ordinary people fair notice of what conduct is prohibited and must supply explicit standards to prevent arbitrary or discriminatory enforcement by officials. When a statute uses indeterminate terms such as no apparent purpose, it fails both requirements because citizens cannot predict enforcement and officers exercise unchecked discretion.
Does internal police training cure a facially vague ordinance?
No. Unpublished enforcement guidelines cannot supply the fair notice that due process demands from the text of the law itself. A rule turning on an officer's subjective assessment of purpose remains vague even if officers receive internal instructions on how to apply it.
When may a litigant raise a facial vagueness challenge to a statute?
A party may attack a statute on its face when the law is so unclear that it chills protected conduct or invites arbitrary enforcement across a substantial range of applications. Courts permit such challenges even if the challenger's own conduct might fall within a narrower, clearer prohibition.
How does the vagueness doctrine interact with First Amendment concerns?
Vague laws that regulate conduct often implicating speech or assembly create an unacceptable risk of chilling protected expression and selective enforcement against disfavored speakers. Courts therefore apply heightened scrutiny to such statutes and invalidate them when the lack of clear standards threatens core constitutional liberties.
unconstitutionally vague
or overbroad. Pp. 129-166. (b) The constitutional question presented by the challenge to the Texas abortion laws is one of great and immediate public importance, and the Court should not…