(Updated May. 2, 2006)
This file briefly summarizes and links cases posted
on the Net which concern the "void for vagueness" legal doctrine. The
cases are listed by jurisdictions and as more posted decisions are
found, they will be summarized and linked here.
I. SUPREME COURT
Connally v. General Const. Co.,
269 U.S. 385 (1926): Wage law was vague.
Cline v. Frink Dairy Co., 274
U.S. 445 (1927): The Court found the Colorado Antitrust Act void
because it failed to provide an ascertainable standard of guilt.
v. New Jersey, 306 U.S. 451 (1939): A New Jersey law provided as
follows: "Any person not engaged in any lawful occupation, known to be
of any gang consisting of two or more persons, who has been convicted
at least three times of being a disorderly person, or who has been
convicted of any crime, in this or in any other State, is declared to
be a gangster." Held void.
v. Alabama, 310 U.S. 88 (1940): State law which completely
prohibited picketing was void.
v. De George, 341 U.S. 223 (1951): This
case has a short explanation of the development of the
essential purpose of the "void for vagueness" doctrine is to warn
individuals of the criminal consequences of their conduct. Williams v.
United States, 341
U.S. 97, decided April 23, 1951;
v. United States, 325
U.S. 91, 103-104 (1945). This
repeatedly stated that criminal
statutes which fail to give due notice that an act has been made
criminal before it is done are unconstitutional deprivations of due
process of law. Lanzetta v. New Jersey, 306
(1939); United States v. Cohen
Grocery Co., 255
v. South Carolina, 372 U.S. 229 (1963): Breach of peace convictions
vacated. See also Cox
v. Louisiana, 379 U.S. 536 (1965).
v. Bullitt, 377 U.S. 360 (1964): Oath invalid that required teacher
to promote respect for the flag and the institutions of the United
States. Reason: could apply to criticism of government.
class action was brought by members of the faculty, staff, and students
of the University of Washington for a judgment declaring
unconstitutional 1931 and 1955 state statutes requiring the taking of
oaths, one for teachers and the other for all state employees,
including teachers, as a condition of employment. The 1931 oath
requires teachers to swear, by precept and example, to promote respect
for the flag and the institutions of the United States and the State of
Washington, reverence for law and order and undivided allegiance to the
Government of the United States. The 1955 oath for state employees,
which incorporates provisions of the state Subversive Activities Act,
requires the affiant to swear that he is not a "subversive person":
that he does not commit, or advise, teach, abet or advocate another to
commit or aid in the commission of any act intended to overthrow or
alter, or assist in the overthrow or alteration, of the constitutional
form of government by revolution, force or violence. "Subversive
organization" and "foreign subversive organization" are defined in
similar terms and the Communist Party is declared a subversive
v. Pfister, 380 U.S. 479 (1965): State laws concerning “subversive
organization" were void.
v. City of Euclid, 402 U.S. 544 (1971): Loitering ordinance was
v. City of Cincinnati, 402 U.S. 611 (1971): Cincinnati ordinance
making it a criminal offense for "three or
more persons to assemble . . . on any of the sidewalks . . . and there
conduct themselves in a manner annoying to persons passing by,"
which has not been narrowed by any construction of the Ohio Supreme
Court, held violative on its face of the due process standard of
vagueness and the constitutional right of free assembly and
v. City of Jacksonville, 405 U.S. 156 (1972): A vagrancy ordinance,
under which petitioners were convicted, is void for
vagueness, in that it "fails to give a person of ordinary intelligence
fair notice that his contemplated conduct is forbidden by the statute,"
it encourages arbitrary and erratic arrests and convictions, it makes
criminal activities that by modern standards are normally innocent, and
it places almost unfettered discretion in the hands of the police.
v. Wilson, 405 U.S. 518 (1972): Breach of peace law was overbroad.
v. City of Rockford, 408 U.S. 104, 108-09 (1972): law upheld
banning noise or diversion which disturbs or tends to disturb the peace
and good order of a school. Reason: state courts would apply only to
actual or imminent interferences with peace or good order of the school.
is a basic principle of due process that an enactment is void for
vagueness if its prohibitions are not clearly defined. Vague laws
offend several important values. First, because we assume that a man is
free to steer between lawful and unlawful conduct, we insist that laws
give the person of ordinary intelligence a reasonable opportunity to
know what is prohibited, so that he may act accordingly. Vague laws may
trap the innocent by not providing a fair warning. Second, if arbitrary
and discriminatory enforcement is to be prevented, laws must provide
explicit standards for those who apply them. A vague law impermissibly
delegates basic policy matters to policemen, judges, and juries for
resolution on an ad hoc and subjective basis, with the attendant
dangers of arbitrary and discriminatory application."
v. Goguen, 415 U.S. 566 (1974): The Court voided law making it
a crime to publicly mutilate, trample upon, deface or treat
contemptuously the flag of the United States. Reason: contemptuously
was unclear, particularly when flag commonly used for ornate purposes.
v. Franklin, 439 U.S. 379 (1979): Pennsylvania Abortion
Control Act was vague.
Estates v. Flipside, Hoffman
U.S. 489 (1982): Drug law was not vague.
v. Lawson, 461 U.S. 352 (1983): Loitering ordinance was
v. Hill, 482 U.S. 451 (1987): Court invalidated statute making it
offense to interrupt a police officer in the performance of his or her
duties. The Court said that a significant amount of verbal criticism
directed a police officers is protected expression.
of Airport Comm. of City of Los Angeles v. Jews for
Jesus, Inc., 482 U.S. 569 (1987): Court struck law banning any
engaging in First Amendment activities in the Los Angeles International
Airport. Court noted that the law prohibits even talking or reading, or
the wearing of campaign buttons or symbolic clothing.
v. ACLU, 521 U.S. 844 (1997): Indecency and the Net.
v. Morales, 527 U.S. 41 (1999): Loitering ordinance was unconstitutionally vague.
II. LOWER FEDERAL
v. Kauffman, 418 F.2d 163 (7th Cir. 1969): University disciplinary
proceedings based upon misconduct was void.
v. Smith, 578 F.2d 1197 (7th Cir. 1978): Ordinances prohibiting
demonstrations by members of National Socialist Party were unconstitutional.
v. Sandstrom, 615 F.2d 311 (5th Cir. 1980): Dade County loitering
ordinance was void.
v. City of East Lansing, 896 F.2d 190 (6th Cir. 1990): Police
ordinance was void.
Armory v. City of Columbus, 29 F.2d 250 (6th Cir. 1994):
Columbus banned named guns and "models by the same manufacturer with
the same action design that have slight modifications or enhancements."
The Sixth Circuit pointed out that guns varied widely in design,
function and power; it was impossible to determine how much of a
difference it took to make something not of "the same action design."
v. Furness, 52 F.3d 772 (8th Cir. 1995): Abortion protesters
attacked and prevailed on issue that "Restricted Picketing Zone" was
Medical Prof. Corp. v. Voinovich, 130 F.3d 187
(6th Cir. 1997): State abortion law found unconstitutional.
v. City of Menlo Park, 146 F.3d 629, 638 (9th Cir. 1998): Abortion
protesters prevailed against overly broad ordinance.
Rights Organization, Inc. v. City of Columbus, 152 F.3d 522
(6th Cir. 1998): Assault weapons ban provisions held unconstitutional.
Food & Commercial
Workers Union, Local 1099 v. Southwest Ohio Regional Transit Authority,
163 F.3d 341 (6th Cir. 1998): Prohibition against union advertisements
on buses found unconstitutional.
Maer Harbor v. Charter Township of Harrison, 170 F.3d 553 (6th Cir.
States v. Loy, 237 F.3d 251 (3rd Cir.
2001): A blanket
prohibition on “pornography” is unclear
and unconstitutionally vague.
v. City of Cincinnati, 310 F.3d 484 (6th Cir. 2002): Ordinance
prohibiting travel by certain persons in parts of city void.
Law Project v. U.S. DoJ and Ashcroft, 352 F.3d 382
(9th Cir. 2003): Terrorism law’s phrase “material support” was vague.
This decision is in PDF.
v. City of Las Vegas, 333 F.3d 1092 (9th Cir. 2003): Fremont Street
is a public forum and ordinance was unconstitutional.
Newbern, 53 Cal.2d 786, 3
Cal.Rptr. 364, 350 P.2d 116: Criminal law applicable to "common drunk"
Ketchens v. Reiner, (1987) 194 Cal.
App. 3d 470, 239 Cal. Rptr. 549:
Verbal abuse statute was vague.
v. County of Sonoma, (2002) 98 Cal.App.4th 744: Dress code was
void for vagueness and facially overbroad.
v. State, 728 P.2d 1252,
1256 (Colo. 1986): Court noted
that "[s]uspicion does not rise to the level of belief or knowledge...
It encompasses the apprehension of something without proof or upon
Lachs v. State, 366 So.2d 1223, 1226
(Fla.App. 1979): Court
noted that "[m]ere suspicion is no better than random selection, sheer
guesswork, or hunch, and has no objective justification."
Easy Way of Lee County, Inc., v.
Lee County, 674 So. 2d 863 (Fla.App. 1996): Court found the
language of a sound ordinance overly
broad and vague when the conduct made illegal music played in such a
way that it was "unreasonably loud, raucous, jarring, disturbing, or a
nuisance to persons within the area of audibility." Id. at 867. The
court reasoned that this standard "represents exactly such a
`subjective standard, prohibiting a volume that any individual person
"within the area of audibility" happens to find personally
Daley v. City
of Sarasota, 752 So.2d 124 (Fla. 2d 2000).
State v. Bitt, 118 Idaho 584, 798
P.2d 43 (1990): Loitering ordinance was vague.
v. Bonner, 61 P.3d 611 (Idaho App. 2002): Sexual battery
v. Monroe, 515 N.E.2d 42,
45 (Ill. 1987): Illinois
drug paraphernalia prohibition was void because it failed to afford
notice of the prohibited conduct and it lent itself to arbitrary
People v. Jihan, 127 Ill. 2d 379, 537 N.E.2d 751 (1989): The term
"midwifery," was vague.
City of Harvard v. Gaut, 277 Ill. App. 3d 1, 660 NE.2d 259 (IL.App. 2
Dist. 1996): Gang colors ordinance was void.
v. Lee, 345 Ill. App.3d 782 (2004): Drug and loitering law was
Inc. v. State, 770 N.E.2d 810 (Ind. 2002): Medicaid fraud law was
v. State, 782 N.E.2d 417 (Ind.App. 2003): Phrase, “is or was living
as if a spouse of the other person,” in domestic battery statute is
vague. See also Fitzgerald
v. State, 805 N.E.2d 857 (Ind.App. 2004).
v. State, 813 N.E.2d 1236 (Ind.App. 2004): Phrase “sexually
explicit materials” was vague.
v. City of Ulysses, 28 Kan. App. 2d 413, 17 P.3d 940 (2000): "We conclude the loud noise
ordinance of the City does not give
fair warning to those potentially subject to its reach because there
are no objective standards imparted. Loaded phrases and words in the
ordinance 'unnecessarily loud,' 'excessive,' 'mentally annoying,' and
'disturbing' do not provide fair warning to an individual of prohibited
"The ordinance also provides that
if the noise is disturbing to
'another person or persons,' then the individual responsible for the
noise is in violation, regardless if the complainants have reasonable
grounds to complain. As was true in Bryan, the absence of an objective
standard subjects the defendant to the particular sensibilities of the
complainant. The door is left open to arbitrary and discriminatory
enforcement of noisy speech, thus, potentially ensnaring
constitutionally protected speech."
Fayette County Food & Bev. Assn. v. Lexington-Fayette Urban County
Govt., 131 S.W.3d 745 (2004): Smoking paraphenalia law was vague.
State v. Muschkat,
706 So. 2d 429 (La. 1998): Loitering law was void.
State v. Miller, 857 So.2d 423 (La. 2003): "contraband".
v. Boomer, 250 Mich. App. 534, 655 N.W.2d 255 (2002): Law against swearing held
v. Mississippi, 806 So.2d 1098 (Miss. 2001): The Mississippi Supreme Court declared here
the cruelty to
animals statute to be unconstitutional on the grounds that it is too
vague to be understood by ordinary persons because it does not require
a guilty mind or bad motive as part of the offense.
of Ed. of the City of St. Louis v. State of Missouri, 47
SW.3d 366 (Mo. 2001): Election process for board members was
v. Stanko, 1998 MT 321, 292 Mont. 192, 974 P.2d 1132 (1998): Here,
the Montana Supreme Court struck down for vagueness a traffic statute
making it a violation to operate a motor vehicle at a speed “greater
than is reasonable and proper under the conditions existing at the
point of operation, taking into consideration the amount and character
of traffic, condition of brakes, weight of vehicle, grade and width of
highway, condition of surface, and freedom of obstruction to the view
to Nebraska case law,
the “void-for-vagueness doctrine”
requires that a statute define a criminal offense with a sufficient
amount of definiteness that ordinary people can understand what conduct
is prohibited and the language it uses does not encourage arbitrary and
discriminatory enforcement. State v. Hookstra, 10 Neb. App. 199, 630
N.W. 2d 469 (2001). The test for determining whether a statute is vague
is whether it forbids or requires the doing of an act in terms so vague
that persons of common intelligence must necessarily guess at its
meaning and may differ as to its application. State v. Irons, 254 Neb.
18, 574 N.W.2d 144 (1998). In State v. Lynch, 223 Neb. 849, 394 N.W.2d
651 (1986), the Nebraska Supreme Court held that the dividing line
between what is lawful and unlawful cannot be left to conjecture. The
crime and elements constituting it must be so clearly expressed that an
ordinary person can intelligently choose in advance what course is
lawful for him to pursue. Lynch, 394 N.W.2d at 661.
In re T.R., 80 P.3d 1276 (Nev. 2003):
Phrase "rehabilitated to the satisfaction of the court" was vague.
XXXII. NEW JERSEY
State of New Jersey v. Golin,
363 N.J.Super. 474, 833 A.2d 660 (App. Div. 2003): Public nuisance
XXXIII. NEW MEXICO
Schlager v. Phillips, 985 F.
Supp. 419 (S. D. N. Y. 1997).
XXXVI. NORTH DAKOTA
of Columbus v. Thompson, 25
Ohio St.2d 26, 266 N.E.2d 571 (1971): The word “suspicious”.
v. Rowland, 67 Ohio St.3d 374, 618 NE.2d 138 (1993): loitering;
v. Rasdan, 105 Ohio App.3d 164, 663 N.E.2d 947 (1995).
Hayes v. Municipal Court of Oklahoma City,
487 P.2d 974, 976 (Okl.Cr.
1971): Loitering ordinance is unconstitutionally vague.
v. City of Tulsa, 1979 OK CR 73, 598 P.2d 247 (1979): Tulsa
loitering ordinance was vague.
Re: Initiative Petition No. 366, State Question No. 689, 2002 OK
46 P.3d 123 (2002): “Very similar to Petition No. 366 is the classic
example of an unconstitutionally vague statute: 'It shall be a crime to
say anything in public unless the speech is protected by the first and
fourteenth amendments.' Such a statute is patently vague and will deter
constitutionally protected conduct. A vague statute's prohibitions
become clear only after 'courts [have] proceeded on a case-by-case
basis to separate out constitutional from unconstitutional areas of
coverage.' Because of its vagueness, Petition No. 366 would force
citizens to refrain from exercising their right to freedom of speech.
Thus, Petition No. 366, if adopted, would unconstitutionally abridge
article 2, section 7 of the Oklahoma Constitution.”
XLI. RHODE ISLAND
XLII. SOUTH CAROLINA
XLIII. SOUTH DAKOTA
v. State, 996 S.W.2d at 302 (Tx.Cr.App. 2000): Court held that the
official misconduct statute was unconstitutionally void for vagueness.
Coggin v. State, 123 S.W.3d 82 (Tex.App. 2003): Shooting
I.M.L. v. State,
61 P.3d 1038 (Utah 2002):
Criminal libel law was overbroad.
Commonwealth v. Carter, 21 Va. App.
150, 462 S.E.2d 582 (1995): state law regarding child endangerment was
v. Rice, 93 Wn.2d 728, 731, 612 P.2d 792 (1980): The phrase "lawful
order" were "not
sufficiently specific to inform persons of reasonable understanding of
what conduct is proscribed."
v. Hilt, 99 Wn.2d 452, 662 P.2d 52 (1983): Phrase "lawful excuse"
v. Fischer, 110 Wn.2d 541, 754 P.2d 1241 (1988): "A criminal
prohibition against permitting a dog's frequent or habitual
barking which 'disturbs or annoys' another person in the neighborhood
is unconstitutionally vague insofar as it makes criminal liability
dependent on the subjective determination of any person who hears the
Maxwell, 74 Wash.App. 688, 878 P.2d 1220 (1994): Helmet
of Sumner v. Walsh, 148 Wn.2d 490 (2003): Curfew void.
Mays v. State, 116 Wash.App. 864, 68 P.3d 1114 (2003): Civil commitment
law was unconstitutional.
L. WEST VIRGINIA
Stevenson, 236 Wis.2d 86, 613 N.W.2d 90, 2000 WI 71 (Wis. 2000): Wis.
“Peeping tom” law is void.