The Void-for-Vagueness / Fair Notice Doctrine and Civil Cases

FCC v. Fox Television Stations, Inc. doesn’t tell us much about the First Amendment status of over-the-airwaves broadcast radio and television, but it is a reminder that the void-for-vagueness doctrine (including but not limited to its fair notice aspect) is applicable to cases that involve civil penalties and not just criminal liability.

There is already ample precedent for that. See, e.g., Gentile v. State Bar of Nevada, 501 U.S. 1030, 1048–51 (1991) (holding that attorney disciplinary rule was unconstitutionally vague as applied); Arnett v. Kennedy, 416 U.S. 134, 159-64 (1974) (plurality) (holding employment protection standard not impermissibly vague in regulating speech of federal employees); id. at 164 (Powell, J., concurring in part and concurring in result in part) (agreeing with plurality on this); Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 576-79 (1973) (considering void-for-vagueness challenge to restriction on government employee speech, though concluding that rule was not impermissibly vague); Keyishian v. Bd. of Regents, 385 U.S. 589, 603-04 (1967) (holding that restriction on government employee speech was unconstitutionally vague); Cohen v. San Bernardino Valley Coll., 92 F.3d 968, 970 (9th Cir. 1996) (holding college sexual harassment policy was unconstitutionally vague as applied to professor with provocative teaching style); Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1183-84 (6th Cir. 1995) (finding public university’s discriminatory harassment policy void for vagueness). But in my experience people sometimes miss that, and assume that vagueness is only a serious problem where criminal punishment is involved, especially given that the Court has sometimes stressed that vagueness is especially troublesome for criminal laws (see, e.g., Reno v. ACLU (1997)). FCC v. Fox is a reminder that even non-criminal rules can be struck down as unconstitutionally vague.

Indeed, in this case Fox Broadcasting wasn’t fined at all, precisely because the FCC recognized that its policy of finding even isolated vulgarities “indecent” was a change of course. (Another challenger, ABC, was indeed fined, but the Court held the FCC’s decisions unconstitutional as to both Fox and ABC.) Nonetheless, the Court said that the policy was unconstitutionally vague even despite this lack of direct punishment. The mere possibility that this finding of indecency could be used by the FCC in “increas[ing] any future penalties” for future violations — the FCC is statutorily authorized to take into account “any history of prior offenses” in setting a penalty — was enough to raise the possibility that the current finding was based on an unconstitutionally vague policy. And this was even though the FCC promised not to so consider the current finding in the future.

Moreover, whenever there’s any legal effect, even a modest one that falls far short of criminal punishment, the “reputational injury” created by a finding of liability may suffice to trigger the void-for-vagueness doctrine:

In addition, when combined with the legal consequence described above, reputational injury provides further rea­son for granting relief to Fox. Cf. Paul v. Davis, 424 U. S. 693, 708–709 (1976) (explaining that an “alteration of legal status … combined with the injury resulting from the defamation” justifies the invocation of procedural safeguards). As respondent CBS points out, findings of wrongdoing can result in harm to a broadcaster’s “reputation with viewers and advertisers.” This observation is hardly surprising given that the challenged orders, which are contained in the permanent Commission record, describe in strongly disapproving terms the inde­ cent material broadcast by Fox, see, e.g., 21 FCC Rcd., at 13310–13311, ¶30 (noting the “explicit, graphic, vulgar, and shocking nature of Ms. Richie’s comments”), and Fox’s efforts to protect children from being exposed to it, see id., at 13311, ¶33 (finding Fox had failed to exercise “ ‘rea­ sonable judgment, responsibility, and sensitivity to the public’s needs and tastes to avoid [a] patently offensive broadcas[t]’”). Commission sanctions on broadcasters for indecent material are widely publicized. The challenged orders could have an adverse impact on Fox’s reputation that audiences and advertisers alike are entitled to take into account.

So the void-for-vagueness doctrine is alive and well in civil cases involving the First Amendment. But it might also be available in cases that don’t involve the First Amendment, at least where the doctrine’s “fair notice” component is in play. The Court stressed that it was deciding the case “on fair notice grounds under the Due Process Clause,” and not under the First Amendment. And it noted that the fair notice justification for the void-for-vagueness doctrine (as well as the avoiding unfair discrimination justification) arose under the Due Process Clause even in non-speech cases, though the avoiding chilling effect justification was specific to the First Amendment:

Even when speech is not at issue, the void for vagueness doctrine addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discrimina­tory way. See Grayned v. City of Rockford, 408 U.S. 104, 108–109 (1972). When speech is involved, rigorous adher­ence to those requirements is necessary.

Likewise, the court wrote that, “Just as in the First Amendment context, the due process protection against vague regulations ‘does not leave [regulated parties] … at the mercy of noblesse oblige,” which is to say that government enforcers’ promises of fair application of the law can’t substitute for clarity of the legal command. And the court wrote that, “This requirement of clarity in regulation is essential to the protections provided by the Due Process Clause of the Fifth Amendment.”

This suggests that Fox v. FCC could be raised even in cases involving civil fines or civil liability that have nothing to do with free speech, if the liability is a surprising departure from previously announced principles (or even if the standard for liability is just very vague). To be sure, there must be limits on this: I can’t see the Court rejecting state compensatory damages awards on the grounds that a tort law standard is too vague, and the Court has in the past said that legislatures may impose retroactive tax liability and other forms of retroactive liability (as in the Superfund cases).

But statutes retroactively imposing punitive damages might be a different story. Perhaps the Court might be willing to turn the presumption against such retroactivity discussed in Landgraf v. USI Film Products (1994) into a constitutional ban on retroactivity. After all, if behavior is seen as legal today, and is then made subject to retroactive punitive damages tomorrow, imposing such retroactive liability involves the same lack of fair notice as that present in Fox v. FCC, where broadcasting fleeting nudity was not covered by the FCC rule at one time but was then retroactively made subject to civil fines as a result of a change in FCC policy. (Justices O’Connor and Scalia raised this issue in Bankers Life & Casualty Co. v. Crenshaw (1988).) Likewise, a wide range of other sub-criminal penalties, whether fines, losses of various licenses, and the like might well be held unconstitutional either by the Court or by lower courts applying Fox v. FCC, especially when those penalties are far enough removed from compensatory liability, tax liability, or other longstanding zones of retroactivity.

In any event, that’s what I would argue if I were litigating some such case. It will be interesting to see what effect Fox v. FCC will have along these lines.

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