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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Monday, June 21, 2010 ::
    In part IV, the Court seems to be saying: the test for vagueness is more sensitive when speech and expressive association are concerned; but it does not follow that speech and expressive association are a "third rail" such that any otherwise-valid law that touches them become per-se void for vagueness. That would collapse a great deal of otherwise-valid democratic lawmaking into bans on speech; this has never been the law.
    “But ‘perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.’ ” Williams , supra , at 304 (quoting Ward v. Rock Against Racism , 491 U. S. 781, 794 (1989) ).
    Vagueness and overbreadth are not the same thing. Vagueness, a 5th Am Due Process doctrine, looks at whether a person of ordinary intelligence could tell what the statute prohibits. ("Training," "expert advice and assistance," and "material support" are not in this category.) Overbreadth, a 1st Am doctrine, looks at whether the statute could ban some constitutionally protected conduct, regardless of what the parties before the Court have done or want to do.
    [T]he Court of Appeals contravened the rule that “[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.” Hoffman Estates , supra , at 495. That rule makes no exception for conduct in the form of speech. See Parker v. Levy , 417 U. S. 733, 755–757 (1974) . Thus, even to the extent a heightened vagueness standard applies, a plaintiff whose speech is clearly proscribed cannot raise a successful vagueness claim under the Due Process Clause of the Fifth Amendment for lack of notice. And he certainly cannot do so based on the speech of others. Such a plaintiff may have a valid overbreadth claim under the First Amendment , but our precedents make clear that a Fifth Amendment vagueness challenge does not turn on whether a law applies to a substantial amount of protected expression. See Williams , supra , at 304; Hoffman Estates , supra , at 494–495, 497. Otherwise the doctrines would be substantially redundant.

    :: David M. Wagner 3:23 PM [+] ::

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