Legal Memorandum: Void for Vagueness Doctrine in ID

Issue: Under Idaho law, when will a statute defining criminal conduct be held to be unconstitutionally void for vagueness?

“In order to comply with due process, a criminal statute must define behavior that constitutes a violation of that statute ‘with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.'” State v. Doe, 148 Idaho 919, 930, 231 P.3d 1016, 1027 (Idaho 2010) reh’g denied (2010) (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983)).

“The Court has recognized that the more important concern is the provision of concrete guidelines to police officers and prosecutors in order to avoid arbitrary and discriminatory enforcement of penal laws.” Doe at 1027-28 (citing Grayned v. City of Rockford, 408 U.S. 104, 109, 92 S. Ct. at 2299, 33 L.Ed.2d at 228 (1972) (quoting Baggett v. Bullitt, 377 U.S. 360, 372, 84 S. Ct. 1316, 1323, 12 L. Ed. 2d 377, 385 (1964)).

“Another concern articulated by the Supreme Court is that ‘where a vague statute ‘abut(s) upon sensitive areas of basic First Amendment freedoms,’ it may chill the exercise of constitutionally protected activity.'” Id. at 1027-28 (citing Grayned, 408 U.S. at 109, 92 S. Ct. at 2299, 33 L. Ed. 2d at 228 (quoting Baggett v. Bullitt, 377 U.S. 360, 372, 84 S. Ct. 1316, 1323, 12 L. Ed. 2d 377, 385 (1964)).

In some cases, this is the salient point of the First Amendment challenge on these grounds:

A […]