Is the void for vagueness doctrine apposite, where the public cannot see a law or regulation? Are there cases applying this principle to secret law?

Perhaps because the notion of a “secret” or unpublished law or regulation is extremely rare, we did not find any cases applying the void-for-vagueness doctrine to “secret law.” There are a few cases that address the application of the doctrine to “unwritten” regulations and policies, with different results.

Bynum v. U.S. Capitol Police Board, 93 F. Supp. 2d 50, 59 (D.D.C. 2000) contains language that may be helpful in constructing an argument that an unwritten law or regulation is unconstitutionally vague. In Bynum, the court found unconstitutionally vague a regulation of the Capitol Police Board implementing a federal statute that prohibited demonstrations in the United States Capitol building. The court found that the regulation was unconstitutionally vague on its face and as applied to plaintiffs, who were threatened with arrest for visibly praying in the Capitol building.

The court held that a law is unconstitutionally vague if it fails to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, if it fails to provide explicit standards to those who enforce it, or if it operates to inhibit the free exercise of First Amendment freedoms by chilling such exercise by its uncertain meaning. 93 F. Supp. 2d at 59 (citing Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)).

The court based its decision that the regulation was unconstitutionally vague on its face on its finding that the regulation at issue gave “virtually standardless, broad discretion” to the Capitol police. Id.

The court also found the statute vague as applied to plaintiffs’ activity of praying in the Capitol. In so doing, the court suggested that an “unwritten” regulation fails to give fair notice of the prohibited conduct:

While neither the statute nor the regulation expressly prohibits prayer in the Capitol, defendants maintain that there is an effective ban on prayer inside the Capitol building: “The ban on demonstration activities includes [a ban on] prayer, unless it is conducted in the authorized use of the Chapel, or in a designated room upon invitation of a Member.” [internal record citation omitted.] The regulation as applied in this case therefore amounts to an unwritten rule banning all prayer or certain acts related to, or messages conveyed by, prayer. Such a ban, however, is found nowhere in the statute enacted by Congress or even in the regulation promulgated by the Capitol Police Board. It is an unwritten interpretation of the regulation, apparently announced for the first time in this litigation. As such, the ban on prayer so clearly fails to give fair notice as to what conduct is prohibited either by statute or by regulation that it necessarily lacks sufficient definiteness to provide fair warning for “ordinary people [to] understand what conduct is prohibited.” Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983); see Smith v. Goguen, 415 U.S. at 572-73, 94 S.Ct. 1242; Grayned v. Rockford, 408 U.S. at 110, 92 S.Ct. 2294. It therefore violates due process.

Id. (emphasis added).

Outside of the criminal context, federal courts have rejected vagueness challenges to government policies that are not committed to writing when the government policies were “made explicit by well-established government practice.” Willis v. Town of Marshall, 426 F.3d 251, 262 n.3 (4th Cir. 2005) (holding that the fact that a town policy prohibiting lewd dancing at a community center was unwritten was not, standing alone, sufficient to support void-for-vagueness claim and reasoning that if the government were required to operate only under written policies, it would unduly limit its flexibility to respond to disruptive situations as they arise); Families Achieving Independence & Respect v. Nebraska, 111 F.3d 1408, 1415 (8th Cir. 1997) (en banc) (upholding unwritten rule of welfare office that only organizations that provided a “direct benefit” to welfare recipients were allowed access to the forum); see also Lebron v. National R.R. Passenger Corp. (Amtrak), 69 F.3d 650, 658 (2d. Cir. 1995) (explaining that “the fact that a policy is not committed to writing does not of itself constitute a First Amendment violation” where prior written agreements and historic practice dispelled the notion that government enjoyed “unbridled discretion” or could have perpetrated an “illegitimate abuse of censorial power”).

These cases involved administrative policies rather than regulations or rules that carry criminal penalties, so are subject to a less-exacting standard than the unpublished regulations Gilmore is challenging. We did not find any cases discussing the void-for-vagueness doctrine with respect to unwritten laws or regulations that carried criminal consequences; nor did we find any cases discussing vagueness challenges to laws or regulations whose text was kept secret for security purposes.

Moreover, the secret regulation at issue in Gilmore’s case is not “unwritten”; it is unpublished. The distinction may not be significant in analyzing whether the statute provides adequate notice of prohibited conduct, but the reasoning of those cases does not apply here. It would not unduly limit the TSA’s flexibility to require it to publish this regulation. The question here is not whether the government can act in response to a particular situation without having a written policy specifically prohibiting that situation, but instead whether the government can enforce a regulation that it refuses to disclose to the public. How can the government be held accountable, and how can the public know that the government is enforcing the regulation as written, if the government refuses to disclose the text of the regulation to the public?

In Gilmore’s case, the Ninth Circuit held that travelers are provided sufficient actual notice to conform their behavior to the identification policy by (1) airline personnel orally conveying the rule that passengers must either show identification or submit to a “selectee” search and (2) signs stating that “passengers must present identification upon initial check-in.” Gilmore v. Ashcroft, 435 F.3d 1125, 1135-36 (9th Cir. 2006). In support of this reasoning, the Ninth Circuit cited Forbes v. Napolitano, 236 F.3d 1009, 1011 (9th Cir. 2000), which held that sufficient notice requires that individuals be “given a reasonable opportunity to discern whether their conduct is proscribed so they can choose whether or not to comply with the law.” Forbes did not, however, involve an unwritten or unpublished law or regulation. Are you aware of any caselaw applying the “void for vagueness” doctrine under these circumstances?

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