Also known as: fair notice requirements · fair notice · notice requirement
Written by attorneys — see sources below.
A due process principle requiring that laws and regulations provide clear warning of prohibited or required conduct so that ordinary people can conform their behavior to the law.
Fisher Foods shipped contaminated products that sickened dozens of consumers. A jury returned a large compensatory verdict and added a punitive award twenty times larger. The court reduced the punitive portion after applying the three guideposts to determine whether the manufacturer had fair notice of the potential exposure.
Floyd Franklin stood on a street corner with two acquaintances when officers ordered them to disperse under the city ordinance. Franklin refused and was arrested. The court invalidated the ordinance because its definition of loitering supplied no objective standard that would have given Franklin fair notice of the prohibited conduct.
Francois Fortier, defense counsel in a high-profile case, told reporters that his client had been framed by corrupt investigators. The disciplinary board imposed sanctions under a rule barring statements with a substantial likelihood of prejudicing the proceeding. The court vacated the sanction because the rule's vague safe-harbor language failed to give Fortier fair notice of what speech was prohibited.
Freya Freeman was convicted under a trespass statute after she remained in a store after being told to leave. The state supreme court had previously interpreted the statute to require an explicit order to depart. The Court reversed because the new interpretation deprived Freeman of fair notice that her conduct was criminal.
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View caseFumiko Fujimoto was arrested for wandering the streets at night with no visible means of support. The ordinance contained no definition of vagrancy and gave officers complete discretion. The Court struck down the statute because it supplied no ascertainable standard that would have given Fujimoto fair notice of the prohibited conduct.
The case involves eight defendants convicted under a Jacksonville, Florida vagrancy ordinance. Margaret Papachristou, Betty Calloway, Eugene Eddie Melton, and Leonard Johnson were arrested early on a Sunday morning and charged with vagrancy by prowling by auto while riding in Calloway's car after leaving a restaurant. Jimmy Lee Smith and Milton Henry were charged with vagrancy as vagabonds after being stopped while waiting for a friend to lend them a car for a job application. Henry Edward Heath and a codefendant were arrested for loitering and common thief when they arrived at a residence. Thomas Owen Campbell was charged with being a common thief after being stopped for speeding near his home. Hugh Brown was charged with disorderly loitering on the street and resisting arrest with violence after leaving a hotel. The ordinance defined vagrants to include rogues and vagabonds or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame gaming houses or places where alcoholic beverages are sold or served, and persons able to work but habitually living upon the earnings of their wives or minor children. The facts of the arrests were stipulated by the parties. Papachristou was enrolled in a job-training program, Calloway was a teacher and owned the car, Melton was a Vietnam veteran and student, and Johnson was a warehouse worker and lifelong resident. Smith was a part-time worker and political organizer with a common-law wife and children, while Henry was a high school student. Heath had lived in Jacksonville all his life and worked at an automobile body shop. Campbell reached his home early in the morning. Brown was observed leaving a downtown hotel and was reputed to be a thief and narcotics pusher, with packets of heroin found during the search. All eight defendants were convicted in the municipal court. Their convictions were affirmed by the Florida Circuit Court in a consolidated appeal. The Supreme Court granted certiorari to consider the challenges to the ordinance.
View caseFarid Farahani was convicted for distributing materials that were not obscene under the law in effect at the time of his conduct. The Court later adopted a broader definition of obscenity. The conviction was reversed because applying the new standard retroactively denied Farahani fair notice of what the law prohibited when he acted.
Petitioners were charged with several counts of transporting obscene materials in interstate commerce, in violation of 18 U.S.C. § 1465, and with conspiracy to transport such materials, 18 U.S.C. § 371. The conduct that gave rise to the charges covered a period through February 27, 1973. Trial did not begin until the following October. Petitioner American News Co., Inc., was convicted only on the conspiracy charge. The other four petitioners were convicted of conspiracy and also on seven of the eight substantive counts. In the interim, on June 21, 1973, this Court decided Miller v. California, and its companion cases. Miller announced new standards for isolating hard core pornography from expression protected by the First Amendment. That these new standards would also guide the future interpretation of the federal obscenity laws was clear from United States v. 12 200-ft. Reels of Film, decided the same day as Miller. Petitioners argued in the District Court that they were entitled to jury instructions not under Miller, but under the more favorable formulation of Memoirs v. Massachusetts. They focused in particular on the third part of the Memoirs test. The District Court overruled these objections and instructed the jury under the Miller standards. Petitioners were convicted, and a divided Court of Appeals for the Sixth Circuit affirmed. The Supreme Court granted certiorari to resolve a conflict in the Circuits.
View caseThe statute is unconstitutionally vague and violates due process. Courts invalidate the law because ordinary people cannot determine what conduct is prohibited and because the statute invites arbitrary enforcement.
The three guideposts ensure that defendants receive fair notice of the potential magnitude of punitive exposure before engaging in the conduct at issue.
No. The requirement is satisfied when the statute or rule is sufficiently clear that a person of ordinary intelligence would understand what conduct is prohibited.
Yes. If the safe-harbor language itself is vague, the rule still fails to give fair notice and risks discriminatory enforcement.
…who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement. The unfortunate yet persisting conditions we document above will mean that in a large fraction of the cases in which § 3209 is relevant, it will operate as a substantial obstacle to a…