GPO-CONAN-2017-10-15.pdf

Discretion to policemen and it criminalized

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discretion to policemen, and it criminalized activities that by mod- ern standards are normally innocent. 1095 1091 Lanzetta v. New Jersey, 306 U.S. 451 (1939); Edelman v. California, 344 U.S. 357 (1953). 1092 Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Smith v. Goguen, 415 U.S. 566 (1974). Generally, a vague statute that regulates in the area of First Amendment guarantees will be pronounced wholly void. Winters v. New York, 333 U.S. 507, 509–10 (1948); Thornhill v. Alabama, 310 U.S. 88 (1940). 1093 405 U.S. 156 (1972). 1094 405 U.S. at 156 n.1. Similar concerns regarding vagrancy laws had been expressed previously. See , e.g. , Winters v. New York, 333 U.S. 507, 540 (1948) (Jus- tice Frankfurter dissenting); Edelman v. California, 344 U.S. 357, 362 (1953) (Jus- tice Black dissenting); Hicks v. District of Columbia, 383 U.S. 252 (1966) (Justice Douglas dissenting). 1095 Similarly, an ordinance making it a criminal offense for three or more per- sons to assemble on a sidewalk and conduct themselves in a manner annoying to passers-by was found impermissibly vague and void on its face because it en- croached on the freedom of assembly. Coates v. City of Cincinnati, 402 U.S. 611 (1971). See Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965) (conviction under stat- 2031 AMENDMENT 14—RIGHTS GUARANTEED
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In FCC v. Fox , 567 U.S. ___, No. 10–1293, slip op. (2012) the Court held that the Federal Communiations Commission (FCC) had violated the Fifth Amendment due process rights of Fox Television and ABC, Inc., because the FCC had not given fair notice that broad- casting isolated instances of expletives or brief nudity could lead to punishment. 18 U.S.C. § 1464 bans the broadcast of “any obscene, indecent, or profane language”, but the FCC had a long-standing policy that it would not consider “fleeting” instances of indecency to be actionable, and had confirmed such a policy by issuance of an industry guidance. The policy was not announced until after the in- stances at issues in this case (two concerned isolated utterances of expletives during two live broadcasts aired by Fox Television, and a brief exposure of the nude buttocks of an adult female character by ABC). The Commission policy in place at the time of the broad- casts, therefore, gave the broadcasters no notice that a fleeting in- stance of indecency could be actionable as indecent. On the other hand, some less vague statutes may be held un- constitutional only in application to the defendant before the Court. 1096 For instance, where the terms of a statute could be applied both to innocent or protected conduct (such as free speech) and unpro- tected conduct, but the valuable effects of the law outweigh its po- tential general harm, such a statute will be held unconstitutional only as applied. 1097 Thus, in Palmer v. City of Euclid , 1098 an ordi- nance punishing “suspicious persons” defined as “[a]ny person who wanders about the streets or other public ways or who is found abroad at late or unusual hours in the night without any visible or lawful business and who does not give satisfactory account of himself” was found void only as applied to a particular defendant. In Palmer , the
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