Author: Timothy Sandefur
What does the phrase “intangible right to honest services” mean? If you don’t know, you might be a federal criminal. That’s because a federal law—part of the mail fraud statute—makes it illegal to deprive another person of this “intangible right.” This phrase is so vague that, as Justice Antonin Scalia has observed, it appears to make it a federal crime to call in sick to work when you want to go to a ball game instead.
As attorney Harvey Silverglate wrote the other day on The Volokh Conspiracy, the imprecise wording of laws like this give prosecutors
too much latitude in pursuing perceived wrongdoers whose conduct isn’t explicitly proscribed.... In a society of laws, fair notice as to what conduct might land a citizen in prison is a vital component of due process. This should not be confused with a plea for de-regulation, which is largely a political and not a legal debate. Nor is it a plea for leniency for those who knowingly violate clear rules, even if those rules are unwise. But providing average citizens with clarity of their legal obligations is a vital civil liberties matter having nothing to do with whether one believes in more regulation or less.
That’s the focus of the friend of the court brief that Pacific Legal Foundation is filing Friday in the Supreme Court in the case of former Enron CEO Jeffrey Skilling. The brief, co-signed by our friends at the Cato Institute, argues that the due process clause forbids the government from enforcing laws that are so vague that nobody can know beforehand what is and is not allowed.
We aren’t denying that Enron executives committed fraud, or that companies should be free to rob people of their money, and the brief is filed in support of neither party. But the problem with vague laws like the “honest services fraud” statute is that it can apply to anyone and to innocent conduct. Laws that are this vague encourage arbitrary enforcement and often trap people who engage in innocent conduct. They also frighten people away from exercising their rights, because people will want to steer as clear of the ambiguous law as possible.
The problem is bad enough when it comes to criminal law, but it’s even worse in the realm of business regulations and common law theories. For example, there’s the common law theory of “public nuisance.” Nobody knows what this term means—in fact, nobody really knows if it’s a criminal law concept or a civil law concept. The term is so vague that government lawyers have used it to sue businesses for perfectly legal activities. Public nuisance cases have been brought against oil companies for selling petroleum; against car companies for selling cars; against gun makers for selling guns; against paint manufacturers for making and selling lead paint back when lead paint was legal. PLF has participated in many of these cases, arguing that the rule against vagueness requires that concept of public nuisance be narrowly interpreted.
People often complain about the nitpicky technicalities of laws and regulations, but vague, broadly worded laws like these are actually much more dangerous. They allow prosecutors (and private lawyers who want to make a quick buck) to bring charges against you without you having any idea that what you did was illegal. That gives them a lot of power to bring the hammer down on you whenever they want to—and to use that leverage to control your choices. As James Madison wrote,
It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man who knows what the law is today can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule which is little known, and less fixed?
