The Catholic University of America, Columbus School of Law CUA Law Scholarship Repository Scholarly Articles and Other Contributions Faculty Scholarship 2002 Federal Courts, Overbreadth, and Vagueness: Guiding Principles for Constitution Challenges to Uninterpreted State Statutes Mark L. Rienzi The Catholic University of America, Columbus School of Law Stuart Buck Follow this and additional works at: https://scholarship.law.edu/scholar Part of the Constitutional Law Commons, and the Courts Commons Recommended Citation Mark L. Rienzi & Stuart Buck, Federal Courts, Overbreadth, and Vagueness: Guiding Principles for Constitution Challenges to Uninterpreted State Statutes, 2002 Utah L. Rev. 381. This Article is brought to you for free and open access by the Faculty Scholarship at CUA Law Scholarship Repository. It has been accepted for inclusion in Scholarly Articles and Other Contributions by an authorized administrator of CUA Law Scholarship Repository. For more information, please contact [email protected]. Federal Courts, Overbreadth, and Vagueness: Guiding Principles for Constitutional Challenges to Uninterpreted State Statutes Stuart Buck* and Mark L. Rienzi** I. INTRODUCTION When a state statute is challenged in federal court as unconstitutionally overbroad or vague, the federal court is caught between two fundamental principles of constitutional law. On the one hand, federal courts have been instructed numerous times that they should invalidate a state statute only when there is no other choice. The Supreme Court has noted that it is a "cardinal principle" of statutory interpretation that a federal court must accept any plausible interpretation such that a state statute need not be invalidated. Moreover, the doctrines of abstention, certification, and severance all exist in order to show deference to a state's power to interpret its own laws and to allow as much of a state law to survive as possible. With these doctrines in mind, a federal court might view its role as deferential, circumspect, and even reverent towards state law. On the other hand, federal courts are the chief guarantors of individual constitutional rights under the Federal Constitution. As such, they have a duty to protect citizens from state laws that criminalize or chill constitutionally protected activity (overbroad laws), or that subject citizens to unclear or arbitrary exercises of state power (vague laws). With these doctrines in mind, a federal court might view itself as the last bulwark of protection against overreaching state legisla- tures, and therefore decide that only complete invalidation will suffice. The result is a clash between overbreadth and vagueness doctrines on one side and the principles of avoidance, abstention, and severance on the other. This conflict is exacerbated by the fact that federal courts are not the authoritative interpreters of state law. Because of this, even if a federal court were to adhere to the "cardinal principle" and adopt a narrow interpretation of a state statute (or sever an application or provision), there is no guarantee that subsequent state courts would follow that federal interpretation. Thus, a federal court that rejects *Law clerk, Judge Stephen F. Williams, D.C. Circuit Court of Appeals, 2001-2002; former law clerk to Judge David A. Nelson, Sixth Circuit Court of Appeals, 2000-2001; J.D., Harvard Law School, 2000; editor, HarvardLawReview, 1998-2000. We would like to thank Professor Richard Fallon, Judge Nelson and Judge Williams for their insightful comments. **J.D., Harvard Law School, 2000; editor, HarvardLawReview, 1998-2000; prospective law clerk to Judge Stephen F. Williams, D.C. Circuit Court of Appeals, 2002-2003. UTAH LAW REVIEW [2002: 381 a constitutional challenge simply because it can conjure a plausible narrowing interpretation of the state law risks exposing citizens to unconstitutional prosecutions under the far reaches of the statute because state courts are not bound by the narrowing federal interpretation qua interpretation. The recent spate of litigation over partial-birth abortion laws-most of which were challenged on overbreadth grounds-shows this tension quite starkly. In overturning the partial-birth abortion laws of numerous states, federal courts have often refused to interpret those statutes narrowly so as to save their constitutionality; to abstain to allow a state court to give a narrowing interpreta- tion; or to sever the unconstitutional applications of those statutes. Furthermore, federal courts usually enjoined the enforcement of those statutes so that states effectively had no way of ever getting a narrowing interpretation from state courts, despite the principle that only state courts can make a binding interpreta- tion of state law. As we have said, this result is understandable from the federal courts' perspective. Precisely because of the canon that only state courts can authoritatively interpret state law, federal courts fear that giving a narrowing interpretation to a state law would be pointless. Being risk averse where fundamental constitutional rights are concerned, federal courts chose to void the entire law as overbroad. Viewed from the state's perspective, such actions by federal courts seemed to interfere unjustifiably with the state's prerogative to interpret and apply state law. When the federal court strikes down a state law as overbroad based on its own interpretationof that law, the federal court appears' to foreclose the state's right to seek a narrowing interpretation from a state court. This is troublesome, because a state court alone has the right to interpret its own state's law and, indeed, a federal court should welcome a narrowing interpretation rather than foreclosing the possibility that it can ever be given. Consider, for example, an overbreadth challenge to an uninterpreted state statute prohibiting "all public nudity." Suppose that the federal court is persuaded by the argument that while most public displays of nudity may be proscribable, artistic or expressive displays of nudity are protected by the First Amendment. Such a court obviously has a constitutional obligation to protect the artistic or expressive conduct. What is less obvious is that the court has several different means of protecting that liberty. The court might, after examining the statute, abstain on the ground that the statute's interpretation involves a matter of state law that could moot the federal decision. Alternatively, the court might sever the application of the statute to expressive displays. Further, the court might look at the statute and interpret it to cover only those instances of nudity that are non- expressive. To ensure that this interpretation will actually take effect, the court 'As we discuss in Part V.A., infra, state courts actually do retain some power to narrow the statute, but rarely see the opportunity to exercise it. No. 2] UNINTERPRETED STATE STATUTES can issue an injunction against any prosecution for expressive displays of nudity. Finally, the court could simply enjoin all prosecutions under the statute. In deciding among these alternatives, federal courts often behave as if they have no power to control future prosecutions in state court. This leads them to enjoin all prosecutions under the statute lest constitutionally protected conduct be chilled. The premise of this argument, however-that federal courts, through their injunctive power, can prohibit prosecutors from taking certain ac- tions-gives rise to a less drastic solution: in this case, an injunction only against prosecutions for expressive nudity. A court that has the power to enjoin all applications of a statute certainly also has the power to enjoin some applications of that statute. Thus, if it can enjoin all nudity prosecutions, it can likewise enjoin only those prosecutions that threaten constitutional rights. This more-limited injunction still protects constitutional rights (if drafted appropriately), but it allows the state the freedom to seek a narrowing interpretation of the statute, and to use the statute against perfectly proscribable behavior. While this solution offers the best balance between individual and state rights-it fully protects individual rights while allowing room for the state's own prerogatives-it has been used, to our knowledge, in only one recent case.2 We believe that the failure to use limited injunctions like this one is directly attributable to confusion about the effect of federal court rulings. The confusion in the federal courts results from the tension between the overbreadth and vagueness doctrines on one hand, and the federalist doctrines of avoidance, severance, and abstention on the other. Here, it is important to distinguish between facial and as-applied challenges. In an as-applied challenge, the plaintiff challenges a statute as applied to his own conduct or circumstances, and federal courts routinely hold that a state statute cannot apply to a certain realm of conduct. Such a holding leaves open the possibility that a state could apply the statute to - other conduct. But with the overbreadth or vagueness doctrines, the challenge is almost always facial.' In such cases, federal courts often forget that they have the power to use an injunction to limit the range of conduct to which a statute applies.4 They mistakenly think that the choice is between wholesale facial invalidation, or upholding the statute entirely. 2 The case of Hope Clinic v. Ryan, 195 F.3d 857, 861 (7th Cir. 1999), grew out of challenges to the Wisconsin and Illinois