al Maqablh v. Heinz, et al., No. 3:16-cv-00289-JHM (W.D. Ky.) (May 4, 2017)

al Maqablh sued a Trimble County, Kentucky county attorney pursuant to 42 U.S.C. Section 1983, asserting that the criminal harassment statutes under which he had been charged were void for vagueness under the First Amendment and the Fourth and Fourteenth Amendment’s due process clauses.

The Kentucky federal district court noted that while the due process clauses form the fundamental source of the vagueness doctrine the First Amendment permits vagueness challenges if protected speech is overly regulated.   Ordinary persons must be able to understand what is prohibited and arbitrary and discriminatory enforcement is not acceptable. Most importantly, the legislature must provide guidance sufficient to enable law enforcement.

al Maqablh argued that the harassment statute could not be understood and that it criminalized protected speech.  The court disagreed, holding that the inclusion of a knowledge or scienter requirement diminishes the significance of vagueness issues. Moreover, where legislatures fail to include special definitions attaching to statutes, the ordinary meanings of words may be presumed.  Draftspersons must not be compelled to adhere to standard so exacting that adequate drafting is impossible.  Taken together, scienter and common language preclude finding due process violations.

The federal court looked to state law upholding the constitutionality of the criminal harassment statutes because conduct — the manner of communication —  and not speech content is in issue.  Speech freedoms are not unbounded:  concern for others must be taken into account.

al Maqablh made similar complaints about the Kentucky false reporting and false incrimination statute, but these are comprehensible by persons of ordinary intelligence, the Kentucky federal court found, echoing the holdings of other jurisdictions.  As with criminal harassment, scienter is saving against vagueness challenges.  There is no merit to the idea that the criminal culpability attached to false reports by its very existence chills protected speech.  Honest errors would not meet the statutory knowledge requirement.

As al Maqablh was unsuccessful in his vagueness challenges, his action against the county attorney was dismissed.

Al Maqablh v. Heinz (W.D. Ky., 2017)

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