Legal Definitions - fair warning

Fair warning, also commonly referred to as fair notice, is a fundamental principle in criminal law. It dictates that any statute or law that makes certain actions illegal must be written with enough clarity and precision that an ordinary, reasonable person can understand exactly what conduct is prohibited. This principle ensures that individuals have adequate notice of what they can and cannot do before they can be held criminally responsible for their actions. It also serves to prevent arbitrary enforcement by providing clear guidelines for law enforcement officers and judges when applying the law.

Here are a few examples illustrating the concept of fair warning:

• Vague Public Conduct Ordinance: Imagine a city ordinance that states, "No person shall engage in inappropriate behavior in public spaces."

  • How it illustrates fair warning: This ordinance would likely violate the principle of fair warning. The term "inappropriate behavior" is highly subjective and lacks specific definition. What one person considers inappropriate, another might not. A reasonable person would not be able to clearly understand what specific actions are forbidden, making it impossible to comply with the law and leaving too much discretion to police officers to decide what constitutes "inappropriate behavior" on a case-by-case basis.

• Undefined Environmental Regulation: Consider a state law that criminalizes "causing undue harm to natural resources."

  • How it illustrates fair warning: This law would likely fail the fair warning test. The phrase "undue harm" is not defined, nor are "natural resources" specified beyond a general term. Does picking a wildflower cause undue harm? Does accidentally littering a small piece of paper cause undue harm? Without clear definitions of what constitutes "undue harm" and which specific actions are prohibited, individuals cannot know if their conduct is illegal. This vagueness could lead to arbitrary prosecution and makes it difficult for people to adjust their behavior to comply with the law.

• Broad Technology Misuse Statute: Suppose a new federal statute makes it a crime to "misuse digital communication platforms in a manner that causes discomfort to others."

  • How it illustrates fair warning: This statute would likely be challenged on fair warning grounds. The terms "misuse" and "discomfort" are extremely broad and open to interpretation. Does sending an unsolicited email cause discomfort? Does expressing a strong opinion online that someone disagrees with cause discomfort? The law fails to specify what particular actions constitute "misuse" or what level of "discomfort" is criminalized. As a result, individuals would not have clear notice of what online behaviors are illegal, potentially leading to arbitrary enforcement based on subjective feelings rather than clearly defined prohibited conduct.