Whether Salerno's 'no set of circumstances' test, the Hoffman/Grayned 'more stringent vagueness test,' or some other test, should govern judicial review of vagueness challenges to statutes that criminalize First-Amendment-protected-speech

QUESTION PRESENTED In United States v. Salerno, this Court observed, arguably in dicta, that a successful facial challenge to a statute must generally show that “no set of circumstances exists under which the Act would be valid.” 481 U.S. 739, 746 (1987). But this Court’s precedents do not always require facial vagueness challenges to meet the exceedingly permissive standard articulated in Salerno. For example, Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., held that facial vagueness challenges subject laws to a “more stringent vagueness test’—one that requires “explicit standards for those who apply” the law—when the law imposes criminal penalties and “threatens to inhibit the exercise of constitutionally protected rights.” 455 U.S. 489, 498-99 (1982) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108— 09 (1972). And more recently, Johnson v. U.S., 576 U.S. 591 (2015), held that a statute need not be “vague in all applications” to be void. Id. at 603. Yet, in the thirty-five years since Salerno, many state courts of last resort and federal circuit courts have invoked—and continue to invoke—its language as the definitive standard for assessing facial vagueness challenges. They have thereby created a split with other courts that, fairly following this Court’s precedents, have adopted a more stringent standard for criminal statutes implicating constitutional rights. The question presented is: Whether Salerno’s “no set of circumstances” test, the Hoffman/Grayned “more stringent vagueness test,” or some other test, should govern judicial review of vagueness challenges to statutes that criminalize First Amendment-protected speech.