# Trying to find a court citation - Something about restraint or temperance **URL:** \ **Category:** Factual Questions\ **Created:** [May 31, 2018, 8:08pm UTC](https://boards.straightdope.com/t/trying-to-find-a-court-citation-something-about-restraint-or-temperance/815220 "2018-05-31T20:08:35Z")\ **Posts on this page:** 7\ **Page:** 1
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [May 31, 2018, 8:08pm UTC](https://boards.straightdope.com/t/trying-to-find-a-court-citation-something-about-restraint-or-temperance/815220/1 "2018-05-31T20:08:35Z")
I don’t think those are the precise words, but there was a SCOTUS decision I read I believe from this term, that referenced an older opinion. The gist of the statement said that the court wouldn’t allow vague rules that could be read expansively and rely on the government using its power justly, that in interpreting a law the courts needed to look at the ways a law could be misused, not just how the people acting promised they would act. I believe the reference was to an older opinion by Roberts, but I can’t recall the right key terms to find it. Any idea what this was? ---
**Author:** ![Cleophus](https://avatars.discourse-cdn.com/v4/letter/c/a88e57/32.png) [@Cleophus](https://boards.straightdope.com/u/Cleophus)\ **Post date:** [May 31, 2018, 9:00pm UTC](https://boards.straightdope.com/t/trying-to-find-a-court-citation-something-about-restraint-or-temperance/815220/2 "2018-05-31T21:00:50Z")
> [@Bone](#): > > I don’t think those are the precise words, but there was a SCOTUS decision I read I believe from this term, that referenced an older opinion. The gist of the statement said that the court wouldn’t allow vague rules that could be read expansively and rely on the government using its power justly, that in interpreting a law the courts needed to look at the ways a law could be misused, not just how the people acting promised they would act. > > I believe the reference was to an older opinion by Roberts, but I can’t recall the right key terms to find it. Any idea what this was? Were the “vague” rules you’re describing arising from statute or a contract? What you’re describing sounds similar to US v Drew, where SCOTUS ruled that prosecuting someone under computer unauthorized access statutes (the CFAA) for violating a website’s terms of service is invalid because a private TOS contract is too vaguely written to be interpreted, in essence, as a law. ---
**Author:** ![Tired\_and\_Cranky](https://avatars.discourse-cdn.com/v4/letter/t/a87d85/32.png) [@Tired\_and\_Cranky](https://boards.straightdope.com/u/Tired_and_Cranky)\ **Post date:** [May 31, 2018, 9:01pm UTC](https://boards.straightdope.com/t/trying-to-find-a-court-citation-something-about-restraint-or-temperance/815220/3 "2018-05-31T21:01:20Z")
I suspect the term that you are looking for is “void for vagueness.” You didn’t give me enough to trigger a memory of the specific opinion you want but I hope I can at least start you in the right direction. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [May 31, 2018, 9:28pm UTC](https://boards.straightdope.com/t/trying-to-find-a-court-citation-something-about-restraint-or-temperance/815220/4 "2018-05-31T21:28:15Z")
It’s not void for vagueness - that one I know. There was a recent case where the court wrote something to the effect of, we can’t have laws or administrative rules and expect prosecutors to act magnanimously - so if the law allows for a bad outcome because of its vague wording, that we can’t simply trust the government will not exercise its power unwisely. ---
**Author:** ![Tired\_and\_Cranky](https://avatars.discourse-cdn.com/v4/letter/t/a87d85/32.png) [@Tired\_and\_Cranky](https://boards.straightdope.com/u/Tired_and_Cranky)\ **Post date:** [June 1, 2018, 1:06am UTC](https://boards.straightdope.com/t/trying-to-find-a-court-citation-something-about-restraint-or-temperance/815220/5 "2018-06-01T01:06:43Z")
I’m sorry. “This term” should have narrowed it down. Marcello v. U.S. [MARINELLO v. UNITED STATES | Supreme Court | US Law | LII / Legal Information Institute](https://www.law.cornell.edu/supremecourt/text/16-1144) > [@](#): > > Neither can we rely upon prosecutorial discretion to narrow the statute’s scope. True, the Government used the Omnibus Clause only sparingly during the first few decades after its enactment. But it used the clause more often after the early 1990’s. Brief for Petitioner 9. And, at oral argument the Government told us that, where more punitive and less punitive criminal provisions both apply to a defendant’s conduct, the Government will charge a violation of the more punitive provision as long as it can readily prove that violation at trial. Tr. of Oral Arg. 46–47, 55–57; see Office of the Attorney General, Department Charging and Sentencing Policy (May 10, 2017), online at [http://www.justice.gov/opa/press-release/file/965896/download](http://www.justice.gov/opa/press-release/file/965896/download) (as last visited Mar. 16, 2018). > > Regardless, to rely upon prosecutorial discretion to narrow the otherwise wide-ranging scope of a criminal statute’s highly abstract general statutory language places great power in the hands of the prosecutor. Doing so risks allowing “policemen, prosecutors, and juries to pursue their personal predilections,” Smith v. Goguen, 415 U. S. 566, 575 (1974) , which could result in the nonuniform execution of that power across time and geographic location. And insofar as the public fears arbitrary prosecution, it risks undermining necessary confidence in the criminal justice system. That is one reason why we have said that we “cannot construe a criminal statute on the assumption that the Government will ‘use it responsibly.’ ” McDonnell v. United States, 579 U. S. \_\_\_, \_\_\_ (2016) (slip op., at 23) (quoting United States v. Stevens, 559 U. S. 460, 480 (2010) ). And it is why “[w]e have traditionally exercised restraint in assessing the reach of a federal criminal statute.” Aguilar, supra, at 600. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [June 1, 2018, 1:09am UTC](https://boards.straightdope.com/t/trying-to-find-a-court-citation-something-about-restraint-or-temperance/815220/6 "2018-06-01T01:09:51Z")
Perfect. That is it. Thank you! ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 2, 2018, 3:39pm UTC](https://boards.straightdope.com/t/trying-to-find-a-court-citation-something-about-restraint-or-temperance/815220/7 "2018-06-02T15:39:21Z")
Also United States v. Stevens (a case striking down a federal prohibition on depictions of animal cruelty) Roberts wrote: > [@](#): > > Not to worry, the Government says: The Executive > Branch construes §48 to reach only “extreme” cruelty, > Brief for United States 8, and it “neither has brought nor > will bring a prosecution for anything less,” Reply Brief 6– > 7. The Government hits this theme hard, invoking its > prosecutorial discretion several times. See id., at 6–7, 10, > and n. 6, 19, 22. But the First Amendment protects > against the Government; it does not leave us at the mercy > of noblesse oblige. We would not uphold an unconstitutional > statute merely because the Government promised to > use it responsibly. Cf. Whitman v. American Trucking > Assns., Inc., 531 U. S. 457, 473 (2001).