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skepticism about that longstanding framework. Noting that
past “holdings squarely contradict the theory that a vague
provision is constitutional merely because there is some
conduct that clearly falls within the provision’s grasp,” the
Court described the “supposed requirement of vagueness in
all applications” as a “tautology.” Id. at 2561. We need not
decide the full implications of Johnson, because we conclude
that the General Conduct Rule satisfies due process
requirements even if we do not apply Hoffman’s elevated bar
for facial challenges.
Vagueness doctrine addresses two concerns: “first, that
regulated parties should know what is required of them so
they may act accordingly; second, precision and guidance are
necessary so that those enforcing the law do not act in an
arbitrary or discriminatory way.” Fox Television, 132 S. Ct.
at 2317. Petitioners argue that the General Conduct Rule is
unconstitutionally vague because it fails to provide regulated
entities adequate notice of what is prohibited. We are
unpersuaded. Unlike the circumstances at issue in Fox
Television, id. at 2317–18, the Commission here did not seek
retroactively to enforce a new policy against conduct
predating the policy’s adoption. The General Conduct Rule
applies purely prospectively. We find that the Rule gives
sufficient notice to affected entities of the prohibited conduct
going forward.
The degree of vagueness tolerable in a given statutory
provision varies based on “the nature of the enactment.”
Hoffman Estates, 455 U.S. at 498. Thus, “the Constitution is
most demanding of a criminal statute that limits First
Amendment rights.” DiCola v. FDA, 77 F.3d 504, 508 (D.C.
Cir. 1996). The General Conduct Rule does not implicate that
form of review because it regulates business conduct and
imposes civil penalties. In such circumstances, “regulations
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