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HATE Chapter 4. Because of Their Intractable Vagueness and Overbreadth, “Hate Speech” Laws Undermine Free Speech and Equality
Author: Nadine Strossen Publisher: London, UK: Oxford University Press. Publish Date: 2018-4-2 Review Date: Status:💥
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any law is “unduly vague,”
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is inherently susceptible to arbitrary and discriminatory enforcement.
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The Supreme Court has therefore enforced the “void for vagueness” doctrine with special strictness in the context of laws that regulate speech.
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“hate speech” laws invariably turn on inherently subjective, elastic words and concepts, including “hate.” Such laws therefore endow enforcing authorities with largely unfettered discretion to choose which ideas and speakers to single out for investigation and punishment. They inevitably exercise this discretion in accord with their own self-interest or their personal judgments about which speech is or is not worthy of protection.
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For two reasons, this discretionary enforcement is inimical to both free speech and equality. First, the discretion predictably will be wielded in a way that disfavors disempowered people and unpopular ideas. Second, the law will have a significant chilling effect, deterring people from expressing points of view that might be subject to investigation or punishment. “Hate speech” laws likely induce an especially frigid chill because most people do not want even to be accused of engaging in such expression, regardless of how important they might consider the ideas at stake.
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Another closely related problem that “hate speech” laws pose is what lawyers term “substantial overbreadth”: “hate speech” laws tend to be written in such capacious language that they extend to speech that even the laws’ proponents do not seek to punish. Although these laws could be relatively confined in scope, thus reducing the overbreadth problem, the undue vagueness problems appear to be inescapable.
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Even if we were to put aside the viewpoint neutrality and emergency principles—which we should not do—“hate speech” laws would still undermine free speech and equality because of their intrinsic vagueness and overbreadth. Because of these problems, as I demonstrate in this chapter, “hate speech” laws have regularly been enforced in ways that are inconsistent with and even undermine their purposes.
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Let us assume, solely for the sake of argument, that one could draft a law delineating a relatively narrow subset of constitutionally protected “hate speech,” thus reducing the overbreadth problems. That still would not solve the insurmountable vagueness problems. Consider, for example, law professor Mari Matsuda’s influential proposal to outlaw only messages “of racial inferiority … directed against a historically oppressed group,” which are “persecutorial, hateful, and degrading.” This proposed “hate speech” law is relatively narrow, incorporating several limits on the outlawed speech, in terms of both its message and its targets. Yet at least some of the limiting factors themselves are irreducibly vague.
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Consider the following illustration Matsuda provides of the distinction she attempts to draw between protected and punishable “hate speech”: an expression of “[a] belief in intellectual differences between the races … is not subject to sanctions unless it is coupled with an element of hatred or persecution.” Now consider whether Professor Charles Murray’s controversial writings on this topic would satisfy Matsuda’s standard. As recent campus protests against him have shown, many critics of his writings assert that they do reflect “hatred or persecution,” but other critics of his views would reject that characterization. Indeed, Matsuda recognizes the vagueness problems with her standard and discusses multiple examples of speech that, she acknowledges, arguably could either satisfy or not satisfy her definition. In short, people “of ordinary intelligence must guess at [the] meaning” of her proposed law, rendering it unacceptably vague.
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In addition to not solving the vagueness problem, narrowing the scope of a “hate speech” law ironically increases other First Amendment problems. First, the less constitutionally protected “hate speech” a law suppresses, and the more such speech it leaves protected, the less effective the law is in reducing the harms that are said to justify it. In weighing whether a speech-suppressive law is justified, courts—consistent with common logic—assess how effectively it promotes its goals. Accordingly, courts will strike down a law that curtails speech without meaningfully redressing the problem that the targeted speech allegedly causes; in such a situation, the law’s free speech costs are not sufficiently offset by its purported benefits.
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A narrower law also presents special dangers of viewpoint discrimination. As the Supreme Court has explained, if a law is “underinclusive when judged against its asserted justification,” this “raises … doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.” In a 1991 case, for example, the Supreme Court struck down a “hate speech” law that had been enacted in St. Paul, Minnesota, in order to foster intergroup harmony, because it selectively outlawed only “abusive invective” that was based on “race, color, creed, religion or gender.” The Court observed that St. Paul thus permitted speakers to use “abusive invective, no matter how vicious or severe,” to “express hostility” on any other basis, including “political affiliation, union membership, or homosexuality,” concluding that “the First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.” In this situation, the law is not unconstitutionally overbroad, but rather, unconstitutionally selective or underinclusive. In effect, such a law embodies viewpoint discrimination,
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The only way to constrain the unfettered discretion that unduly vague “hate speech” laws vest in government officials would be to replace open-textured, malleable criteria with specific, inflexible ones. To the best of my knowledge, no proponent of “hate speech” laws endorses such an approach, in part because it causes more problems than it solves. The major advocates of these laws in the United States maintain that any “hate speech” must be assessed contextually, and not inflexibly punished based solely on its language. They reach this conclusion about even such a universally reviled racist slur as the “N-word,” suggesting that it should be judged in light of all the facts and circumstances in which it is uttered. The resulting undue vagueness problem would afflict even a “hate speech” law that was relatively narrow in scope.
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Readers may well now be asking: How can the government avoid all of the First Amendment problems I have just outlined? How can a law avoid both the rock of undue vagueness and the hard place of undue rigidity? How can it avoid both the frying pan of substantial overbreadth and the fire of undue narrowness? The answer lies in the speech-protective emergency standard. As I have explained in earlier chapters, Justices Oliver Wendell Holmes and Louis Brandeis forged this test in the early twentieth century as an alternative to the unduly vague and overbroad bad tendency test that the Court’s majority was then employing to the great detriment of liberty, equality, and democracy. The emergency test also avoids undue rigidity because it is contextual, not focusing on words alone but also taking into account all pertinent facts and circumstances. Finally, by its very terms the emergency test targets all speech that directly causes specific imminent serious harm, so it is effective in checking such harm; indeed, the emergency test has been aptly described as “effects-based, not viewpoint-based.”