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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. 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.
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.
References
- Strossen, Nadine. (2018). HATE Chapter 4 Because of Their Intractable Vagueness and Overbreadth Hate Speech Laws Undermine Free Speech and Equality (Epub p. 98). London, UK: Oxford University Press.
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