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Any rule that is unduly vague is inherently susceptible to arbitrary and discriminatory enforcement. This is why the Supreme Court enforced a “void for vagueness” doctrine with special strictness in the context of laws that regulate speech. Rules against “hate speech” invariably turn on inherently subjective, elastic words and concepts, including “hate.” Such rules 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.
- this discretionary enforcement is inimical to both free speech and equality.
- the discretion predictably will be wielded in a way that disfavors disempowered people and unpopular ideas.
- 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.
References
- Strossen, Nadine. (2018). HATE Chapter 4 Because of Their Intractable Vagueness and Overbreadth Hate Speech Laws Undermine Free Speech and Equality (Epub p. 95). London, UK: Oxford University Press.
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