So far, we've been talking mostly about *substance*: Which speech is protected and under what circumstances. But the First Amendment also imposes some important *procedural* protections.
One such protection is that speech restrictions may not be too vague -- may not leave a reasonable person totally at sea as to what they mean. Actually, most laws can also be challenged on the grounds that they are unconstitutionally vague, but the standard there is very lax; the precision required in the First Amendment area is more toothy.
The trouble is that the void-for-vagueness doctrine is itself, well, vague. If the government banned “All rude messages on the Internet,” that law would probably be unconstitutionally vague (as well as being substantively invalid, since many rude messages are fully protected).
Say, though, that the government bans any message “that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs” -- the language of the Communications Decency Act. This probably isn't unconstitutionally vague (though in a few months we might end up with egg on our face if the Supreme Court rules otherwise). This standard is borrowed from the obscenity context, and the Court has made clear that it's close enough for government work.
“Patently offensive” seems quite vague to us, but the Court has generally accepted it. And we can at least sympathize with the Court here: In Justice Thurgood Marshall's words, “condemned to the use of words, we can never expect mathematical certainty from our language.”
Even if we take a speech restriction that most of us can agree with -- a ban on threats of violence -- it's not easy to define with complete clarity. What exactly distinguishes a “threat” from a “warning” or a “prophecy of doom”? Hard to define precisely.
Still, the void-for-vagueness doctrine does have some force to it, and the extremely vague laws do get struck down under it. But a word of warning: The doctrine almost certainly does not apply the same way when the government isn't acting as sovereign. For instance, a person can be suspended from a job for being rude to patrons, even though a “rudeness” standard would certainly be too vague in other contexts. Is there anything left in the vagueness doctrine when the government is acting as employer? How does the doctrine operate when the government is acting as K-12 educator or as proprietor? No one knows.
authors:
| Larry Lessig | David Post | Eugene Volokh |
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