Vague laws

[Volokh, Eugene]

   I wanted to second David's point, and add one theoretical component to
it:  It's the nature of vague rules (cf. "severe or pervasive") that they'll
be enforced severely by some and leniently by others.  Sure, some judges and
juries, such as the one that Michael cites, may set the bar quite high.  But
others will set it quite low -- nor can one fault them, since with a vague
standard, a wide range of interpretations may be reasonable.

   However, when a reasonably prudent person sees a set of cases, some of
which interpret the rule in a way that won't lead to liability, but others
of which interpret it in a way that will lead to massive liability, that
reasonably prudent person will pay pretty close attention to the latter.
Few reasonable employers will want to face a 50% chance, or even a 10%
chance, of being held liable to the tune of hundreds of thousands of dollars
(plus of course at least their own attorney fees, and perhaps the
plaintiff's as well).

   This is why Justice Stevens was correct in Reno v. ACLU when he held that
the vagueness of the law must be considered in determining the breadth of
its speech-suppressive effect; and why Justice Brennan was correct in NAACP
v. Button, 371 U.S. 415 (1963), to say that "If there is an internal tension
between proscription and protection in the statute, we cannot assume that,
in its subsequent enforcement, ambiguities will be resolved in favor of
adequate protection of First Amendment rights."

   Eugene



David Bernstein writes, responding to Michael Masinter:

OK, but for the record, not only was the employer at risk of losing the
"coon
ass" racial harassment suit, it did lose the racial harassment suit, and
paid
the plaintiff $125,000, plus $100,000 or so in attorneys' fees.  Some
judges
(and juries) take an overly-lenient view of the law, some overly-strict.
The
prudent employer would still crack down on speech that could even
potentially
lead to a harassment lawsuit, for fear of drawing the lenient judge and
jury.
 It costs a lot less to, for example, buy a software program that
monitors
employee e-mail for bad words than to hire a lawyer for even a few
hours.
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