Phi Beta Cons

The Right take on higher education.

Re: Gates and Vagueness


I’ve received some interesting comments responding to yesterday’s post regarding Massachusetts’s vague disorderly conduct standards. One e-mailer, a Massachusetts lawyer, said, “The problem is even worse than it appears from the jury instructions” (I linked the instructions yesterday). He noted that Massachusetts courts have practically begged the legislature to fix the law (saying that the construction of the terms “idled and disorderly” has a “tortured history”). 

Another e-mailer takes issue with my statement that laws should focus on effects, not intentions:

That is a standard that would wipe a huge number of laws off the books. Every law based on potential effects of an action would go “poof.” Get a ticket for drunk driving, yet you didn’t cause an accident? What’s the “real-world effects”? Discharging a firearm into the air? i.e., no harm, no foul.

That’s an interesting point, but he’s essentially comparing apples and oranges. Drunk driving and the other crimes he describes may be drafted and enforced because of the potential effect of any one incident, but the actual offense itself (which is the critical issue) is not intent based. You drive drunk when your blood alcohol passes a certain level. That is a precise standard based on real-world actions. So is a ban on shooting weaponry in city limits. Not so the disorderly conduct statute at issue here. With this statute, you can be arrested and prosecuted if you are (subjectively) believed to have the intent to “annoy.” To compare this with drunk driving, it would be like prosecuting someone who drank ten glasses of O’Doul’s, thinking it was Bud Light, and then got behind the wheel of a car.  

This is of critical importance in the university-speech-code context, where most speech codes prohibit “words or actions” that have the “purpose or effect” of creating, among other things, a “hostile environment.” The Third Circuit has twice held such language to be unconstitutional, once in the high-school setting and then again at public universities. Striking down this language at Temple University, the Court held:

The Policy punishes not only speech that actually causes disruption, but also speech that merely intends to do so: by its terms, it covers speech ‘which has the purpose or effect of’ interfering with educational performance or creating a hostile environment. This ignores Tinker’s requirement that a school must reasonably believe that speech will cause actual, material disruption before prohibiting it.

Finally, following up on Carol’s comment, there is undeniably a cost to a more freewheeling free-speech environment, and anyone who believes that free speech somehow equals utopia hasn’t spent much time in some of the public squares in Manhattan or San Francisco. But that’s more a problem of manners than concrete harm, and delegating to the state the highly subjective task of determining when speech is “annoying” enough to ban has been proven, through hard historical experience, not so much to clean up the public square as to silence disfavored voices.


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