Freedom of Speech Although Judges

Freedom of Speech

Although judges can declare any statute plain, they always have a variety of ways to declare it unclear. English has a multitude of ways to be vague. In his 1963 article "Vagueness and Legal Language," Christie argues that it is, in part, this vagueness in language that allows the law to perform many of its social functions. It is, he adds, an "important addition to the legal tool chest" (p. 886).

Before continuing, Christie makes it clear that he is going to specifically address vagueness, not ambiguity. The first usually pertains to general terms that have an open textured meaning. There is a doubt about the boundaries or scope of the word. He gives terms referring to colors as an example, because many shades exist. The second term, ambiguity, refers instead to an instance where the general term may be "clearly" true in some cases and "clearly" false in others. The word, itself, can be interpreted in more than one way. Is a "light" book light in color or light in weight?

Christie addresses two forms of vagueness. The first is the search for vagueness. Sometimes an interpreter may disagree with the remarks of a speaker but have to act upon them. In such cases, this provides a means for the interpreter to look for vagueness and say "he couldn't have meant this, so he must have meant this." The listener has the opportunity, then, to throw out one possibility for another one that conforms more with his/her personal standards. Language becomes the scapegoat. As John Adams said to J.H. Tiffany in 1819, "Abuse of words has been the great instrument of sophistry and chicanery, of party, faction, and division of society."

Christie then questions: who can disagree that this technique of using vagueness is not justified -- within reasonable bounds, that is. Legislatures and judges are not perfect and will make mistakes.

The second form of vagueness is when legislation is purposely written vaguely. Notes Christie:

The importance of the flexibility that vagueness gives to all normative methods of social control can scarcely be overestimated and is recognized by all. It allows man to exercise general control over his social development without committing himself in advance to any specific concrete course of action. Without such flexibility, man would have to choose between no regulation and the impossible task of minute specification of what is and what is not to be permitted. (p.890)

The best example of this, he says, is the "due process" provisions of the fifth and fourteenth amendments of the Constitution. Christie also gives the example of the Supreme Court ordering that integration of schools proceed "with all deliberate speed." It was left to the lower courts to decide what this meant in each specific case.

Here is where Christie makes his main point: Such "purposeful vagueness" can be a good thing in legislation. Christie further makes the point that vagueness in law may be desirable for the public good. For example, in the above mentioned case of implementation "with all deliberate speed." He says that the fact that this speed was unspecified was advantageous to the public. It is, he stresses, "an aid to precision."

If humans had the necessary technical terms to always convey precise meanings of every complex idea, vagueness would not be necessary for achieving precision. However, this is not now, and will never be, the case. Further, even if this were possible, would it be beneficial? Vocabulary would have to be so enormous that it would be a moot point -- no one could hope to master it anyway.

Reasonable precision is a means to narrow down the meaning. Christie provides a few examples of how lawyers use the superimposition of several vague terms to arrive at a workable precision. From the 1938 Restatement of Torts:

An activity is ultrahazardous if it (a) necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care, and (b) is not a matter of common usage. (p. 896)

Differences can and do exist and even though they are difficult to articulate in words, it does not mean they should be ignored. The courts and juries are left to make distinctions among such words as "slight" negligence, negligence, "gross" negligence and recklessness. In other words, "distinctions are recognized in the law even though the distinctions cannot, in any very helpful sense, be adequately articulated" (p. 902).

Once distinctions are made in several prior cases, later cases that align with these cases can be decided in the same fashion. The judge can notify the jury members that in past cases "slight" negligence meant driving at 35 miles per hour and negligence meant driving at 60 miles per hour. The jury members thus have a criterium on which to base their determination.

Vagueness, Christie concludes, is a necessity. First, because it is too difficult to clearly articulate all situations. Second, and more important, because flexibility is necessary in law. He does have one caveat:

there are some jobs which our linguistic tools, partly even because of vagueness, cannot completely perform without the adi of other communicaiton devices. The error to be avoided here, it has been submitted, is that of assuming that because general rules cannot do it alone the job cannot be done, or is not worth doing. That would be an error of the first magnitude. (p.911)

It is difficult to find fault with Christie when he discusses the problem with trying to clarify every law in specific black-and-white terms. It would be virtually impossible to try to cover all bases. There has to be room for interpretation. Also, there has to be some flexibility. That is one of the strengths, and weaknesses (depending on the situation and who is involved) with American law. For example, trying to specifically define pornography is too difficult. The vagueness of the term has to be decided case by judgment.