39.

TOLERATING SKID MARKS ON THE SLIPPERY SLOPE

Absolutists might actually feel that we would all be better off if we lived in a society without hate speech or one that banned high-magazine-capacity assault rifles. But they cannot allow that desirable outcome to take hold of their senses because they are fixated on the horror that awaits us all at the bottom of that improbably lubricated slope.

NOT UNLIKE DEBATES about the Second Amendment, the First Amendment is riddled with slippery-slope delusions. Indeed, both the NRA and the ACLU would not exist without slippery-slope thinking—the doomsday scenario that can only be avoided by doing nothing at all. NRA supporters hold fast to arguments such as, “If guns are outlawed, only outlaws will have guns,” or “If they come for my semi-automatic assault weapon, the next thing you know they’ll show up and confiscate my deer hunting rifle or small handgun.” Those on the other side of the argument see nothing but hysterics playing politics with their singular obsessions—all to the detriment of the rest of us. Opposing the slippery slope requires making those who live according to such zero-sum thinking look positively unhinged. Only a crazy person would point to a slippery slope in order to put their overreaction under solid ground. Stanley Fish wrote that, “to most people, the slippery-slope argument sounds paranoid. So, the anti-gun side achieves a strategic objective: making the NRA and its allies look first unreasonable and then disreputable.”³⁹⁴

Invoking the slippery slope is an effective, metaphorical way to excuse not taking a moral position all due to an exaggerated fear that one step in the wrong direction might unleash a cascade of causality. It anticipates a parade of horribles, an unstoppable force of unforeseen calamity, instigated by pulling on a single thread from the status quo. It is a rhetorical technique that infuses rational argument with an emotional consequence, “an ominous or threatening warning about the alleged government policies or intentions that most of the audience of the speech would be likely to view with alarm.”³⁹⁵ Fish said it best in explaining the slippery slope as “what begins as a small and limited restriction may in time flower into full-fledged tyranny. This is known in the trade as the ‘slippery slope’ argument, and it says that, given the danger of going down the regulatory road, it is safer to never begin.” It is a species of “worst case scenario[s] . . . [which] assumes that there is nothing in place, no underbrush, to stop the slide. . . . Slippery slope trajectories are inevitable only in the head, where you can slide from A to B to Z with nothing to retard the acceleration of the logic. In the real world, . . . the chances of ever getting to Z are next to nothing.”³⁹⁶

With the First Amendment, the concern is that censorship, in any form and no matter how slight, once permitted, will lose all fail-safe protocols to prevent the future regulation of almost anything that might come out of a speaker’s mouth. “Sure, take away a Klansman’s right to burn a cross, but then the next thing you know, any criticism of the government will be outlawed as sedition. We won’t be allowed to say anything!”

Calm down. Not likely. We have already created a few limited exceptions to the First Amendment. And Americans are still, apparently, speaking freely. We have already taken a few measured steps down the slope without tumbling. We continue to live in a thriving, free-speech society. Absolutism on free speech, no matter what First Amendment diehards wish to believe, has already been rejected. We all know there are some things that cannot be said. And liberty functions just fine.

The slippery slope paralyzes us with line-drawing trepidations—where, exactly, to draw the line without stifling political speech and making a disastrous mistake. But drawing the lines on speech should not be so terrifying to imagine. After all, arbitrary yet workable lines are drawn and accepted in every other area of the law without the world coming to an unavoidable end—had only we exercised the good sense to draw that fateful line elsewhere. Indeed, all of stare decisis is a line-drawing exercise. Defining the standard of care in negligence. Determining the mens rea in premeditated murder. Establishing the meeting of the minds in the formation of a contract. All those areas of the law have been structured to accept definitional lines. And there are firm lines already drawn under First Amendment law that separate protected speech from the proscribed categories of libel and defamation, obscenity, “true threats,” “fighting words,” and “the incitement of imminent lawlessness.” Not being permitted to shout “Fire!” in a crowded theater is separated by a line that demarcates other words that can be yelled in a packed house, such as “Bravo!” at the closing curtain. These admonitions were created somewhere along the slope. A line was drawn and a stake pitched. And the ground held. Ankles remained unbroken despite the perceived overblown adventure downward. Schauer has written that, “[i]t is not when we are at the bottom, but only when we are at the top of the slope and afraid of sliding to the bottom, that we need a slippery slope argument.”³⁹⁷

Why do we not fear the slippery slope that exists in the opposite direction—as in not venturing any step at all, of doing nothing? There are costs to living in perpetual fear of the slippery slope—morally, if not legally. After all, the whole argument that gives the slippery slope its trajectory is based on the unexpected improbable extreme. It is the legal equivalent of the boogeyman. Yet, no one can live a meaningful life always on guard for the worst-case scenario. Such skittish behavior does not make for good law, either. With respect to the First and Second Amendments, by allowing stasis to prevail, and with no deviation from the general rule that allows free speech and permissive gun ownership, we have surrendered to a permanent state of both verbal and gun violence without reprieve—all because we live in mortal terror of cascading down the slippery slope. After all, any time a slippery-slope argument is made, there is an implicit concession that the envisioned change in the law is eminently reasonable, if not favorable, in and of itself. We know we should do it—but for the slippery slope. Absolutists might actually feel that we would all be better off if we lived in a society without hate speech or one that banned high-magazine-capacity assault rifles. But they cannot allow that desirable outcome to take hold of their senses because they are fixated on the horror that awaits us all at the bottom of that improbably lubricated slope.

The phantom abyss prevents policy proposals that would benefit us all. Law professor Susan Bandes correctly diagnosed the central flaw in the logic of the slippery slope by observing that “for fear of the wrong result later, the Court chooses the wrong result now, based on the mistaken belief that by preserving the status quo it has not acted; that by choosing a rough form of justice it has avoided the question of justice entirely.”³⁹⁸

Schauer raised the very real possibility that, with a prohibition of all pornography, for instance, the Western world might never have seen the publications of Ulysses or Lady Chatterley’s Lover. The raunchiest porn movie may never have flickered on a screen, but would that be worth the absence of Tropic of Cancer? Absolutism against obscenity would have made the world poorer culturally. Absolutism on free speech can devastate the assurances of citizenship and do lasting damage to victims of violence done with words. Absolutism on unregulated gun ownership is an invitation for mass shootings. Distinctions and allowances must be made; otherwise the dark side of the slippery slope will cast its shadow on precautions not taken.

Justice John Marshall Harlan, in Cohen v. California, famously wrote that “one man’s vulgarity is another’s lyric.”³⁹⁹ Justice Lewis F. Powell, in Gertz v. Welch, was equally lionized for having penned, “There is no such thing as a false idea.”⁴⁰⁰

Both statements, however, are wrong. A vulgarity is properly named because it cannot be set to music. It is atonal and jarring, incompatible with the synchronicity of an actual melody. No lyric will be inspired by it. No words can be put to it. And many ideas are false—easily disproved, poorly reasoned, maliciously formed, nonsensical, and idiotic at their inception.

Yet, we continue to cling to these judicial pronouncements because they help justify the extreme liberties taken by the First Amendment. What they have in common is the dead-end, defeatist propositions: “When it comes to words, how can we know what it all means?” “Who can really say?” “Everything is subjective.” “The eye of the beholder is blind.” In such a climate of zero-sum uncertainty, courts have cozily taken the position that free speech simply should not be curtailed. Flooding society with speech is the safer bet. Regulating speech carries too much risk and will turn a fool’s errand into a full-time job.

And so, judges and juries are deemed incapable of deciding on such matters as drawing a red line between speech and non-speech. This cavalier attitude behind the relativism of vulgar lyrics and false ideas is an outright surrender to a “no-go zone” of constitutional interpretation. Leave the First Amendment alone. The government should not be interfering with speech, we are told. As Professor Fish has written, it all suggests “a self-imposed incapacity to make distinctions that would seem perfectly obvious to any well-informed teenager.”⁴⁰¹

Instead, we resign ourselves to the view that this is the price we all must pay for living in a liberal democracy. A great deal of indignity must be endured in order to earn the freedoms we have been granted. Law professor Eugene Volokh has written that even murder itself is worth the price. “The First Amendment requires us to run certain risks to get the benefits that free speech provides. . . . These risks may include even a mildly elevated risk of homicide—for instance, when speech advocates homicide, praises it, weakens social norms against it. . . . Each such crime is of course a tragedy, but a slightly increased risk even of death . . . is part of the price we pay for the First Amendment.”⁴⁰²

Murder is an acceptable compromise for having free speech? The Framers would be shocked by how we have twisted ourselves into embarrassing knots of misguided thinking. I prefer what Professor Leiter wrote in response to this slippery-slope stranglehold. He wonders why we should all accept the “irresponsible libertarian position that we should tolerate the damage to truth and to the well-being of victims of bad speech as necessary costs to be born on behalf of insuring the possibly true, non-harmful and otherwise valuable speech might be heard, even though unpopular.”⁴⁰³ Fish correctly noted that the price we have to pay for living in a democracy is that injury or harm to others is something we should all learn to live with. Those who say this are almost never themselves paying the price.⁴⁰⁴