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Free Speech and the Myth of the Slippery Slope

The Supreme Court is poised to consider a case that will once again parse one of the deepest issues of democratic government: what, if any, are the proper limits of free speech?

It is widely accepted that you cannot yell “fire” mischievously in a crowded place or directly incite violence (although you can urge “revolution” in the abstract until you’re red in the face). But are there other limits, in particular in cases where the words in question would endanger not life and property but merely people’s feelings? Would restraints on some controversial speech cast a pall over all discourse?

This issue also carries implications for debates about other constitutional rights, such as those that surround the proposed “ground zero” mosque or government eavesdropping in the name of the global war on terror.

The court is weighing the free expression protections claimed by the Westboro Baptist Church of Topeka, Kan., and its pastor, the Reverend Fred W. Phelps. They believe that America has aggrieved the Almighty by tolerating homosexuality and that He is expressing His wrath by taking our sons in battle in Iraq and Afghanistan. To express approval of this divine punishment, they display placards at the funerals of our fallen warriors, saying “thank God for dead soldiers.” (The deceased needn’t have been gay; any soldier’s burial will do to make their point.)

Some families into whose wounds the Westboro church’s antics have poured salt have brought suit. The case may revolve around special laws governing behavior at funerals. But it raises deeper issues. If speech can be restricted at funerals, why not at other special moments?

“A broad coalition of media organizations and First Amendment scholars . . . . say ruling against the church would undermine the core protections of the First Amendment,” reports The Washington Post. And The New York Times argues that “it is in the interest of the nation that strong language about large issues be protected, even when it is hard to do so.”

But what is the reasoning behind this position? The Times notes that the court previously affirmed the right of Nazis to parade through Skokie, Ill., and upheld the antics of Hustler magazine. Yet few would say that the Nazis, Hustler, or the Westboro church’s fulminations somehow enrich us. Rather, the essential argument is the “slippery slope” analogy. If we countenance some constraints on freedom, why not others? Where does it end?

This argument has canonical status, but does it make any sense? The Times has little patience for this logic when the gun lobby advances it regarding the second amendment. The right to a gun needn’t mean the right to own an assault rifle.

Speech rights are far more important than gun rights (there are free societies without the latter; none without the former), but as a matter of narrow logic, it is hard to see why banning demonstrations at funerals is more of a slippery slope than banning assault weapons.

Moreover, a wealth of political history suggests that the slippery slope is a phantom. Almost all European countries ban “hate speech” and many ban Holocaust-denial. This goes against the American grain, but those countries have not sacrificed any other freedoms as a result.

Or consider West Germany. The Americans and Germans who framed the Basic Law of the Bonn Republic worked in the terrible shadow of Hitler’s destruction of the Weimar Republic, Germany’s only prior democratic experiment. They were also in uncomfortable proximity to Soviet-run East Germany. So they banned both the Nazi and Communist Parties on the grounds that they were totalitarian movements, aiming to destroy democracy itself. Far from turning into a slippery slope, under this system freedom took hold in Germany at long last and apparently forever.

What about America’s experience? The ambit of tolerated speech has grown relentlessly wider. In the realm of obscenity standards, we have gone from Lady Chatterly, to bare breasts, to full frontal, to pictorial gynecology. If there is any slippery slope, it seems to be tilted in the opposite direction from the one invoked by conventional wisdom. Were the court to uphold some constraints on speech, that would merely put us back to some earlier point in the unfolding of American free speech standards. When we were at that point, whatever and whenever it was, we did not slide downward to dictatorship but forward to where we stand today. Where is the danger?

I can think of no example in which rights disappeared down a slippery slope. Yes, the Communists used “salami tactics” in subjugating Eastern Europe, but the progressive loss of freedom was scarcely unforeseen. The Kremlin was bent on imposing its model of totalitarianism one way or another on the countries its troops occupied; the salami slices merely made the going smoother.

The slippery slope peril is a myth, much like the libertarian bogeyman that the welfare state will lead to dictatorship. In practice, European and other countries have infringed economic freedom without any loss of political freedoms. And they have also constrained speech in ways that most Americans (including me) wouldn’t do but with no further loss of freedom. A sovereign, self-governing people is capable of drawing lines.

To argue by imagery and analogy, as does the conventional wisdom apotheosized by the Times, rather than by logic and history, is, you might say, to step onto a slippery slope at the bottom of which lies lots of freedom of thought but very little thinking.

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