Posted by Eugene Volokh:
Slippery Slopes in Action:
[1]Raffi Melkonian points to the English proposal to ban incitement of
religious hatred as an example of a slippery slope (what I call the
"equality slippery slope"):
The British home secretary, David Blunkett, has [2]proposed a ban
on speech that incites religious hatred. The law would obviously be
unconstitutional in America, I think, since it throughly fails the
Brandenburg test. But far more astonishing is one of Blunkett's
arguments in favor of the ban. As he puts it today in the Observer,
For example, how can a modern society say Jews are protected
(rightly, because they are covered by race laws, rather than
religion), yet Muslims and Christians are not? Can it be right that
hatred based on deliberate and provocative untruths about a
person's religion remains unchallenged?
But this is a particularly weak argument, because it doesn't
explain why laws against incitement to racial hatred (but which
fall below the barrier to incitement to violence) ought to exist.
And for those of us who have heard Professor Volokh's Slippery
Slope talk (or read the article), I can't think of a more
paradigmatic example of how one undesirable law can be used to
faciliate the passage of another one later.
For more on equality slippery slopes, see [3]here (especially starting
at p. 17). One way of thinking about this is "censorship envy," as
some groups that might otherwise tolerate offensive speech demand its
restriction when they see that speech which is hostile to other groups
is restricted. (See my [4]explanation of why this should lead us to
resist calls to ban flagburning.) Or one could focus on voters in the
majority, as the equality slippery slope analysis does: If one
important part of a pro-free-speech majority coalition values equal
treatment of speech, then carving out one exception may lead them to
swing around to supporting another exception, because their preference
for equal treatment (e.g., of speech that's hostile to Jews, an ethnic
group, and speech that's hostile to Muslims, a racial group) overcomes
their support for free speech rights.
In any case, all this suggests that supposed free speech "extremists"
or "paranoids," such as those who are (sometimes) in the ACLU, aren't
paranoid at all: They are quite reasonably fearful that recognizing
even narrow exceptions from free speech (e.g., for inciting racial
hatred) may lead to broader ones in the future (e.g., for inciting
hatred towards religions, which are after all ideologies that
sometimes merit condemnation or even hatred).
References
1. http://blogs.law.harvard.edu/waddle/2004/12/12#a1626
2. http://observer.guardian.co.uk/comment/story/0,6903,1371870,00.html
3. http://www1.law.ucla.edu/~volokh/slipperyshorter.pdf
4. http://www1.law.ucla.edu/~volokh/flag.htm
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