VOLOKH at mail.law.ucla.edu
Tue Jun 26 22:40:50 PDT 2001
I think Paul Horwitz's response to this post was excellent, but let
me just mention one other point.
I used to mock the ACLU's concern about slippery slopes -- until I
saw how deeply rooted the slippery slope phenomenon is in human psychology.
Steve's argument below is a classic example. We start with an exception for
speech A (obscenity, defamation, incitement). The exception seems plausible
to many, and suitably narrow, at least at the time. But then someone else,
who feels just as strongly about the evils of speech B ("hate speech,"
whatever that is), begins to feel unequally treated.
The feeling of unequal treatment makes exception A seem broader than
it actually is, a natural human reaction: Thus, instead of being limited to
obscenity, the exception looks like a ban on "pornography" and then an
exclusion from protection for "sex and violence" generally. Refusing to
create what is billed as a "very narrow" new exception for B (though despite
being advertised as "very narrow," the exception actually comes without any
precise definition) seems like discrimination, with shades of hostility to
"blacks and minorities."
So now the new exception, B, becomes almost a moral imperative. In
the name of equality (here, equality between the different kinds of
supposedly evil speech), we are asked to endorse an equality of suppression.
The supposedly defensible lines drawn around A are no longer particularly
Of course, the next question is: Once both A and B are recognized
as exceptions, what will be the next argument? What will be the C in "By
the way, does it strike anyone else as curious that we exclude pornography,
exclude incitement to violence, exclude defamation, exclude hate speech, but
as soon as someone says 'let's also exclude C [the ridiculing of religious
icons / nasty cartoons about Jerry Falwell / movies that glorify violence,
such as 'Dirty Harry' / movies that glorify adultery, such as 'Lady
Chatterley's Lover']' people say no? More bluntly, when it is sex,
incitement, sexism, racism, and homophobia, exclude it, but when it wounds
religious people, or unfairly attacks people, or teaches that violence is
OK, or contributes to the decline of important family values, well, then it
is OK speech?" Judging by Steve's own argument below, if the slide down to
hate speech is accepted by this sort of precedential logic, wouldn't it be
much easier to support still more restrictions?
Now I recognize that some exceptions to free speech protection are
necessary. But it seems to me that the slippery slope concerns amply
justify being extremely skeptical of any proposed new exception, and
weighing the risk of this sort of analogical "it's only fair to give us ours
when you have yours" expansion as one of the costs of the proposal. That's
one reason I oppose the obscenity exception, for example; and surely it's
one reason to oppose any proposed new hate speech exception, especially when
we're not even given any idea of how that exception will in fact be defined.
Steve Jamar writes:
> BTW, does it strike anyone else as curious that we say - exclude
> pornography, exclude incitement
> to violence, exclude defamation - but as soon as someone says "let's also
> exclude hate speech",
> the chorus of US-centric, received wisdom says "no" in the face of the
> rest of the world's
> saying "yes"? More bluntly, when it is sex and violence - exclude it -
> but when it is to
> protect blacks and minorities, well, then it is ok speech.
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