Slippery Slope Arguments in History: The Supreme Court in the Flag Salute Case

From Justice Jackson's majority opinion in W. Va. State Bd. of Educ. v. Barnette (1943):

As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity…. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters…. [T]he First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings.

Comments

[wreckinball]

Good timing. Now does 1A apply to protesting elections?

[DaivdBehar]

Soviet style show trials and a Democrat infomercial. A diverse thug summarily executed an unarmed woman. This hearing is a hate speech joke. It is just generating hate for the Congress.

[Ed Grinberg]

They think it's generating hate for Republicans. They sure are dumb...

[Frank Drackman]

Not like there's Reichstag Burning Levels of Inflation (Germans do "Insurrections" right) 5$/gallon gas according to PMS-NBC (really? where? I'm in Commie-fornia) I know, drive an electric car (HT P. Booty-Judge, Debbie Stab-me-now, heck even Larry David only drives that electric BMW when he's on the Left Coast, takes a "Jet-A" burning jet when he flies east) Baby Formula Shortages (is there a Baby-Mama-Breast shortage?? more jobs Amuricans won't do) and Sleepy bumbling into World Wah Drei, (Hmm, arming the Roosh-uns Enemy, apparently Sleepy hasn't heard the "Friend of my Enemy is my Enemy" (or forgot it)
But hey, the Token Chairman of that Kangaroo Court did a good job of putting me to sleep,

Keep up the Great Work Brownie! (I'm talking about Sleepy, not the Chairman)

Frank "that Gallows was outrageous! Tarring and Feathering would be more appropriate"

[Jimmy the Dane]

First the dems said they would not use the commission for political publicity. Then they hire an actual news producer and put on sham "hearings" during prime time. What a joke. To top it off, they think everyone is too dumb to figure out what they are doing. I predict this is going to backfire big time for the Congressional dems and they are going to regret it.

What is scary though is that the commission seems to be working with the Department of Political Prosecutions for Some States of the Banana Republic of America to time indictments. If you have any real concern about civil liberties in this country, that should put the fear of God in you.

[Bob from Ohio]

"I predict this is going to backfire big time for the Congressional dems"

Nah, its not going to have any impact either way, not enough people care.

Now 10%+ food inflation and $5 gas, that will backfire big time on the dems.

[Frank Drackman]

5$ gas?? where? I'm in San-Fran-Sissy-Co!

[DaivdBehar]

Here is a slippery slope. The lawyer has markedly over valued life, so that it can collect higher contingency fees. The scumbag, thieving judges have allowed it. George Floyd was a career criminal criminal and drug addict. The value of his life was negative. Meaning, everyone, including his family, is better off after his passing. Yet, the thieving lawyer scumbags stole $27 million from the taxpayer.

[DaivdBehar]

If Floyd was worth $27 million, Ashli Babbitt, the unarmed mom and vet summarily executed by that diverse Democrat assassin thug is worth $100 million.

[Sidney r finkel]

I assume the Justice was talking specifically about Florida goveror Ron DeSantis.

[wreckinball]

So we have a televised Kangaroo court going on right now:

"Those who begin coercive elimination of dissent soon find themselves exterminating dissenters"

Does this apply?

[wolfefan]

It's not a kangaroo court. It's not a court of any kind.

[Dan Schiavetta]

The last two generations of Republicans, and most of the members of the Court today, would disagree with Barnette. Just to state the obvious.

[Bob from Ohio]

"last two generations of Republicans"

Not true, every generation of Republicans disagree with Barnette.

[Krychek_2]

This raises an interesting question. The originalist understanding of the right to free speech is that (1) it only covers political speech; and (2) it only forbids prior restraint; after you speak, you can be punished for what you said.

With the originalists now having a majority on the Supreme Court, are we about to find out we don't have nearly as much free speech as we thought we did?

[Bob from Ohio]

The regime arrested an opposition candidate yesterday for making gestures at a protest. So I'm not too worried right now about your idle speculation about the supreme court

[Krychek_2]

Well, that’s one take on the facts.

[Bob from Ohio]

A correct one.

"continuously gesturing toward the crowd to move up onto the stairs" Politico 06/09/2022 12:40 PM EDT

He also is accused of "climbing onto an architectural feature". Very heinous!

[Krychek_2]

He did so in furtherance of an attack on our democratic process. He was in a restricted area at the time. I guess if you ignore those facts he was otherwise just a tourist.

[Ridgeway]

That assumes that the 1A simply codified English common law, and that assumption is far from self-evident. Although the Alien & Sedition Acts were not challenged before the SCT (AFAIK), public opposition to them was very strong from the beginning, and that is significant evidence in favor of a broader interpretation of the original understanding of the 1A.

[Dilan Esper]

The second flag salute case. The first flag salute case, which went the other way... started no slippery slope.

[Dan Schiavetta]

Minersville v. Gobitis was an 8 - 1 decision. Three years later, overruled by Barnette. Murphy, Black and Douglas must have been embarrassed at the mistake they had made and changed their minds.

[Davy C]

I like how in that first case they said, unironically, that the flag was a symbol of "the protection of the weak against the strong; security against the exercise of arbitrary power". And they seemed to be making the slippery slope argument that if states couldn't do this, it would result in the destruction of our country and liberty itself.

[Longtobefree]

That was the OLD first amendment.
The one we have now is all different,

[Jimmy the Dane]

I think overruling Gobitis was more about how the decision was ultimately applied by government officials that shocked the Court. Many took it as being a license to enforce whatever loyalty code they wanted on anyone in a school. There are some pretty shocking articles from that 3 year period and a lot of litigation in lower courts citing that very case as justification for the government.

I have yet to see an authoritative or focused article delving specifically into this period of time, that being the 3 year interim from the case to it being overruled. But, I have seen some articles discussing it in general and if the government wanted to make a case on why the court was wrong they did a good job through their actions in that time period.

I suspect the New York Second Amendment case might be the same result. The government was "too cute by half" for way too long in saying "sure, we issue gun permits" but then essentially denying all permits by saying "funny, no one who ever submits an application seems to meet our qualifications for said permit".

[KCR]

"Compulsory unification of opinion achieves only the unanimity of the graveyard."

[Ben_]

I guess no one told Justice Jackson that the people on the bullying side were sooooo smart and accomplished and that the population they intended as their victims were the deplorables or crypto-nazis or some other fiendish storybook arch-villains — whatever names the other might be called.

[legalizeshrooms]

A society with free speech seems analogous to a well buffered solution in the following way: When there is free speech, all potential pluses and minuses of an issue are more likely to be considered. An extremist group is then less able to take control when there is guaranteed to be strong pushback.

[legalizeshrooms]

Of course this assumes that the process of changing opinions is reversible, as opposed to irreversible.

[Alpheus W Drinkwater]

Whatever else one thinks about Justice Jackson, he was a fantastic writer. Or his clerks were.

[Stephen Lathrop]

About slippery slope arguments generally, make it a point to notice. They tend to get offered by parties with an eye to a preferred status quo, and an intention to foreclose debates. Ben Franklin made a similar observation—about people who try to prevent discussions of rights by invoking them as absolutes. Franklin thought that unwise.

Over-reliance on slippery slope objections to actually moderate alternatives strikes me as unwise. The more intractable the debate, and the higher the stakes, the less wise it becomes. You do not want a mechanism used mostly to discourage debate to feature too much in a struggle over some unavoidable and desperately contested social issue.