Slippery Slope Arguments in History: Cohen v. California (1971)

From Justice Harlan's majority opinion:

[T]he principle contended for by the State [which would allow the punishment of Cohen for wearing a jacket saying "Fuck the Draft"] seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us.

Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.

Comments

[ReaderY]

I think this example illustrates my general view that in practice, slippery slope arguments tend be used by people who think the thing being argued against is bad in its entirety, so if you give them an inch they’ll take a mile.

People who support these types of laws generally have little difficulty drawing and recognizing boundaries, even if they may sometimes have difficulty articulating them. As Justice Stewart once said, “I know it when I see it.” It is people who oppose these laws who don’t see any boundaries. In no small part because they don’t WANT to see them.

Professor Bernstein’s regular posts about race are similar. He doesn’t believe in racial classifications, so any classifications seem to him highly suspicious and arbitrary.

This issue applies regardless of whether we agree or not. When we outselves support the classifications, the arguments made by people claiming no classification is possible often seem pendantic and silly, even forced, to us. Yet when we ourselves oppose the classifications, we’ll often make the same sort of arguments.

[Krychek_2]

The problem with slippery slope arguments is that anything is potentially a slippery slope to anything else. We can't have laws against murder or armed robberty because once the government starts telling people what to do, next thing you know we'll have no freedom left.

So my question to proponents of slippery slope arguments is this: Where does it end? Is there a principled basis for line drawing so that we can set reasonable boundaries, or must we abolish laws against murder because they might ultimately lead to totalitarianism?

[DaivdBehar]

Government should stop physical and financial damages. Those are objective and measurable. Stay out of people's minds.

[DaivdBehar]

This not hard. The lawyer is not stupid. Well it is really stupid. Mostly it is generating worthless procedure in rent seeking. Stupid, greedy, thievin'.

[apedad]

"Where does it end?"

That's for society to answer.

And the answer will change from time to time as society changes, or in our federal system, different states will have different lines, e.g. some states have abolished the death penalty; some haven't.

[ReaderY]

And this is why I tend in general to be skeptical of slippery slope arguments. Being human involves drawing imperfect boundaries. Just about all our boundaries and categorizations are imperfect. As Justice Holmes famously said, there is no clear boundary between night and day, only shades of gray. So it is with everything. To argue that the lack of a clear boundary renders a classification useless is to argue that all classifications are useless. But that can’t be right. We need classifications.

So while there are definitely arguments that the First Ameendment should extend as Cohen v. California extended it, I don’t think the slippery slope argument is or was a good argument. I think states can maintain boundaries between what is and isn’t obscene as they have done for centuries. And the fact that those boundaries may seem arbitrary, indeed invisible, to opponents of obscenity laws doesn’t make them so. They are no more arbitrary, not less discernable, than the boundary between day and night. The fact that different people might place the boundary in somewhat different places (in both cases) doesn’t make the distinction useless or unworkable.

[ReaderY]

Similarly, most policies and most laws involve compromises, and setting boundaries, between competing interests, goals, and values. All of these compromises and boundaries could be characterized as arbitrary.

In general, slippery slope arguments are arguments that my values should trump yours completely, that if we allow your values any say at all, my values will get squashed, so butt out.

These sorts of arguments, in general, tend to be fig leaf justications for assertions of raw power, made by people in power to people not in power to “justify” their taking control, not legitimate logical arguments made between equals.

Yes, these sorts of arguments have played heavily in Supreme Court opinions in the last 60 years or so, and Cohen v. California is an example. But in my view, this doesn’t speak very well of the quality of the Supreme Court’s opinions.

[EscherEnigma]

The fact that different people might place the boundary in somewhat different places (in both cases) doesn’t make the distinction useless or unworkable.

When it comes to law? Yes, yes it does.

A person's personal preference can have ambiguity. A recipe for cake can have some room for ambiguity. The amount of rum to put in a rum and coke can have some ambiguity.

When you're talking about a law that will put someone in jail, ambiguity is a major problem. The law should not be full of "gotchas" and traps, it should be clear and well understood. So if you need to go to court, not to find out the facts of the case, but just to determine what the law is? That's bad ambiguity.

Or to put it another way... if a reasonable person would not have thought that putting "fuck" on a shirt was illegal, then a court shouldn't be deciding after the fact that of course it is. To argue the reverse is to argue that mens rea is a quaint notion†.

Ambiguity is one of those things that's fine in personal, private practice, and has no place in legislation. The fact that our courts and legislatures believe otherwise --that it's perfectly reasonable that it's impossible to look up a law and know what things it makes illegal-- is a fault, not a virtue.
________
†Admittedly, that's largely what prosecutors argue these days anyway, but we're talking ab what the law should be, not what it's been abused into being.

[MatthewSlyfield]

"When you're talking about a law that will put someone in jail, ambiguity is a major problem."

The law has to be written in a language people understand and that makes some level of ambiguity unavoidable.

[ReaderY]

Fine. No problem. Nobody ever goes to jail.

Society is better off, right?

If nobody ever goes go jail, nobody can ever go to jail because of an ambiguous law.

But if anybody goes to jail, anybody ever, it will be because of a law that’s ambiguous in at least some applications. There’s no escaping it.

Laws can be too vague. But all laws are somewhat vague. And the obscenity chanllenged in Cohen v. California was no vaguer than many other laws considered perfectly workable.

[Bob from Ohio]

"How is one to distinguish this from any other offensive word?"

IDK, maybe by being sentient. That particular word had always been considered the worst one. Courts draw lines all the time, they could have drawn one here.

Harlan was great but this was a mistake.

[apedad]

Agree.

"Draft" is a horrible word.

[apedad]

Prof. Volokh is right to highlight slippery-slope arguments and I'm starting to see them in all kinds of places.

For example, Eugene Kontorovich, a professor of law and the director of the Center for Middle East and International Law (CMEIL) at the Antonin Scalia Law School at George Mason University, who is widely regarded as the “intellectual architect” of anti-BDS laws, writes, "criticism of the (anti-BDS laws is) completely baseless, saying that such laws have been ruled constitutional under unanimous Supreme Court precedent and as indicated by the ideological diversity of the professors who signed onto the amicus brief.

This is not only clearly constitutional, but most importantly, if the anti-BDS law were to be held unconstitutional, it would call into question anti-discrimination law of any kind, foreign-sanctions law and just a wide variety of measures. . . .”

[ReaderY]

But that’s not really a slippery slope argument. It’s just saying that anti-BDS laws are squarely in the category of anti-discrimination laws and nowhere near the category of restrictions on speech. It’s not an argument against boundaries. It’s not like Professor Bernsstwin’s arguments about race, that say that the existing clasifications are arbitrary and should be abolished. It’s arguing the opposite, It’s saying that we should maintain the existing boundaries between speech and conduct, and apply it here.