Attitude-Altering Slippery Slopes: Just What Will People Infer from Past Decisions?

[This month, I'm serializing my 2003 Harvard Law Review article, The Mechanisms of the Slippery Slope.]

From Legislative Decisions.—So far, I have argued that a legal rule may change some people's attitudes: People may apply the is-ought heuristic and conclude that if the rule exists, its underlying justifications are probably sound. And this conclusion may in turn lead people to accept other proposals that rest on these justifications.

Attitudes, however, are altered by the law's justifications as they are perceived. Say people conclude that A's enactment means that A is probably good, and that another proposal B is probably also good if it is analogous to A. Whether B is seen as analogous to A turns on which particular justification people ascribe to A, and see as being legitimized by A's enactment.

Consider, for instance, the tax for the support of Christian ministers that Madison condemned in his Memorial and Remonstrance. Madison reasoned:

Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

People should therefore be wary, Madison argued, of power "strengthen[ing] itself by exercise, and entangl[ing] the question in precedents"—they should recognize "the consequences in the principle," and "avoid[] the consequences by denying the principle."

But Madison's argument implicitly turned on the justification the public would infer from the law and accept as a "precedent" for the future. If the justification was, to borrow part of the statute's preamble, that the government may properly coerce people to do anything regarding religion, so long as such coercion supposedly has a "tendency to correct the morals of men, restrain their vices, and preserve the peace of society," then Madison's fears would have been well-founded. But if the justification was, to borrow another part, that the government may properly require people to pay a modest tax that will be distributed without "distinctions of preeminence amongst the different societies or communities of Christians," then his concerns would be less plausible.

Unfortunately, we often can't anticipate with certainty which principle a statutory scheme will eventually be seen as endorsing. Sometimes, the debate about a statute will focus on one justifying principle, and for some time after the statute is enacted, that will probably be seen as the principle that the statute embodies. But as time passes, the debates may be forgotten, and only the law itself will endure; and then advocates for future laws B may cite law A as endorsing quite a different justification.

Consider the installation of cameras that photograph people who run red lights. If the policy's existence will lead people to conclude that the policy is good, and will thus lead them to view analogous programs more favorably, what justification for the policy—and thus what analogy—will people accept?

Some people will infer the justification to be that "the government may properly enforce traffic laws using cameras that only photograph those who are actually violating the law" (J1). Others, though, may draw the broader justification that "the government may properly record all conduct in public places" (J2). Decision A (cameras aimed at catching red light runners) might thus increase the chances that decision B (cameras throughout the city aimed at preventing street crime), which J2 would justify, will be implemented. {This result would be especially likely if public opinion on B were already so closely divided that influencing even a small group of voters could change the result.} And if you strongly oppose B, this consequence would be a reason for you to oppose A as well.

This possibility suggests that Madison might have been right to consider the worst-case scenario in assessing how the tax for support of the Christian ministers might change people's attitudes. People might have seen it as endorsing only a very narrow principle, to which even Madison might not have greatly objected, but they might also have seen it as endorsing a much broader principle. And if one thinks that one of the potential B's that can flow from A is very bad, this may be reason to oppose A even if the chances of A facilitating that particular B are relatively low.

From Judicial Decisions.—Judicial decisions, unlike many statutes, explicitly set forth their justifications, and might therefore have more predictable attitude-altering effects. But people might still interpret a decision as endorsing a certain justification even if that's not quite what the decision held, partly because many people don't read court decisions very closely or remember them precisely (again because of rational ignorance).

All of us have some experience with this phenomenon, where a decision is boiled down in some observers' minds to a brief and not fully accurate summary. Thus, for instance, in Zacchini v. Scripps-Howard Broadcasting Co., the Supreme Court held that an unusually narrow state "right of publicity" claim didn't violate the First Amendment, but repeatedly stressed that "[p]etitioner does not merely assert that some general use, such as advertising, was made of his name or likeness; he relies on the much narrower claim that respondent televised an entire act that he ordinarily gets paid to perform." Nonetheless, Zacchini is regularly cited for the very proposition that the Court explicitly refused to decide: that the more common version of the "right of publicity"—the right to control many uses of one's name or likeness—is constitutional.

Consider also Justice Holmes's statement that "[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic." This aphorism has entered common usage as an argument—endorsed by one of the great Justices, and one of the Court's earliest advocates of strong free speech protection—that some kinds of speech ought not be constitutionally protected.

But most people quoting the phrase omit the "falsely," which changes the meaning substantially. {A LEXIS search in the NEWS;US file for "(shouting fire in a theatre or shouting fire in a theater or shouting fire in a crowded theatre or shouting fire in a crowded theater) and date(< 1/1/2002)" yielded 333 results. The same query with "falsely" before each "shouting" yielded only 72. Some of these results were false positives (for example, stories that used the metaphor more broadly than just in a free speech context, and the occasional story discussing the common omission of "falsely"), but only relatively few.} Under modern doctrine, for instance, falsely shouting fire would be punishable under the false statements of fact exception to free speech protection, while accurately shouting fire probably wouldn't be punishable. If Holmes's point were quoted precisely, it would provide little support for, say, restricting advocacy of anarchy, allegedly racist statements, or communication of private information about people. Many commentators, though, seem to have absorbed the principle in a form that's broader than its literal boundaries.

{See, e.g., Ad Generates Free Speech Debate at U. Colorado, Colo. Daily, Mar. 21, 2001 ("William King, a professor of Afro-American studies at CU, said that while free speech allows for ads [stridently denouncing the calls for reparations for slavery] to appear in print, common sense should keep them out…. 'It's a whole lot like shouting "fire" in a crowded theater,' said King."); William Claiborne, Community vs. Klan in a Contest of Rights: City of Gary Seeks To Stave Off Rally by "Spewers of Filth", Wash. Post, Jan. 19, 2001, at A3 ("For his part, [the mayor of Gary, Ind., Scott L.] King on Wednesday said that for the Ku Klux Klan to come to Gary, where the population is 85 percent African American, 'gets pretty close to shouting "Fire!" in a crowded theater, which in my view is not constitutionally protected speech."'); Michael Ko, Kirkland Sues over Police Data: Web Site with Officers' Personal Details Abuses Free Speech, City Manager Says, Seattle Times, Apr. 3, 2001, at B2 ("The release of home addresses and Social Security numbers is like 'shouting fire in a crowded theater."'); Carrie Smith, Board Denies Request for School Anarchy Club, Charleston Daily Mail, Oct. 30, 2001, at 5A ("A Sissonville High student's request to start an anarchy club at her school was overthrown by board members, who … likened it to shouting fire in a crowded theater.").}

This tendency may be exacerbated when decision A is justified by a combination of factors, because it's easy for people's simplified mental image of the decision to stress only a subset of the factors. Consider, for instance, the pen register decision (Smith v. Maryland), which let the government get—without probable cause or a warrant—a list of all the phone numbers that someone has dialed. The decision rested on three main justifications: the Court began by pointing out that the phone numbers didn't reveal that much about a conversation (J1); it ended by arguing that "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties" such as the phone company (J3); and in between, it included the following argument about people's actual expectation of privacy (J2):

[W]e doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must "convey" phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. In fact, pen registers and similar devices are routinely used by telephone companies "for the purposes of checking billing operations, detecting fraud, and preventing violations of law." … Pen registers are regularly employed "to determine whether a home phone is being used to conduct a business, to check for a defective dial, or to check for overbilling." … Most phone books tell subscribers … that the company "can frequently help in identifying to the authorities the origin of unwelcome and troublesome calls." Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes…. [I]t is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.

When the Internet tracking question arose more than twenty years later, however, justification J2 was nowhere to be seen, though the analogy to Smith was a big part of the debate. Had J2 been absorbed into people's attitudes, people might well have resisted the analogy, since J2 doesn't apply to Internet communications. But apparently Smith led people to believe that the warrant requirement should be relaxed whenever J1 and J3 were applicable. J2 was largely forgotten—perhaps "[t]he people [did] not comprehend such subtleties." And the Smith decision may have thus led many people to accept a justification broader than what the opinion itself relied on.

What can judges who see this possibility do? Making their justifications explicit, and perhaps giving some examples in which the justifications don't apply, might help, but it might not be enough: consider, for instance, Zacchini, which explicitly refused to decide the constitutionality of the broad right of publicity, but which has nonetheless been read as deciding just that.

Another option is to ignore this risk. I have a duty to decide the case as best I can, a judge might conclude, without changing my reasoning based on a speculative (even if sensible) fear that some people in the future might oversimplify the reasoning.

A third option, though, is to consider the possibility of oversimplification in close cases. A judge who feels strongly about, for instance, a broad vision of free speech or the Fourth Amendment, might adopt a rebuttable presumption against change—when it's a close question whether to create a new exception to speech protection or the warrant requirement, the judge might vote against the exception, because of the risk that even a carefully limited exception might later be oversimplified into something broader.