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

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

From Aggregates of Legislative or Judicial Decisions.—So far, the discussion has focused on the principles that people may draw from one statute or case. But people who are applying the is-ought heuristic often look to a broader body of law, especially since a set of decisions would likely be seen as more authoritative—and deserving more deference—than a single decision.

In looking at this broader body of law, people are especially unlikely to precisely absorb all the details of each past case or statute; instead, they tend to try to fit the decisions into a general mold that stresses one or two basic principles at the expense of many of the details. And it is this mold, imprecise as it may be, that is remembered and that can influence people's attitudes.

(a) Rules and Exceptions.—One classic example of such a general mold is "This is the rule, though there are some exceptions"—for instance, the government may not impose content-based speech restrictions unless the speech falls into one of several narrow exceptions, or searches require warrants "subject only to a few specifically established and well-delineated exceptions." The simple rule can have powerful attitude-shaping force, and the first decision A1 carving out an exception probably wouldn't materially undermine this force: people would still think "There is a rule, though there's also a rare exception." The second exception, A2, might not undermine the rule's force either, especially if it seems necessary (for example, a free speech exception for death threats).

{This possibility is especially likely when all or most of the exceptions are likely to be seen as fitting within some exceptional supercategory—for instance, cases that have been traditionally recognized as being outside the main principle, or cases where there's a clear, immediately pressing need for the exception. Such a rule, together with its exceptions, is more likely to be seen as a simple "Require a warrant unless there's a clear, immediately pressing need to act without one," rather than as a complex "Require a warrant except in case A1 for one reason and in A2 for another and in A3 for another …." And if rational ignorance leads people to want to internalize a simple principle, the first principle will likely be accepted by people on its own terms, while the second may end up being simplified to "There really isn't much of a warrant requirement at all."}

But at some point, some people who are surveying the body of decisions may start concluding that the law is so internally inconsistent that they can't distill any core underlying principles from it, or even that the exceptions themselves have become the rule. The first exceptions might not lead to this, but each additional exception might make it more likely, even after the first few exceptions have been accepted. One needn't take the "in for a penny, in for a pound" view that since the law has already compromised a bit on the principle, there's nothing to be lost by compromising further.

The attitude-altering slippery slope may thus counsel against the creation of each additional exception, especially an exception that doesn't fit into some compelling overarching justification, such as one based on the presence of an emergency. Again we see a plausible argument for a rebuttable presumption against even small changes: avoid creating new exceptions unless there's a strong reason to do so, since even seemingly small exceptions may help undermine the rule's attitude-shaping force.

(b) Several Decisions Being Read as Standing for One Uniting Principle.—Just as people often try to identify what is the rule and what is the exception, they sometimes take several decisions—especially ones that already have a common label—and pull from them one basic justification that these decisions all share, placing less weight on the countervailing principles that might appear only in one decision or another. And it is this inferred justification, shorn of any limits or reservations, that may end up being remembered and affecting people's attitudes. { A whole genre of legal writing, of which Warren & Brandeis's The Right to Privacy is the classic example, tries to take advantage of this tendency by drawing from a line of cases a single uniting justification that goes considerably beyond the particular holdings of each case.}

Consider, for instance, intellectual property rules. The legislators and courts that created these rules have generally limited the rules in important ways, ways that have often been influenced by free speech concerns.

Thus, copyright law bars you from publishing expression that's too similar to what another wrote, but leaves you free to use the ideas and facts that others have pioneered, or to use even their expression of those ideas and facts when it's needed for criticism, commentary, or parody. Right of publicity law bars you from broadcasting someone's entire act without permission, or using someone's name or likeness in your commercial ads, but leaves you free to use the name or likeness in a news report, a biography, a novel, or various other contexts. Trademark law and trade secret law, the other two main intellectual property rules that restrict speech, are likewise constrained by their own limiting principles.

The Supreme Court decisions that have upheld various intellectual property laws against First Amendment challenge rely on these limitations. The Court has never said that intellectual property laws are constitutional simply because they are called property rules. Rather, the Court has acknowledged that the laws restrict speech and thus must be tested against the First Amendment's commands, and has generally upheld restrictions on the ground that they are narrow and thus don't unduly burden others' speech.

People who pay attention to the details of these laws might thus have their attitudes altered only modestly by the laws' existence. The is-ought heuristic may lead them to conclude that Congress may properly give people a monopoly over expression (but not ideas or facts), subject to fair use, or may properly restrict the use of certain words and symbols in advertisements (but not in newspaper articles) to prevent consumer confusion and possibly trademark dilution.

But some courts, commentators, and legislators have drawn a much broader principle from the intellectual property laws' existence and constitutional validity: legislatures, they seem to conclude, should be free to create whatever intellectual property rights they want, whether in expression, facts, or symbols, and whether covering only commercial advertising or a wide range of other speech. And the First Amendment is inapplicable in such cases, simply because "[t]he First Amendment is not a license to trammel on legally recognized rights in intellectual property."

This process, I think, explains the ease with which some have embraced new intellectual property-based justifications for speech restrictions, such as flag-burning bans, restraints on the use of facts disclosed by the Federal Election Commission, and bans on people communicating supposedly private information about others. These arguments generally don't rely on detailed analogies to existing intellectual property rights, but rest instead on broader assertions that intellectual property rules are per se proper.

The rules A1 (copyright), A2 (trademark), A3 (right of publicity), and a few others seemingly lead these observers to accept not a set of detailed, specific justifications, but rather one overarching justification J: the government may constitutionally give an entity the power to restrict others' communication of material just by giving the entity an intellectual property right in that material. And this principle seems so powerful to its adherents that they often don't even respond to the argument that the First Amendment limits the "power of [the legislature] to privatize [certain expressions, facts, or ideas], rendering [them] unutterable by anyone else." Constitutional law, some say, rests in large part on the allocation of baseline assumptions about what is mine and what is yours. And the existence of intellectual property law seems to have shifted some people's baseline to be that words and symbols can be freely made someone's property—and thus unusable by others—just as tangible property can be.

Why do some people internalize just this broad principle J, rather than the narrower principles that actually correspond more closely to the boundaries of each law? One possible reason is that J seems to undergird each intellectual property law, while the countervailing principles limiting each rule (copyright can't protect facts or ideas, the right of publicity doesn't apply to news or fiction) are more rule-specific. Thus, each new intellectual property rule that a person sees reinforces the common principle J, but doesn't much reinforce the limiting principles, which vary from rule to rule.

And since people's bounded rationality tends to make them seek simple summaries, the principle on which they focus, and the one that most affects their attitudes, is the one overarching common thread, and not the many important but detailed reservations. The existing intellectual property rules can therefore influence some people (though not all people) to accept the broad justification J, and thus pave the way for new restrictions that are also justified by J but that lack the limiting principles present under the old rules—for instance, a right to own information about oneself (B1), a property right in databases of facts (B2), or a broadened right of publicity (B3).

Some of the original A's may be sound, despite the risk that they may lead to the B's. But the more the public accepts intellectual property-based speech restrictions, the more people will shift from thinking "It's proper to let people own copyrights, subject to traditional copyright limits, trademarks, subjected to traditional trademark limits, and so on" to thinking "It's proper to let people have intellectual property rights over any concepts, be they expressions, ideas, facts, words, symbols, or anything else."