Proposed First Amendment exceptions — that is, proposals to limit free speech — tend to fall into one of two buckets in America: arguments by analogy and proposals for new categorical exceptions.
The first bucket — the argument by analogy — is the most common. You see it in cases like that of Fred Phelps and his clan, in which censorship advocates argue that hateful protest signs at soldiers' funerals are, by analogy, like established First Amendment exceptions like fighting words or invasion of privacy or defamation.
The second bucket involves an attempt to create new exceptions. You see it in cases like U.S. v. Stephens, in which the government argued, in effect, "we already have a categorical exception to the First Amendment for child pornography; the Supreme Court should add a categorical exception for videos of people being mean to animals."
Both of these arguments are susceptible to, and commonly countered with, the slippery slope argument. "If you extend the fighting words or defamation exemptions by analogy to Phelps' funeral protests, then next you'll be extending the exemptions to anti-war protests at soldiers' funerals," the argument goes. "If you create a new categorical exemption for being mean to live animals, then next they'll want a new categorical exemption for being mean to dead animals," the argument goes. (As if we'd ever pass laws about being mean to dead animals!)
The slippery slope argument is not inherently or automatically right in every case, but it's an important cautionary metaphor premised on an understanding of how precedent works and how legal rules develop in America. The persuasiveness of the argument depends on whether we can imagine hypothetical future litigants and prosecutors and judges and jurors making decisions to extend exceptions to free speech in particular warned-of ways.
But there's a third bucket of free speech exceptions — and it's slippier than the slippery slope. The third bucket contains arguments that speech should be illegal when it offends or upsets people. The slippery slope metaphor is inadequate to capture the danger of the contents of this bucket, because you don't need to posit the subjective decisions of future litigants and judges and prosecutors and jurors. The subjectivity is already build in to the model.
I'm referring to anti-blasphemy and related hate-speech laws, the current darling of United Nations leaders, certain law professors, and detractors of American First Amendment exceptionalism.
Anti-blasphemy laws and racial-offense laws, at least as described by most proponents, rely for justification on the subjective reactions of listeners. As an NYU student puts it in decrying a subway advertisement using the term "savages":
If any group is targeted by hate speech, its dignity and its right to self-respect is not being protected by national law.
But dignity and self-respect are things in the control of the targets of hateful speech, not the people who utter hateful speech. The belief that particular words impair my dignity or self-respect is a subjective one in my own control; I can decide that some insults harm me and some do not as I like, perhaps based on my political views of the insulter. The same goes for the words of the Secretary-General of the United Nations:
"Freedoms of expression should be and must be guaranteed and protected, when they are used for common justice, common purpose," Ban told a news conference.
"When some people use this freedom of expression to provoke or humiliate some others' values and beliefs, then this cannot be protected in such a way."
Common justice and common purpose are subjective. Humiliation — particularly humiliation of "values and believes" — is subjective; humiliation only operates with the consent of the humiliated. Many are framing anti-blasphemy laws as limitation on deliberately giving offense; but offense is entirely subjective:
The head of a leading Islamic organization Saturday called for a global ban on offending the character of the Prophet Muhammad, saying that it should be equated with hate speech.
Violence in response to offense is also subjective — it occurs based on the subjective decisions and political calculations of the violent and amoral.
This discussion takes place not in a vacuum, but in a specific international context. The context is one in which a group unilaterally decrees that any depiction of an important historical figure is off-limits. The context is one in which illiterate children can be accused of blasphemy, and their lives imperiled, for tearing up trash in the street. The context is one in which people who have never touched a computer will burn temples and homes of religious opponents because they heard that someone posted a picture that someone else found to be offensive on Facebook. The context is one in which the decision to take offense is a political act. The context is one in which subjective complaints of offense are sufficient to cease art — and if not art, at least Andrew Lloyd Webber. The context is one in which subjectively angry people will kill you not only for what they consider to be blasphemy, but for opposing the criminalization of blasphemy. The subjectivity at hand is not merely the idiosyncrasies typical of all humans — it is violent and political and calculated. Under the First Amendment exceptions proposed by some advocates, these are the people who determine what you may say and what you may not by deciding whether or not they are offended.
When you criminalize blasphemy, or criminalize offending people based on race or religion, you do not merely entertain the risk that some future hypothetical prosecutors or judges or jurors will extend the law further than you intended. Rather, you directly surrender to the mob and its manipulators the classification of what speech is legal and what speech is not. You're not taking a tentative step onto a slippery slope. You're leaping off a precipice at the tip of a spear. The slippery slope metaphor — one of the most valuable rubrics of First Amendment analysis — is entirely insufficient to encompass the risk to future expression.
Bear this in mind when censorship advocates and First Amendment critics argue "the First Amendment is not absolute" and "we've made exceptions before" and "this is just like a category of speech we already ban." What is being proposed here — surrendering the right to speak to the subjective reactions of others — is different in both nature and degree.
Edited to add: Jacob Sullum points out an instance of capitulation to the subjective reaction of the mob.
Last 5 posts by Ken White
- A Response To Marc: Institutions, Agendas, and the "Culture War" - January 13th, 2016
- Lawyering Is About Service, Not Self-Actualization - January 11th, 2016
- Lawsplainer: Was FAU Prof. James Tracy Fired in Violation of His First Amendment Rights? - January 7th, 2016
- Defy, Defy, Defy. - January 7th, 2016
- President Obama And The Rhetoric Of Rights - January 5th, 2016