Free speech. Eminent domain. Why does the slippery slope argument appear in opposite ways in those two areas?
Let me explain. In the recent Kelo
decision, the plaintiffs were very sympathetic. Yet they lost. The underlying motivation behind the majority's decision, as well as the reaction from some
(note: some) liberal bloggers
to be something like this: "This may be a bad outcome in this particular case, but think how awful it would be if courts started protecting property rights with too much vigor! Why, we wouldn't want to risk creating a doctrine that might someday block a beneficial governmental action. So it's better just to take a hands-off approach. The majority can pretty much do what it wants."
But in free speech, the opposite occurs, all the way around. Many of the most famous free speech cases have involved plaintiffs who are not sympathetic at all, but instead who have engaged in speech of the most juvenile, obscene, or useless sort. Even activities that are not speech at all. Thus, we have famous Supreme Court cases that assumed that the First Amendment applies with full vigor to: (1) flag-burning; (2) nude dancing; (3) the production of computer-generated child p**n; (4) the burning of draft cards; (5) the wearing of a jacket that says, "F*** the Draft," (6) cross-burning, and so on. In the free speech arena, the usual thought is, "Well, this may be useless activity that barely qualifies as speech (metaphorically). Nonetheless, we the courts have to bring the full weight of the Constitution to bear here, because once the government starts regulating even the most frivolous speech, it won't be long before the government is restricting actual, valuable speech on one topic or another."
So there you have it. In one area, we have to tolerate the worst sort of private actions because we are too afraid of letting the government have any foothold to regulate. In the other area, we have to tolerate the worst sort of governmental abuses because we are too afraid of the slightest impingement on government power.
If the two areas resembled each other, however, you would see one of two arguments: (1) "We have to allow the government to regulate the most high-minded political speech, because if courts ever started enforcing the Free Speech Clause, pretty soon the government wouldn't be able to do all the valuable work of banning flag burning, nude dancing, etc." Or: (2) "The government can't ban even toxic pollution, because if the courts permitted even the slightest interference with the most harmful exercise of property rights, soon the government would be taking away poor people's houses and giving the land to private corporations."
Interesting that one never sees either of those