Gun control, abortion rights, drug legalization — it seems like every argument these days claims that if X happens, then Y will follow, and we’ll all be doomed to Z. Is the slippery-slope argument a valid logical construction or just a game of feelingsball?

I am a criminal defense attorney and my practice is in military law.

Gold served as a surface warfare officer in the Navy, and after tours in the Persian Gulf and Hawaii, he decided to go to law school.

He wanted to keep working with the military, but he didn't want to be a lawyer for the military.

I had seen some serious flaws in the military justice system, and I wasn't quite sure I wanted to be fully a part of it.

During law school, Gold learned to analyze legal arguments, and there was 1 type of argument that he kept coming across.

I think I heard a clip in some podcast or something of a politician who had said, you know, allowing for universal background checks, It's a slippery slope from there because what prevents the government from then instituting entirely new and different surveillance programs?

I thought to myself, well, there's a lot of things that would prevent that from happening.

For instance, a new law would have to be made.

There would be a new Supreme Court ruling.

That said, the slippery slope argument is pretty much everywhere these days, at least in the media and in politics.

If we make the A.R.s, you have to register them or they're banned.

If we're just willing to cancel student loan debt, why can't we just cancel credit card debt, mortgage payments?

Again, it just leads to the slippery slope.

If we can't reach a point of integrity, honesty, and decency, we just slide down a slippery slope to chaos and fascism.

Have you ever wondered how the slope became so slippery?

Is it like the idea of going down a slope that's slippery?

I don't know why this particular thing caught my attention, but it did.

Gold sent us an email asking for an exploration of the slippery slope argument.

So here we are today on Freakonomics Radio.

We have rounded up a philosopher, some legal scholars and an anti-smoking activist to try to understand how the slope got so slippery, how much of the slippage is hyperbole, and why this is worth worrying about.

1 of the things that worries me about journalism as we are practicing it now is the monetization of scaring people.

If you scare people's face off, they will click.

We'll do our best to not scare your face off, but there's no guarantee, because once we get started, well, you know.

This is Freakonomics Radio, the podcast that explores the hidden side of everything, with your host, Stephen Dubner.

A slippage slope argument is a forward-looking causal argument.

It has various stages, a causal chain, you know, this will lead to that, that will lead to something else, and the terminal point of that slope is some undesirable consequence.

That is Chris Tindale, a professor of philosophy at the University of Windsor in Ontario, Canada.

I teach principally argumentation studies.

the nature of argument, the study of argument, the ways in which people argue tells us a lot about their values, a lot about the assumptions they're making about the world.

And how long has the slippery slope argument been around?

The origin is somewhere in the last century.

1 theory is that the phrase was popularized by the temperance movement, the anti-alcohol campaigners who brought us prohibition.

They argued that drinking in saloons would inevitably lead to death and destruction.

An 1887 cartoon called The Devil's Toboggan Slide shows saloons and popular hotels at the top of the slide and at the bottom, corruption and drunkards' graves.

Slippery slope is hardly the only phrase we use that connotes this sort of progression.

We've also got the domino effect, the thin end of the wedge, and everyone's favorite, letting the camel's nose inside the tent.

But slippery Slope is the most common, especially in public policy.

We've seen it in legalization around drugs, legalization around medical-assisted dying.

It's usually phrased in terms of freedoms.

You take away some freedoms, it's going to lead to the erosion of freedoms and ultimately the imposition of government control over all areas of life, which is obviously undesirable.

Okay, let's look at how a slippery slope argument figured into 1 big change in public policy.

Matt Myers In the 1950s and 1960s, over 45% of Americans smoked.

The Marlboro Cowboy was the image of coolness.

The Virginia Slims Woman was the role model for young girls.

And you literally couldn't go anywhere without being bombarded by cigarette smoke, whether it was on an airplane, a train, a bus, a restaurant, and frankly, in most of our homes.

You may have guessed, by Myers' use of the word bombarded, that he is devoutly anti-cigarette.

I'm the president of the campaign for tobacco-free kids.

I've been involved in this issue now for over 40 years.

For a long time, smoking wasn't considered dangerous.

Some promoters even claimed it had health benefits.

Surgeon General published a landmark report that laid out the dangers.

It took a while for regulation to catch up.

Smoking was allowed virtually everywhere, including on trains, buses, and airplanes through the 1980s.

In 1987, Congress passed a law that banned smoking on all flights under 90 minutes.

Because the tobacco industry claimed that it would cause mass chaos and that what we would see were literally riots on airplanes.

They said, you might well even see somebody come out of an airplane with a gun, who were so addicted that they would lose control.

And also created a picture of addicted pilots who would be unable to function.

The initial law banning smoking on short flights was by design and by request of the tobacco industry.

Doomed to sunset after only 2 years, the tobacco industry thought it would be so unpopular that Congress would never dare do it again.

When Congress revisited the issue, it banned smoking on literally all flights within the continental United States.

Smoking bans would follow in nearly all other public spaces, including offices and most restaurants and bars.

This all happened despite the continuing objections of the tobacco industry, which often invoked a slippery slope argument.

Every time any governmental agency has proposed new rules restricting smoking indoors, the tobacco industry has stepped forth to say, this will literally destroy the restaurant and bar business.

If you work in an office building, smokers are going to have to spend so much time outside smoking.

Your productivity is going to drop off and your business will fail.

In New York city, tobacco promoters vigorously opposed the Smoke-Free Air Act, which was passed in

Many of them argued that tourists would stop coming to New York City.

It would no longer be a destination for any foreign visitors because they would be unable to tolerate the rules of New York City.

They terrified restaurant owners and bar owners.

If we were able to restrict the right of an individual to smoke, there would be no end to government's restrictions on individual freedoms.

Did any of these slippery slope arguments have merit?

That's hard to answer definitively, but there isn't much evidence they did.

The predicted airline violence didn't happen.

The tourism and restaurant industries seem to have done okay.

Laws banning smoking indoors now have been in existence for about 30 plus years.

In the United States, there's literally hundreds of cities, 28 states.

Globally, 67 countries ban smoking indoors in virtually every place.

Study after study has shown that restrictions on smoking in restaurants and bars actually leads to more business, not less.

If you look at these research studies, there is some disagreement about the magnitude of these effects.

Still, it's obvious that the sky didn't fall.

And how about the argument that a smoking ban would lead government to take away individual freedoms?

In fact, the freedom to smoke marijuana has increased exponentially, at least outdoors.

And let's not forget, the decline in cigarette smoking has been a huge public health victory.

I've often said to public officials, If the industry is making the slippery slope argument, it means they've run out of substantive arguments.

That may be true, in the case of smoking at least, but hindsight is easy.

How can you tell if a slippery slope argument is valid when you're standing at the top of the slope?

Here again is the philosophy professor Chris Tindale.

The questions we have to raise here are, will A lead to B?

And furthermore, is there no way to stop the slope, as it were, stop on the slope and go back.

Coming up after the break, what has the legal profession contributed to the runaway slippage?

Law is nothing but a series of slippery slopes from the founding till today.

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To understand how slippery slopes have become a staple of legal argument, we found another Canadian to talk to, at least a Canadian-American.

My name is Dahlia Lithwick, and I am the senior legal correspondent at Slate magazine, and I host their legal podcast, Amicus.

And you come to this by way of an actual legal background, correct?

I graduated from law school and then was not a good lawyer.

I was a catastrophically terrible lawyer.

And so I then turned to journalism as my backup plan.

Why are Canadians so interested in studying slippery slopes?

I think quite literally they spend their lives slipping down slopes and that might explain it.

In 2004, Lithwick wrote a Slate article with the headline, Slippery Slop.

Anyone else bored to tears with the slippery slope arguments against gay marriage?

This was a moment when there was about to be a big confluence of cases at the U.S.

Supreme Court about legalizing same-sex marriage.

And what we had was a lot of public conversation about if you do X then you're going to do Y and these are classic philosophers slippery slope arguments and they were being deployed with some abandoned by people who were saying things like, if you allow 2 people of the same sex to marry, then people can, then the piece, I quote, James Dobson of Focus on the Family saying, quote, you could have polygamy, you could have incest, you could have marriage between a father and a daughter, you could have 2 widows or 2 sisters or 2 brothers.

Do you remember Rick Santorum's predictions?

Yes, I think he said, quote, if the Supreme Court says that you have the right to consensual gay sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery, you have the right to anything, end quote.

And Did any of the justices themselves make a slippery slope argument?

Yes, Justice Scalia famously made that argument in Lawrence v.

Texas, which was the case in which the court for the first time said that Texas's prohibition on same-sex sodomy was unconstitutional.

In some sense, it opens the door for what become a whole bunch of cases that protect LGBTQ activity that comes after.

And so kind of presciently, I guess, he said at the time when he dissented in Lawrence, state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers.

That was the case that criminalized same-sex sodomy, validation of laws based on moral choices.

Every single 1 of these laws is called into question by today's decision.

Now I could see that if someone read that and squinted a little bit, you could say, well, yeah, of course he's right.

So tell me what it looks like when you're not squinting.

I think that the point of this article, and I should note, there was a whole flurry of people writing at this time about slippery slope arguments.

1 of the things that's kind of interesting, Stephen, is how little serious lawyers have thought about this issue.

It's not something that has really received that much rigorous treatment, but there was a whole bunch of lawyers at the time who were saying, look, if you're going to just throw out a parade of horribles, you know, just every bad thing in the world, then that's not a tenable legal argument.

And what it felt like to those of us who were, I think, poking a little bit of fun at both Dobson and Santorum, but also Scalia's thinking, is you can't just unspool absolutely everything you hate and use that as your slippery slope.

It isn't just the hot button social issues where Supreme Court justices invoke slippery slope arguments.

I'm reading from a very smart Law Review article that Ruth Sternglatz wrote called Raining on the Parade of Horribles.

And what she describes is a bunch of tax cases.

Commissioner V Culbertson, the court ruled that intent to contribute capital or labor sometime in the future is insufficient to make someone a partner in a business for tax purposes.

And she says, the majority opinion is like full of slippery slope arguments.

If in the present case we allow intended future conduct to dictate tax liability in some future case we will be forced to allow a newborn child to be named a partner in the business for tax purposes.

She's got a whole bunch of just whomping federal tax cases that also just reside comfortably in slippery slope land.

But they're, I have to confess, so boring that if I read them all to you, you would weep."

Now, those of us who don't know the law, and I'm raising my hand really high here, from the outside it would appear as though a lot of legal discussion, especially when judgments are made, are essentially a recitation of a parade of precedents and so on, that does sound kind of, you know, slopey, if not so slippery.

In other words, it feels from the outside like many legal arguments are inherently backwards, slippery slope arguments.

So can you talk about what distinguishes, let's say, a slippery slope argument in a legal context from 1 made in some other public discourse?

The essential thing in the law is that it's tethered to precedent, right?

And that's what makes it different from, you know, vague metaphors or vague analytical claims is that what you're saying in the law is this case, these facts that I'm deciding now, A, are predicated on a case that came before, right?

The court doesn't decide identical cases with identical facts, they extend them, right?

So that's part of your slope is getting from that precedent to this.

And then inevitably, what is the next 1 going to be, right?

How is this going to be extended by future courts?

What analogies will they use and how will they get there?

And so in some sense, the law, in its truest sense, if you're applying case law and you are applying precedent, Law is nothing but a series of slippery slopes from the founding till today.

And so when I say we don't take it seriously enough as a sort of rhetorical legal technique, given that law is based on those building blocks of analogies and of inferences that X looks like Y, therefore Y should be Z, is to really not take seriously the project of how precedent works.

So you are, unless I'm mistaken, violently agreeing with me on 1 hand, yes?

I am violently agreeing, and I want to cite Eugene Volokh, who's 1 of the smartest thinkers.

He really has done, I think, years, if not decades worth of systematic study on this.

And I think he says it's both a very serious proposition and also 1 that goes to crazy places.

I'm a professor of law at UCLA Law School.

Valak is a prominent legal scholar and blogger.

Around 20 years ago, he published an article in the Harvard Law Review titled The Mechanisms of the Slippery Slope.

Slippery slope arguments are an example of something that pretty much everyone, or at least every political side, makes as to some things.

And then when the other side makes them as to other things, then they deride them and say, no, no, that's a fallacy.

So the left makes, left I say loosely, makes a slippery slope arguments in some areas and resists them in other areas.

The right makes them in some areas, resist them in other areas.

And if so, can we go beyond the metaphor?

Because metaphors by definition are lies, right?

If something is literally true, we wouldn't call it a metaphor.

And I ultimately concluded that there are real mechanisms which cause what some people might call slippage down the slippery slope.

Those are real reasons why people might be reluctant to accept even small steps for fear they may lead to larger steps.

And then the question is, how do you evaluate them?

Because you have to consider them alongside various other considerations.

I asked Dahlia Lithwick, who makes more slippery slope arguments these days, the left or the right?

I mean, I think probably pre-Dobbs, I might have said conservatives, just because we were hearing so much in recent years about COVID mandates and about all roads lead to freedom exclamation mark being taken away.

I think post Dobbs I am hearing an awful lot from progressives who are saying things like they said it was going to the states, it's not going to the states, You know, now it's a personhood ban.

Now it's, you know, lawsuits being filed against people who just gave Internet advice.

Dobbs is Dobbs versus Jackson Women's Health Organization, in which the Supreme Court recently ruled 6 to 3 that the Constitution does not confer a right to abortion, a ruling that overturned Roe v.

So I actually am hearing, I don't even want to say catastrophizing, but I'm certainly hearing the argument that this isn't in good faith and maybe that's another thing that has crept from political discourse into legal discourse is the idea that this is a pretext, right?

When they say they just want to have open carry laws, or when they say they just want a gun registry, what they're actually saying is Obama's coming to bash down your door and take all your guns.

And I think the same argument has been, I've heard deployed from progressives without a doubt saying not just Roe Falls, then Obergefell Falls and then Griswold versus Connecticut protecting the right to birth control within a marriage, all those fall.

But more urgently, when Justice Alito told you that it was going to go back to the states and it was going to be a state by state decision and Brett Kavanaugh insisted in his concurrence this was not going to inflect in any way on the right to interstate travel.

This is a hoax because they're coming for the federal mails.

So the next time I hear a slippery slope argument, should I assume there is some deceit tucked in there?

I almost wish you wouldn't because I think that once you impute bad faith, it's really hard to have a genuine policy conversation, right?

And I think that part of the problem with all this camel's nose under the tent analysis is we are so polarized right now, both in the political and legal conversations we're having, that imputing bad faith is where we start, right?

Like everyone's lying and everyone's coming to take away Freedom Capital F.

And maybe 1 other footnote to that, which is 1 of the things that is worrying about Dobbs and Bruin, which was the gun decision that came down last year.

And I'm not gonna do like Supreme Court arcana, but I will say 1 of the big themes of the last term is that precedent falls in case after case after case, right?

The Supreme Court simply says we don't care that the rules about unions are 50 years old, they're gone.

We don't care that the line between church and state is 50 years old, it's gone.

And truly, truly, truly, if we go back to where you and I started, which is that precedent matters because that's the building block, if precedent has no value rhetorically or otherwise, then you can begin to have these naked bad faith slash power conversations.

And that's incredibly bad for both legal thinking and planning, but it becomes just really easy to assume everything is about power and pretext.

Is the typical slippery slope argument in a legal context substantially different than a slippery slope argument that we might hear elsewhere from a politician, from someone in education, healthcare, etc.?

So here's what I would suggest, again, trying to use some contemporary discourse that we're thinking about in politics, the fight over teaching critical race theory.

In some ways it's lashed to a bunch of, you know, laws and policies that are being put into effect, but The argument is if we teach CRT in the schools, then white children will be told that they're bad and they'll feel bad about themselves.

And so that's kind of a version of slippery slope that it's non-legal in so far as, it descends really quickly into what I, just feels like feelings ball to me.

And if you think about, I mean, particularly what we're seeing in terms of going after folks in drag, reading to children in libraries, claims about grooming, claims that if certain books are read, then it will lead to bad behaviors.

Those feel like slippery slope arguments that are not so much predicated on if legal outcome X, then legal outcome Y, but just like, we're now just talking about feelings.

And I don't know if that's a distinction without a difference, but to the extent that I think so many of the conversations that we are having right now in this extra legal political context are rooted in feelings of grievance and being belittled and not wanting your children to be belittled, they don't feel like classic legal slippery slope, they just feel like they rush to the place of I don't want to feel sad.

Let's talk about journalism, the media generally, where you and I both work.

Tell me how frequently you see slippery slope arguments invoked there, and I want to know about any trend lines you can point to there.

1 of the things that worries me about journalism as we are practicing it now is the monetization of scaring people, right?

If you scare people's face off, they will click and we know this.

But also I think the commodification of, I will find out what your anxieties are, and I will feed you a thousand things that will convince you that they're coming for that.

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545. Enough with the Slippery Slopes!