What will people conclude from past decisions ?, Continued

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

From sets of legislative or judicial decisions.So far, the discussion has focused on the principles that people can derive from a law or case. But people who apply the e-must heuristic principle often look to a broader law, especially since a set of decisions is likely to be seen as more authoritative – and more respectable – than a single decision.

In considering this broader set of laws, it is particularly unlikely that people will understand exactly all the details of each past case or law; instead, they tend to try to fit solutions into a common pattern that emphasizes one or two basic principles at the expense of many of the details. And it is this mold, however inaccurate, that is remembered and can influence people’s attitudes.

(a) Rules and Exceptions.– A classic example of such a general form is “This is the rule, although there are some exceptions” – for example, the government can not impose restrictions on speech based on content, unless speech falls into one of several narrow exceptions or searches require guarantees “are subject to only a few well-established and well-defined exceptions”. A simple rule can have a powerful force that shapes the relationship and the first solution A1 making an exception is unlikely to significantly undermine this power: people would still think, “There is a rule, though there is a rare exception.” The second exception, A2it may also not undermine the force of the rule, especially if it seems necessary (for example, an exception to freedom of expression for death threats).

{This possibility is particularly likely when all or most of the exceptions are likely to be considered appropriate for an exclusive supercategory – for example, cases that have traditionally been recognized as outside the basic principle, or cases where there is a clear, urgent need for exception. Such a rule, with its exceptions, is more likely to be seen as a simple “Requirement of an order, unless there is a clear, urgent need to act without one” than as a complex “Requirement of an order, unless A1 for one reason and in A2 for another and in A3 for another… “And if rational ignorance makes people want to internalize a simple principle, the first principle is likely to be accepted by people on their own terms, while the second can eventually be simplified to” Indeed, there is not much of a guarantee requirement at all. . “}

But at some point, some people examining the totality of decisions may begin to conclude that the law is so inherently inconsistent that they cannot distill any basic basic principles from it, or even that the exceptions themselves have become the rule. The first exceptions may not lead to this, but any additional exception may make it more likely, even after the first few exceptions have been accepted. You do not have to accept the view “for a penny, for a pound” that since the law has already compromised a little in principle, there is nothing to lose if you make additional compromises.

Thus, the slippery slope may recommend the creation of any additional exception, especially an exception that does not fit into a convincing comprehensive justification, such as one based on the existence of an emergency. Again, we see a plausible argument for a rebuttable presumption against even small changes: avoid creating new exceptions unless there is a good reason to do so, as even seemingly small exceptions can help undermine the force of the rule that shapes the relationship.

(b) Several decisions which are read as a symbol of a unifying principle.Just as people often try to identify the rule and the exception, they sometimes make several decisions – especially those that already have a common label – and derive from them a basic rationale that all these decisions share, giving less weight. of compensatory principles, which can appear only in one or another solution. And it is this derived excuse, devoid of any restrictions or reservations, that may ultimately be remembered and influence people’s attitudes. Integrity A whole genre of legal writing, from which Warren & Brandeis’s The right to privacy is the classic example, trying to take advantage of this trend by deriving from a number of cases a unifying justification that goes far beyond the case-specific data.}

Consider, for example, intellectual property rules. Legislators and the courts that created these rules usually restrict the rules in important ways, ways that have often been influenced by concerns about freedom of expression.

Thus, copyright law prohibits you from publishing an expression that is too similar to what someone else has written, but leaves you free to use the ideas and facts that others have pioneered, or even to use their expression on those ideas and facts. when necessary for criticism, commentary or parody. The Public Rights Act prohibits you from broadcasting someone’s entire action without permission or using someone’s name or likeness in your commercials, but leaves you free to use the name or likeness in a news report, biography, novel, or various other contexts. Trademark law and trade secret law, the other two basic rules of intellectual property that restrict speech, are also limited by their own restrictive principles.

Supreme Court rulings that have upheld various intellectual property laws against challenging the First Amendment rely on these restrictions. The court has never said that intellectual property laws are constitutional, simply because they are called property rules. Rather, the Court has recognized that laws restrict speech and should therefore be tested against the orders of the First Amendment, and generally uphold restrictions on the grounds that they are narrow and thus do not overburden others’ speech.

In this way, the attitude of the people who pay attention to the details of these laws can be changed only modestly by the existence of the laws. The e-must heuristic may lead them to conclude that Congress can properly give people a monopoly on expression (but not on ideas or facts), the object of fair use, or it can properly restrict the use of certain words and symbols in advertising ( but not in newspaper articles) to prevent consumer confusion and possible brand blurring.

But some courts, commentators and legislators have derived a much broader principle from the existence and constitutional validity of intellectual property laws: legislators seem to conclude that they should be free to create whatever intellectual property rights they want, whether in fact or not. , or symbols, and whether they cover only commercial advertising or a wide range of other speech. And the First Amendment is inapplicable in such cases simply because “[t]The First Amendment is not a license to infringe legally recognized intellectual property rights. “

I think this process explains the ease with which some have adopted new intellectual property grounds for speech restrictions, such as banning the burning of flags, restrictions on the use of facts revealed by the Federal Election Commission, and bans on alleged personal communication. information about others. These arguments do not usually rely on detailed analogies with existing intellectual property rights, but instead are based on broader claims that intellectual property rules are correct in themselves.

The rules A1 (Copyright), A2 (trademark), A3 (right of publicity) and several others seemingly lead these observers to accept not a set of detailed, specific justifications, but rather a comprehensive justification J: the government can constitutionally give a subject the power to restrict the transmission of material by others only by giving the subject intellectual property rights to this material. And this principle seems so powerful to his supporters that they often do not even respond to the argument that the First Amendment limits “the power of [the legislature] to privatize [certain expressions, facts, or ideas]depiction [them] inexpressible from anyone else. “Constitutional law, some say, is largely based on the distribution of basic assumptions about what is mine and what is yours. And the existence of intellectual property rights seems to have shifted the baseline of some people to make these words and symbols freely available to someone’s property – and thus unusable by others – just as material property can be.

Why do some people internalize only this broad principle J, and not the narrower principles, which actually correspond more closely to the boundaries of each law? One possible reason is that J seems to be at the heart of any intellectual property law, while the balancing principles that limit every rule (copyright cannot protect facts or ideas, the right to publicity does not apply to news or fiction) are more -specific for the rules. In this way, every new intellectual property rule one sees reinforces the general principle J, but does not reinforce the very restrictive principles that vary from rule to rule.

And because people’s limited rationality leads them to look for simple generalizations, the principle they focus on and the one that most influences their attitudes is the main common thread, not the many important but detailed reservations. Therefore, existing intellectual property rules may influence some people (though not all people) to accept the broad justification J and thus pave the way for new restrictions, which are also justified by J, but which lack the restrictive principles, present in the old rules – because for example, the right to have information about yourself (B1), ownership in fact databasesB2), or extended right to publicityB3).

Part of the original or‘may be healthy, despite the risk that they may lead to B‘s. But the more society accepts the restrictions on speech based on intellectual property, the more people will move away from thinking, “It’s right to allow people to own copyrights subject to traditional copyright restrictions, trademarks subject to traditional restrictions on trade.” brands and so on ”to thinking. It is right to allow people to have intellectual property rights over all kinds of concepts, be they expressions, ideas, facts, words, symbols or anything else. “

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