Ben GOLD: My name is Ben Gold. 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.
GOLD: 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 one type of argument that he kept coming across.
GOLD: I think I heard a clip in some podcast or something of a politician who had said, “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?”
Ah yes, the slippery-slope argument.
GOLD: 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’d be legislation, 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.
Bill O’REILLY: If we make the ARs, you have to register them or they’re banned, then the next step is the handgun. That’s the slippery slope.
Ophelie JACOBSON: 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 this slippery slope.
Cornel WEST: 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? Ben Gold has.
GOLD: Is it a visual thing? Is it like the idea of going down a slope that’s slippery — does that register with people? Why does it register? I don’t know why this particular thing caught my attention. But it did. And so I bring it to you.
That’s right, Gold sent us an email, asking for an exploration of the slippery-slope argument. We liked that idea, so here we are. Today on Freakonomics Radio, we’ve 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.
Dahlia LITHWICK: One 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.
We’ll do our best to not scare your face off. But there’s no guarantee. Because once we get started — well, you know …
Devin NUNES: It’s a slippery slope.
Kim JANEY: I think that is a slippery slope.
Dave PORTNOY: It’s a slippery slope. It’s a slippery slope.
* * *
Let’s start by defining terms.
Chris TINDALE: A slippery slope argument is a forward-looking causal argument. It has various stages of causal chain. You know, “This will lead to that, and 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.
TINDALE: I teach principally argumentation studies.
And “argumentation studies” is what?
TINDALE: We’re interested in the nature of argument, 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?
TINDALE: Oh, the origin is somewhere in the last century.
One 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 “drunkard’s 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.
TINDALE: We’ve seen it in legalization around drugs, legalization around medical-assisted dying. We see it in gun control. It’s usually phrased in terms of freedoms — you take away some freedoms, that’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 one big change in public policy. We need to go back some 70 years. This is Matt Myers.
Matt MYERS: In the 1950s and 1960s, over 45 percent of Americans smoked. Smoking plastered our TVs. 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’s use of the word “bombarded” — that he is devoutly anti-cigarette.
MYERS: 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. But in 1964, the U.S. Surgeon General published a landmark report that laid out the dangers. It took a while for regulation to catch up.
MYERS: 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. Why only short flights?
MYERS: 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 on an airplane with a gun who was 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 two years. The tobacco industry thought it would be so unpopular that Congress would never dare do it again. Instead, the exact opposite happened. 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.
MYERS: 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. We’re going to create mass unemployment. 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 2002.
MYERS: 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.
The threat went even broader than that.
MYERS: 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 definitely, 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.
MYERS: 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 banned 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’s 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? Not a lot of evidence for that, either. 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.
MYERS: I’ve often said to public officials, if the industry is making a 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.
TINDALE: The questions we have to raise here are, will A lead to B? Will B lead to C? And then, is C undesirable? And furthermore, is there no way to stop the slope, as it were — stop on the slope and go back? Is it indeed slippery?
Coming up: what has the legal profession contributed to the runaway slippage?
LITHWICK: Law is nothing but a series of slippery slopes, from the founding till today.
And how big of a problem is that?
* * *
To understand how slippery slopes have become a staple of legal argument, we found another Canadian to talk to, at least a Canadian-American.
LITHWICK: My name is Dahlia Lithwick, and I am the senior legal correspondent at Slate magazine. And I host their legal podcast, Amicus.
DUBNER: And you come to this by way of an actual legal background, correct, not just journalism?
LITHWICK: Yes. 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? Is it perhaps their weather?
LITHWICK: 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.” Here’s her first sentence: “Anyone else bored to tears with the ‘slippery slope’ arguments against gay marriage?”
LITHWICK: 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 abandon by people who were saying things like, if you allow two people of the same sex to marry, then people can — in 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 two widows or two sisters or two brothers.” So —.
DUBNER: You also cite Rick Santorum. Do you remember Rick Santorum’s predictions?
LITHWICK: 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.
DUBNER: And did any of the justices themselves make a slippery slope argument?
LITHWICK: 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 L.G.B.T.Q. 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 one of these laws is called into question by today’s decision.”
DUBNER: Hmm. 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.
LITHWICK: 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. One 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.
LITHWICK: I’m reading from a very smart law review article that Ruth Sternglantz 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 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.
DUBNER: 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, slope-y, 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 the legal context from one made in some other public discourse?
LITHWICK: The essential thing in the law is that it’s tethered to precedent, right? And that’s what makes it different from vague metaphors or vague analytical claims. 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.” So there’s an analogy at work already. 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 one going to be. 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’re 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.
DUBNER: So you are, unless I’m mistaken, violently agreeing with me on one hand, yes?
LITHWICK: I am violently agreeing. And I want to cite Eugene Volokh, who’s one 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 one that goes to crazy places.
VOLOKH: My name is Eugene Volokh. I’m a professor of law at U.C.L.A. Law School.
Volokh 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.”
VOLOKH: 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 slippery slopes arguments in some areas and resists them in other areas. The right makes them in some areas, resists them in other areas. Well, what’s really going on? Is there a there there? Is this really a serious phenomenon? 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?
LITHWICK: I am loath to say one or the other. 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. It’s going to be a federal ban. Now it’s, you know, lawsuits being filed against people who just gave Internet advice.”
“Dobbs” is Dobbs v. 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. Wade.
LITHWICK: 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 is 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 v. 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, that was a lie. This is a hoax because they’re coming for the federal mails.
DUBNER: Hmm. So the next time I hear a slippery-slope argument, should I assume there is some deceit tucked in there?
LITHWICK: 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 one other footnote to that, which is one of the things that is worrying about Dobbs and Bruen, which was the gun decision that came down last year — and I’m not going to do, like, Supreme Court arcana, but I will say one 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/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.
DUBNER: 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.?
LITHWICK: 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 laws and policies that are being put into effect. But the argument is if we teach C.R.T. 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 insofar as it descends really quickly into what just feels like feelingsball 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, you know, 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 extralegal 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 rushed to the place of “I don’t want to feel sad.”
DUBNER: 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.
LITHWICK: One 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.” That is part of the business model here. And so, if that is the case — and I believe descriptively it is the case more and more — then we are simply feeding people slippery slopes that end in themselves and their fears, and they are consuming them.
DUBNER: It’s funny, for all the examples that you and I could both bring up in journalism, the one that springs to mind when you describe it like that, the fear-mongering — which, you know, has been a feature of journalism since the beginning of time, surely — I think about the weather. You know, it used to just be winter. And it would snow. And there might be a blizzard now and again. But now I feel like the language — and I’m sure some of this is new language that meteorologists have come up with to describe more precise observations, and that’s good. But like, I’m looking at a New York Times headline right now. “Another Significant Atmospheric River Is Bringing Heavy Rain Across California.” We had “bomb cyclones.” So even the language has become so pronounced that it’s hard to get information without that feelingsball being fully engaged or maybe shoved down your throat. Do you think I’m right or wrong on pointing to that linguistic hyper-tuning?
LITHWICK: Look, if I’m being totally honest, you and I can both cite journalism since the beginning, since the founding of the republic, that preyed on ideas that, you know, people were coming for your children, right? And all of the “if it bleeds, it leads” yellow journalism, that was the daily gift of most newspapers for a very long time. And so, some of this isn’t new. But I think you are absolutely correct that we are in a moment where the skill set to — it’s just not a rag that some paper boy is, like, with the funny, like, ‘40s accent — “Get your Daily Mail here,” right? That was terrible. We’re going to have to get someone who does a better version of a paper boy. But I think that that has limited impact on your daily thinking. But when you are being inundated with thundersnow and bomb cyclones, and also that your media consumption is being curated to do that, that’s what’s new. I think you’re exactly right.
DUBNER: So we’re basically all living on our own private slippery slopes that are also steeper than they used to be, is what you’re saying.
LITHWICK: I think that the point and the object of slippery slopes has converged, right? That in some sense, you both start and end at throwing folks into a panic about what you and I are now conveniently calling “feelingsball.” And I think that anybody who thinks about policy would tell you that is a horrifically bad framework for thinking about policy.
* * *
Here’s a question to consider: is a slippery-slope argument inherently a fallacious argument? Ben Gold, our lawyer listener who suggested this episode, says that’s what he was taught.
GOLD: I think it was when I was studying for the LSAT, you know, you go to look and see why you got something wrong, and it explains like the slippery slope fallacy is a logical fallacy. Just because X and Y happened doesn’t mean that you can assume that Z will happen.
Chris Tindale, the argumentation-studies professor, says this view comes from a specific moment in the history of teaching logic.
TINDALE: There was a period in the ‘70s and ‘80s where there were very popular courses in North America that would teach students fallacy labels. So you identify something as a slippery slope? Okay, that’s bad.
But that view of these fallacies began to change, at least in academia.
TINDALE: As people invested more time into researching them, and looked seriously at what was at stake, an appreciation grew that these were actually quite good argument forms that can go wrong.
Which is to say, yes, there are plenty of bad slippery-slope arguments. But some slopes are indeed slippery, and we should be careful about starting down them.
TINDALE: We’ve got to, first of all, recognize the strategy, slippery slope among many, many other strategies. And then having recognized the strategy, look at the context on a case-by-case basis and decide whether it’s a good instance of the argument in that context.
DUBNER: It sounds as though you’re saying that calling someone else’s argument a fallacy is — I don’t want to be reductive, but a little cheap and lazy.
TINDALE: It can be. And we could see this particularly in social media, you can hurl the label around, it makes it sound like you know what you’re talking about. It makes it sound like you’ve fully thought this through, but it may not be the case at all.
Eugene Volokh, at the University of California, Los Angeles, thinks that rushing to call every slippery-slope argument a fallacy is bad practice for a different reason.
VOLOKH: In all aspects of our lives, of our political lives at least, our decisions today are shaped in considerable part by our decisions yesterday. And they will in turn, shape our decisions tomorrow. That’s just the reality of law, it’s the reality of politics, the reality of economics.
Indeed, economists and others have spent a lot of time lately pointing out the virtues of certain behaviors on the grounds that they’ll produce even more good behavior. Education, for instance. Good habits in general, like sleeping and eating well. Even kindness!
VOLOKH: Now, to be sure, there certainly are philosophical works generally that say slippery slope arguments are a fallacy. What they’re referring to is again, logical claims. If you take step A, then inevitably step B will be taken. That’s almost never the case. Almost always, it’s possible to draw a line between A and B, to draw it in the political process or in the legal process. So yes, if you’re saying, “Slippery slope is a guarantee,” well, that’s a fallacy in part because so little is guaranteed in life. However, if your argument is, “This first step A may change the psychological or the political or the economic environment in a way that will influence future step B,” that’s not a fallacy anymore. It may be right or wrong, but it’s not a logical claim. It can’t be evaluated simply, is this a valid, logical syllogism.
And according to Volokh, first steps — at the top of the slope — they have a power that should not be underestimated.
VOLOKH: Let’s say you’re an activist and you strongly support abortion rights. And you see right now the political environment in my state, I know that I can fight effectively against broad abortion bans, in part because there are a lot of people who see things my way on that subject in the state. So right now, we — we fellow activists — can block broad abortion bans. But if a modest restriction is implemented and we don’t block it, and some more restrictions are implemented, then maybe over time, many of our fellow state citizens will come to accept that restricting abortion is a sensible thing for the government to do, and then we won’t be able to block it anymore because part of the rest of society will have changed its attitudes on the subject. That’s a pretty serious concern. Now, again, will it actually play out? You’d have to try to figure things out as best you can based on the facts of each particular case. But I think one has to worry about the first step. You have to ask, will this first step maybe break up this political coalition that I have, or break up the social attitudes that I’m taking advantage of, as an activist in maintaining, for example, the right to abortion? Will it influence that in a way that five, ten, 15 years down the pike could be extremely damaging? That’s a very serious concern you have to confront.
Still, Volokh says, that first step is often necessary, even with the risk of slippage.
VOLOKH: For example, back in the 1800s, when there weren’t a lot of police forces, I suppose this would have been a perfectly plausible argument. Look, we start having police forces and then eventually, that might lead to a police state where actually police forces don’t just fight street crime, but become the enforcers on behalf of an oppressive government. That’s a perfectly plausible argument. In fact, this has happened in many places, where police have been turned into a police state. At the same time, the sense was we need to have some degree of policing. So maybe we might say slippery-slope argument is a serious concern, but on balance, we have to take this first step regardless of that concern.
So what about the early, narrow bans on indoor smoking — was that a slippery slope?
VOLOKH: I do think that relatively narrow smoking restrictions probably did push, in some measure, in favor of the adoption of broader ones. Maybe that’s a good idea. As restrictions on smoking become enacted and the legitimacy of the government restricting such behavior becomes validated, people’s attitudes — even setting aside their smoking habits — their attitude toward these restrictions might be changed. They might say, “Well, this new proposal is just a small step from the previous proposal. So it’s no big deal. Maybe it’s a good idea, or at least maybe it’s not something I should fight as much.” That’s what I call “small-change tolerance slopes.” So, something that’s a big proposal that couldn’t be politically enacted from the get-go, could be enacted if done one small step at a time.
You may find yourself thinking, as I did, that there isn’t much difference between a “small-change tolerance slope” and a slippery slope; such is the nature of arguments in this realm. In any case: we can probably agree on at least a couple things here. First: slippery slopes can play an outsized role in our imagination of how things might go wrong. Second: the slippery-slope argument has become more common lately — according to data from Google Books, for instance, use of the phrase has increased 600 percent since 1980. So, why? Why has it gotten so popular?
TINDALE: You know, why? Why does anything catch on?
The philosopher Chris Tindale again.
TINDALE: It might be because there were some particularly attractive instances of it that caught people’s attention. It is an argument strategy that tends to be used in moral debates — a lot of the concerns around abortion, genetic manipulation, things of this nature, they lend themselves to slippery-slope arguments. So I think we see a lot more of them. As society becomes more concerned about these major moral issues, they’re likely to see a prevalence of slippery-slope arguments.
DUBNER: Do you feel that the phrase has a certain sheen of sophistication to it as well?
TINDALE: It might be, but there might also be a belief that people generally understand what you’re talking about. So if I accuse you of an ad misericordiam, you look at me puzzled. But if I accuse you of a slippery slope, you know what I’ve accused you of, and we can start talking.
DUBNER: Wait, I still don’t know what you accused me of the first time. What was that?
TINDALE: That was an appeal to pity. Ad misericordiam. Ad verecundiam is an appeal to authority. Again, that’s a very prevalent argument form.
DUBNER: Is there a phrase for an appeal to common decency?
TINDALE: No. Maybe that’s our problem. I’m not — yeah, I’m not sure that there is a phrase that captures that.
DUBNER: Maybe you could invent one for us?
TINDALE: Yeah. I don’t know what we would call that. I mean, there are certainly appeals to commitment. There’s a growing field of the ethics of argumentation, where scholars are exploring what are the characteristics of an ideal arguer, what dispositions? Because to some degree, when we’re teaching critical thinking, or teaching argumentation, we’re encouraging people to develop certain kinds of habits of thought so that in the future, they will think in similar kinds of ways, they will resist thinking in other kinds of ways. And they become disposed to think appropriately. So we talk about this as the development of a disposition. And a lot of education around argumentation is an attempt to create these dispositions, maybe in children, later in young adults.
DUBNER: So given what you’ve been telling us today, how should we respond the next time we hear someone make a slippery-slope argument? Should we assume that they are intellectually and/or logically bankrupt, or should we really give their argument a clear and careful examination based on the facts with an assumption that it could very well be right?
TINDALE: Yeah, I’d say the latter. We should always treat people as we’d like to be treated ourselves when we’re engaging in discourse. If I want to be taken seriously, then I’m going to take you seriously. And maybe you’ve misused the term. But let’s see, let’s explore that. So to ask the right kinds of questions: “Okay, exactly what do you mean by that? How is this outcome undesirable? How is it going to happen that doing this is going to lead to something else?” So I think, yeah, we should treat people as reasonable arguers.
DUBNER: I guess that’s its own positive slippery slope then, yes?
TINDALE: Yes, and that’s going to create the kind of dispositions I was talking about before, where we approach the whole world of argumentation and the reasoning that’s out there in a more constructive way. We’re not just focusing on the negatives and seeing these fallacies that give us this jaded view. We’re appreciating that there’s a wide range of strategies that many people reason quite well.
LITHWICK: Yeah, I mean, that is almost the existential media question of this moment.
Dahlia Lithwick again. I had asked her whether, in this era of slippery-slope arguments, it’s possible to have genuine conversations about public policy without sliding into hyperbole.
LITHWICK: I mean, that in some sense goes beyond law and politics. And it goes to: are we even having conversation? Are we having two bubbled, siloed conversations in which the set of presumptions are so wildly disparate that we, you know — I can certainly stipulate that certain things are in good faith. But if nobody’s listening, then we’re in trouble. In some ways, I almost want to say it requires an ability to speak across bubbles that is no longer fully in evidence.
What do you think? I’d love to hear your reactions to this episode; our email is firstname.lastname@example.org.
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Freakonomics Radio is produced by Stitcher and Renbud Radio. This episode was produced by Alina Kulman, with research from Danielle Elliot, and mixed by Greg Rippin, with help from Jeremy Johnston. Our staff also includes Julie Kanfer, Zack Lapinski, Morgan Levey, Ryan Kelley, Katherine Moncure, Rebecca Lee Douglas, Sarah Lilley, Eleanor Osborne, Jasmin Klinger, Daria Klenert, Emma Tyrrell, Lyric Bowditch, and Elsa Hernandez. The Freakonomics Radio Network’s executive team is Neal Carruth, Gabriel Roth, and Stephen Dubner. Our theme song is “Mr. Fortune,” by the Hitchhikers; all the other music was composed by Luis Guerra.
- Ben Gold, criminal defense attorney at Bilecki Law Group.
- Dahlia Lithwick, senior legal correspondent at Slate magazine and host of the Amicus podcast.
- Matthew Myers, president of the Campaign for Tobacco-Free Kids.
- Chris Tindale, professor of philosophy at the University of Windsor.
- Eugene Volokh, professor of law at the University of California, Los Angeles Law School.
- Lady Justice: Women, the Law, and the Battle to Save America, by Dahlia Lithwick (2022).
- “Raining on the Parade of Horribles: Of Slippery Slopes, Faux Slips, and Justice Scalia’s Dissent in Lawrence V. Texas,” by Ruth E. Sternglantz (University of Pennsylvania Law Review, 2005).
- “Slippery Slop,” by Dahlia Lithwick (Slate, 2004).
- Fallacies and Argument Appraisal, by Christopher W. Tindale (2003).
- “The Mechanisms of the Slippery Slope,” by Eugene Volokh (Harvard Law Review, 2003).
- “Devil’s Toboggan Slide,” cartoon by George F. Hunting (1887).
- “Why Is U.S. Media So Negative?” by Freakonomics Radio (2021).