Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Sunday, February 27, 2022

The First Amendment and Low-Value Speech That Causes Substantial Emotional Distress

“God Hates Fags.”[1]

“Fags Doom Nations.”[2]

“Fag Troops.”[3]

“God hates you.”[4]

Should the First Amendment be interpreted to protect this nonsense?

No.

Some speech is so despicable – and so injurious – that it should not receive First Amendment protection. Indeed, individuals should be permitted to recover damages for emotional distress where speech:

  • Intentionally targets a private and in some cases, a public figure;
  • Has no social value (e.g., “God Hates Fags”); and
  • Causes severe emotional distress.

Put simply, the First Amendment should not be construed to allow individuals to hurl vicious verbal assaults at citizens with impunity, particularly where such speech causes substantial harm.

***

By way of background, the First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”[5]

Of course, protecting speech is essential to ensuring liberty, autonomy, and decentralized governance. Furthermore, the right to free expression promotes a “marketplace of ideas” that exposes citizens to diverse perspectives on matters of public and political significance, which is vital to ensuring an informed citizenry and a healthy democracy.

For that reason, offensive, distasteful, and unpopular speech – particularly on matters of public concern – should receive the strongest First Amendment protection. In Cohen v. California, for example, the United States Supreme Court correctly held that the First Amendment prohibited the prosecution of an individual who entered a courthouse wearing a shirt stating, “Fuck the Draft.”[6] Additionally, in Texas v. Johnson, the Court rightly held that the First Amendment protected flag burning.[7] Also, in Hustler v. Falwell, the Court held that the First Amendment protected the satirical depiction of a preacher having sex with his mother in an outhouse.[8] Likewise, in Matal v. Tam, the Court held that there is no hate speech exception to the First Amendment.[9] And in Snyder v. Phelps, the Court held that members of the Westboro Baptist Church had a  First Amendment right to display signs stating, among other things, “God Hates Fags” and “Thank God for 9/11” outside of a church where a family was grieving the loss of their son.[10] In most of these cases, the Court’s decisions rightfully affirmed that, in a free and democratic society, citizens must tolerate speech – and expressive conduct – that is offensive and unpopular. Otherwise, the right to speech would allow the government to censor speech that it subjectively deemed undesirable. That result would be to chill speech and render the First Amendment meaningless.  

But is there no limit on what citizens can say or express?

To be sure, the Court has placed some limits on the right to free speech. For example, in Miller v. California, the Court held that the First Amendment did not protect obscenity, which is defined as speech that had no “literary, scientific, or artistic value,” and that appeals to the “prurient (sexual) interest.”[11] One can legitimately question why speech must appeal to sexual matters to be obscene.  Also, in Brandenburg v. Ohio, the Court held that the First Amendment did not protect speech that incited others to commit imminent and unlawful violence.[12] And in numerous cases, including City of Renton v. Playtime Theatres, the Court held that states could place reasonable time, place, and manner restrictions on speech.[13]

But outside of these limited categories, should the First Amendment protect speech regardless of how vile or harmful?

In other words, is “Fuck the Draft” the same as “God Hates Fags?” And should the First Amendment permit a magazine to publish a satire of a preacher having sex with his mother in an outhouse?

No.

And should the First Amendment be construed to permit all speech, no matter how vile and harmful, if it targets private individuals, has no social value, and causes severe emotional distress?

No.

Put simply, Snyder v. Phelps was wrongly decided.

***

As stated above, in Snyder, the Court, in an 8-1 decision, held that the First Amendment permitted members of the Westboro Baptist Church to stand outside of a church where a family was mourning the loss of their son in the Iraq War with signs that said, among other things “God Hates Fags” and “Thank God for 9/11.” The Court’s decision emphasized, among other things, that the First Amendment requires that citizens tolerate offensive speech such as that expressed by the Westboro Baptist Church.

The Court got it wrong.

When, as in Snyder, speakers target private individuals with despicable speech that has no social value and that causes severe emotional distress, those individuals should be permitted to recover damages for the intentional infliction of emotional distress.[14]  

Importantly, Justice Samuel Alito agrees and, in a persuasive dissent, explained that the First Amendment’s underlying purposes are not frustrated by allowing individuals to sue for emotional distress resulting from zero-value – and harmful – speech:  

Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case. He [Petitioner] is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right … They appeared at the church, approached as closely as they could without trespassing, and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury. The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.[15]

I cannot agree either.

Moreover, as Justice Alito noted, the Westboro Baptist Church had alternative avenues by which to disseminate their hateful views. As Justice Alito stated:

Respondents and other members of their church … have almost limitless opportunities to express their views. They may write and distribute books, articles, and other texts; they may create and disseminate video and audio recordings; they may circulate petitions; they may speak to individuals and groups in public forums and in any private venue that wishes to accommodate them; they may picket peacefully in countless locations; they may appear on television and speak on the radio; they may post messages on the Internet and send out e-mails. And they may express their views in terms that are “uninhibited,” “vehement,” and “caustic.” It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate.[16]

Perhaps most importantly, Justice Alito recognized that speech can – and does – cause substantial injury, and when it does, the First Amendment should not bar recovery for the intentional infliction of emotional distress:

This Court has recognized that words may “by their very utterance inflict injury” and that the First Amendment does not shield utterances that form “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”  When grave injury is intentionally inflicted by means of an attack like the one at issue here, the First Amendment should not interfere with recovery.[17]

Justice Alito got it right. There are numerous cases where young people, after vicious verbal attacks in-person and online, committed suicide.[18] There are countless cases of “revenge porn,” in which women discover their intimate photographs posted on the internet by a disgruntled ex-partner.[19]

The First Amendment should not be construed to protect this nonsense the law should not turn a blind eye to the harm it causes.

To be clear, this does not mean that state governments should be permitted to criminalize such speech. It does mean, however, that private, and, in some cases, public figures should be allowed to pursue a claim for the intentional infliction of emotional distress where they are intentionally targeted with speech of no social value that causes severe and lasting harm.

This argument should not be construed to support a hate speech exception to the First Amendment. After all, how would one define ‘hate speech?” Such an exception, due to its subjectivity and arbitrariness, would undermine significantly the First Amendment’s core purpose of promoting a marketplace of ideas in which unpopular, distasteful, and offensive ideas are tolerated.

But there is a limit.

As Justice Alito emphasized in Snyder, some speech is of such low value – and so harmful – that it supports a civil suit for the intentional infliction of emotional distress.  Statements such as “God Hates Fags” and “Fags Doom Nations” have no literary, scientific, or artistic value and, although not sexual, can be every bit as obscene as the most revolting sexual images. The speech at issue in Snyder and Hustler had no social value. It was utter garbage and contributed nothing to public debate or the “marketplace of ideas.” But it did cause severe – and lasting – emotional distress. Thus, in some instances, there should be a civil remedy for victims who are intentionally targeted with such speech.

Of course, some will make the slippery slope argument, arguing that any restrictions on speech other than the narrow categories already delineated will result in a chilling effect and give the government the power to restrict any speech that it deems offensive or unpopular. This argument is without merit because it assumes without any evidence that any failure to fully protect even the most injurious speech – such as “God Hates Fags” – will inevitably lead to a ban on other forms of traditionally protected speech. That view essentially prohibits restricting any speech no matter how valueless and no matter how injurious, and ignores the harm that such speech can – and does – cause.  

Ultimately, free speech is an essential component of ensuring liberty and an informed democracy. Accordingly, unpopular, offensive, and distasteful speech must be welcome in a society that values diversity. But that is not a “license for … vicious verbal assault[s]” upon citizens that serves no purpose other than to degrade and demean people, and that causes substantial and often irreparable harm, including suicide.[20]

 

[1] 562 U.S. 443 (2011).

[2] Id.

[3] Id.

[4] Id.

[5] U.S. Const., Amend. I.

[6] 403 U.S. 15 (1971).

[7] 491 U.S. 397 (1989).

[8] 485 U.S. 46 (1987).

[9] 137 S. Ct. 1744 (2016).

[10] 562 U.S. 443 (2011).

[11] 413 U.S. 15 (1973).

[12] 395 U.S. 444 (1969).

[13]  475 U.S. 41 (1986).

[14] See Adam Lamparello, ‘God Hates Fags’ Is Not the Same as ‘Fuck the Draft’: Introducing the Non-Sexual Obscenity Doctrine, 84 UMKC L. Rev. 61 (2015).

[15] 562 U.S. 443 (Alito, J. dissenting) (emphasis added).

[16] Id. (emphasis added).

[17] Id. (emphasis added) (quoting Chaplinsky v. New Hampshire315 U. S. 568, 572 (1942)); see also Cantwell v. Connecticut310 U. S. 296, 310 (1940) (“[P]ersonal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution”).

[18] See, e.g., Jane E. Allen, Rutgers Suicide: Internet Humiliation Trauma for Teen (September 30, 2010), available at: Rutgers Suicide: Internet Humiliation Trauma for Teen - ABC News (go.com).

[19] See, e.g., Mudasir Kamal and William J. Newman, Revenge Pornography: Mental Health Implications and Related Legislation (September 2016), available at: Revenge Pornography: Mental Health Implications and Related Legislation | Journal of the American Academy of Psychiatry and the Law (jaapl.org).

[20] See, e.g., Claypool Law Firm, Middle School Student Commits Suicide Following School’s Failure to Stop Bullying (Dec. 18, 2017), available at:  Middle School Student Commits Suicide Following School’s Failure to Stop Bullying (claypoollawfirm.com).

February 27, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (1)

Saturday, February 26, 2022

Appellate Advocacy Blog Weekly Roundup Saturday, February 26

WeeklyRoundupGraphic

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter (@Daniel_L_Real) or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

SCOTUS Opinions and News:
 
On Friday, President Biden nominated Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the D.C. Circuit to replace Justice Stephen Breyer when he steps down this summer.  The nomination is the first of a black woman, and has been largely expected since Biden's promises during the presidential campaign to nominate a black woman.  In addition to the historical significance of being the first black woman nominated to the Court, Judge Jackson also could be the first Justice on the Court with significant experience representing criminal defendants since Justice Thurgood Marshall and would join Justice Sotomayor as one of only two members of the Court with experience as a trial level judge.  SCOTUSblog's coverage HERE.
 
Federal Appellate Court Opinions and News:
 

Last week, the U.S. Court of Appeals for the Fifth Circuit issued an opinion in a case where United Airlines employees sought a preliminary injunction to stop enforcement of United Airline's COVID-19 vaccine mandate, in which the court reversed and remanded for further proceedings a trial court decision denying the preliminary injunction.  This week, United Airlines sought rehearing en banc from the Fifth Circuit.

    • Article on last week's decision HERE.
    • Last week's opinion HERE.
    • Petition for Rehearing HERE.

On Tuesday, the United States Court of Appeals for the Ninth Circuit reinstated a copyright lawsuit against Apple over the first three episodes of its psychological horror series, "Servant."  The suit alleges that the first three episodes are a "wholesale copy" of a 2013 feature film, "The Truth About Emmanuel."  The Ninth Circuit ruled that the trial judge was too quick to conclude that there is no substantial similarity between the two works.  More HERE.

State Appellate Court Opinions and News:

On Wednesday, the Iowa Supreme Court heard arguments in a case in which the court is asked to overturn a district court's ruling on a state law requiring women to wait at least 24 hours before obtaining an abortion.  In the case, the lower court entered a permanent injunction against the state law, and the state is now asking the high court to overturn the ruling.  More HERE.

 

February 26, 2022 | Permalink | Comments (1)

Tuesday, February 22, 2022

Preempting Appellate Issues in Palin v. New York Times

    In the space of two days last week, Sarah Palin lost her libel suit against the New York Times twice. Palin’s claim centered on a New York Times editorial in 2017 that linked Palin’s political rhetoric to the mass shooting that nearly cost representative Gabby Giffords her life. While the jury was deliberating on Monday, Judge Jed S. Rakoff, a senior judge in the Southern District of New York and former prosecutor who has written extensively on the flaws in America’s justice system, announced that he planned to dismiss the suit no matter what verdict the jury might return. Though Rakoff allowed the jury to continue deliberating, he announced his finding that Palin had not met the high standard to show “actual malice” by the newspaper, a requirement for public figures raising libel claims established in 1964’s New York Times Co. v. Sullivan. One day later, the jury agreed, rendering a verdict in favor of the Times that is likely to be appealed, perhaps all the way to the Supreme Court.

    Rakoff’s unusual step came in response to the Times’s motion for a directed verdict, which claimed that reasonable jurors could only conclude that Palin had failed to meet her evidentiary burden to show actual malice on the Times’s part. Such a directed verdict would be effective without any additional word from the jury. Such verdicts typically occur either before the jury begins deliberations or after they have returned a contrary verdict. In the Palin case, Rakoff’s extremely unusual ruling came while the jury was still deliberating. Rakoff justified that decision on the grounds that Palin was likely to appeal, so his ruling might avoid the need for a retrial. Because appellate courts are generally more deferential to jury verdicts, Rakoff’s apparent hope was that his ruling would allow the appellate court to consider the trial process concluded, then decide the appeal solely the legal issue of actual malice. That would prevent the appellate court from remanding for a new trial, which would render the proceedings to date an enormous waste of resources for all parties involved.

    It is no surprise that Judge Rakoff hopes to control the appellate process from this case given its long history in his courtroom. Judge Rakoff initially dismissed Palin’s lawsuit nearly five years earlier, only to have an appellate court reverse his decision and reinstate the case. He may have hoped to avoid the same fate, and thus permitted the jury to reach a verdict even though he was convinced that the suit had no legal merit. But his ruling may have affected jury deliberations nonetheless, undermining the very purpose behind it. After the jury reached its verdict, several jurors informed Judge Rakoff’s clerk that they had seen notifications about the Judge’s ruling on their phones. Though the jurors insisted that those notifications played no role in their decisions, Palin’s legal team is almost certain to seize upon that news in seeking a new trial during the appellate process. Rakoff’s decision thus seems likely to lead to complications on appeal at a minimum, and perhaps even the need for the very resource-intensive retrial he hoped to avoid.

    The case is a microcosm of the desire trial judges often harbor to control the outcome of their cases all the way through the appellate process. Trial judges may genuinely aim to enforce the rule of law without an eye towards the repercussions. But trial judges are also human actors within a legal system. And nobody, judge or not, enjoys hearing from their superiors that they have made a mistake and may need to repeat months or even years of work to correct it.

    Those kinds of cognitive biases are ever present, ever for trained and experienced judges. Those biases are difficult to control, though gains can be made by engaging more deliberative processes and reducing decision making to checklist-style thinking to reduce the impact of these biases. Blind efforts to buttress a given decision against overrule and remand, however, are unlikely to be successful. As the Palin case illustrates, they may even be counter-productive for the well-intentioned judge.

    Judge Rakoff’s judicial legacy is hardly in question. But even he may have succumb to the simple human desire to see an initial decision upheld without question or doubt. And in doing so, he may have done his own decision a disservice, making it far more likely that it will be reversed in the future. That kind of trial judge overreach should be avoided as much as possible.

February 22, 2022 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Legal Writing, Rhetoric, State Appeals Courts | Permalink | Comments (2)

Monday, February 21, 2022

A Presidents Day Book Recommendation

As readers of this blog know, I am working my way (very slowly) through reading a biography of each president. I generally get my book suggestions from this list. Since starting this project I have learned a lot about our past chief executives. But, few books have surprised me as much as Ron Chernow's biography of President Grant. It is truly a masterpiece!

Prior to reading the book I knew very little about Grant. I knew he was president and a great Civil War general who came in after the other generals messed up. Given the bios that I had read prior to Grant, I could have also told you that he was the first president to serve two terms since Andrew Jackson, which is an astonishing statistic.  But, there is so much more to Grant. While I could write pages on what stood out to me most, I am going to just point out three things and hope that this list encourages you to read the book.

1. Grant's life pre-Civil War was marked with failure. Prior to reading Chernow's book, I had known that Grant attended West Point and served in the military prior to the Civil War. I had assumed that Grant's entire career was military, but in actuality, Grant separated from the military under less than ideal circumstances prior to the War. He started his service in the Civil War as a volunteer.  Grant's non-military career was marked with significant failures and poverty. It is fascinating that a person who had such a brilliant mind for military strategy was such an abysmal business man.

2. Grant was a world traveler. After serving as president, Grant took a world tour that gave him a better view of international relations as took him as far as Russia and Japan. I suspect that few, if any, presidents prior to Grant saw as much of the world as he did (I know that John Quincy Adams was well-traveled).

3. Grant's reputation as a failed president is not deserved. While Grant's presidency did suffer from some scandals and poor appointments, he also made tremendous strides in appointing women and minorities to key positions. After reading Grant, I think that his reputation as a failed president just isn't deserved, especially given the president that preceded him. Other presidents have been wrought by scandals and accusations of nepotism. Should Grant have done more work on civil service reform?  Yes.  Did he put his trust in untrustworthy people? Yes. But, he also appointed African Americans, women, Native Americans, and Jews to key posts, unlike presidents who preceded him.  He made significant efforts to ensure that African Americans in the South could live in peace and enjoy their civil rights. He truly tried to finish the work that President Lincoln had started.

Although my journey with Grant lasted almost two months (it is a long book), I am a bit sad to see it end. I encourage anyone looking for a good, meaty read to pick this book up!

February 21, 2022 | Permalink | Comments (1)

Saturday, February 19, 2022

Writing Truly Helpful Statements of the Case, with Assistance from Bryan Garner and Justice Rutledge

In my LRW II classes last week, we reviewed persuasive Statement of Fact headings.  I repeated my usual points on making the headings a bit catchy, but completely honest and logical.  I reminded the students of all the notes we have showing busy judges sometimes only get a chance to skim briefs’ tables of contents, and instructed them to always include Statement of the Case headings on their Tables of Contents.  See generally https://legalblogwatch.typepad.com/legal_blog_watch/2012/02/federal-judges-want-you-to-spare-them-the-rhetoric-and-get-to-the-point.html (noting a Bankruptcy Court judge’s complaint judges “don’t have time for rhetoric” as they are “really, really busy”). 

In sum, I suggested students use fact headings to tell a logically-organized and persuasive story consistent with their overall theory of the case, and to only include key facts and truly needed background facts.

Then, after class, I happened to read Bryan Garner’s February 1, 2022 ABA Journal piece, Bryan Garner shares brief-writing advice from the late Supreme Court Justice Wiley B. Rutledge,

https://www.abajournal.com/magazine/article/bryan-garner-shares-brief-writing-advice-from-the-late-supreme-court-justice-wiley-b-rutledge.  As Garner reminded readers he:  “occasionally interview[s] long-dead authors.  Another name for it is active reading.  Actually, we do it all the time—taking an author and interrogating the text for all the wisdom it might yield.”  In Garner’s February piece, he interviewed U.S. Supreme Court Justice Wiley B. Rutledge (1894–1949), who also served as a law school dean before sitting on the Court.  Id.  I highly recommend reading Garner’s whole article, but today, I am focusing on the statement of facts points.

Garner asked Justice Rutledge if he was “bothered when the opposing lawyers have widely divergent statements of the facts.”  The Justice’s hypothetical reply is especially helpful for all appellate writers to remember:  “The bulk of the evidence is not controversial” and thus counsel “can freely and truly summarize.”  Id.  As I told my students, a careful summary where parties agree can sometimes be helpful.  Garner notes Justice Rutledge might say: 

This [summary] often, and especially when well done, may be the most helpful, if not also the most important part of the brief.  It cuts the brush away from the forest; it lifts the judge’s vision over the foothills to the mountains.  It enables [the court] to read the record with an eye to the important things, intelligently, in true perspective.

Id.    

 In a similar vein, I often quote to my students a wise law firm founder and mentor, who regularly reminds young associates, “all we really have in law is our good name.”  Bryan Garner notes how this saying can be especially true when we present facts, as any murky or possibly untrue assertion can quickly convince the court our entire brief is suspect.  Id.  Garner explained Justice Rutledge’s point on dealing with adverse facts this way:  “Few things add strength to an argument as does candid and full admission” which “[w]hen made, judges know that the lawyer is worthy of full confidence, and every sentence he [or she] utters or writes carries force from the very fact that [counsel] makes it.”  Id

Finally, on the dreaded topic of citation, Justice Rutledge reminds us our fact sections must have careful and accurate citations, as a “great time-saver for judges” and a way to increase credibility.  Id.  Garner concludes his article asking for the Justice’s concluding thoughts.  The Justice’s hypothetical reply is:  “Make your briefs clear, concise, honest, balanced, buttressed, convincing and interesting. The last is not least. A dull brief may be good law. An interesting one will make the judge aware of this.”  One great way to add interest is to give your court clear, concise, and interesting facts.

I wish you happy drafting.

February 19, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Law School, Legal Ethics, Legal Profession, Legal Writing, United States Supreme Court | Permalink | Comments (1)

Friday, February 18, 2022

Appellate Advocacy Blog Weekly Roundup Saturday, February 18, 2022

WeeklyRoundupGraphic

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

  • The Supreme Court is set to review whether the Biden administration can end the former administration’s “Remain in Mexico” border policy. After challenges from Texas and Missouri, a Texas US District Court ruled against the attempt to end the policy, ordering that the policy must remain in place. The Court will likely hear argument in Biden v. Texas, et al. in April. See reports from CNN, The Hill, and Roll Call.

  • The Library of Congress and the Supreme Court Fellows program posted this video of the February 17 program, titled “The 2022 Supreme Court Fellows Program Annual Lecture with U.S. Supreme Court Justice Stephen Breyer.”

  • New York University School of Law hosted the “Inaugural Robert A. Katzmann Lecture: A Conversation with Justice Sonia Sotomayor.” Find the conversation between Justice Sotomayro and Dean Trevor Morrison here.

Appellate Court Opinions and News

  • The Fifth Circuit reversed a district court’s denial of an injunction in a case brought by United Airlines employees challenging United’s vaccine mandate. The original petition sought to enjoin the vaccine mandate and the petition was denied. The court ruled that employees may indeed suffer irreparable harm from the vaccine mandate. The Fifth Circuit did not grant the injunction but remanded the case for consideration of other factors. The ruling became a topic of interest this week more for the scathing dissent than for the ruling itself. Judge Smith’s dissent included the following:

    If I ever wrote an opinion authorizing preliminary injunctive relief for plaintiffs without a cause of action, without a likelihood of success on the merits (for two reasons), and devoid of irreparable injury, despite the text, policy, and history of the relevant statute, despite the balance of equities and the public interest, and despite decades of contrary precedent from this circuit and the Supreme Court, all while inventing and distorting facts to suit my incoherent reasoning, “I would hide my head in a bag.” Perhaps the majority agrees. Why else shrink behind an unsigned and unpublished opinion?

    See the ruling and reports from The Associated Press, Courthouse News Service, and The National Law Journal. There was also a well-followed thread on Twitter.

     

  • California Governor Newsom has nominated Patricia Guerroro to the state’s supreme court. If confirmed, she will be the first Latina to sit on the court.  See reports from The Los Angeles Times, NBC News, and The San Francisco Chronical

     

     

February 18, 2022 in Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Thursday, February 17, 2022

In (partial) favor of remote arguments

Tessa blogged a couple of weeks ago in favor of remote arguments. I'll agree to a point, but wanted to add a couple of thoughts about the value of going back in person.

First, the agreement. In many State and Federal courts, the attorneys have to travel a great deal to argue--drive long distances, take a plane, etc.--or have to get additional child care. Where that would work a burden on the parties, I am in favor of having a remote option because the time and money it saves outweighs any gains from ease of conversation at an in-person argument. So having it as an option is great.

Now, the (maybe?) disagreement. Tessa is probably right that the purposes of oral argument can be accomplished just as well on a remote argument, and there's not too much persuasion lost. But it's just not the same experience. If the point is to crank out cases, then fine. But there's something lost for the judges and the attorneys in the experience. Appellate judges live very cloistered existences in the best of times, and have been even more isolated in the past couple of years. Some haven't even been around their clerks in person! Oral argument has historically been a way to professionally connect with the outside world, and I know many appellate judges who relish it. I also heard it directly recently. I went to the investiture of a close friend who was appointed to our intermediate appellate court and saw most of our appellate judges in person for the first time in years. Without exception, those I talked to yearned to go back to in-person arguments. We have all had an endless string of Zoom (or Teams or Webex) meetings, and oral argument has kinda felt like just another one of them. 

For the advocates who live and work close to the court, the value of in-person interaction is high. It's easier to read the court, and to have a more natural conversation. It's just more enjoyable, and I want to enjoy my work. While working at home has been very convenient to help with the kids, it's also meant very little work-life separation. I want to go to court again and not have kids crying upstairs while I try to hold forth on constitutional and statutory interpretation. I want to see opposing counsel before and after and chat about work and family. There's something to feeling more like a lawyer, too. When I started practicing, I was in an old run-down courthouse. The wallpaper on the walls was peeling off, there were water stains on the ceiling, etc. Every now and then I would go to the federal courthouse in Salt Lake and see the wood paneling, the beautiful architecture, etc., and say to myself, "this really feels like I'm a lawyer." It's been hard to feel very professional sitting in my basement surrounded by boxes of miscellany that we don't have room for elsewhere.  

If Tessa means that remote arguments should simply still continue being an option, then I agree--especially if there's a hybrid option where one attorney can appear in person if  desired. But please don't make remote arguments the rule rather than the exception when this is over. 

February 17, 2022 | Permalink | Comments (0)

Monday, February 14, 2022

Winter 2022 Issue of the Journal of Appellate Practice and Proccess

It is definitely winter in Tucson. I mean, it was a frigid 78 degrees here on Sunday. That means that the Winter 2022 issue of The Journal of Appellate Practice and Process (Volume 22, Issue 1) is now available. This issue features the following articles:

For questions about The Journal or to submit an article, please feel free to email me.

February 14, 2022 | Permalink | Comments (0)

Sunday, February 13, 2022

Skipping the Intermediate Appellate Court

            Some states permit direct appellate review by the state’s highest court in cases where a matter presents a serious opportunity to develop, change, or clarify the law. Where an issue is unresolved, a state or federal statute was declared unconstitutional, or the applicable law is obsolete or unclear, the procedure permits a high court the discretion to take the case, bypassing the intermediate appellate court, and address the question presented. The same may be true for matters of great public significance or where the precedent that will be set will likely govern other cases percolating through the system.

            Despite the many bases for direct appeals, they remain rare and should be used by practitioners sparingly. Direct appeals often have different time requirements and different procedures. Counsel considering a direct appeal needs to pay close attention to the grounds and process when undertaking such an appeal. Counsel must also consider whether seeking review in the intermediate appellate court might provide a good opinion that might enhance the chances for success in the higher court.

            It also helps to have a good sense of the higher court. Unlike other courts that sit in panels, a state’s highest court will usually sit en banc, rather than in a random panel, particularly when the issue qualifies for direct appeal. Knowing who will consider the case allows counsel to review past relevant decisions by those very justices. Knowledge of the justices’ expressed views on the issue’s importance, preferences for what qualifies for direct appeal based on prior rulings, and their familiarity with the underlying issue can help determine when to undertake such a “Hail Mary” by aiming straight to the end zone.

            Also rare, but possible, are direct appeals from a district court to the U.S. Supreme Court. In a recent grant of certiorari in Students for Fair Admissions v. University of North Carolina, No. 21-707, the Court took that case directly from a district court decision, likely because it raised the same issues as the Court chose to hear in a similar action involving Harvard University. The grant of certiorari relied on 28 U.S.C. 1254(1), which allows the Court to grant a petition for a writ of certiorari to review any case that is in the court of appeals, even if that court has not entered a final judgment. See, e.g., United States v. Nixon, 418 U.S. 683, 692 (1974). Under the Supreme Court Rule 11, a petition seeking direct review of a district court decision “will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”

            Despite that warning that certiorari before judgment is available only sparingly, Professor Steven Vladeck found that the UNC case marked the fourteenth time since February 2019 that the Court has granted a “before judgment” petition. Before that date, it had been fourteen years since the Court last used the procedure. Does this mean that cert before judgment will become more commonplace? There is no reason to assume that that will be the case. Although the Court has shown a greater interest in taking hot-button issues quite recently, we have also had a slew of justices expressing a concern that they are being view as too political. The upshot of those observations, especially once some of these controversial decisions come down, is that the Court is likely to return to take a more low-profile approach to choosing its docket, even if decisions tend to encourage new doctrinal overlays on familiar controversies. On the other hand, the Court could offset its growing use of the “shadow docket” by relying more heavily on cert before judgment to obtain a fuller review of cases.

            If cert before judgment does become a more prominent approach to review in the Court, it may well spawn similar approaches in the states. Although skipping the intermediate court is a more normal procedure in many states, and it would go against the grain of West Virginia newly adopting an intermediate appellate court, it is likely that state supreme court will find the expanded use of the procedure worth a further look.

February 13, 2022 in Appellate Advocacy, Appellate Practice, Appellate Procedure, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, February 11, 2022

Appellate Advocacy Blog Weekly Roundup Friday, February 11

WeeklyRoundupGraphic

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter (@Daniel_L_Real) or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

SCOTUS Opinions and News:
 
  • SCOTUS is currently on break from hearing cases.  Nonetheless, there was activity at the Court this past week, particularly concerning a Voting Rights Act case from Alabama on the "shadow docket" and continued public discourse about President Biden's plans for nominating a replacement for retiring Justice Breyer.
  • Earlier this week, in a 5-4 vote on a case on the "shadow docket," SCOTUS reinstated an Alabama voting map despite the lower court's ruling that the map violates the Voting Rights Act and dilutes black votes.  The ruling allows Alabama to institute the redistricting plan that is being challenged as illegal gerrymandering while the state prepares for primary elections in May.  The Court set the matter for oral argument sometime next fall, after the elections have already occurred.  More from SCOTUSblog.  

 

  • President Biden is continuing his search for a Supreme Court nominee to replace retiring Justice Breyer.  He spoke with Lester Holt of NBC news about his continued "deep dive" into potential candidates and his belief that his nominee will garner support from both sides of the political aisle.  More from NBC News 
Federal Appellate Court Opinions and News:
 
  • The Fifth Circuit this week declined to block an order of a lower court ruling that President Biden could not require federal employees to be vaccinated against coronavirus.  More from Reuters.
Appellate Jobs:
 
  • The Snohomish County, Washington, Prosecuting Attorney's Office is hiring a Senior Appellate Deputy Prosecuting Attorney to represent the State in appeals of felony convictions in the Washington Court of Appeals and Washington Supreme Court.  The job posting will remain open until filled.  More information HERE.

February 11, 2022 | Permalink | Comments (2)

Monday, February 7, 2022

In favor of remote arguments

Judge Jerry Smith of the United States Court of Appeals for the Fifth Circuit has been in the news recently after Gabe Roth,* the executive director of Fix the Court, filed an ethics complaint against Judge Smith. The complaint centers around Judge Smith telling a government attorney who wanted to remain masked during oral argument to remove his mask. Several media sources have reported on the incident, including the ABA Journal. This post, however, is going to focus on what happened about two weeks before the argument.

On December 21, 2021, the government attorney filed an unopposed motion to appear before the Fifth Circuit remotely. The attorney cited the spread of the omicron variant of COVID-19, the fact that he has young unvaccinated kids, and that the Office of Management and Budget had issued guidance “indicating that only mission-critical travel” was recommended at that time. According to the motion, “In evaluating whether or not travel is mission-critical, agency leadership is directed to strongly consider whether the purpose of the travel can be handled remotely.”

This motion was apparently denied. According to another ABA Journal article that I found, it appears that in the Fifth Circuit the choice to proceed in person or via a remote service is being done on a panel by panel basis. I was later able to clarify with the clerk's office that under FRAP 27(c) and the Fifth Circuit's internal operating procedures, requests for remote argument are single-judge motions that are routed through the presiding judge on the panel.**  According to that same article, other circuits are currently holding only remote arguments.

If COVID-19 has taught us anything it is (1) to stock up on toilet paper and (2) there are many things that can be done just as well (if not better) remotely.  I firmly believe that oral argument is one of those things.

Let’s think of the purpose of oral argument.  One of the key purposes of oral argument is to answer the judges’ questions—questions that stem from their review of the briefs and materials.  The Fifth Circuit is one of the courts that requires attorneys to request oral argument—and that request isn’t always granted. So, in cases that it is, the judges believe that a conversation with the attorneys will help them decide the case.  Having engaged in hundreds of conversations via Zoom over the last two years, including numerous student oral arguments, moots for real attorneys, and large faculty senate meetings, I just don’t see how that purpose of oral argument is diminished by a virtual format.

Another purpose of oral argument is to persuade the judges using your ethos. I do think that this can be harder to do remotely, but not impossible. I have blogged on this site, as have others, on tips for a successful remote argument. It is doable, just different.

I cannot think of any reason why an attorney who wants a remote argument, especially if the other side agrees, should not be allowed to present remotely—pandemic or not. And while there are countless reasons why remote argument should be allowed, I want to focus on two.  The first is cost. Why should the taxpayers pay flight, hotel, and per diem for an attorney to fly from D.C. to San Francisco or New Orleans or Anchorage to deliver a 10-minute oral argument when that attorney could appear remotely. Likewise, non-profit organizations that engage in advocacy work could experience tremendous cost savings with remote arguments.

The second reason is convenience. Convenience probably isn’t the best word, but it is all that I am coming up with right now.  As the mom of two very young kids (3.5 and 1.5), it is hard for me to leave town and travel. My spouse and I are fortunate enough to have family in town for half the year, and they stay at our house when either my husband or I are traveling. But, not everyone who is in a caretaking role is that lucky.  Remote arguments would allow me to have an appellate practice, but still be there at night to tuck in my kids at night. 

Allow me a real-life example. In June 2019 (yes, pre-pandemic!), I was set to travel to South Carolina to speak at the National Advocacy Center.  It was a pretty neat opportunity—I would be presenting to the Appellate Chiefs from the U.S. Attorneys Offices.  Shortly before the event, my son, who was 15 months old at the time, got very ill.  He was hospitalized for a few days, and I did not feel comfortable leaving town.  With the help of the U.S. Attorney’s Office in Tucson, I was still able to give my presentation remotely. I headed to their downtown office and used their video conferencing software. Since it was pre-pandemic, it was little bit of a clunky presentation, but overall I think that it was still effective. And, I was able to be home if my son’s condition regressed (thankfully it didn’t).

After nearly two years of pandemic I get that we are ready to be back to “normal.” But I don’t see any reason why “normal” can’t include some of the amazing technology advances that we have become accustomed to using. If you allow me one more story—my husband and I traveled last weekend to a conference and left our kids with my parents. It was the first time we had done so.  While we were driving to our destination, I called to check in on things and “chatted” with our 19-month-old. As we “talked” I could hear my mom telling her that this call didn’t include a video.  Afterwards, I reflected to my husband that our kids will only know a world where there is video calling. That is remarkable to me—I remember how novel it was when dad got a brick cellphone.  And while we can and should be careful that we don’t become addicted to technology, there is no reason we can’t use it to work smarter and more efficiently. And, if it allows me to have more hugs and slobbery toddler kisses at night, rather than staying alone in a hotel room, I am all for it.

*Edited to fix the name of the executive director of Fix the Court.

**After writing this post, I learned the underlined information from the clerk's office. I have updated the article to reflect that information.  A big thanks to the clerk's office for answering my questions. When in doubt, call the clerk!

February 7, 2022 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Oral Argument, Web/Tech | Permalink | Comments (1)

Saturday, February 5, 2022

Framing the Crux of Your Arguments

Legal folks are always disagreeing. But what many people forget is that you have a lot of power in how you frame a disagreement, or dispute, or any point, really. A slight tweak in how you frame things can change audiences’ perspective entirely.

Framing is magic. A word here, a phrase there, and our readers respond differently to the same information. When I say framing, I mean making language choices so that a standard, an issue, a rule, or a situation sounds more favorable to your side (while still accurately relating the details). This is a go-to tool in many contexts, so let’s look at some simple ways to frame a point favorably.


First: Emphasizing favorable facts (with word placement, places of emphasis, extensive details, context, or style). This tool has you first step back and decide: What helpful facts are relevant to this point or issue? Then you make smart decisions to highlight those good details, insert them before the bad facts, and your readers then focus on the good.


Notice here how just by focusing on different details when relating the issue, our readers take away a different perspective (both are accurate details, though—that is key to your credibility). First, we focus on missed deadlines in the past (a defendant’s perspective). Second, we focus on this filing, which the plaintiff actually filed early. Both facts are true, but by picking one over the other to highlight in framing the issue, our reader’s perspective shifts.


"The plaintiff blew the deadline six times before asking for an extension."

vs.

"The plaintiff sought an extension to this deadline weeks before it was due."


Second: Using modifiers to change the focus. Modifiers like only, unless, always, and so on make it easy to frame issues for readers. Simply find the most favorable perspective and insert the proper modifier to make the point sound more or less compelling. Notice here how “need only” and “unless” controls the reader’s perspective to make things sound harder or easier:


"The government need only show a single mistake to win."

vs.

"Unless the government can show a bona fide mistake, it loses."


Third: Using dependent/independent clauses to change the focus. This tool has you put the good stuff in the independent clause and the bad stuff in the dependent clause. Even a small change like this can make a big difference.


"Although the court never ruled on notice, it stated that 'notice was surely lacking in this case.'"

vs.

"Although the court mentioned that notice may be lacking, the court never ruled on this issue at all."


Fourth: Inoculate readers against bad facts or authorities. This is a key tool. Simply frame an issue or point so that it already deals with opposing points or makes them irrelevant. Notice how in this example, the author is framing the point to make opposing facts irrelevant or less compelling:


"The government need not allege a financial loss to pursue a qui tam claim here." [knowing that a key argument on the other side is the lack of financial loss].


Fifth: Recast opposing perspectives or arguments accurately but ripe for your counter. With this tool, you take an opposing point and reframe it. But be careful: You can’t misrepresent opposing points or your credibility will take a hit. Often it helps to start with some faithful quotes, then a reframe that is fair but adds a favorable perspective.


"The plaintiff argues for a standard requiring 'little to no actual intent.' In other words, plaintiff seeks to flip a decade-old standard with no authority or other legal support for doing so."


Sixth: Consider other tools like broadening or narrowing categories, using hypotheticals, crafting slogans, and more. Many other tools will help you reframe—this is a skill worth continuously honing. For example, you can urge the court to put a point into a larger category, or a narrow one, or emphasize a general rule over a specific one, and so on:


"The plaintiff urges the court to adopt a 'breach and buyout' approach to interpreting government contracts. But the general rule has always been that these sorts of contracts are special and that buyout is not an option."

February 5, 2022 | Permalink | Comments (0)

Thursday, February 3, 2022

[Sic] It, Fix It, or Ignore It?  The Rhetorical Implications of Spotlighting Another Writer’s Error

Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.

[Sic] It, Fix It, or Ignore It?  The Rhetorical Implications of Spotlighting Another Writer’s Error

I’m teaching The First Amendment this semester, which means I’m reading very closely a lot of United States Supreme Court opinions on freedom of expression. (An aside:  One of my favorite opinions for a close read of persuasive writing is Justice Alito’s dissenting opinion in Snyder v. Phelps; although I largely disagree with him on his reasoning and conclusions in that opinion, the opinion is a great example of using details and evoking emotion in support of reasoning.)

I was closely reading the majority opinion in RAV v. City of St. Paul, written by Justice Scalia, when I noticed this sentence, in which the Justice describes Respondent City of St. Paul’s argument about why its Bias Motivated Crime Ordinance did not violate the First Amendment (Scalia, writing for the majority, found that it did):

According to St. Paul, the ordinance is intended, “not to impact on [sic] the right of free expression of the accused,” but rather to “protect against the victimization of a person or persons who are particularly vulnerable because of their membership in a group that historically has been discriminated against.”

Appellate lawyers know the ALWD Guide to Legal Citation or The Bluebook: A Uniform System of Citation rules for using [sic].  If there is a mistake in a quotation, “such as spelling, typographical, or grammatical errors,” says the ALWD Guide, authors may use [sic] to indicate that the error is not their own but is instead part of the original quotation.  Alternatively, authors may fix the error themselves, using brackets to correct the original author’s mistake. (For more, consult ALWD Guide Rule 39.6, Indicating Mistakes in the Original and The Bluebook Rule 5.2, Alterations and Quotations Within Quotations.)

Knowing these rules, I must confess that I was distracted by the [sic] in Justice Scalia’s sentence rather than confident that I understood his meaning.  What exactly was Justice Scalia’s concern that [sic] was signaling?  Was he suggesting that “on” should have been omitted? Or was he saying that the right word to use here was “upon”? Or was he suggesting something else altogether?  And, I wondered, how did the misuse of “on” make a difference to his opinion?  Or to St. Paul’s argument?  Or to anything for that matter?  Was Justice Scalia drawing my attention to the error just for the sake of showing that St. Paul had made an error? And, if so, why would Justice Scalia do that? 

Scalia’s choice to use [sic] here rather than pursue some other alternative made me wonder:  Even if a legal writer may draw attention to another writer’s error by using [sic] rather than correcting the mistake, should the legal writer do so?  Answering that question requires thinking about not only about how to accurately signal a mistake in a quotation, but also about how [sic] influences the persuasiveness of the document and the reader’s perception of the writer.

The first thing to think about when considering whether to use [sic] is that [sic] has the potential to create unnecessary ambiguity and distraction. [Sic] means more than what the ALWD Guide or The Bluebook suggest.  That is, although it’s true that [sic] can mean grammar or spelling error, it can also mean the presence of unexpected language or phrasing.  The Redbook, in fact, suggests that [sic] can be used to indicate either an error or an “oddity” in quotation.  

Miriam-Webster’s usage notes give this example. The Toronto Maple Leafs are not, in fact, the Toronto Maple Leaves.  The name does not reflect a grammatical error but an unusual usage of the word “leaf.”  Thus, a writer quoting the phrase “Maple Leafs [sic]” isn’t indicating a spelling error (i.e., the misspelling of the plural form of ‘leaf’) but instead is indicating an unexpected or novel usage of the word “leaf.”  So, when a writer uses [sic], particularly where there isn’t an obvious error, [sic]’s meaning may be ambiguous to the reader.

 In the case of Scalia’s sentence, the error of “impact on” wasn’t obvious to me, and so I was confused and distracted by its use.  I thought perhaps he was pointing to a grammatical error that I didn’t recognize, or, now that I’ve checked The Redbook, I think maybe he might have been pointing out one of those “oddities” The Redbook refers to.   I’m still not sure.

 I researched what Justice Scalia might have meant when he wrote “impact on [sic].”  The Redbook told me that “impact” as a verb is of “questionable” use, and that better choices would be “affect” or “influence.” So maybe Justice Scalia was signaling this questionable use. But both the ALWD Guide and The Bluebook say that [sic] should follow the error, and the ALWD Guide emphasizes that [sic] should be inserted “immediately after the word containing the mistake.” So, if Justice Scalia was using [sic] to indicate this disfavored usage, then [sic] should have followed “impact” rather than “on.”

Regarding the preposition “on,” The Redbook suggested that “on” is a preposition that commonly relates its object to another word based on the concept of space. So, perhaps Justice Scalia was signaling that “on” was misused in the phrase “impact on the right of free expression” because the relationship between St. Paul’s ordinance and the right of free expression is not one of space.  If that were Justice Scalia’s concern, then perhaps he used [sic] to signal to the reader that a more deftly written sentence would have left out “on” and simply said “impact the right of free expression.”

But, even then, perhaps Justice Scalia was not signaling that “on” was an “error” to be fixed at all.  Maybe he simply meant that “impact on” was an unexpected usage or an oddity.  The Redbook offers that “[t]he use of prepositions is highly idiomatic: there are no infallible rules to guide you in deciding what preposition to use with a particular word (emphasis added).  If that’s the case, then, Justice Scalia’s [sic] might have been expressing that “impact on” is an unexpected or unusual usage in the sentence’s context.

Ultimately, I wondered why Justice Scalia didn’t just change “impact on” to “[affect]” if that was his concern.  Both The ALWD Guide and The Bluebook would have allowed him to do so. But I think I can understand why Justice Scalia might not want to change St. Paul’s specific word choice.  If he made that kind of change, he would be doing more than addressing a simple and obvious error in the text, as he would do if he changed a comma to a semi-colon, corrected a misspelling, or changed a singular verb to a plural one.  Arguably, by changing “impact” to “affect,” Justice Scalia might actually have altered the meaning of St. Paul’s argument ever so slightly.  And, because he was quoting St. Paul, changing meaning is a legitimate concern.

Even after my research, I’m still not sure what Justice Scalia had in mind with “impact on [sic].”  But I am sure that I was distracted by its use, and I focused more on [sic] than what Justice Scalia was saying about the merits of St. Paul’s argument.  I wonder what would have happened if Justice Scalia had just left the quote alone.  While I don’t have scientific proof for my suggestion, I imagine most readers would easily understand the general meaning of “impact on” as it was used in the St. Paul’s quote.  It seems that the use of [sic] in the sentence attracts the reader’s attention to an unimportant point and wastes the reader’s time.  

The second thing to consider when thinking about [sic]’s persuasive use is that note that [sic] can be interpreted as a sneer—it can, in a contemptuous way, needlessly call attention to others’ errors. Miriam-Webster’s usage notes refer to this as problem of “etiquette”; in the context of legal writing, we might think of it as a problem of professionalism. Miriam-Webster says that [sic] can be used to “needlessly mak[e] a value judgment on someone else’s language habits.”  Even Garner’s Modern English Usage says that [sic] can be used “meanly,” as a way to show the writer’s sense of superiority. The Redbook says, notably, that [sic] “should never be used as a snide way to highlight the errors of another writer.”  But Miriam-Webster points out that “sometimes pedantic condescension is precisely what [the writer is] going for.” Bottom line:  don’t use a “sneering [sic].”

In the context of writing persuasively in the law, I’d take the concern about the sneering [sic] a bit further:  A sneering [sic] not just about etiquette or professionalism; using [sic] to point out an error in a party’s argument can also represent an appeal to a logical fallacy, the ad hominem argument.  The ad hominem argument is a fallacious argument that gets its strength from undermining a logical, reasoned argument by attacking the character of a person making the argument. This usage might be popular in situations where a writer uses [sic] to implicitly suggest that the argument contained in quotation cannot be trusted because the quote’s author is incapable of writing well.  In other words, using [sic] can distract the reader from an arguments’ merit and instead implicitly suggest to the reader there is something untrustworthy about the argument because of the writing errors of the author. If it’s the case that the errors represent an untrustworthy argument, there’s nothing fallacious about using [sic]. But, when the legal writer knows that [sic] is an implicit attack on the character of another, than [sic] is a problem.

So, where does this analysis of [sic] leave the legal writer?  First, it should leave the legal writer with the sense that correcting errors in other people’s writing is not only an accuracy problem but also a rhetorical one. That is, when writers choose to use [sic] or not, they make rhetorical choices.  Moreover, it should leave the writer with the sense that [sic] can be either a helpful corrective or an unhelpful distraction, and that the writer needs to understand these potential rhetorical effects on the audience before making a choice about using [sic].

Here are some best practices for using [sic] to correct an error in the quotation of another writer.

  • When possible, prefer not to use [sic]. Unless it really matters, don’t use [sic] to indicate an error or an odd or unexpected usage, I’d argue that Justice Scalia would have lost nothing—not accuracy, understandability, or influence--by leaving the quote from the City of St. Paul alone and avoiding [sic].  No reader would be confused that the phrase “impact on” was attributable to the City of St. Paul and not Justice Scalia.  And the phrase itself is not obviously “wrong.”  So, no harm, no foul.
  • Prefer paraphrasing instead. If you can avoid quoting a passage with an error and a paraphrase would work just as well, do that.  I think Justice Scalia could have been just as effective in his writing if he had paraphrased St. Paul’s argument like this: “St. Paul argues that the City did not intend its ordinance to affect the accused person’s free expression . . . .” Would the reader’s experience have been worse if Justice Scalia had paraphrased that portion of the quotation? 
  • If paraphrasing won’t work, prefer to fix the error. When an error must be corrected, or the error is distracting, correct it according to the ALWD Guide and The Bluebook rules rather than use [sic].  Frankly, correcting the error is a kinder, more professional thing to do. The Redbook agrees: “[I]t is better to correct those minor mistakes using brackets.” There are some instances, however, where correcting an error in a quote may not be the best option.  For example, you may not want to put your words in the mouth of your opponent.  In that case, [sic] might be best.  But, if the exact words aren’t that important, don’t quote the problematic content in first place.  Paraphrase instead.
  • If nothing else works, use [sic]. If rigorous accuracy in representing the original quotation is a must, then use [sic].  For example, rigorous accuracy might be needed when quoting statutes.  Another situation that would call for using [sic] to indicate errors in a quotation might be when a legal writer is quoting written or transcribed witness testimony.  If altering the testimony might be viewed as unethical or deceptive, then use [sic].  But don’t use [sic] repeatedly to indicate the same error by the same quoted author; one [sic] should be enough to put your reader on notice of the repeated mistake.

Thanks for reading! What are your thoughts on [sic]?

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. Among other things she’s up to right now, she’s currently serving on the Florida Bar Association’s Special Committee on Professionalism. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at kkdavis@law.stetson.edu.

February 3, 2022 in Appellate Advocacy, Appellate Practice, Legal Ethics, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (1)