[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.