Thursday, February 2, 2012
While perusing my 2012 Green Bag Almanac, I came across a Kozinski concurrence that the Green Bag recognized as exemplary, United States v. Alvarez, 638 F.3d 666 (9th Cir. 2011). What struck me about the opinion is the attention-grabbing power of its opening:
According to our dissenting colleagues, “non-satirical and non-theatrical [ ] knowingly false statements of fact are always unprotected” by the First Amendment. United States v. Alvarez, 617 F.3d 1198, 1224 (9th Cir.2010) (Bybee, J., dissenting); see also O'Scannlain dissent at 677–78; cf. Gould dissent at 687. Not “often,” not “sometimes,” but always. Not “if the government has an important interest” nor “if someone's harmed” nor “if it's made in public,” but always. “Always” is a deliciously dangerous word, often eaten with a side of crow.
The opening made me reflect on the overall importance of primacy in legal writing. Getting the reader's attention early is critical in brief writing because the reader is also the decision maker. But grabbing attention in judicial opinion writing sometimes seems to serve other interests, like legal writing as high art, humor, or increasing public awareness of the law. The circuit judge also has an audience that makes decisions, most notably the United States Supreme Court. In Alvarez, Kozinski's concurrence received attention from his audience in the form of a cert grant. The case will be argued in a few weeks. Mission accomplished?