English 584: Rhetoric of Law

Dennis Baron

Fall 2014
Thursday 3 -5 pm
307 English Building

office hours:
Thurs 2 - 3 and by appointment

office phone: 217-305-0067
email: debaron@illinois.edu

Early printed version of what would eventually become the First Amendment,
in the Connecticut Gazette, Sept. 4, 1789, p. 2.

Description:
The image projected by law, and by individual laws, is that of an objective regulator of formal human interactions whose interpretation, in the cases when it is in doubt, may be ascertained and fixed through reasoned argument and balanced adjudication. The reality is somewhat different. Law, like any body of text, is a communicaton produced and interpreted by human beings whose understanding of its authority, intent, and meaning may differ, sometimes wildly. Frequent references to the sanctity of legal documents like the written American Constitution or the unwritten body of precedents that form the British Constitution project it as a powerful touchstone to be approached with reverence and awe -- it is "the Law," a force like the Bible, the Sun, and other constants prefaced with the definite article. But the most cursory examination of its application shows that its application may be inconstant, not just over time, and from judicial body to judicial body, but also in individual cases. That said, it is useful to treat law as we treat other texts, by examining not simply "what it means," but how it means, specifically how the rhetorical conditions and linguistic structure of legal texts condition its impact and application.

Put more simply, we will consider both how legal texts make meaning, and how we, and the courts, interpret that meaning. The law depends on our common understanding of language to frame and interpret everything from statutes and contracts to witness statements and judicial rulings. And yet that common understanding varies: your meaning is not my meaning. And so the law assigns the meaning to language as well, sorting out ambiguity and resolving opposing readings of the same text. To put this abstraction more manageably: in Washington, DC, v. Heller, nine highly-educated Supreme Court justices came to two completely opposite interpretations of the Second Amendment (the one about the right to bear arms).

Language may also be the object of the law. We will see how governments, schools, and businesses create policies that privilege, protect, or restrict the use of language by citizens, students, employees, and consumers. We'll look at First Amendment cases from the Alien and Sedition Acts to George Carlin’s “7 Dirty Words You Can’t Say on TV” (revisited in the recent Supreme Court decision in FCC v. FOX), to the USA Patriot Act. We'll look at language as intellectual property, with particular attention to ownership of digital text, and at issues of language in the workplace. And we’ll look at attempts to designate English as an official language at the federal, state, and local levels, as well as official language policies in schools and workplaces, together with various efforts to restrict or protect the rights of minority-language and minority-dialect speakers.

Readings — all are available online, with frequent updates — they consist of legislation, court cases, and analyses of various legal issues relevant to the topic.

Papers:

  1. Weekly short response essays (500-750 words) to be read and discussed in class. Email me your response before seminar each week. In a week conflating topics, feel free to write on any aspect of the week's reading that interests you.
  2. You are also asked to write a seminar paper on a topic related to law and language, and to do a presentation and lead a discussion on that topic. The paper will be due at the end of the semester, sent by email, at the last seminar meeting. Your presentation will be of a work in progress, not your finished paper (unless of course it is finished), and the discussion should provide useful feedback and direction as you complete your paper.

Syllabus:

Aug 28

1. Performative legal language

First, watch the clips

Four Weddings and a Funeral: When is language binding?

Obama takes the oath

The 2009 Presidential oath of office: so nice, they did it twice

The 2013 Presidential oath of office: taking no chances, it was audio only.

Then read

Baron: Strict constructionist Chief Justice flubs oath, Obama presidency survives unscathed

Jeffrey Toobin on the Obama Oaths of Office in 2009

2. Should dictionaries be illegal?

Read U.S. v. Costello

Read: Baron, "Dictionaries and the Law"

Attorneys and judges regularly turn to dictionaries like Webster's Third, the OED, or the American Heritage Dictionary to find out what the law means. Is that wise? Dictionaries aren't created with the courts in mind (except of course for legal dictionaries, like Black's Law Dictionary), and both legal scholars and lexicographers are voicing their concerns about using dictionaries as proof in court.

 

In U.S. v. Costello (11-2917, 2012), Judge Richard Posner, of the US 7th Circuit Court of Appeals, argues that dictionaries are museums of words, and so it is unwise to use them when interpreting the law. Costello was convicted of the felony of harboring an illegal alien. The government argued that she "harbored" her live-in boyfriend, a Mexican drug dealer who had already been deported once after doing time and who returned to this country illegally and was convicted of yet another drug offense. Reversing Costello's conviction for harboring, Posner finds the government's definition of harbor to be far-fetched when applied to a live-in boyfriend. He rejects the two dictionary definitions that the government relied on and cites his own Google search of the word harbor to demonstrate that dictionaries don't really tell the full story when it comes to what words mean.

 

Frequency of Supreme Court dictionary look-ups, Werbach (1994)

Sept 4 District of Columbia v. Heller: Activist judges making law

Read Baron: "Guns and Grammar: Linguistic authority and legal interpretation in District of Columbia, v. Heller"

What do we learn about language and the law when nine highly-educated justices of the U.S. Supreme Court, who spend their entire professional lives analyzing and interpreting text, can hold two directly opposite interpretations of the Second Amendment? In Heller, which challenged Washington, D.C.'s, 27-year-old ban on handguns, supporters of gun regulation sought to read the Second Amendment--the one about the right to bear arms--from an "originalist" perspective, limiting the scope of the Amendment to militia and other military uses of weapons. Although the Second Amendment and the rest of the Constitution are silent on the right of self-defense, those who argued for an individual right to bear arms, and against gun control, read the Amendment as part of a "living Constitution," one whose meaning changes with the times. Anticipating NRA president Wayne LaPierre's recent claim that the only thing that can stop a bad guy with a gun is a good guy with a gun, they oppose gun control because "it's dangerous out there in the urban jungle." As Richard Posner and others have observed, in the Heller decision, an activist conservative majority on the Supreme Court didn't interpret law, they made law.

Suggested response topic: It's perfectly normal for us to interpret written text by reading between the lines. Should we do that as well when we interpret the law?

Second Amendment slides

Annotated Second Amendment

Background links:

Sept 11 The right to privacy -- when meaning is implied, not expressed

CCTC is everywhere at Oxford University

 

Nowhere does the word privacy appear in the Constitution or in its amendments, and yet the Supreme Court has derived a right to privacy Privacy concerns first come to light in the United States a century after the adoption of the Constitution, in a classic 1890 essay in the Harvard Law Review warning that the latest technological advances of newspapers and photography could invade and destroy traditional notions of privacy, or the "right to be let alone." Although privacy is now a well-entrenched legal concept, today's technologies force us to re-examine the right to privacy once again.

 

Read Baron, "The Right to Be Let Alone"

Read: Samuel D. Warren and Louis D. Brandeis, The Right to Privacy

Supplemental reading:

Sept 18 The new panopticon: privacy in the digital age

Read Baron, "The New Panopticon"

Supplemental reading:

Sept 25 -- No class today: Rosh Hashana

Oct 2 It’s a free country: the First Amendment and the abridgement of speech

Rep. Gabby Gifford reads the First Amendment before the House of Representatives.

 

Justice Oliver Wendell Holmes stated in Schenck v. US (1919), the first significant First Amendment case, his famous aphorism about "falsely shouting fire in a theatre" and set forth a "clear and present danger test" to judge whether speech is protected by the First Amendment:

The question is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has the right to prevent. It is a question of proximity and degree.

The Supreme Court affirmed the convictions of the defendants for conspiring to violate federal law by attempting to incite subordination in the armed forces and interfere with recruitment and enlistment. During wartime, the defendants mailed to new recruits and enlisted men leaflets that compared military conscription to involuntary servitude and urged them to assert constitutional rights.

 

Read:

Speech in wartime

Today's update to the Pentagon Papers is WIkiLeaks and the Snowden leaks. Responses include:

student speech:

corporate speech

 

 

loose lips

Oct 9 Speech rights and censorship

Decency Squabble: The Senate Debates Lady Chatterley's Lover in 1930

Roth v. United States 354 U.S. 476 (1957) The standard for judging obscenity, adequate to withstand the charge of constitutional infirmity, is whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.

A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Com. of Mass. , 383 U.S. 413 (1966) (This is an obscenity case in which Memoirs of a Woman of Pleasure (commonly known as Fanny Hill), written by John Cleland in 1749, was adjudged obscene in a proceeding that put on trial the book itself, and not its publisher or distributor. Since a book cannot be proscribed as obscene unless found to be utterly without redeeming social value, the Massachusetts Supreme Judicial Court erroneously interpreted the federal constitutional standard).

Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d. 419 (1973)

In this case, the U.S. Supreme Court mapped out its famous three-part definition of obscenity. First, the average person, applying contemporary community standards, must find that the work, taken as a whole, appeals to prurient interests; second, that it depicts or describes, in a patently offensive way, sexual conduct as defined by state law; and third, that the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. The Court ruled that community standards and state statutes that describe sexual depictions to be suppressed could be used to prosecute Miller, who operated one of the largest West Coast mail order businesses dealing in sexually explicit materials.

FCC v. Pacifica Foundation, 438 U.S. 726 (1978)--George Carlin's Seven dirty words you can't say on TV (though the case concerns a radio broadcast of his comedy routine; a transcript of that routine appears in an appendix in the Court's opinion).

In a case that considered the First Amendment protections extended to a radio station's daytime broadcast of comedian George Carlin's "Seven Filthy Words" monologue, the Supreme Court held that Section 326 of the Telecommunications Act, which prohibits the FCC from censoring broadcasts over radio or television, does not limit the FCC's authority to sanction radio or television stations broadcasting material that is obscene, indecent, or profane. Though the censorship ban under Section 326 precludes editing proposed broadcasts in advance, the ban does not deny the FCC the power to review the content of completed broadcasts. In its decision, the Court concluded that broadcast materials have limited First Amendment protection because of the uniquely pervasive presence that radio and television occupy in the lives of people, and the unique ability of children to access radio and television broadcasts.

Court Bans 7 Dirty Words

 

Oct 16 The question of official English?

English-only zone

Oct 23 Owning text

Copyright

Nov 6 Employer/employee language rights

Nov 13 "You have the right to remain silent . . . ." Forensics

Nov 20 Presentations

Fall break week

Dec 4 Summation Presentations

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