Kramer and Solum on Grice

Lawrence J. Kramer, for the Grice Club

This is (way) too long to be a comment on the original thread.

Let me offer a reductionist, “verbist” approach to the meaning of legal texts.

Every judge in every case has to answer one question: What, if anything, shall I use my authority as a judge to direct the state to use its monopoly on the legitimate use of force to do to the defendant before me? It makes no difference whether a plaintiff seeks damages or the “people” seek incarceration or worse. The result, if unfavorable to the defendant, will be enforced by the state, and so the judge’s crucial act is to authorize and direct (or not) the State to do something to the defendant.

In a criminal trial, justice demands that the judge find certain things to be true. Among those things is that the defendant stands accused of an act that he could have known (whether or not he did know) was a crime. Thus, if a criminal statute says that one may not karulize elatically in a public place, and “karulize elatically” is gibberish not further defined in the statute, there can be no prosecution, no matter what the legislature may have intended to proscribe by enacting the statute. The “intended meaning” of the statute is not dispositive of its application. What matters is what it gives intelligible notice of. As I said, the dictionary is the master.

In the case of criminal statutes, my argument leads me to the same place as Prof. Solum’s view that "[T]he best theory of the meaning [of a legal text] is based on the ordinary or technical meaning of its words and phrases." But I am not seeking a “theory of meaning.” I am seeking a strategy for deciding whether a statute causes a judge to authorize the state to take some action against the defendant. The best such strategy, I believe, is to apply a criminal statute as it is understood by a speaker of the common language of the place and time where the defendant is acting, not because that’s its “meaning,” but because that’s what justice demands. If reading the statute would not put a literate (or, in technical matters, a professionally advised) citizen on notice, how can due process of law result in criminal action against him? There may thus be a sense in which a statute means what the legislature intends it to mean, but it only says what it can reasonably be read to say, if anything.

Nothing, of course, is that simple. A criminal defendant is entitled to have the law applied in its English meaning because that’s what due process demands. But what about a constitutional provision that limits the power of the legislature to enact certain laws? The legislature’s liberty is not at stake here. The judge is still trying to figure out what he must order the state to do or not do to the defendant, but the defendant is not claiming that he did not know that what he did was proscribed by the statute. He is claiming that the Constitution forbids the state from forbidding him to do what he did. Instead of saying “I couldn’t know that ‘karulize elatically’ meant ‘shout “fire” in a crowded theater’” he is saying “I couldn’t know that ‘freedom of speech’ did not extend to shouting fire in a crowded theater.”

What strategy should a judge adopt toward applying the constitutional provision? American constitutional law has evolved so that constitutional prohibitions on government action are not construed as strictly as criminal statutes. Rather, courts apply to constitutional provisions the strategy of seeking out the drafters’ intention. Several reasons can be advanced for adopting a different strategy toward constitutional protections from that applied to criminal statutes. Rather than get lost in the weeds of substance, though, I would point to the varying maxims of statutory construction to make the point that drafters’ intent is due varying levels of judicial respect. Thus, a “theory of meaning” seems to me impossible to develop except to the extent that one is willing to treat “meaning” as only one indicium of how a legal text is to be applied, in which case I wonder if the game is worth the candle.

One interesting aspect of R.A.V. v. St. Paul is that the concurring opinions found the statute in question overly broad. The statute was defective because it prohibited, for example, action that would raise mere “resentment.” The statute certainly prohibited actions that had the unprotected status of fighting words, and what the defendants did could certainly be found to have been fighting words, but, in the view of the concurring justices, the mere fact that that the statute prohibited some protected speech rendered it unconstitutional as to all speech. The defendants, in a sense, lucked out.

The Minnesota Supreme Court might have tried to “save” the conviction of the R.A.V. defendants in two ways. The Court could have said that the law prohibits, inter alia, action tantamount to fighting words, that what the defendant did was thus a crime under the ordinance, and the statute could constitutionally, and did clearly, make that conduct a crime. Or, the Court could say that the statute only prohibited conduct tantamount to fighting words, with the same result as to the defendants. The first approach, it seems to me, does not invoke Humpty Dumpty. That approach does not attempt to give the statute something other than its plain English meaning, but says only that within that meaning lie acts that can constitutionally be punished. There may be defendants as to whom the ordinance is unconstitutional, but no such defendant is before the court, and the defendant who is before the court cannot speak for them.

But Federal constitutional jurisprudence goes another way. Although some constitutional claims may only be advanced by defendants to whose situation they apply, claims that a restriction on protected conduct are “overbroad” may be advanced by any defendant, including one as to whom the overbreadth is irrelevant. According to the authorities cited by Justice White, the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted. So the Minnesota Supreme Court could not save the convictions by denying the defendant’s right to challenge it. The statute itself had to be saved.

In some cases, a statute can be saved by “severing” an offending provision. Thus, if the statute had expressly forbidden cross-burning and egg-throwing, and the egg-throwing provision were found to be unconstitutional, a court might nevertheless “sever” the latter and uphold a cross-burning conviction. But where the unprotected speech is buried within the words “anger, alarm or resentment,” there is nothing to sever, and the Minnesota court may have concluded that it had to invoke the Humpty-Dumpty option: saying that the law only forbade fighting words. But that’s not what the statute said. The Minnesota Supreme Court thus created a problem for the concurring justices: the state court’s reading of the statute was bizarre, but it was also binding. And so we return to the question of who is the master of what:

[Defendant] contends that the St. Paul ordinance is not susceptible to a narrowing construction and that the ordinance therefore should be considered as written, and not as construed by the Minnesota Supreme Court. [Defendant] is wrong. Where a state court has interpreted a provision of state law, we cannot ignore that interpretation, even if it is not one that we would have reached if we were construing the statute in the first instance.

Of course, the mere presence of a state court interpretation does not insulate a statute from overbreadth review. We have stricken legislation when the construction supplied by the state court failed to cure the overbreadth problem. But in such cases, we have looked to the statute as construed in determining whether it contravened the First Amendment. Here, the Minnesota Supreme Court has provided an authoritative construction of the St. Paul antibias ordinance. Consideration of petitioner's overbreadth claim must be based on that interpretation.

I agree with petitioner that the ordinance is invalid on its face. Although the ordinance as construed reaches categories of speech that are constitutionally unprotected, it also criminalizes a substantial amount of expression that--however repugnant--is shielded by the First Amendment.

Say what?? Didn’t the Minnesota Supreme Court say that the law only applied to “fighting words,” and aren’t “fighting words” unprotected by the Constitution? Well, not exactly:

In attempting to narrow the scope of the St. Paul antibias ordinance, the Minnesota Supreme Court relied upon two of the categories of speech and expressive conduct that fall outside the First Amendment's protective sphere: words that incite "imminent lawless action," and "fighting" words [citing Chaplinsky v. New Hampshire, 315 U. S., at 571-572]. The Minnesota Supreme Court erred in its application of the Chaplinsky fighting words test and consequently interpreted the St. Paul ordinance in a fashion that rendered the ordinance facially overbroad.

In construing the St. Paul ordinance, the Minnesota Supreme Court drew upon the definition of fighting words that appears in Chaplinsky--words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace." However, the Minnesota court was far from clear in identifying the "injur[ies]" inflicted by the expression that St. Paul sought to regulate. Indeed, the Minnesota court emphasized (tracking the language of the ordinance) that "the ordinance censors only those displays that one knows or should know will create anger, alarm or resentment based on racial, ethnic, gender or religious bias." I therefore understand the court to have ruled that St. Paul may constitutionally prohibit expression that "by its very utterance" causes "anger, alarm or resentment."

Our fighting words cases have made clear, however, that such generalized reactions are not sufficient to strip expression of its constitutional protection. The mere fact that expressive activity causes hurt feelings, offense, or resentment does not render the expression unprotected.

[Citations omitted.]

“Fighting words” is a term of art in both state and Federal doctrine. Unless the Minnesota Supreme Court found that the St. Paul statute prohibited only “fighting words” as that term is used by Federal constitutional courts, they might as well have found that it prohibited only elatic karulizing for all the good it did the prosecutor. So, Justice White gives full respect to the Minnesota Supreme Court’s interpretation of the meaning of the statute, but not to that court’s categorization of the conduct for purposes of Federal constitutional law. That’s the U.S. Supreme Court’s province.

It would have been interesting if the Minnesota Supreme Court had “interpreted” “anger, alarm or resentment” to mean “rage likely to provoke violence.” That would have satisfied Chaplinsky, but I think it would have rendered the statute too vague to enforce, because if the former means the latter, a defendant would have no way to know what he could or could not do. Perhaps the Minnesota Supreme Court realized that it was not the master for purposes of redefining "anger, alarm or resentment" (because the result is too far from the dictionary meanings) but thought it was the master as regarded the determination of whether those things amounted to “fighting words.” Indeed, the Minnesota Supreme Court does get to say whether what the defendants did constituted “fighting words” for purposes of any Minnesota law that treated fighting words specially, including the state constitution (if it has a speech guaranty) and this ordinance, but it could not say whether the statute prohibited only “fighting words” for purposes of the First Amendment of the U.S. Constitution.

Justice Stevens added some useful insight to the matter of categorization of speech (especially, I would think, to this audience) in his concurring opinion:

Admittedly, the categorical approach to the First Amendment has some appeal: either expression is protected or it is not -- the categories create safe harbors for governments and speakers alike. But this approach sacrifices subtlety for clarity, and is, I am convinced, ultimately unsound. As an initial matter, the concept of "categories" fits poorly with the complex reality of expression. Few dividing lines in First Amendment law are straight and unwavering, and efforts at categorization inevitably give rise only to fuzzy boundaries. Our definitions of "obscenity" and "public forum" illustrate this all too well. The quest for doctrinal certainty through the definition of categories and subcategories is, in my opinion, destined to fail.

Moreover, the categorical approach does not take seriously the importance of context. The meaning of any expression and the legitimacy of its regulation can only be determined in context. Whether, for example, a picture or a sentence is obscene cannot be judged in the abstract, but rather only in the context of its setting, its use, and its audience. Similarly, although legislatures may freely regulate most nonobscene child pornography, such pornography that is part of "a serious work of art, a documentary on behavioral problems, or a medical or psychiatric teaching device," may be entitled to constitutional protection; the question whether a specific act of communication is protected by the First Amendment always requires some consideration of both its content and its context. The categorical approach sweeps too broadly when it declares that all such expression is beyond the protection of the First Amendment.

Here I think Justice Stevens misconstrues the act of categorization. “Fighting words” refers to a category of utterances defined by reference to their effect, which necessarily implicates their context. Again, nouns are the problem. It is impossible to protect “speech” except as a reification of uttering to a certain effect. If speaking is understood as conduct, then it can be measured against other conduct in assessing its constitutional status. For example, damaging a person’s reputation falsely is a tort. It can be done by libel or slander, or it can be done by “framing” someone for a crime he didn’t commit or tampering with a product, and so on. The fact that some of these actions are utterances is wholly irrelevant if the act is done with malice ( and only relevant as to public figures otherwise). Likewise, starting a fight is a punishable breach of the peace. If the technique is the use of fighting words – why else call them that? – then so be it. It’s still a breach of the peace, and not protected by the Constitution.

Likewise, obscenity could be defined as “conduct appealing solely to prurient interest.” That such conduct must necessarily take a form that could be called “speech” is an irrelevant coincidence. Doing obscenity is not an exercise of freedom of speech within the meaning of the First Amendment, so whether it is “speech” in some other context is, again, irrelevant to its legal status.

To return, as a reductionist must, to old themes, I think it is useful to understand the Constitution as protecting the logical act of communicating either an opinion or what the communicator believes to be a fact, not the physical act of utterance. For prudential reasons, the best strategy for protecting the logical act is to presume that all physical utterances are intended to communicate such opinions and facts except those that can be shown solely to instantiate some other, harmful logical act. Over time, we can expect these offending utterances to fall into categories on the basis of the logical act they represent – provocation, incitement to riot, terroristic threats, fighting words, obscenity, etc.

This prudential strategy of presuming all communications protected unless shown to be otherwise bears on the relevance of “purpose” to interpretation. As organic law, the only reason to have freedom of speech is to enable the people to do politics. There is, for example, no reason why pornography should be constitutionally protected for the benefit of its producer or its user. Which is not to say that it should be outlawed, only that there is no structural (as opposed to prudential) reason why the political branches should not handle the question. On the other hand, even if political speech is all that is essential to the operation of our polity, one cannot infer that political speech is the only speech that should be constitutionally protected. On the contrary, the Founders may well have concluded that the only way to protect political speech was to protect as wide an array of speech as is consistent with maintaining the peace. Thus, the purpose of the First Amendment (or any law) may motivate its drafters, but it may say nothing about the scope of their meaning. Thus, I think it makes more sense to categorize speech as protected or not solely by reference to the harm it does in its capacity as something other than communication, and not by reference to the good it does as communication.

But perhaps I digress….