Draft or Final
Eugene Volokh offers this criticism of the respondent’s brief in United States v Williams.
Volokh mentions the brief’s “remarkably shoddy writing,” and then presents some excerpts from the brief to make his point.
I took a look at the brief, and I agree with Volokh’s assessment, but not with the excerpts he chose. If I taught a class on legal writing, I’d use this brief. I’d use it to demonstrate the importance of having an editor (or a colleague) review a brief before it’s sent to the printer.
Below are some excerpts I’d expect students to identify as flawed (and why).
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From page 9 of the brief:
“Petitioner is incorrect for several reasons. The Section captures protected speech simply because a speaker can offer or solicit, without any intended benefit (trade, barter, sale, or money) materials, which are legal, and still be arrested for failing to use sufficiently descriptive words to identify the materials he or she is offering or soliciting.
What this claims (because the author used which in place of that) is that MATERIALS ARE LEGAL!
Here’s how the second sentence could be set to convey what the author intended:
The Section captures protected speech simply because a speaker can offer or solicit, without any intended benefit (trade, barter, sale, or money) materials that are legal, yet still be arrested for failing to use sufficiently descriptive words to identify the materials he or she is offering or soliciting.
Also from page 9:
The Section creates significant risk of suppression of ideas because the only way for a person to avoid a possible violation of the Section, due to the confusing, ambiguous words of same, is more prudent to guard silence than to express one’s ideas.
The assertion fails due to poor grammar (i.e., “the only way for a person to avoid a possible violation . . . is more prudent to guard silence . . . .”)
If the assertion were properly worded, it would be preposterous, because anyone can easily avoid violating the Section by simply not peddling or soliciting:
- an obscene visual depiction of a minor engaging in sexually explicit conduct; or
- a visual depiction of an actual minor engaging in sexually explicit conduct.
From the same paragraph:
Simply put, why say anything to another person, which, if albeit mistakenly understood by such person, constitutes the speaker’s desire to offer or solicit real or purported illegal child pornography, can land the speaker in jail with the permanent brand on the speaker’s head that he/she is a pedophile?
This assertion fails due to poor grammar. Yes, we know what the author is trying to say, but the author isn’t saying it well at all.
From the bottom of page 11:
If the Section is not held unconstitutionally overbroad, people will be afraid to even talk about child pornography or about any subject whom a third party audience might think is child pornography even if that is not the subject of the conversation.
From page 14:
However, the Section, as written, addresses not only liability to the offered or solicited material but rather to the ideas and images communicated to the viewer by the representation of what those materials constitute, the First Amendment is necessarily implicated.
Once again, we know what the author meant to say, but the wording is so muddled that I wonder if this was an early draft of the brief, rather than the final version.
From page 15:
Petitioner attempts to distinguish the Brandenburg imminent incitement test as not applying to the type of speech at issue under the Section, however, the Section clearly prohibits “any person” to “knowingly . . . promote[s] . . . obscene materials.”
Here we have a run-on. Also, the second independent clause (beginning with however) needs to be reworded to be sensible:
. . . the Section clearly prohibits “any person” from “knowingly . . . promote[ing] . . . obscene materials.”
Also from page 15:
Although in Free Speech Coalition, the court contrasted the type of speech covered in Brandenburg with speech that has a “significantly stronger, more direct connecting” to “illegal conduct,” such as “attempt, incitement, solicitation, or conspiracy,” the principals of Brandenburg did not change and certainly, Free Speech Coalition did not overrule Brandenburg.
This must be from a draft. No good attorney would misquote the Supreme Court like this, or quote it so awkwardly. Certainly, not in a brief for the Court.
Also from page 15:
Petitioner also disagrees with the lower court’s conclusion that the term “promote” speech is so dissimilar from the term “advocacy” speech as to render the Brandenburg case inapplicable to the instant case.
Again, this must be from a draft. No good attorney would misquote the Solicitor General like this.
From page 16, another run-on, and then a fragment:
However, rules of statutory construction are only to be invoked as aids to the ascertainment of the meaning or application of words otherwise obscure or doubtful, they have no place, as this Court has many times held, except in the domain of ambiguity.
But where the act is clear upon its face, and when standing alone it is fairly susceptible of but one construction, which construction must be given to it.
From page 17, a singular/plural disagreement and some more confusion about when to use which and when to use that:
Moreover, there is a fourth category of individuals the Petitioner totally ignores — one who neither has, nor wants to provide or receive, any illegal child pornography material, but who inarticulately offers or solicits material which another listening person believes does constitute illegal child pornography.
Which is followed by another singular/plural disagreement:
This argument turns basic fundamental tenets of law on its head.
Which is followed by another preposterous assertion:
If a person lies, brags or exaggerates about what he/she has to offer, or wants to acquire, there is a total absence of any criminal intent.
On and on it goes for the remaining 15 pages: error after error after error. It must be a draft.
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I don’t understand. The four attorneys who prepared this brief must know that lots of folks — professors and law clerks and judges and lawyers and reporters — are going to give it a read. In this case, they should be doing their very best work, right?
