Speech and Silence in American Law

SPEECH AND SILENCE IN AMERICAN LAW Rather than abstract philosophical discussion or yet another analysis of legal doctrine, Speech and Silence in American Law seeks to situate speech and silence, locating them in particular circumstances and contexts and asking how context matters in facilitating speech or demanding silence. To understand speech and silence we have to inquire into their social life and examine the occasions and practices that call them forth and give them meaning. Among the questions addressed in this book are: Who is authorized to speak? And what are the conditions that should be attached to the speaking subject? Are there occasions that call for speech and others that demand silence? What is the relationship between the speech act and the speaker? Taking these questions into account helps readers understand what compels speakers and what problems accompany speech without a known speaker, allowing us to assess how silence speaks and how speech renders the silent more knowable. Austin Sarat is William Nelson Cromwell Professor of Jurisprudence Political Science at Amherst College and Justice Hugo L. Black Senior Faculty Scholar at the University of Alabama School of Law. He is author or editor of more than 60 books, including When the State Kills: Capital Punishment and the American Condition; Something to Believe In: Politics, Professionalism, and Cause Lawyers (with Stuart Scheingold); The Blackwell Companion to Law and Society; and most recently The Road to Abolition?: The Future of Capital Punishment in the United States (with Charles Ogletree, Jr.). Sarat is editor of the journal Law, Culture and the Humanities and of Studies in Law, Politics and Society. In 1997, he received the Harry Kalven Award given by the Law & Society Association for distinguished research on law and society. In 2004, he received the Reginald Heber Smith Award, given biennially to honor the best scholarship on the subject of equal access to justice. In 2006, the Association for the Study of Law Culture and the Humanities awarded him the James Boyd White Prize for distinguished scholarly achievement in recognition of his “innovative and outstanding” work in the humanistic study of law. In 2009, he received the Stan Wheeler Award from the Law & Society Association for distinguished teaching and mentoring. This book is a product of The University of Alabama School of Law symposia series on “Law, Knowledge & Imagination.” This series explores the ways law is known and imagined in a diverse array of disciplines, including political science, history, cultural studies, philosophy, and science. In addition, books produced through the Alabama symposia will explore various conjunctions of law, knowledge, and imagination as they play out in debates about theory and policy and will speak to venerable questions as well as contemporary issues.

Speech and Silence in American Law Edited by Austin Sarat Amherst College

CAMBRIDGE UNIVERSITY PRESS

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Dubai, Tokyo Cambridge University Press 32 Avenue of the Americas, New York, NY 10013-2473, USA www.cambridge.org Information on this title: www.cambridge.org/9780521113373 © Cambridge University Press 2010 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2010 Printed in the United States of America A catalog record for this publication is available from the British Library. Library of Congress Cataloging-in-Publication Data Speech and silence in American law / edited by Austin Sarat. p. cm. ISBN 978-0-521-11337-3 (hardback) 1. Freedom of speech—United States. 2. Silence (Law)—United States. I. Sarat, Austin. III. Title. KF4772.S645 2010 342.7308′53–dc22 2009053556 ISBN

978-0-521-11337-3 Hardback

Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party Internet Web sites referred to in this publication and does not guarantee that any content on such Web sites is, or will remain, accurate or appropriate.

To Stephanie, Lauren, Emily, and Ben

Contents

Contributors Acknowledgments

Introduction: Situating Speech and Silence Austin Sarat 1

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page ix xi

1

“Our Word Is Our Bond” Marianne Constable

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Comment on Chapter 1: Our Word (or the Lack Thereof ) Is Our Bond: The Regulation of Silence under Contract Law Grace Soyon Lee

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Powell’s Choice: The Law and Morality of Speech, Silence, and Resignation by High Government Officials Louis Michael Seidman

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Comment on Chapter 2: Resignations, the (Quasi) Plural Executive, and a Critical Assessment of the Unitary Executive Theory Ronald J. Krotoszynski, Jr.

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Anonymous: On Silence and the Public Sphere Danielle Allen

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Comment on Chapter 3: Silencing by Exclusion: A Reaction to Anonymous: On Silence and the Public Sphere Heather Elliott

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Contents Freedom of Expression, Political Fraud, and the Dilemma of Anonymity Martin H. Redish

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Comment on Chapter 4: Anonymity, Signaling, and Silence as Speech Paul Horwitz

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Speech, Silence, the Body Peter Brooks

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Comment on Chapter 5: Torture and Miranda Fredrick Vars

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Index

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Contributors

Danielle Allen is the UPS Foundation Professor in the School of Social Science at the Institute for Advanced Study. Peter Brooks is Lecturer with the rank of Professor in Comparative Literature and the University Center for Human Values and Mellon Visiting Professor at Princeton University. Marianne Constable is Zaffaroni Family Chair in Undergraduate Education and Professor of Rhetoric at the University of California, Berkeley. Heather Elliot is Assistant Professor of Law at the University of Alabama. Paul Horwitz is Associate Professor of Law at the University of Alabama. Ronald J. Krotoszynski, Jr., is John S. Stone Chairholder of Law and Director of Faculty Research at the University of Alabama. Grace Soyon Lee is Assistant Professor of Law at the University of Alabama. Martin H. Redish is the Louis and Harriet Ancel Professor of Law and Public Policy at Northwestern University School of Law. Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science, Amherst College, and Hugo Black Visiting Senior Faculty Scholar, University of Alabama School of Law. ix

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Louis Michael Seidman is Carmack Waterhouse Professor of Constitutional Law at Georgetown Law School. Fredrick Vars is Assistant Professor of Law at the University of Alabama.

Acknowledgments

This volume is the product of a symposium held at the University of Alabama School of Law on February 27, 2009. I want to thank the colleagues, students, and staff who helped make that such a successful event. I am grateful for the financial support of The University of Alabama Law School Foundation. A special word of thanks to Dean Ken Randall for his unstinting support, for sharing the vision of legal scholarship reflected in these pages, and for making me feel so at home at the law school.

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The First Amendment’s protection of free speech is surely one of America’s greatest legal, political, and cultural achievements. As Robert Tsai observes, “Many people believe in the promise of the First Amendment before they set eyes on the actual text. Even if they do not know the precise wording of the instrument, they consider the cluster of rights guaranteed by it to be a badge of citizenship. As more Americans came to accept the virtues of expressive liberty during the twentieth century, the First Amendment became synonymous with social progress.”1 In addition, it has long been recognized that free speech is a crucial tool of self-governance in a democratic society.2 Justice Louis Brandeis famously noted, in his concurring opinion in the 1927 case of Whitney v. California, that “[F]reedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.”3 Moreover, dozens, if not hundreds, of books have been written in praise of free speech and in an effort to understand and assess the Supreme Court’s First Amendment jurisprudence.

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Robert Tsai, Eloquence & Reason: Creating a First Amendment Culture (New Haven: Yale University Press, 2008), ix. Thomas I. Emmerson, The System of Freedom of Expression (New York: Vintage Books, 1971). Also Cass Sunstein, Democracy and the Problem of Free Speech (New York: Free Press, 1995). Sunstein claims that the key rationale for free expression is what he calls “government by discussion.” Whitney v. California, 274 U.S. 357 (1927). Also Bradley Bobertz, “The Brandeis Gambit: The Making of America’s ‘First Freedom’ 1909–1931,” 40 William and Mary Law Review (1999), and Vincent Blasi, “The First Amendment and the Ideal of Civil Courage: The Brandeis Opinion in Whitney v. California,” 29 William and Mary Law Review (1988): 653.

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Beyond our shores, free expression has often been trumpeted as a distinctively American virtue, one that plays an important part in a broader agenda of democratization around the world.4 In 1947, speaking before a joint session of Congress, President Harry Truman hailed America’s commitment to free speech. He described a world divided between nations that were committed to “free institutions” and “freedom of speech” and those that rely on “terror and oppression.” “The free people of the world look to us,” Truman went on, “for support in maintaining their freedoms.”5 More recently, in his second inaugural address, President George W. Bush echoed Truman when he said, “There is only one force of history that can break the reign of hatred and resentment, and expose the pretensions of tyrants, and reward the hopes of the decent and tolerant, and that is the force of human freedom. We are led, by events and common sense, to one conclusion: The survival of liberty in our land increasingly depends on the success of liberty in other lands. The best hope for peace in our world is the expansion of freedom in all the world.”6 Yet freedom and free speech have not always been treated with such reverence. Indeed traditionally, speech has often been the object of suspicion. Here speech is renamed “rhetoric.” In a critical tradition dating back at least as far as Plato’s Gorgias, empty or manipulative speech is condemned as that which “gives [rise to] belief without knowledge.”7 Rhetoric, Socrates contends in the Gorgias, is “pandering and base claptrap . . . .”8 “[T]he orator,” Socrates says, “does not teach juries and other bodies about right and wrong – he merely persuades them.”9 Philosophical speech, in contrast, “aims at the edification of the souls of the citizens and is always striving to say what is best, whether it is welcome or unwelcome to the ears of the audience.”10

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Michael Doyle, “Kant, Liberal Legacies, and Foreign Affairs,” 12 Philosophy and Public Affairs (1983), 205. Also Ivo Daalder and James Lindsay, “America Unbound: the Bush Revolution in Foreign Policy,” 21 Brookings Review (2003). Harry Truman, “Special Message to Congress on Greece and Turkey: The Truman Doctrine,” March 12, 1947. Found at http://www.presidency.ucsb.edu/ws/index.php?pid=12846. George W. Bush, “Second Inaugural Address,” January 20, 2005. Found at http://www.bartleby. com/124/pres67.html. 8 Plato, Gorgias, ed. and trans. Walter Hamilton. (London: Penguin Books, 1960). Id. 32. 10 Id. Id. 110.

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In the United States, the Platonic distinction between rhetorical and philosophical speech is generally elided in favor of an embrace of a socalled “marketplace of ideas.”11 As Justice Oliver Wendell Holmes put it, Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition . . . But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas . . . that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.12 Yet in some instances the American legal tradition also protects our “right to remain silent,” thus imagining that freedom means freedom to choose what to say to whom and when to say it. This portrait of the choosing subject, knowing when, how, and why to speak or remain silent has recently been subject to critical examination by scholars who bring literary theory or psycholanalysis to bear on the subject.13 In both the scholarly assessment of, and public praise for, free speech, in the Platonic suspicion of rhetoric or the Enlightenment ideal of a “market place of ideas,” in the volitional imagining of the individual freely choosing when to speak and when to remain silent or in its critique, much is taken for granted – for example, that we know what speech entails, that speech is generally to be preferred to silence, that silence itself is merely an absence of speech, and so forth.14 Speech and Silence in American Law engages those taken-for-granteds and subjects them to critical scrutiny. Rather than abstract philosophical discussion or yet another analysis of legal doctrine, this book seeks to situate speech and silence, locating them in particular circumstances and contexts, asking how context matters in 11 12 13 14

See Oliver Wendell Holmes’s dissenting opinion in Abrams v. United States, 250 U.S. 616 (1919). Id. Peter Brooks, Troubling Confessions: Speaking Guilt in Law and Literature (Chicago: University of Chicago Press, 2001). Marianne Constable, Just Silences: The Limits and Possibilities of Modern Law (Princeton: Princeton University Press, 2005).

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facilitating speech or demanding silence. To understand speech and silence we must inquire into their social life and examine the occasions and practices that call them forth and give them meaning. As anyone who has ever undertaken it knows, free speech is by no means “free,” that is, free of costs.15 As Stanley Fish notes, The idea is that free expression, the ability to open up your mouth and deliver an opinion in a seminar-like atmosphere, is the typical situation and any constraint on free expression is therefore a deviation from that typical or normative situation. I begin by saying that this is empirically false, that the prototypical academic situation in which you utter sentences only to solicit sentences in return with no thought of actions being taken, is in fact anomalous. It is something that occurs only in the academy and for a very small number of people. Therefore, a theory of free speech which takes such weightless situations as being the centre of the subject seems to me to go wrong from the first. I begin from the opposite direction. I believe the situation of constraint is the normative one and that the distinctions which are to be made are between differing situations of constraint; rather than a distinction between constraint on the one hand and a condition of no constraint on the other.16 Because, as political theorist George Kateb recognizes, the only speech that needs defending is speech that is “worthless” and/or “harmful”; speaking one’s mind can be a very hard thing to do.17 John Stuart Mill rightly observed that speaking against the grain requires courage.18 Similarly, remaining silent when speech is demanded also takes courage. But perhaps the context for speech and silence and their social life go beyond such personal virtues. We know that not all speakers are equally able to get themselves heard, that without a commitment to equal freedom 15 16

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Stanley Fish, There’s No Such Thing as Free Speech . . . and It’s a Good Thing too (New York: Oxford University Press, 1994). Peter Lowe and Annemarie Jonson, “‘There is no such thing as free speech’: an interview with Stanley Fish,” Australian Humanities Review (February, 1998). Found at http://www.australian humanitiesreview.org/archive/Issue-February-1998/fish.html. George Kateb, “The Freedom of Worthless and Harmful Speech” in Liberalism without Illusions: Essays on Liberal Theory and the Political Vision of Judith N. Shklar ed. Bernard Yack (Chicago: University of Chicago Press, 1989). Also Steven Shiffrin, Dissent, Injustice, and the Meanings of America( Princeton: Princeton University Press, 2000). Joseph Hamburger, John Stuart Mill on Liberty and Control (Princeton: Princeton University Press, 2001), 92.

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some voices will be heard and others drowned out.19 Similarly, when speech in public is demanded, the burdens of speaking may be too great. Yet, as a couple of the authors whose work is collected here point out, anonymity may liberate speakers but also encourage speech that is fraudulent or worse. To make progress in our understanding of speech and silence we must ask: Who is authorized to speak? And what are the conditions that should be attached to the speaking subject? Are there occasions that call for speech and others that demand silence? What is the relationship between the speech act and the speaker? The chapters in this book engage with these questions, deepening, in this engagement, our knowledge of the situation of speech and some of the crucial dilemmas attached to it, helping readers to understand what compels speakers and what problems accompany speech without a known speaker, allowing us to assess how silence speaks and how speech renders the silent more knowable. Thus Speech and Silence in American Law begins with a chapter of reflections on the nature of language and the things that words alone can do. The second chapter situates the dilemma of speech and silence in the moments when public officials decide among what Albert O. Hirschman labeled “exit, voice, and loyalty.”20 The next two chapters take up the particular problem of anonymous speech, a subject of great importance that has received all too little scholarly attention. The book concludes with a pressing contemporary problem, namely, the problem of when, if at all, it is permissible to compel the body to speak. Speech and Silence in American Law is the product of an integrated series of symposia at the University of Alabama School of Law. These symposia bring leading scholars into colloquy with faculty at the law school on subjects at the cutting edge of interdisciplinary inquiry in law. One of the products of that colloquy is the commentary provided after each chapter. Marianne Constable begins our inquiry by describing Obama’s swearingin ceremony, in which Justice Roberts misspoke the oath, causing Obama to have to be sworn in a second time. She writes, “Lawyers outside as well as inside the White House, recognize that for a particular sort of utterance – such as an oath or an agreement – to do what it does, certain accepted 19 20

Owen Fiss, Liberalism Divided: Freedom of Speech and the Many Uses of State Power (Boulder, Colo.; Westview Press, 1996). Albert O. Hirschman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States (Cambridge: Harvard University Press, 1970).

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conventional procedures that include the uttering of certain words must be met; the procedures must be carried out by the appropriate persons, correctly and completely, in the appropriate circumstances . . . ” Constable uses the Obama episode as a starting point to explore this relationship between words and bonds, laws and speech. At the end of the first lecture of How to Do Things with Words, J. L. Austin writes that “accuracy and morality alike are on the side of the plain saying that ‘our word is our bond’.” Constable suggests that “Austin’s point . . . is to argue against the view that the truth or falsity of the correspondence between a speaker’s words and so-called inward acts or intentions alone is key to understanding the sense we make of promises . . . A promise – however sincere or deceitful – has been made – one says accurately, according to Austin – when an utterance fulfills certain external – conventional – requirements; and morality, again according to Austin, calls for that promise to be kept.” Austin contrasts his view to Hippolytus’ utterance, in Euripides’ play by that name, that “My tongue swore, but my mind did not.” But in actuality, Constable writes, at the end of this play Hippolytus does keep his promise. “The keeping of his promise turns out to be problematic though, in terms of both accuracy and morality. As such, the Hippolytus reveals a difficulty with the relation between promising and the keeping of the promise (which in Austin’s terms would constitute the subsequent conduct required for the illocutionary act of promising to have been successful).” To expand on this point, Constable writes, “The play is full of performative speech acts: oaths, promises, declarations, accusations, supplications, wishes, curses, rebuttals, proclamations, and so forth. The speech acts of gods are effective . . . The speech acts of humans by contrast continually go wrong.” This, she contends, is because human speech is susceptible to difficulties such as being misheard, misunderstood, concealed, and speaking rashly or in excess, haste, anger, pride, or weakness. Constable notes, “Indeed, in the Hippolytus, human speech is so problematic that accuracy and morality – or at least our human conceptions of justice – seem to be on the side of Hippolytus’ breaking his word or his oath to be silent.” Thus for Hippolytus, both speech and silence are problematic. The accuracy and morality that Austin invokes, Constable suggests, epitomize approaches to truth and goodness that are not necessarily on the side of promise keeping nor on the side of law as we know it. Neither the

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bond that is a sworn promise nor the bond that is speech can be grasped in Austin’s terms; the binding of “our word” is not limited to what is accurate and moral. Constable develops the implications for law of understanding the speaking of words as an event, not necessarily accurate or moral, which binds us to a world that is itself governed neither by accuracy nor by morality. In trying to master events of speech – and in occasionally acknowledging its inability to do so – our law shows its own indebtedness to a law – neither accurate nor moral – greater than itself. Modern contract law confirms this view that “human speech acts are problematic happenings that bind mortals in a world that is neither moral nor accurate . . . To protect agreements, contract law seeks to ensure that accepted conventions – of speech acts of offer and acceptance for instance – are followed. To assess unfairness, contract law looks to the entirety of the circumstances in which an agreement was made or to what Austin would call the ‘total speech situation.’” Either of these aspects of contract law may be upheld or rejected. Contract law, Constable notes, “diverges from morality insofar as morality requires the keeping of promises.” Where an enforceable agreement is broken, law remedies the breach by imposing damages. Also, enforceable agreements can become unenforceable in time, suggesting (like Hippolytus) that “speech acts and their effects may escape mortal speakers’ intentions and desires. So too, it shows that human law does not seamlessly rectify speech acts gone astray.” Nor can it, argues Constable, for, “Legal speech itself is not so much ‘false’ or ‘inaccurate’ or ‘incorrect’ as seemingly ‘inappropriate’ outside its convention-ridden institutional context and ‘infelicitous’ when it goes wrong within it (though it may of course also be mistaken and misunderstood).” Thus not only does contract law articulate conventions for particular types of speech acts, it does not (like speech itself) always follow the laws of morality. Constable’s final section asks, “if neither accuracy, morality nor law side plainly with the keeping of promises, in what sense is our word our bond?” She explores this question using United States law, because it is “our” law and because it epitomizes “positive law.” She suggests that, “As positive law has become law tout court, positive law’s own human and procedural standards of ‘fairness’ and ‘legitimacy’ have taken the place of justice.” In her view, “At stake in the law’s treatment of speech today then is the possibility that something – a law of speech perhaps (or perhaps not ‘law’ or ‘thing’ at

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all) – lies at least in part beyond the reach of the long arm of (the empirical realities of) positive law. And . . . the positive law in which we are all implicated may even acknowledge this to be so.” Moreover, our law recognizes the “act-like” quality of speech. For example the illocutionary Miranda warning, which “alerts the accused of a danger: that utterances made in the extraordinary conditions of the incustody interrogatory phase of the legal process may have a different import or force or effect than when ordinarily said . . . The Miranda holding thus acknowledges a possible limit to the justice of the actual system: the speech acts of the accused may go wrong in ways the system cannot control or rectify. The law warns the accused, acknowledges its own limitations, and invites the accused to respond.” Even silence constitutes a response in this instance. This example “suggest[s] ways that our human – positive – law is susceptible to infelicities and incapacities of speech, whose claims it cannot escape. Contrast this to its encounter with the demands of morality, which it cannot meet.” Taking the argument even further, Constable writes, “Insofar as positive law occasionally acknowledges its inability to do justice to the speech of others, it cedes some of its jurisdiction (as jurisdiction or the saying of law) . . . It shows itself dependent on and indebted to speech and the silences out of which speech comes. It shows itself beholden to something ‘greater than’ or ‘beyond’ itself.” Constable concludes that “our often garrulous and sometimes successful, sometimes unhappy, law is beholden to, is indebted to, not morality or divinity, but to speech and silences out of which law – as speech act – comes.” Constable’s interest in using speech and silence to illuminate the limits of positive law reappears in Louis Michael Seidman’s account of the dilemma of former U.S. Secretary of State Colin Powell. The dilemma that Seidman describes is another variation of Hirschman’s “Exit, Voice, and Loyalty,” namely, when it is appropriate for public officials to resign in protest over a policy with which they profoundly disagree and when should they remain silent. To illustrate this dilemma, Seidman focuses on Powell’s option to resign rather than make a case to the United Nations Security Council for the invasion of Iraq. Seidman’s purpose is to “show that the resignation decision is hard and that words like ‘duty,’ ‘ethics of public service,’ and ‘sound public policy’ do not capture all the difficulty. Instead, the best defense of public resignation conceptualizes it as a radically free

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act – a rebellion against normal constraints, including the constraints of duty and ethics.” Seidman lays out eight alternatives to resignation. Speaking about Powell he says “1. He could have remained in office and simply gone along with government policy on Iraq without voicing doubts or dissent.” “5. He could have employed the threat to resign as a tactic without making good on the threat.” “7. He could have resigned from office and publically offered innocuous reasons for doing so, but let it be known informally that the real reasons were opposition to Bush administration policy,” and so forth. In order to decide which of these alternatives one might employ, Seidman describes what he labels a “consequentialist position.” For example, “officials who resign in protest, but fail to make their protest public (Option 6) combine the worst of both worlds. On the one hand, the resignation removes them from positions of power where they might continue to do some good. On the other, it does little or nothing to advance the goals that motivated it.” The threat of resignation (Option 5) is often as, or more, effective than resignation itself, though such a threat can easily lose its credibility. Staying in office and withholding moral censure may also “combine the worst of both worlds.” With respect to Powell, Seidman writes that resignation was not obviously the right answer, for until the history of the Bush administration is written “we will not know what good Powell was able to accomplish in other areas of foreign policy during his remaining tenure.” Even if resignation were always an effective strategy, he writes, “ . . . there is no reason to think that the people who resign are systematically more likely to be right than the people who formulate the policy that motivates the resignation.” Seidman concludes that “there will often be strong consequentialist reasons to resist the temptation to resign.” Seidman takes up “non-consequentialist” perspectives, for, “Paradoxically, much of the intstrumental good achieved by resignation stems from the appearance that the person leaving office is not acting instrumentally.” He claims, “there is indeed a nonconsequentialist argument for resignation, but . . . people who make the argument frequently underestimated the force of the argument on their side.” Resignation may be widely regarded as a deeply principled act for two reasons: “First, resignation in protest is often a courageous decision that may do serious damage to the resigning official’s political career . . . Second, resignation in protest demonstrates personal integrity.”

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Yet both of these reasons, Seidman argues, may be faulty when examined more closely. He writes, “ . . . if not always wrong, a public resignation is always at least morally problematic. It is, after all, a feature of the obligation of loyalty that takes hold at precisely the time when there are strong prudential or moral reasons for desertion.” As Seidman sees it, “Perhaps Powell performed categorically prohibited acts, but it is also possible, at least some times [sic], for a public official to remain in office and get her hands very dirty indeed while nonetheless steering clear of that kind of wrongdoing that cannot be justified even when necessary to achieve a greater good.” In the final part of his chapter, Seidman explores “the stance that the legal system does and should take with regard to resignation decisions. As a descriptive matter . . . the most salient feature of the law of resignation is how sparse it is. Resignation from high office is an almost completely law-free zone. As a normative matter . . . the absence of legal constraint supports the conception of resignation as radical break that I favor.” Legal rules governing speech and silence by public officials reflect, rather than resolve, the moral ambiguity of that choice. On the one hand, First Amendment doctrine regarding speech by people in office strongly encourages external speech and discourages internal protest. Federal and state “whisleblower statutes” also provide protection for officials playing an external game. On the other hand, the courts have upheld statutes that prohibit “leaks” by government officials and subpoenas directed against reporters and others to uncover the source of leaks. They have also enforced contracts entered into by government officials that subject their postservice statements to prior restraints. Given unresolvable conflicts about how officials should choose between speech and silence, Seidman concludes that it is a mistake to try to align our legal and moral principles. The law, he says, should discourage dissident speech by public officials, but we should nonetheless praise officials who, in the teeth of the law, refuse to remain silent. As for Powell’s choice to remain silent about his doubts concerning the Iraq war, “We might think of it,” Seidman observes, “as a truly free choice – free not just in the sense that he would not have been punished whatever he did, but also in the sense that it was unconstrained by the usual instrumental and non-instrumental considerations that ‘force’ one judgment or the other. It is just because he had a free choice in this sense that he is ultimately responsible for the decision that he made.”

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The next two chapters focus on one particularly important way of situating speech and silence, namely, promising speakers that their speech can take place behind a veil of anonymity. In the first of these chapters, Danielle Allen investigates “what we can learn about the public sphere – whether as aspirational ideal or real political phenomenon – by attending not to speech but to silence.” Allen argues that considering silence “should help us refine our understanding of the relation between private and public systems of meaning and help us see more clearly how best to protect the human and political value of truthfulness.” Allen offers two examples of silence in the public sphere, one utopian and one dystopian. She starts with the utopian: “At least two ancient Greek law-givers, Zaleucus and Charondas, were said to have established the following strict code concerning political speech: if a citizen wished to propose a revision to a law, he had to do so with his head in a noose; if the proposed revision found favor, it would be passed and he would leave with his life; if not, he would be executed immediately.” Consequentially, no one dared say anything. Whether historically accurate or not, this law “capture[s] the utopian hope that the sounds in the public sphere might be limited to useful ones . . . In the ideal speech situation as envisioned in this proto-Orwellian law, no argument is necessary; reason carries the day through the force of the silent recognition of self-evident truths.” The law also provided for the swift silencing (by hanging) of any problematic challenges. Thus it “forthrightly acknowledges the sociological point that political authority is inevitably constructed out of moments of silence and appeals ceased.” Allen treats Antigone as an example of a dystopic public sphere built out of silence. In Antigone, the title character hangs herself. Allen writes, “In this play, the noose serves not to limit public speech but to bring it to such a pitch of intensity that the autocrat at last hears it, but too late.” She continues, “This helps us to see that the laws of Charondas and Zaleucus conveyed a second utopian hope . . . that powers-that-be will hear what they need to hear in a timely fashion.” The problem with silence, though, is that it can either mean ‘yes’ or ‘no.’ Creon does not hear his people because he mistakenly believes their silence indicates agreement with his actions. Allen presents a third utopian hope regarding the Locrian noose: “The noose stands in for the fact that communication in the public sphere is always mediated by institutions and procedures that establish the costs and

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benefits of political expression . . . [The other two utopian hopes] arise from a deeper wish that it might be possible to construct a set of institutions that convert silence into speech in ways that accurately represent the shape of public opinion so that the public sphere might be free of all of silence’s equivocations.” But the utopian example “should make clear how extreme, how unacceptable, how futile is that hope.” Allen’s argument about the ambiguities of silence explicitly addresses one of Seidman’s concerns about silence: that the act of resigning or not resigning may be vocal, but that a whole range of meanings and motivations lies behind a public official’s choice to either speak out publicly or remain silent in opposition to a certain state policy. Both arguments are complemented by Constable’s discussion of the way silence can problematize accuracy and morality. Allen also discusses a third category of communication between silence and speech, which she calls “gossip.” In Antigone, Haimon uses the word phatis, which means both “a word from heaven or an oracular word” and “common talk or rumor.” Allen notes that the connection between the two definitions comes from the belief that “A hidden face, enveloped by darkness, is the symbolic substitute for a hidden name. Anonymous speech, silent on the point of authorship, is dark speech,” and it takes some of its power from this darkness. Its other source of power “is its complete disregard for any boundary between private and public. Rather rumor and gossip unite private and public realms, operating in both rather than distinguishing between them.” Gossip may be a response to a situation in which public speech seems impossible. But anonymous speech “also increases the costs of listening to what is said. And in causing an increase in the costs of listening, it is also always a problem . . . By cloaking the name of a speaker in silence, anonymous speech puts on the listener the burden of bearing additional investigative costs that a name – and its reputational content – normally reduce.” Idealized accounts of the public sphere, such as those espoused by Habermas, Arendt, Mill, and Rawls, presume full self-disclosure on the part of the speaker. But real public spheres also include gossip, and political thought has not addressed this type of discourse thoroughly. Machiavelli, Allen writes, is one of the few political philosophers who discussed “dark speech,” and specifically calumny, describing it as a hateful thing in all free states. He proposes that the society “ensure that the costs of

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lodging formal accusations against fellow citizens are as low as possible while also ensuring that the costs of making calumnious accusations outside of formal channels is high.” He places more emphasis on the former than the latter, and says that the value of adversarial forms of speech should be exemplified by the prosecutor/plaintiff and the defendant. Thus, “The speech of the whistle-blower is separated from the speech of false accusation.” But, Allen argues, “No treatment of the public sphere can be complete that does not address whether there are sufficient and suitable institutions in place to convert ‘dark speech’ into useful public discourse through the twin tasks of clarifying interests/agendas and vetting facts . . . .The topic of silence has, therefore, brought us to see elements that are necessary to the construction of a healthy democratic public sphere but that have gone hitherto unnoticed.” She believes that “cultural organizations, and their adversarial procedures, are a necessary supplement to the deliberative institutions that we usually treat as constituting the public sphere. They recognize and respond to the critical role of silence generally, and to the silence of dark speech particularly, in public life.” Martin Redish takes up Allen’s concern about anonymity, examining both its usefulness in promoting speech and the danger that it will promote fraudulent speech. Instead of “gossip” he focuses on a “recognized subcategory of the constitutional guarantee of silence” namely “the right of anonymity – in other words, the right not to reveal one’s identity when exercising one’s affirmative right to express oneself.” Like Allen, Redish understands this anonymity to be a hybrid between speech and non-speech because it is a “selective form of expressive silence: it is only when the speaker first affirmatively chooses to speak that this form of silence comes into play.” This affirmative act of expression accompanying anonymity causes serious issues centering around what Redish calls “political fraud,” by which he means “the conscious effort to deceive the public solely for purposes of political or ideological purposes.” Redish suggests that we should leave “non-defamatory, false or misleading political speech protected, but at the same time revoke the constitutional protection of anonymity.” Redish first focuses on the expressive grounding of the right to (complete) silence. Anonymity, he says, is an important sub-category of the right not to speak. In a previous work, Redish wrote that “compelled speech

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undermines the interests fostered by protection of free expression by giving rise to four distinct but related harms: confusion, dilution, humiliation, and cognitive dissonance.” These harms rationalize the Supreme Court’s assertion that forced expression is incompatible with the First Amendment. Historically, the Supreme Court has protected a speaker’s right to anonymity, but Redish argues that this right is not exactly the same as the right to silence because, in order for anonymity to be valuable, the speaker must first choose to contribute to public discourse. Only then does the identity of the speaker come into question. If, as the Supreme Court has suggested, a prohibition on anonymity inevitably chills speech “then a choice against allowing anonymity – unlike the choice not to permit silence under certain circumstances – may well reduce the sum total of information and opinion contributed to public discourse . . . From this perspective, the constitutional interest in protecting anonymity appears to be even far more powerful than those underlying the well established right not to speak at all.” Redish further contends that what he calls “expressive anonymity” and “associational anonymity” can be distinguished from each other: “While the latter involves a direct communication between speaker and listener, the former involves at most an indirect form of communication. As a general matter, association is a more private activity than direct expression.” But while the two are distinguishable, “the logic of guaranteeing the right of anonymity appears to be identical in both contexts.” Redish therefore calls for a constitutional calculus of the negative consequences for free speech caused by protection of speaker autonomy, especially in the case of political fraud. Courts punish consciously false defamatory comments, but the question of non-defamatory, false statements in the context of political debate has largely been ignored. Redish compares political fraud to the breach of a contract (as Constable compares speech-acts to contract law), writing “if one invokes a . . . listener-centric perspective on the First Amendment, in a certain sense loss of the victim’s vote is at least as harmful than loss of the victim’s money.” If fraud falls outside the bounds of constitutional protection then, Redish reasons, political fraud should, as well. Of course the danger in such an exclusion is that it would “place ominous power in the hands of those in authority to threaten or coerce those who oppose them.” Thus, “Where the proper line is to be drawn will naturally be difficult to determine,” especially when one moves from

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openly false statements to judgmental or factually accurate but misleading statements. To resolve this dilemma, Redish tentatively suggests that “we could exclude affirmatively false information disseminated with knowledge of its falsity but leave fully protected argumentation deemed misleading for no reason other than its selectivity or strategic incompleteness.” Such a compromise might prevent the chilling and politically coercive potential of requiring that speakers identify themselves. Redish argues for adjusting established constitutional doctrine on the subject of anonymity. Doing so would facilitate democratic decision making in a few ways: 1) voters would be able to place the substance of the political expression in better perspective, 2) the speaker would be unable to misrepresent herself, and 3) if one person is advocating election or appointment of another, voters will be able to judge the candidate by who her supporters are. “Even in the case of directly expressive anonymity, I concede that certain First Amendment interests would be threatened by loss of constitutional protection,” but this threat does not altogether prevent anonymity, nor does it mean anonymity could be restricted in a discriminatory manner. Redish concludes, “Ultimately, one must make a tragic First Amendment choice. While I could not dismiss as unreasonable a choice different from my own, I nevertheless believe that abolition of the right of expressive anonymity is fully justified as a prophylactic means of deterring and diluting the serious First Amendment harms caused by political fraud.” This book concludes with Peter Brooks’s analysis of another speech/ silence situation, namely, the situation in which “the body” is made to speak, for example, when blood is taken from a criminal defendant in an effort to prove his guilt or when a detainee is tortured in order to make him confess. He considers “what America’s once seemingly unimaginable transformation of itself into a torture regime – on the model of countries we most reprobated, such as Argentina during the ‘dirty war’ – may teach us about our domestic criminal justice system, and its production of confessions.” Brooks starts with the decision in Schmerber v. California, in which the Supreme Court decided that forcing an unwilling DUI suspect to give blood does not violate the privilege against self-incrimination, saying that the withdrawal of blood is not the same as being compelled to testify against oneself. In Schmerber’s dissents, Justice Hugo Black argues that blood is indeed “testimonial,” and Justice William O. Douglas argues against the withdrawal of blood on privacy grounds. “And yet Brennan

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[author of the majority opinion] – who normally of course staked out positions protective of the rights of the accused – may in his opinion lay bare a central distinguishing feature of Fifth Amendment history and jurisprudence. It is what a defendant may do with his lips – what may issue from his mouth – that is considered worthy of special protection.” Confession, in Brennan’s view, is thus a purely verbal act, a discourse “proffered to a listener.” As Brooks sees it, “Schmerber, viewed in the retrospect of a nation that has accepted torture with surprising ease – admittedly in trying circumstances – and made Jack Bauer an icon of national security, raises questions about the relation of speech, silence, and the body that remain in the domain of ‘shadowy distinctions.’” While generally “the third degree” is no longer used by police, the nature, quality, and effect of permissible coercion is still unclear. Moreover, Brooks suggests that “Prisoners at Guantanamo are a kind of outrageous metaphor for larger societal attitudes that wish to lock up, throw away the key, and forget about those who have fallen afoul of the law. Guantanamo reiterates, in the darkest print, my sense that we as a society don’t know how we want to conceive of ‘our’ criminals, and would rather not be reminded of the fact that they exist at all.” Brooks next considers two recent Supreme Court rulings on Miranda, Missouri v. Siebert and United States v. Patane. The former supports the continuation of “full-blooded Miranda doctrine . . . while Patane appears to propose the evisceration of Miranda . . . . The ‘finality’ of the Supreme Court in this instance is nicely self-cancelling.” In Patane, Justice Thomas asserts that Miranda is an evidentiary rule and has nothing to say to police interrogators, “an interpretive handstand,” Brooks contends, “since most of Miranda is precisely addressed to police interrogators . . . ” Thus the Court held that police do not violate a suspect’s constitutional rights by neglecting to provide the suspect with the full measure of rights prescribed by Miranda. Dissenting, Justice Souter argues that “a statement made by a suspect in custodial interrogation without or before the Miranda warnings should be presumed to be involuntary or coerced.” Souter thus underlines the incompatibility of Patane with his opinion in Siebert, a case in which a police interrogator used what was later dubbed the “Missouri Two-Step” to get an admission from the suspect before she was Mirandized and then, having obtained the incriminating statement, Mirandized the suspect before having the suspect restate the admission. Souter held this interrogation

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unconstitutional. Brooks argues that, in the context of the Missouri TwoStep, “The suspect’s post-warning ‘yes’ may merely be a nearly inevitable confirmation that she has said ‘yes’ before the warning – which proves little except the imperative need to follow Miranda to the letter . . . Once issued from the lips, confessional speech cannot be recalled. That is because confession is truly a speech act, akin to promising.” Returning to the question of torture, Brooks notes that “There was recently a considerable (though by no means unanimous) public outcry when it was discovered that professional psychologists were advising the military and the CIA on effective methods of ‘enhanced’ interrogation. Was this part of ethical professional practice?” Brooks asks his readers to think about what should count as “ethical” when the state tries to make the body speak. Confession, Brooks argues, is heralded as proof not because it reliably shows the confessor’s guilt but because it provides the punisher with the conviction of his own righteousness. “Somewhere . . . ,” he concludes, “there must lie a more efficient, humane, and accurate context for harvesting the kinds of speech that the law needs, and can gather without coercion.” Taken together, the work collected in this book shows the importance of situating issues of speech and silence, of locating them in the variety of contexts and conditions that enable them. It shows the various ways in which speech and silence take on meaning and work in the world and helps us see the possibility that some of the conditions that facilitate speech may undermine its reliability. In so doing, this work moves us beyond a purely volitional account, toward one that attends to both individual choice and the social worlds in which speech circulates and silence lives.

1 “Our Word Is Our Bond” Marianne Constable

On January 20, 2009, Barack Hussein Obama was sworn into office as President of the United States. Or was he?1 A flurry of Internet activity about “oafs of office” followed the inauguration. On Wednesday, January 21, Obama again took the oath: “I do solemnly swear that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”2 A January 21st White House press release briefly explained: “We believe that the oath of office was administered effectively and that the President was sworn in appropriately yesterday. But the oath appears in the 1

A nice transcript is available at the Blog of the LGSA (Linguistics Graduate Student Association) Fledgelings, “Constitution vs. Cooperation”: a. Roberts: I, Barack Hussein Obama [do solemnly swear] b. Obama: [I, Barack] c. Obama: I, Barack Hussein Obama, do solemnly swear. d. Roberts: That I will execute the office of President of to the United States faithfully. e. Obama: That I will execute . . . (nods to Roberts) f. Roberts: the off– faithfully the Pres– office of President [of the United States.] g. Obama: [the office of President] of the United States faithfully. h. Roberts: And will to the best of my ability. i. Obama: I will to the best of my ability. j. Roberts: Preserve, protect, and defend, the constitution of the United States. k. Obama: Preserve, protect, and defend, the constitution of the United States. l. Roberts: So help you God? m. Obama: So help me God. n. Roberts: Congratulations Mr. President.

2

*Brackets “[ ]” represent overlapping speech. Parenthesis represent paralinguistic cues. Periods “.” represent pauses. Hyphens “–” represent truncated speech. The text [in line d. with strikethrough and in bold] represents a change made to the transcription (after the original post timestamp).* From: http://fledgelings.blogspot.com/2009/01//constitution-case-of.html [2/6/2009 7:42 PM] U.S. Const. Art. II, Sec. 1, cl. 8.

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Constitution itself. And out of an abundance of caution, because there was one word out of sequence, Chief Justice Roberts administered the oath a second time.”3 Today, the incident appears trivial. Some claim that Obama had become President at noon anyway – even before his first oath – when George W. Bush left office. The White House’s “abundance of caution” over “one word out of sequence” in an oath that it nevertheless believed “administered effectively” enough that the President had been “sworn in appropriately” does reveal, though, the importance to lawyers – and Obama is nothing if not a lawyer’s lawyer – of what J. L. Austin described as the “felicity” conditions (or conditions for the success) of a performative utterance.4 Were it not for the second oath, might there have been grounds for claiming that President Obama had not been sworn in “appropriately”? that Judge Roberts had not administered the oath “effectively”? that Obama was not formally President? Lawyers, outside as well as inside the White House, recognize that for a particular sort of utterance – such as an oath or an agreement – to do what it does, certain accepted conventional procedures that include the uttering of certain words must be met; the procedures must be carried out by the appropriate persons, correctly and completely, in the appropriate circumstances; and if particular feelings or thoughts are required, the parties must have those feelings and thoughts, and subsequently follow through with their conduct. Philosopher of language Austin said as much in the pithy 1963 book based on his 1955 lectures, How to Do Things with Words. There Austin argued that there were ways that sentences could make sense besides by being true and that there were ways that utterances could be problematic without necessarily being false. Today anyone who has encountered the procedural requirements of modern law – deadlines, signatures, forms, and formats – knows that of which Austin speaks. Indeed Austin refers to law more than a dozen times.5 He notes how many of the ‘acts’ which concern the jurist are or include the utterance of performatives [discussed below], or at any rate are or 3 4 5

White House press release, Jan. 21, 2009, New York Times and online. J. L. Austin, How To Do Things with Words (Cambridge: Harvard University Press, 1963; 2d ed, 1975), Lectures 2 and 3. Where possible, page numbers are indicated in the body of the text. Pp. 4, 7, 13, 17, 19, 21, 22, 32, 33, 35, 36, 42, 43, 44, 57, 65, 89 . . .

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include the performance of some conventional procedures. And of course you will appreciate that in this way and that writers on jurisprudence have constantly shown themselves aware of the varieties of infelicity and even at times of the peculiarities of the performative utterance.6 If one takes the presidential oath as a performative speech act,7 more was at stake in Obama’s first oath than a word being out of place, then. The very conventions or conditions that constitute the accepted ritual of inauguration as U.S. President are being challenged. Further, even if Obama actually did become President at noon on January 20 (in the silence before the swearing of the first oath), the swearing of the oath still appears to do something: in solemnly swearing, President Obama explicitly commits himself to faithfully executing the office and preserving and so forth the Constitution. Such a commitment could of course be implied by all of the events leading up to the inauguration, but Obama’s explicit swearing of the oath adds his affirmation or acceptance of the commitment or obligation. It attests to something we often take for granted: that one’s word is one’s bond. In swearing or in giving his word, Obama commits or binds himself. This contribution – an overview of part of a larger project by the same name – explores words and bonds, laws and speech. Part I, on “Keeping Promises,” begins by asking why our word is our bond. Austin claims that “accuracy and morality alike are on the side of the plain saying that our word is our bond” (10), thus suggesting that accuracy and morality at least to some degree justify holding speakers to their promises. But reading Austin’s words in context and going back to the Greek play Hippolytus that he himself cites, “our word is our bond” emerges as anything but a “plain saying” on whose side accuracy and morality – much less justice – lie. Even our modern contract law – accurate, moral, and just as it may be – fails to hold many speakers to their promises. In short, despite Austin’s many insights about matters of speech, neither accuracy nor morality, nor even 6

7

At 19. And, he continues, “Only the still widespread obsession that the utterances of the law, and utterances used in, say, ‘acts in the law’, must somehow be statements true or false, has prevented many lawyers from getting this whole matter much straighter than we [philosophers] are likely to– and I would not even claim to know whether some of them have not already done so.” A “performative” utterance does what it does in its being said: “I promise that . . . ,” “I warn you that . . . ,” “I accept your offer to . . . ”

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law are always on the side of keeping promises. Rather than finding a justification for keeping promises then, Part I ends up showing how words bind us. The speaking of words binds us as a happening, not necessarily accurate or moral, in a world – as both Hippolytus and contract law show – that is itself not necessarily accurate or moral. Obama’s first oath – flubbed or not – happened; and the White House and the bloggers – ready or not – had to deal with the particular utterances he had been heard to make. Part II, on “Binding Law,” inquires into the U.S. law that governs the happenings of speech today. Clearly, in the United States, contract law, crimes, First Amendment law, civil and criminal procedure, evidence law, and even torts regulate speech. But do they actually succeed in governing speech? Law students and legal practitioners strive to master speech, just as law struggles to control speech acts. Yet despite the law’s best efforts, unruly speech acts happen. The White House’s “abundance of caution” where words are concerned shares in current U.S. law’s broader respect for – and wariness about – the potency of speech. Such law on occasion even acknowledges its limitations vis-à-vis speech. Law cannot always tell what it hears (or hear what it’s told) and its own speech escapes its jurisdiction. As happenings then, speech acts – of law and otherwise – bind us to a world in which positive law fails to have the final word. Ultimately then, “our word is our bond” points to the indebtedness of our human law – of modern U.S. law, for instance – not so much to morality or to natural or divine law, but to speech and to the silences out of which speech comes. I. Keeping Promises A) Austin: The Promise as Speech Act

At the end of the first lecture of How to Do Things with Words, Austin writes (as noted earlier) that “accuracy and morality alike are on the side of the plain saying that our word is our bond.” Austin contrasts his view to Hippolytus’ utterance, in Euripides’ play by that name, that “My tongue swore, but my mind did not.” As mentioned, Austin argues that there are sentences that are not fundamentally true/false that nevertheless make sense. He dubs these “performative.” Their success is a matter of “convention” or of their being spoken appropriately, he argues, rather than of their

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correspondence with a state of affairs. Austin offers the promise as one of the “more awe-inspiring” of these sorts of utterances or utterances that do what they say in being said.8 A promise is not “true” or “false” in terms of propositional content; like an oath, it may be valid or void, sincere or deceptive, depending on the circumstances of its speaking. Austin is concerned with distinguishing his view that for a performative utterance to be serious and successful, appropriate conventions must be carried out, from the mistaken idea that the seriousness and success of such an utterance depends entirely on its being an accurate report of what is in someone’s mind. This mistaken view would consider a promise for instance “as (merely) the outward and visible sign, for convenience or other record or for information, of an inward and spiritual act” (9). From here, Austin claims, it is but a short step to go on to believe or to assume without realizing that for many purposes the outward utterance is a description, true or false, of the inward performance. The classic expression of this idea is to be found in the Hippolytus (l. 612), where Hippolytus says . . . i.e. ‘my tongue swore to, but my heart (or mind or other backstage artiste) did not’. (9) Austin continues, [O]ne who says ‘promising is . . . an inward and spiritual act’ is apt to appear as a solid moralist . . . Yet he provides Hippolytus with a let-out, the bigamist with an excuse for his ‘I do’ and the welsher with a defence for his ‘I bet’. (10) Austin’s point here, again, is to argue against the view that the truth or falsity of the correspondence between a speaker’s words and so-called inward acts or intentions alone is the key to understanding the sense we make of 8

Before mentioning the promise, J. L. Austin offers “marrying,” “christening a ship,” “bequeathing (through a will),” and “betting” as examples of performative speech acts. In the later work of Searle and others, the promise has come to epitomize the “performative” utterance. Later in his own book, Austin himself refutes the preliminary distinction he draws between “constative” statements (assessable in terms of accuracy or truth and falsity) and conventional “performative” utterances that name what they do. Ultimately, he argues that all utterances – constative and performative – can be described in (at least) 3 ways: as locutionary acts (saying something with meaning), illocutionary acts (as doing something in their being said – and hence susceptible to the infelicities that plague performatives), and as perlocutionary acts (as doing something by their being said).

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promises. It seems appropriate that a promisor have a certain intention, but a lack of intention to keep one’s word – such as Austin attributes to Hippolytus, based on line 612 – makes a promise “misleading,” “deceitful,” or “wrong” (11); it does not make it a lie or a misstatement or a false statement. It is rather “given in bad faith” [or, if it is or turns out to be beyond the speaker’s power, it is “not implemented” or not able to be implemented] (11). A promise – however insincere or deceitful – has been made – one says accurately, according to Austin – when an utterance fulfills certain external – conventional – requirements; and morality, again according to Austin, calls for that promise to be kept. There is much to be said for Austin’s claims that law above all illustrates his points, although he does not offer many concrete examples. Likewise, his argument that a promise is not simply a true/false description of a speaker’s intention or state of mind has much to recommend it. But a funny thing about Austin’s argument is his turn to Hippolytus. Not only is Hippolytus a character in a play,9 but Hippolytus does keep his promise. As Hippolytus himself comes to acknowledge, he can accurately (or truthfully) be described as making (and having made) a promise. He also quite morally (or virtuously and piously) keeps his promise. The keeping of his promise turns out to be problematic though, in terms of both accuracy and morality. As such, the Hippolytus reveals a difficulty with the relation between promising and the keeping of the promise (which in Austin’s terms would constitute the subsequent conduct required for the illocutionary act of promising to have been successful). It reveals a difficulty with the ostensibly “plain saying” that “our word is our bond” and Austin’s claim that “accuracy and morality alike” are on the side of that saying. To explore this further, we turn to Hippolytus’ promise – the promise that shows the difficulties with taking “our word is our bond” as a “plain saying.” This promise is, quite aptly at a conference on speech and silence, a promise to stay silent.

9

In the context of a question about the exhaustiveness of his categories of infelicity (20–22), Austin excludes from consideration utterances that occur on stage, in a poem, or in a soliloquy, in favor of utterances issued in “ordinary circumstances” and hence “serious” (a point about which Derrida makes much).

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B) Hippolytus: Speech Acts as Mortal

Euripides’ play10 begins with the goddess Aphrodite declaring that she will punish Hippolytus, the son of Theseus, for not paying proper respect to her (the goddess of marriage and procreation). She announces that she has made Phaedra, Theseus’ wife, fall in love with her own stepson, Hippolytus. Aphrodite declares that she will cause this to become known to Theseus who will, through the curses that the god Poseidon has granted him, kill his son. Upon Hippolytus’ entrance into the house, he indeed pays homage to the virgin goddess Artemis but refuses – despite his old Servant’s urging – to honor Aphrodite (Chorus11). Within the house, Phaedra’s nurse begs a delirious Phaedra to tell her what’s wrong. Phaedra eventually confides her feelings to the Nurse (“my hands are pure, my mind polluted” (317)) and out of concern for her honor asks the Nurse not to tell anyone of her love for Hippolytus, whose name she cannot even bring herself to utter. The Nurse says she will take care of things, with Aphrodite as her accomplice (Chorus). Next, Phaedra overhears part of a conversation between the Nurse and Hippolytus and reports to the Chorus that Hippolytus “clearly declares [the Nurse] ‘matchmaker of evils,’ ‘betrayer of your master’s bed’” (589–90). Hippolytus then exclaims over the “unspeakable words I heard uttered” (602). The Nurse asks him to be quiet and honor his oath, to which Hippolytus answers with his famous “My tongue is sworn, my mind unsworn” (612). He goes on about what a pestilence women are and then says to the Nurse my piety saves you: if I hadn’t been caught off guard by taking oaths to the gods, I would never have kept from declaring this to my father. But, as things are, I will go away from the house so long as Theseus is out of the country, and I will keep my mouth silent. But I’ll return when my 10

11

For English translation, I am using Euripides’ Hippolytus, Michael R. Halleran trans. (Newburyport MA: Focus Classical Library, 2001). For Greek and for commentary on translation, see Euripides II, David Kovacs ed. and trans. (Cambridge: Harvard University Press, Loeb Classical Library, 1995); Michael R. Halleran, introduction, trans., and commentary by line (Warminister, England: Aris and Phillips Ltd, 1995); Euripides Hippolytos, W. S. Barrett, ed, intro, and commentary by line (Oxford: Clarendon Press, 1964). Euripides wrote and presented two versions of the play; this is the second, in which he revised the story. Numbers in parentheses in the text refer to line numbers. For reasons of economy, I won’t be dealing with the Chorus in this essay, although I include reference to its parts, as these serve to punctuate the play.

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father does and I will watch how you look at him, you and that mistress of yours. (656–62) It is not clear how much of this Phaedra has overheard when the scene shifts back to her. Fearing that she will be disgraced and lose her good name and that of her children, she tells the nurse off before asking herself how she can “loosen the knot of words” that now binds her (670–1). The Chorus speaks here at the midpoint of the play, while offstage Phaedra tightens another knot and hangs herself. Theseus returns home to find tied in his dead wife’s hands a tablet that “cries out insufferable things.” He learns that Hippolytus “dared to touch my marriage bed by force” (885–6) (echoing Phaedra 589–90). Theseus then calls on Poseidon to curse Hippolytus and sends him into exile. Hippolytus protests his virtue and denies the accusation, swearing another oath to the gods that, should he be an evil man, he perish with no name and neither land nor sea receive his flesh (1028–31); he does all this without revealing his conversation with the Nurse (Chorus). A messenger next comes to Theseus and describes how Hippolytus’ own horses, spooked by a sound like thunder as a wild bull roared out of the sea, entangled him in their reins and destroyed him as he set out along the beach (between land and sea). Theseus attributes Hippolytus’ destruction to the fulfillment of (his own father, the god) Poseidon’s curse. Artemis enters the palace, accusing Theseus of not waiting for proofs or prophets and killing Hippolytus, who “since he is pious by birth” did not “retract the pledge of his oath when he was abused by you” (1308–9). Artemis then excuses Theseus: “Your not knowing frees your error from wickedness; your wife in dying did away with the refutation of her words, so that she persuaded your mind” (1334–7); and later, “in ignorance you killed him” (1433). The wounded Hippolytus is brought back to the palace by his attendants. Artemis tells Hippolytus to “Let it be” (1415) as she swears to take vengeance herself on “whatever mortal is [Aphrodite’s] very dearest” (1422) and to give Hippolytus “the greatest honors in the city”: after his death, unmarried maidens will offer locks of their hair and sing songs to him so that Phaedra’s love will not “fall away nameless and be kept silent” (1424–30). With Artemis’ blessing (“I urge you not to hate your father” (1435)), Hippolytus forgives Theseus before dying (“I dissolve the strife with my father, since you wish it” (1442)), and Theseus and the Chorus are left with their grief.

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The play is full of performative speech acts: oaths, promises, declarations, accusations, supplications, wishes, curses, rebuttals, proclamations, and so forth. The speech acts of the gods are effective: Aphrodite’s declaration that she “shall now show you the truth of these words” (9); Artemis’ call on Hippolytus to forgive Theseus (and her promise to establish a cult for Hippolytus); even the second hand-curse of Poseidon who, in destroying Hippolytus, “gave [to Theseus] only what he had to, since he had agreed” (1319). The speech acts of humans by contrast continually go wrong.12 Human words are not necessarily false as such (except those in Phaedra’s tablet, which significantly is a writing13). Human speech is susceptible to all manner of difficulties besides falseness: words are spoken by those who claim to prefer silence (Phaedra to Nurse ); they are told to those who should not hear them (Nurse to Hippolytus); they are heard by those for whom they are not intended (Phaedra); they are misheard and misunderstood; they “misfire” and are “abused,” in Austin’s terms, hence are “infelicitous” and generally “unsatisfactory” as both acts and speech.14 They are concealed (by many, including the Chorus), spoken “rashly” (119), go “too far” (924), and “go astray” (934). They are spoken in excess, in haste (Theseus), in anger (Hippolytus), in pride (Hippolytus), and in weakness (Phaedra). “Fine words” hide what is not fine (988), destroying “wellgoverned cities” (486–7), while other words reveal shameful things that should stay hidden (363). Words show the “unendurable” (354, 875), the “insufferable” (877), even the “unspeakable” (602, 875). Indeed, in the Hippolytus, human speech is so problematic that accuracy and morality – or at least our human conceptions of justice – seem to be on the side of Hippolytus’ breaking his word or his oath to be silent. Hippolytus agrees with Austin that he has made a promise, despite the fact that he did not yet know exactly what he was swearing to be silent about (which might 12 13

14

Again, I exclude consideration of the chorus here. As in Plato’s Phaedrus, so in Euripides’ Phaedra, writings always say one and the same thing: “if one asks them a question, they preserve a solemn silence”; they need their authors if they are to say more (Phaedrus 259 d-e). Phaedra in dying “did away with the refutation of her words” (Hipp., 1336–7) and the ruling Theseus’ suspiciousnessness about Hippolytus’s spoken words does not extend to Phaedra’s written ones. Performative speech acts according to Austin are susceptible not only to infelicities that seem particular to them, but also to the kinds of “unhappiness” that may afflict any kind of human action (they may be done by duress, accidentally, etc) and other kinds of speech (being misheard and misunderstood). (21–2)

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in other circumstances imply a sort of unsatisfactoriness about the promise). Hippolytus’ “my tongue swore, my mind did not” at line 612 is then, if anything, what Stanley Cavell would call a “passionate utterance”:15 Hippolytus’ speech is at least as much an expression of Hippolytus’ repugnance at what the Nurse has divulged (or proposed) and of Hippolytus’ anger at having unwittingly sworn himself to silence about it as it is an (illocutionary) act of disavowal of his promise. Unlike the conventionally governed performative utterance, the passionate utterance is (perlocutionarily) “designed to have consequential effects on the feelings, thoughts and actions of others” (177) and “appears as deeply characteristic and revelatory of both the utterer and his or her addressee” (180). Hippolytus’ passionate utterance confronts and challenges convention, “mak[ing] demands upon” the Nurse, as Cavell would put it, “in a way illocutionary force (if all goes well) forgoes” (173). “A performative utterance is an offer of participation in the order of law,” explains Cavell. “And perhaps we can say: A passionate utterance is an invitation to improvisation in the disorders of desire” (185). The Nurse fails to relieve Hippolytus of his promise though and toward the end of a longish speech (616–68), Hippolytus acknowledges that he has a duty to keep his word. He says to the Nurse “my piety saves you . . . I will keep my mouth silent” (656/660). And keep silent, he does. To Theseus, he says, “It is not right for me to say more” (1033); “I will not . . . violate the oaths which I swore” (1063) and “I know these things but I don’t know how to reveal them” (1091). Had Hippolytus not kept silent though, had he actually broken his promise and told of his conversation with the Nurse, he might have refuted the words of the tablet. He could have defended himself against the dead Phaedra’s false accusations, imparting the truth of the matter perhaps to Theseus. Theseus would then not have brought Poseidon’s curses down wrongfully upon the pious and chaste Hippolytus. Speech and silence then are problematic for the likes of both Hippolytus and Phaedra. If Hippolytus speaks, he breaks his word; if he stays silent, he allows falsehood and suffers injustice. If Phaedra stays silent, she conceals the truth of the passion from which she suffers. But if she speaks, she reveals her shame and risks her reputation, a matter so serious, she’d rather die! Note that despite Hippolytus’ being bound by his oath to silence and 15

Stanley Cavell, “Performative and Passionate Utterance,” Philosophy the Day after Tomorrow (Cambridge: Belknap Press of Harvard University Press, 2005), 155–91.

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Phaedra’s being in some sense bound by Aphrodite to reveal her divinely inspired passion, each has a choice (Phaedra 379–83, interestingly). But the choice is not symmetrical: for both of them, speech comes out of silence. They may stay silent or speak (not: stay speaking or become silent) – a matter to which we will return. Note also that Hippolytus and Phaedra are bound to speech and silence as matters of law – and of life and death. Death literally binds them to their words: Phaedra hangs herself, leaving the lying tablet; Hippolytus is entangled in the reins of his horses and becomes the song of the maidens. Alive, Phaedra submits to social conventions (nomoi) of honor and shame (aidos, not only shame but also the modesty/respect/reverence that is the opposite of dishonor) that accords a good reputation to moderation and disgrace to passion. Hippolytus’ virtue/piety/chastity (sophrosune) binds him to his oath to be silent. But that’s not all. Phaedra and Hippolytus, along with Theseus, are also bound to “fortune” (268, 673, 818, 828, 832), to “fate” (679, 1434), and to “destiny and necessity” (1256) and are subject to the desires of the gods. The gods are ruled also by some kind of law. The “custom” (nomos) that holds among gods prevents Artemis from directly opposing the expressed desire of Aphrodite (1328–9): all Artemis can do at the end is take her own vengeance on Aphrodite and fulfill the terms of one of Hippolytus’ oaths by ensuring that Hippolytus (as Phaedra’s love) will not be forgotten or go “nameless.” Further, the law (nomos) that hates pride in mortals (90–5) holds also for the gods. It justifies Aphrodite’s anger at the pride that prevents Hippolytus from “addressing” the proud goddess and that manifests itself not only in Hippolytus’ neglect of the conventional speech act of respectful prayer but also in his rash words about her (102–13). Speech acts, as happenings that cannot be taken back, thus also bind both gods and mortals and bind them together. The performative speech acts of gods and goddesses – as we have seen, however – take effect as intended and desired. (In Austin’s terms, the “illocutionary force” and “perlocutionary effect” of the words of the gods appear seamless. In Cavell’s terms, the “passionate” is the “performative” – for the gods.) The effectivity of the gods’ speech acts thus binds them into endless chains of intention and revenge. The infelicities and difficulties of mortal speech, by contrast, show human speech acts to be happenings that entangle humans in

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knots and bind them in ways which they do not necessarily intend, as Austin recognized, and which extend beyond their lives. The conventional human laws (nomos) and laws of virtue (sophrosune) that ostensibly govern the acts of mortals are trumped by fate or fortune and by the desires of the gods – none of which, as Euripides shows, is necessarily accurate or moral by human standards. Justice – at least as humanly understood – sides against Hippolytus’ and Poseidon’s keeping of their promises; keeping their word – as they do – leads to the wrongful death of the falsely accused Hippolytus. II. Binding Law A. Contract Law: Agreement as Obligation

The modern law of obligations or contract law confirms the view of the Hippolytus that human speech acts are problematic happenings that bind mortals in a world that is neither moral nor accurate. Contract law attempts to address some of the injustices that beset humans and their speech acts but does not completely do so. Austin’s language of speech acts offers insights into acts – in the case of contracts, agreements – with which law is concerned. Contract law sets out in particular to protect agreements and to modulate unfairness (in the name of what has come to be called, significantly, “expectation interests”). To protect agreements, contract law seeks to ensure that accepted conventions – of speech acts of offer and acceptance, for instance – are followed. To assess unfairness, contract law looks to the entirety of the circumstances in which an agreement was made or to what Austin would call the “total speech situation.” These two aspects of contract law can pull in different directions: a valid agreement may be unfair; a technically improper agreement may be fair. And either may be upheld or rejected. Recall that Austin insists that for a performative speech act to succeed, accepted conventional procedures must exist and be fulfilled. In contract law, an agreement – like an offer, like acceptance – follows from just such procedures. Austin criticizes those who believe that a performative utterance is a true or false description of an inward performance. An agreement – a matter of successfully executed or felicitous offer and acceptance, insofar as both are themselves convention-bound performative speech acts – is not a

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matter of correspondence with, or representation of the coincidence of, two parties’ mental states or inward acts. The history of disputes and tensions between “subjective intent” and “objective meaning” in contract doctrine, the shift from a meeting of the minds to an ostensibly “reasonable person” standard for determining whether an agreement has been made, and the demise of the nineteenth-century “will theory” of promise in favor of a “bargain test” for consideration, correspond to issues at stake in Austin’s argument. The rise of the bargain test for consideration that was developed in the Restatements, for instance, ostensibly supplanted an earlier will theory in which “a promise was enforceable because the promisor had ‘willed’ to be bound by the promise.”16 From the common law action of assumpsit, a rule had developed requiring consideration, as a benefit to the promisor or detriment to the promisee, for a promise to be enforceable.17 The Restatements redefined “consideration” in terms of bargain, where something is bargained for “if it is sought by the promisor in exchange for his promise and is given to the promisor in exchange for that promise.”18 The “bargain test” makes some promises unenforceable that might otherwise have been enforceable – those made outside of the marketplace in a family setting for instance. (See, for instance, Baird’s wonderful account of the Hamer v. Sidway uncle’s promise to pay his teenage nephew $5000 on his 21st birthday if the nephew does not smoke, drink, or gamble before then.)19 Likewise, because the bargain test seems to make some promises enforceable that might otherwise have been unenforceable, courts have had to strain to reconcile “the ends of justice” with the procedural requirements of bargain.20 The unconscionability of arbitration agreements and contracts of adhesion, for instance, get reconfigured to accommodate reference to bargaining power.

16 17 19 20

E. Allen Farnsworth, Farnsworth on Contracts, 2d ed., (New York: Aspen Law and Business, 1998) vol I: 74. Farnsworth, I: 17–22. 18 Farsnworth, I: 74, citing Restatement Second. Douglas G. Baird, “Reconstructing Contracts: Hamer v. Sidway,” in Baird, ed., Contracts Stories (New York: Foundation Press, 2007) 160–85. Farnsworth, I: 75, citing Eisenberg and Kelman. See also Stewart Macaulay, John Kidwell, William Whitford, Contracts: Law in Action: The Concise Course, 2d ed., (Newark: LexisNexis, 2003).

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If contract law shows – with Austin – how accepted conventions or ritualized procedures are required for the success of performative speech acts, then it also shows how conventions may change over time.21 When speech acts of “offer” and “acceptance” govern the formation of bilateral agreements (a promise for a promise), the modern (over)identification of obligation with bilateral agreements, for instance, produces problems in thinking about the enforceability of unilateral contracts, argues Peter Tiersma. In a unilateral situation where a “promise” (for an act) rather than an “offer” (of a promise for a promise) occurs, to look for (an act of ) “acceptance” of the same sort as in a bilateral agreement is inappropriate.22 In the asymmetry of the unilateral contract, “our word is our bond” is far from the “plain saying” that Austin suggests. Further, even before the bargain theory of contract, not all promises were enforceable. Today, a growing literature proposes the irrelevance of theories of promise to contract.23 Of those who follow the still-dominant Restatements’ link of promise with contract, though, contract law diverges from morality insofar as morality requires the keeping of promises.24 Even in cases of enforceable bilateral agreements, that is, law seldom requires fulfillment or actual or “specific performance” of a promise. More often, law remedies breach of a promise through the imposition of (monetary) damages. That the broken promises of breached enforceable contracts sometimes come before the court as having become impossible to fulfill only confirms that human speech happens in a world that does not inherently conform to human demands and expectations, however moral those demands and expectations may be. Human speech acts happen in a world that is beyond the control of humans and even of their law. Like the Hippolytus, contract law suggests that speech acts and their effects may

21

22 23 24

Morton Horwitz, “The Historical Foundations of Modern Contract Law,” 87 Harvard L. Rev. 917 (1974); A. W. B. Simpson, “The Horwitz Thesis and the History of Contracts,” 46:3 University of Chicago L. Rev. (1979): 533–601; Roy Kreitner, Calculating Promises: The Emergence of Modern American Contract Doctrine (Stanford: Stanford University Press, 2007). Peter Meijes Tiersma, “Reassessing Unilateral Contracts: The Role of Offer, Acceptance and Promise,” UC Davis L. Review 26:1 (1992): 1–86. Ian Ayres, “Valuing Modern Contract Scholarship,” 112:4 Yale L. Journal (2003): 881–901. Seana Valentine Shiffrin, “The Divergence of Contract and Promise,” 120 Harvard Law Review (2007): 708. But see Joseph Raz, “Promises in Morality and Law,” 95 Harvard Law Review (1982): 916–38.

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escape mortal speakers’ intentions and desires. Contract law shows that human law does not seamlessly rectify speech acts gone astray. Nor can it. For human law articulates itself within a total speech situation around which innumerable conventions and rules already apply. Legal speech itself is not so much “false” or “inaccurate” or “incorrect” as seemingly “inappropriate” outside its convention-ridden institutional context and “infelicitous” when it goes wrong within it (though it may of course also be mistaken and misunderstood). Legal utterances, with their often implicit “hereby’s” and their use of the “performative verbs” that Austin so gleefully lists (e.g., verdictives – acquit, find; exercitives – appoint, order; commissives – swear, declare; and expositives – affirm, demur, object (148–64)) have come to epitomize Austinian “illocutionary” speech acts. The infelicities and other errors of legal speech acts are remedied – or dismissed – by appeal to further legal-conventional procedures. Indeed legal education, as Elizabeth Mertz’ superb study of eight first-year contracts classes shows, largely concerns the mastery of legal texts and legal speech, around which there exist narrowly-circumscribed conventions, not only of speaking and writing, but also of reading and thinking.25 In sum, modern contract law articulates conventions for particular sorts of speech acts. Like modern speech itself though, contract law does not strictly follow the laws of morality, much less those of the gods.

25

Law students, according to Mertz, ultimately become strategists of speech. Mertz shows how students learn to present themselves and the parties whom they animate in response to questions about cases in particular ways. They learn to privilege texts not for their stories of human conflicts but for their answers to “a series of nested questions about the authority of various courts deciding the case at issue and also of the courts that authored precedents” (62). They learn to treat legal texts as “detachable chunk[s] of discourse” (45) that can be moved from one context to another. Vast differences in the cultural meanings of particular kinds of actions or items become elided into a common legal language (64) that reworks temporality and history (63). Persons in conflicts become types; often students came to know “parties” through occupational status and worldly belongings, referring to them as “buyers” and “sellers” into whose mouths they put strategic language whose looseness contrasts to the precision demanded when quoting legal authorities. “Policy” becomes a catch-all phrase for matters unaddressed in written text. As students ostensibly prepare for legal practice, they engage in a landscape of argumentative positions, discourse frames, and participant roles, and come to inhabit an “I” that is not “their own self” (135). This summary is drawn in part from my review of Elizabeth Mertz, The Language of Law School: Learning to “Think like a Lawyer” (New York: Oxford U. Press, 2007) in 42:2 Law & Society Review (2008): 433–5.

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B. Positive law: speech as limit

If neither accuracy, morality, nor law side plainly with the keeping of promises, in what sense is our word our bond? Part I suggested that, as happenings, words, or speech acts – unhappy or not – bind us in a world that is to some degree beyond our control. Despite the attention that modern U.S. legal education pays to the formation of appropriate speech acts, an attention that is quite compatible with the “abundance of caution” that the White House displayed around Obama’s ostensibly flubbed oath, speech falls prey to all manner of unhappiness. At law, parties challenge not only the enforceability of agreements they have entered, as discussed in Part II A, but also the validity, the legitimacy, the constitutionality of legal declarations themselves. Jury instructions, verdicts, trial rulings, appellate decisions, local resolutions, administrative appointments, state and federal legislation are all subject to scrutiny according to accepted conventions or legal procedures for appeal and review. But what happens when those appeals go wrong? What happens when conventional rules – or existing accepted procedures – run out? When they are rejected? When they don’t exist? How are non (or un?) conventional speech acts – such as Hippolytus’ passionate outburst – governed? This final section sketches how U.S. law deals with the happening of speech acts and their potential unhappiness. It deals with U.S. law not only because that is the law with which we are most familiar – it is “our” law – but also because modern U.S. law epitomizes what in jurisprudence is called “positive law.” Positive law refers to the man-made or humanly-enacted laws of our society. Positive law is the law that “exists”; it is empirically knowable and includes legal institutions and behaviors studied by sociolegal scholars. It appears, to we moderns, as a matter of “fact” – whether as an existing system of rules (as per H. L. A. Hart), as the powerful threats of a sovereign (for John Austin), and/or in various mechanisms or systems of social control. Positive law includes the law on the books of the legal scholar and the law in action of the sociologist. Historically, Western jurisprudence distinguished positive law from natural (or divine) and moral law. These higher laws offered standards by which to assess the “justice” of positive laws. Today, positive law and its empirical reality holds sway: natural, religious, and moral laws are themselves considered fundamentally socially-constructed – humanly-made – phenomena. As

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positive law has become law tout court, positive law’s own human and procedural standards of “fairness” and “legitimacy” have taken the place of justice. I mention all this to emphasize that positive law has emerged as our law.26 It has not always exhausted conceptions of law; it has not always been the exclusive law that it has become, as I argue elsewhere.27 At stake in the law’s treatment of speech today then is the possibility that something – a law of speech perhaps (or perhaps not “law” or “thing” at all) – lies at least in part beyond the reach of the long arm of (the empirical realities of) positive law. And, as what follows shows, the positive law in which we are all implicated may even acknowledge this to be so. Law, as we have seen, is both fearful and hopeful about speech. Contemporary U.S. law treads carefully around speech acts, recognizing them as happenings, contesting their authority and power, and fearing their unpredictability. Despite the best efforts of U.S. law, though, of First Amendment law, civil and criminal procedure, evidence law, criminal law, contracts, and torts, speech acts still go wrong – inside and outside the law. U.S. law clearly recognizes the “act-like” quality of speech (although legal commentators (as J. L. Austin writes of philosophers of his time) have indeed often elided the “illocutionary” force of law, in favor of its perlocutionary effects and/or its constative aspects).28 First Amendment law strains to distinguish protected (and non-regulatable) speech from unprotected (hence regulatable speech). While some First Amendment (and intellectual property) jurisprudence has reproduced unfortunate distinctions between form and content in the content-based restrictions to which courts accord “strict scrutiny,” the content-neutral “time place and manner” regulations upheld by the Supreme Court acknowledge the “act” that is speech. In evidence law too, exceptions to the exclusion of hearsay (as Austin correctly pointed out) acknowledge that utterances do more than report claims that are true or false. Roughly speaking, hearsay is admitted when it goes to show the doing of an action. Perjury law, interestingly, even considers a false utterance to be a criminal act, not because the falsity of the 26 27 28

Constable, The Law of the Other: the Mixed Jury and Changing Conceptions of Citizenship, Law and Knowledge (Chicago: University of Chicago Press, 1993). Constable, Just Silences: Limits and Possibilities of Modern Law (Princeton: Princeton University Press, 2005). Constable, Just Silences, 164–5.

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statement is evidence of a crime, but because the very stating of the falsity (that is material to a legal proceeding and so forth) is criminal.29 The Court steps gingerly concerning perjury. Solan and Tiersma explain that perjury law aims to protect the integrity of legal proceedings.30 In the context of perjury, courts take what Solan and Tiersma call a more “literal” approach than the “nonliteral” approach that courts generally apply in cases of bribery or conspiracy. (Here are two examples from Solan and Tiersma. One: Q: do you have a Ford? A: I have a Chevy. [This is not perjury though A has a Ford]. Two: Q: How many times have you been there? A: I was there twice [This is not perjury although A has been there 12 times. The answer is “literally” true in so far as “twice” is included in “twelve times.”]) Solan and Tiersma’s observations lead them to what they consider “a disturbing irony,”31 in response to which they propose requiring that lawyers “clarify unresponsive answers, but only when it is reasonably evident to the lawyer that the answer may not be responsive.” (220) Setting aside the prescriptive question of what requirements to impose, current practice concerning perjury indeed reveals the importance that law accords to the integrity of legal processes. In sticking to the issue of the accuracy of an isolated and determinate locutionary act (or what is said or appears in quotation marks as a single utterance), rather than inquiring into potential deception in the context of a “total” speech situation, which includes not only the interaction between lawyer and witness but the very “fact” about which the witness is testifying, the court displays a sense of its own limitations. Rather than expanding its inquiry into the context of a “totality” of circumstances that are themselves at issue and must elude its grasp, the court retreats to a

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Martinez v. State, 91 S.W. 3d 331 (Tex. Crim. App. 2002), cited in 60A Am Jur Perjury section 1, note 11: “A perjured utterance is not evidence or testimony to a crime, but the very act of crime itself.” Lawrence M. Solan and Peter M. Tiersma, Speaking of Crime: The Language of Criminal Justice (Chicago: University of Chicago Press, 2005). “On the one hand, a witness is required to give relevant and relatively complete responses, and we should be able to interpret the answer accordingly. Were it not so, the entire questioning process would collapse. On the other hand, the nature of the adversarial process suggests that it is the questioning lawyer’s job to ensure that responses comply with these requirements. But who do we blame when, as seems to have happened in Bronston, the witness intentionally gives an unresponsive answer to create a false impression of responsiveness? Do we let Bronston’s creditors go uncompensated because their lawyer’s trial skills were not sufficiently honed, or do we prosecute the witness for perjury to discourage deceitful conduct?” (220)

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narrowly-circumscribed set of elements (oath, intent, falsity, materiality to outcome)32 whose assessment lies within the terms of its own domain.33 The Miranda warning too shows a concern for the integrity of law and legal process. It acknowledges even more explicitly than in the case of perjury law the legal process’s own limitations vis-à-vis speech.34 As a speech act, the illocutionary Miranda warning alerts the accused of a danger: that utterances made in the extraordinary conditions of the in-custody interrogatory phase of the legal process may have a different import or force or effect than when ordinarily said. The warning and the opportunity to respond to it by calling for an attorney or remaining silent allow the accused to enter into the danger with some protection (lawyer) or to avoid it (silence). The Miranda holding thus acknowledges a possible limit to the justice of actual system: the speech acts of the accused may go wrong in ways the system cannot control or rectify. The law warns the accused, acknowledges its own limitations, and invites the accused to respond. The silence of an accused constitutes a response, which admittedly may be prudent and self-interested (as critics are quick to remind us) but may equally well constitute an acceptance of the invitation (and the right) to silence offered by law.35 In such acceptance, the accused expresses concern – shared and presented by law itself – that the legal process may not be able to do justice to, or in terms of, the accused’s own speech. (The law acknowledges the possibility of “passionate utterances” that challenge its own conventions.) If in Miranda, U.S. law acknowledges that it cannot always properly understand or explain what it hears, it also occasionally acknowledges that it cannot always say what it knows (“I know it when I see it”). A deeper exploration of obscenity law suggests how passionate utterances – those utterances that refuse accepted conventions and ostensibly invite 32

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Jessica Fischweicher, “Perjury,” American Criminal Law Review 45.2 (2008), p. 799 (2b) at 803. [The witness must have the “willful intent” to produce false testimony. Note that, whatever the problems intent raises for philosophers and others, courts and legislatures seldom consider narrow inquiry into criminal “intent” to be outside their competence!] Misprision of felony (or knowledge of a crime that one conceals, without having assented to the crime), offers a possible contrast to courts’ retreat in cases of perjury to narrowly circumscribed elements. Here – as in Grace Lee’s commentary in this volume on Hill v. Jones – the total speech situation expands to take into account conditions surrounding not only particular speech acts, but the silence out of which they come. Constable, Just Silences, 149–74. Although silences are admittedly ambiguous, possible meanings can be inferred from contexts.

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improvisation into the disorders of desire, as Cavell puts it – disrupt the articulateness of law. In the Fannie Hill case, before the community standards test for obscenity came to predominate, for instance, the Supreme Court refuses to lapse into silence and instead uses an amorphous notion of “socially-redeeming value” as a placeholder for dealing with speech acts which it is unwilling – or recognizes itself as unable – to regulate completely.36 Legal reasoning too shows the lengths to which human law goes and the entanglements it gets into when law insists that its own speech is within its control. The peculiar temporality of common law precedent – the binding of oneself in a present to having been bound in the future to what will have been a newly discovered past – indicates the lengths to which humans go to convince themselves that their law is their bond, neglecting or forgetting that the speaking of law is itself the happening of speech acts that are subject or bound to the vicissitudes of mortal speech. The retrieval of “dicta,” too, offers an example of the long-term unpredictability within law of its own speech. So too does controversy over the effectiveness of judicial instructions to a jury to disregard evidence.37 Legal reasoning, early obscenity law, Miranda, perjury law, hearsay rules, First Amendment jurisprudence, and contracts together suggest ways that our human – positive – law is susceptible to infelicities and incapacities of speech that it cannot escape. Contrast this to law’s encounter with the demands of morality, which it cannot meet. My point of course aligns in part with lessons from Austin and from the Hippolytus. Legal speech in many ways epitomizes the conventional speech act (as performative/illocutionary utterance) and its susceptibility to the many difficulties noted above. But we can go further now: Insofar as positive law occasionally acknowledges its inability to do justice to the speech of others, it cedes some of its jurisdiction (as “juris-diction” or the saying of law). It allows itself to be challenged by unconventional – passionate – utterances whose dialogic character – whose invitations – are as much a part of the performance of speech as are the conventions that make speech possible. Just as participants in dialogues cede some of their authority or control (recall the contingency 36 37

A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Massachusetts, 383 U.S. 413 (1966). Linda J. Demaine, “In Search of an Anti-Elephant: Confronting the Human Inability to Forget Inadmissible Evidence,” 16 Geo. Mason L. Rev. (2008): 99.

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of offer and acceptance, for instance), law too occasionally defers to the speech of those with whom it would speak. It shows itself dependent on and indebted to speech and to the silences out of which speech comes. This indebtedness shows what we take to be law to be itself beholden to something “greater than” or “beyond” itself. This is not a call for a return to natural law. “Justice,” as I argued in Just Silences, no longer comes to us from the gods; it lies if anywhere largely in silences, between the lines of the texts of a garrulous positive law. In Just Silences, I asked: do silences about justice in positive law point to what is taken for granted? To what has been lost or forgotten? Or to something that was never there to begin with? In this essay, I emphasize what I hope by now is an obvious point: that silence is that out of which human speech – with all its fallibility – actively comes. This claim transforms the terms of the tired jurisprudential debate between natural lawyers and legal positivists about what law is. To those who want to know “What is law?” the answer lies in exploring law’s relations to silences and speech further. To those who ask “What is justice?” the answers (if any) lie not in law’s relation to god or to morality but in law’s relation to the silences out of which may sometimes come the (passionate legal) speech acts that invite us to acts of justice. In sum: words bind us, they commit us, insofar as they are spoken. Their speaking is, yes, a speech act by speakers in circumstances, as Austin points out. But the speaking of words is also an event neither accurate nor moral which binds us in a world not governed by accuracy or by morality, as the Hippolytus shows. In trying to master events of speech and in acknowledging its limitations in doing so, our law shows its recognition of and its indebtedness to a “law” (if we can call it that?) of speech that is beyond it. The simple point of my analysis of Austin’s “plain saying” that “our word is our bond” then is that our often garrulous and sometimes successful, sometimes unhappy, law is beholden to, is indebted to, not morality or divinity, but to speech and the silences out of which law – as speech act – comes. Hence the “abundance of caution” which law – and the lawyers in the White House – conventionally display around words.

Comment on Chapter 1: Our Word (or the Lack Thereof) Is Our Bond: The Regulation of Silence under Contract Law Grace Soyon Lee

In “Our Word Is Our Bond,” Marianne Constable describes various ways in which the laws of the United States govern (or attempt to govern) the happenings of speech in today’s world. In particular, Professor Constable examines the regulation of speech in the areas of contract law, criminal law, First Amendment law, civil and criminal procedure, evidence law, and torts. In this article, I will further explore law’s struggle to govern speech or, more accurately, silence, in one area of contract law – misrepresentation – as illustrated by the seminal case Hill v. Jones.1 1. Our Word Is Our Bond

According to Professor Constable, an agreement, like an oath, may not be considered valid unless certain requirements are met: “certain accepted conventional procedures that include the uttering of certain words must be met; the procedures must be carried out by the appropriate persons, correctly and completely, in the appropriate circumstances; and if particular feelings or thoughts are required, the parties must have those feelings and thoughts, and subsequently follow through with their conduct.”2 She notes that [t]he modern law of obligations or contract law confirms the view of the Hippolytus3 that human speech acts are 1 3

725 P.2d 1115 (Ariz. App. 1986). 2 Constable. Hippolytus was a Greek figure whose stepmother, Phaedra, fell in love with him. Although he agrees to remain silent about her obsession, he spurns her affections, causing her to kill herself. In her suicide note to her husband, Hippolytus’ father Theseus, she insinuates that Hippolytus raped her. Because Hippolytus keeps his promise to remain silent on the matter, Theseus believes Phaedra’s lie and sends him into exile, where Hippolytus is dragged to death by his own horses. This myth is recounted at length in Constable’s essay.

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problematic happenings that bind mortals in a world that is neither moral nor accurate. Contract law attempts to address some of the injustices that beset humans and their speech acts but does not completely do so.4 In her view, modern contract law has two occasionally conflicting goals, the protection of agreements and the mitigation of unfairness, which it attempts to achieve by both requiring the parties to follow certain speech conventions and examining the circumstances, or “total speech situation,” in which the agreement was made.5 The conflict between these goals can lead to incongruous results: “a valid agreement may be unfair; a technically improper agreement may be fair. And either may be upheld or rejected.”6 Constable notes that the former goal has gradually given way to the latter, as evidenced by the shift from a subjective to an objective standard for determining whether an agreement has been made and by the shift from a “will theory” of promise towards a “bargain test” for consideration.7 This movement towards a greater modulation of unfairness, arguably at the expense of protection of agreements, can also be seen in how contract law currently treats misrepresentations through silence, at least in the context of housing law. In order to examine how it does so, I will provide a close reading of the case Hill v. Jones, one of the first cases to discuss and analyze this issue. 2. Hill v. Jones

In 1982, Warren G. Hill and Gloria Hill were looking for a home to buy and came across one they liked, owned by Ora G. Jones and Barbara R. Jones.8 Like any good prospective homebuyers, the Hills made several visits to the Jones home with an eye towards purchasing it and, even after they eventually made an offer to buy the home, conditioned their offer on the submission of a termite inspection report.9 After the offer was accepted but before the report had been submitted and the sale completed, the Hills paid a visit to the Joneses and noticed a “ripple” in the parquet floor of the home.10 Mr. Hill, a maintenance supervisor, recognized that such ripples could have been caused by termite damage and asked the Joneses if this was the case.11 Mrs. Jones responded that the 4 8

5 Constable. Constable. 9 Jones, 725 P.2d at 1116. Id.

6

7 Constable. Constable. 10 11 Id. Id.

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ripple had been caused by water damage, and Mr. Hill let the matter drop, assuming that the termite inspection report would resolve the issue.12 Unfortunately for the Hills, the termite inspector expected the Joneses to inform him of any history of past infestations without additional prompting; when they said nothing, the inspector issued a report finding no visible evidence of infestation.13 Only after the Hills moved in did they discover that the home had in fact been infested with termites at one time and that the sellers knew about and treated this infestation.14 Upon this discovery, the Hills sued to rescind the contract based on the fact that the Joneses had failed to disclose the history of termites in the home; the Joneses argued that they had no such duty to disclose, an argument that was accepted by the lower court.15 The Hills then appealed to the Court of Appeals of Arizona.16 After rejecting the Joneses’ initial argument that the integration clause did not preclude the Hills from stating a claim, the court turned to the question of “whether a seller has a duty to disclose to the buyer the existence of termite damage in a residential dwelling known to the seller, but not to the buyer, which materially affects the value of the property.”17 Initially, the court noted that the doctrine of caveat emptor had fallen out of favor over the previous decade.18 The court quoted the Restatement (Second) of Contracts in order to indicate the current trend, which places on vendors an affirmative duty to disclose material facts when one of the following is present: 1) Disclosure is necessary to prevent a previous assertion from being a misrepresentation or from being fraudulent or material; 2) Disclosure would correct a mistake of the other party as to a basic assumption on which that party is making the contract and if nondisclosure amounts to a failure to act in good faith and in accordance with reasonable standards of fair dealing; 3) Disclosure would correct a mistake of the other party as to the contents or effect of a writing, evidencing or embodying an agreement in whole or in part; 12 13

Id. In fact, a water heater had broken in the home a few years earlier, causing water damage to the floor. Id. 14 Id. 15 Id. at 1115–6. 16 Id. at 1116. 17 Id. at 1117–8. 18 Id.

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4) The other person is entitled to know the fact because of a relationship of trust and confidence between them.19 Moving beyond the Restatement, the court noted that courts in Arizona have also recognized that there may be a “duty to speak” in certain circumstances, such as when the parties are in a confidential relationship.20 In analyzing whether the sale of a home created a “duty to speak” on the part of the seller, the court noted the same tension between finality and fairness observed by Professor Constable: “Although the law of contracts supports the finality of transactions, over the years courts have recognized that under certain limited circumstances it is unjust to strictly enforce the policy favoring finality.”21 After observing that the judicial policy of honesty and fair dealing extends to fraudulent and negligent misrepresentations as well, the court noted that “[u]nder certain circumstances nondisclosure of a fact known to one party may be equivalent to the assertion that the fact does not exist.”22 In particular, the court noted that “[w]hen one conveys a false impression by the disclosure of some facts and the concealment of others, such concealment is in effect a false representation that what is disclosed is the whole truth.”23 The court then concluded that “nondisclosure may be equated with and given the same legal effect as fraud and misrepresentation.”24 After reviewing various state laws governing nondisclosure of material facts with respect to the sale of property, the court adopted Florida’s rule, which states that “where the seller of a home knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer.”25 The court adopted this rule because it believed such a rule, unlike the stricter rule imposed by California, for example, “properly balances the legitimate interests of the parties in a transaction for the sale of a private residence . . . ”26 The court then turned to the question of “whether the existence of termite damage in a residential dwelling is the type of material fact which gives rise to the duty to disclose” and decided this is a matter that should be 19 21 23 25

Id. (quoting Restatement [Second] of Contracts § 161 [1981]). 20 Id. Id. (citing rules regarding unilateral mistakes in contracts). 22 Id. Id. (quoting State v. Coddington. 662 P.2d 155, 156 [Ariz. App. 1983]). Id. (quoting Johnson v. Davis, 480 So.2d 625, 629 [Fla. 1985]). 26 Id.

24

Id.

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presented to a jury.27 Consequently, the court reversed the lower court’s grant of summary judgment and allowed the case to proceed on its facts.28 3. The Duty to Disclose as a Regulation of Silence

In “Our Word Is Our Bond,” Professor Constable observes that human speech happens in a world that does not inherently conform to human demands and expectations, however moral those demands and expectations may be. Human speech acts happen in a world that is beyond the control of humans and even of their law. Like the Hippolytus, contract law suggests that speech acts and their effects may escape mortal speakers’ intentions and desires. So too, it shows that human law does not seamlessly rectify speech acts gone astray.29 In many ways, the situation in Hill illustrates the dilemma posed by Professor Constable. Arguably, the Joneses did not intend or desire to mislead the Hills about the history of termites in their home any more than the Hills intended or desired to buy a home with a history of termites. As the court noted, the Joneses apparently believed that any potential duty to disclose extended only to current infestations.30 While this view may have held sway with earlier courts, the court in Hill responded to this argument with the cheeky refrain that “the concept of materiality is an elastic one which is not limited by the termites’ health” and ultimately held the Joneses not only to the promises they explicitly made but also to the promises implied by their silence.31 Hill involves not a speech act but rather an act of silence that went astray; by failing to disclose the home’s prior history of termites, the Joneses created a situation in which the Hills felt duped into purchasing a home with which they were no longer satisfied. While this outcome is more felicitous than being dragged to death by one’s own horses (as happened to Hippolytus), 27

28

The court also notes that “Arizona has recognized that a duty to disclose may arise where the buyer makes an inquiry of the seller, regardless of whether or not the fact is material” and that, as a result, “[t]he inquiry by buyers whether the ripple was termite damage imposed a duty upon sellers to disclose what information they knew concerning the existence of termite infestation in the residence.” Jones, 725 P.2d at 1119. Jones, 725 P.2d at 1120. 29 Constable. 30 Jones, 725 P.2d at 1119. 31 Id.

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the Hills were clearly unhappy enough with their purchase to seek relief from the court. The question then becomes whether such unhappiness is of a type that can be addressed and remedied by the courts. The positions of the Joneses and the Hills can be viewed as an argument for the following of speech conventions on the one hand and for an examination of the totality of the circumstances on the other. The Joneses essentially argue that they followed all the proper conventions formally required under contract law (that is, offer, acceptance, consideration) and that no element of their speech, including Mrs. Jones’ statement that the ripple on the floor was caused by water damage, was fundamentally incorrect.32 In other words, they agree with Constable’s assertion that “[l]egal speech itself is not so much ‘false’ or ‘inaccurate’ or ‘incorrect’ as seemingly ‘inappropriate’ outside its convention-ridden institutional context and ‘infelicitous’ when it goes wrong within it (thought it may of course also be mistaken and misunderstood).”33 The Hills, on the other hand, argue that the Joneses’ failure to clarify their statement by pointing out that other parts of the home had been damaged by termites is both morally wrong and legally actionable in light of the totality of the circumstances.34 In essence, they argue that the following of speech conventions alone is not enough, that we are bound not only by our words but by our silence as well. Such reasoning is in accord with Constable’s assertion that justice lies, “not in law’s relation to god or to morality but in law’s relation to the silences out of which may sometimes come the (passionate legal) speech acts that invite us to acts of justice.”35 What Hill suggests is that contract law has begun to move away from the rigid deference to speech conventions noted earlier in her paper and towards considerations of fairness and morality in light of the “total speech situation.”36 Constable herself notes that this trend may be seen in contract law’s treatment of offer, acceptance, and consideration; what Hill shows is that this trend also appears in the court’s evolving treatment of nondisclosures and partial disclosures. In a way, the Joneses’ silence regarding the termites presents a relatively novel situation for the court, one in which the rules governing conventional speech acts do not apply. Courts prior to Hill were comfortable condoning statements that are both correct and appropriate (that is, both accurate and 32

Id. at 1120.

33

Constable.

34

Jones, 725 P.2d at 1115.

35

Constable.

36

Constable.

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moral) and sanctioning statements that are neither, but were less comfortable handling statements, like the one that Mrs. Jones made to the Hills, that are correct and accurate but may be incomplete (and hence inappropriate or immoral) in the context of the transaction.37 These statements, like President Obama’s flubbed oath,38 create the need for an “abundance of caution,” although it is not always clear which side must exercise that caution. Mrs. Jones’ statement that the damage to the floor observed by the Hills was water damage is strikingly similar to statements discussed by Constable in her discussion of perjury law. Constable notes that perjury law “considers a false utterance to be a criminal act. not because the falsity of the statement is evidence of a crime, but because the very stating of the falsity (that is material to a legal proceeding and so forth) is criminal.”39 In particular, she describes two statements that, while not factually incorrect (and therefore not actionable under perjury law), are nonetheless intentionally misleading.40 First, she notes that a witness may respond “I have a Chevy” in response to a question asking if she has a Ford (when the witness in fact has both).41 Second, she notes that a witness who is asked how many times she has been to a certain location may respond “I was there twice” when she has in fact been to that place twelve times.42 Neither response is factually incorrect, but both may be considered unresponsive.43 As we can see, then, both criminal law (which governs perjury) and contract law must determine how to handle speech that, while not technically wrong, may be morally improper. However, criminal proceedings, unlike the civil ones that govern private contracts, are constrained by the Sixth Amendment.44 As a result, when dealing with these half-truths in a courtroom, “[r]ather than expanding its inquiry into the context of a ‘totality’ of circumstances that are themselves at issue and must elude its grasp, the court retreats to a narrowly-circumscribed set of elements (oath intent, falsity, materiality to outcome) whose assessment lies within the terms of its own domain.”45 In the context of perjury law, some scholars propose placing a duty on the attorneys to clarify statements that are unresponsive, 37 38 39 42

Constable. See Constable for a fuller description of this event and subsequent attempts to remedy the situation. Constable. 40 Constable. 41 Constable. Constable. 43 Constable. 44 U.S. const. amend. VI 45 Constable.

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“but only when it is reasonably evident to the lawyer that the answer may not be responsive.”46 At a trial, witnesses speak only in response to questions asked by an attorney; as a result, the attorney may appropriately be held responsible when the witness’s response to the attorney’s question is false.47 The parties to a contract, on the other hand, may act without an attorney present and in fact do not need to be represented by an attorney at all; under contract law, then, the duty to correct a potential misrepresentation falls not on a contractor’s attorney but on the contractor himself. Solan and Tiersma’s solution, cited by Constable, to problematic statements under perjury law, holding the attorney responsible for the misstatement, is therefore inapplicable to contracts.48 The only feasible solution, then, is to place the responsibility on the parties themselves. This approach is adopted by the court in Hill, which notes that “[w]hen one conveys a false impression by the disclosure of some facts and the concealment of others, such concealment is in effect a false representation that what is disclosed is the whole truth.”49 Even if the ripples in the floor noted by the Hills had been caused by water damage, Mr. Hill’s question referencing termites and Mrs. Jones’ failure to mention termites in her response arguably created the false impression that there was no termite damage in the house. The court found that this failure constituted a misrepresentation and therefore adequate grounds for rescission – the same remedy that would be available in a case involving an affirmative false statement.50 Such an approach might be problematic in a courtroom, however, which creates the dilemma, as noted by Constable, of the wrong side losing “because their lawyer’s trial skills were not sufficiently honed” or of the government prosecuting a witness for perjury for a statement the witness believed was truthful (albeit misleading). In a private contract, on the other hand, the parties may be held to a certain standard of truthfulness that extends beyond conformity to particular speech patterns.51

46 49 51

Constable. 47 Constable. 48 Constable (citing Solan and Tiersma). Jones, 725 P.2d at 1119 (quoting Cottingdon, 662 P.2d at 156). 50 Jones, 725 P.2d at 1118. Although saying that the parties may be held to a higher standard does not mean that they necessarily should be. As Judge Posner noted in Market Street Assocs. Ltd. P’ship v. Frey. 941 F.2d 588 (7th Cir. 1991), the relationship between the parties prior to the time a contract is finalized is still relatively adversarial and remains so until the contract is fully in place, at which point the parties may be held to a higher standard of good faith.

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4. Conclusion

By holding sellers of a home to their word (as well as the implications of their silence), Hill v Jones is yet another step in American common law towards the ideal, noted by philosopher of language J. L. Austin and cited by Constable, that “accuracy and morality alike are on the side of the plain saying that our word is our bond.”52 Constable recognizes that “the speaking of words is also an event neither accurate nor moral which binds us in a world not governed by accuracy or by morality . . . ”53 Instead, “law is beholden to, is indebted to, not morality or divinity, but to speech and the silences out of which law – as speech act – comes.”54 Hill v. Jones represents an attempt to reconcile two of those elements – morality and law – by binding parties to what is implied by their silence as well as by their speech. Whether in attempting to enhance both of these goals it in fact fails to advance either remains open to debate. 52

Constable.

53

Constable.

54

Constable.

2 Powell’s Choice: The Law and Morality of Speech, Silence, and Resignation by High Government Officials Louis Michael Seidman*

Suppose that you were Colin Powell. A bit of a stretch, I admit, but give me my counterfactual for the moment. Would you have resigned your office rather than go before the United Nations Security Council to make the case for the invasion of Iraq? Or would you have remained silent, swallowed your doubts and, like a good soldier, obeyed your orders?1 One problem with the counterfactual is that it is very hard to know what Colin Powell is like or what the world seems like to him. It is even harder – indeed, perhaps incoherent – to suppose some indeterminate mix of you and Colin Powell that a question in the form of what “you” would do if “you” were “Colin Powell” seems to demand.2 I will return to these * Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center. I am grateful to Robert Ahdieh, Josh Chafetz, Peter Edelman, Heidi Feldman, Thomas Franck, Thomas Kaiser, Michael Klarman, Thomas Krattenmaker, Martin Lederman, Girardeau Spann, and Mark Tushnet for comments on an earlier draft. I could not have written this essay without outstanding research assistance from James Banda, Luis Migel Dickson, Richard Harris, Kate Henningsen, and Lisa Richards. 1 According to an account in the Washington Post, Powell did not resign because “[s]oldiers didn’t quit when they disagreed with the decisions of their commanders. The fact that he had been out of uniform for nearly a decade was irrelevant to Powell; he would be a soldier until he drew his last breath.” “Falling on His Sword; Colin Powell’s most significant moment turned out to be his lowest,” Washington Post, Oct. 1, 2006, W12. See also Sidney Blumenthal, How Bush Rules: Chronicles of a Radical Regime 36 (Princeton: Princeton University Press, 2006). (Quoting Powell, who, in turn quoted General George C. Marshall as saying, “No, gentlemen, you don’t take a post of this sort and then resign when the man who has the constitutional responsibility to make decisions makes one you don’t like.”) Powell was finally relieved of his duties as Secretary of State shortly after President Bush’s reelection. See id. 2 On some of the problems with thought experiments of this kind, see Heidi Li Feldman, “Beyond the Model Rules: The Place of Examples in Legal Ethics,” Geo. J. Legal Ethics (1999) 12: 409, 424–6 and sources cited therein.

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difficulties later in this essay. For now, though, suppose that you were an idealized and radically simplified Colin Powell – a Colin Powell who was fully aware of the criminal idiocy of the impending Iraq adventure and who simply wanted to do the right thing. Then, would you have resigned? In their classic study of resignation,3 Edward Weisband and Thomas M. Franck lament the historic failure of American officials to resign in protest. Very few Americans have publicly resigned because of policy disagreement,4 and those who have were often treated unkindly by their contemporaries.5 Weisband and Franck contrast the American experience with that of the United Kingdom, where public resignation is relatively common and where the political culture celebrates the ethical independence of public servants.6 They argue that this kind of autonomy makes for better government by checking group-think and restraining public power.7 For Weisband and Franck, then, the answer to our question is obvious: Of course Colin Powell should have resigned.8 He was perhaps the only person on the planet with both the power and the inclination to stop a stupid and evil war. He had a duty to use that power to serve the public good. It is not the purpose of this essay to disagree with this conclusion. Perhaps Powell should have resigned. I do mean to complicate the conclusion, however. I mean to show that the resignation decision is hard and that words like “duty,” “ethics of public service,” and “sound public policy” do not capture all of the difficulty. Instead, the best defense of public resignation conceptualizes it as a radically free act – a rebellion against normal constraints, including the constraints of duty and ethics.

3

4

5 6 7 8

Edward Weisband & Thomas M. Franck, Resignation in Protest: Political and Ethical Choices between Loyalty to Team and Loyalty to Conscience in American Public Life (New York: Grossman, 1975). By a public resignation, I mean a resignation accompanied by a public statement specifying disagreement with government policy as the reason for the resignation. I do not discuss in this paper another vexing problem – when an official who is under attack should resign. Id. at 73 (noting that “[t]he costs of ethical autonomy among top officials, in this society, are prohibitive and the rewards minimal.”) Id. at 95 (noting that in Britain there is a “long and firm political habit of ethical autonomy, manifested through the time- and custom-honored tradition of public-protest resignation.”) Id. at 126–7. To be clear, Weisband and Franck were writing almost 30 years before the Iraq war. I am extrapolating their putative conclusion from an argument that they made in a different context.

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The essay proceeds in five parts. First, I set out the plausible alternatives open to a public figure who finds herself in disagreement with the policies pursued by her government. In Parts II and III, I explore the case for each of the alternatives on instrumental and noninstrumental grounds. In Part IV, I defend the concept of resignation as radical rupture. In the final part, I discuss the role that law and legal institutions play and should play with respect to resignation. I. Powell’s Choices

The most obvious way to complicate the resignation question is to see that General Powell’s choice was not binary. He had a range of options, and the number of choices expands dramatically once one realizes that he might have pursued some of them in various permutations. Here are some of the possibilities located, more or less, along a continuum: 1. He could have remained in office and simply gone along with government policy on Iraq without voicing doubts or dissent. 2. He could have remained in office and gone along with the policy, but only after forcefully expressing his dissent during the policy formation process. 3. He could have remained in office and gone along with the policy but used his power to change it at the margins, perhaps by eliminating some of the more extravagant claims that others wanted him to make at his UN speech or by insisting on adequate plans for post-invasion reconstruction. 4. He could have remained in office and publicly gone along with the policy while privately attempting to subvert it, perhaps by leaking damaging stories to the press or by mounting bureaucratic guerrilla warfare that would make its execution more difficult. 5. He could have employed the threat to resign as a tactic without making good on the threat. 6. He could have resigned from office and offered innocuous (and untrue or only partially true) reasons for doing so. 7. He could have resigned from office and publicly offered innocuous reasons for doing so, but let it be known informally that the real reasons were opposition to Bush administration policy. 8. He could have resigned from office and accompanied the resignation with a public attack on the administration.

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There are historical cases of public officials selecting each of these courses of action. For example, two of Powell’s predecessors selected interesting variants of Option 8. William Jennings Bryan publicly resigned as Woodrow Wilson’s Secretary of State in protest over Wilson’s increasingly bellicose foreign policy in the run-up to World War I.9 Bryan’s resignation seemed calculated to change the policy, but it had no long-term impact.10 In contrast, Cyrus Vance publicly resigned in response to Jimmy Carter’s botched Iranian hostage rescue effort, but his resignation seemed deliberately designed to have no effect on the decision. Although Vance wrote his resignation letter before the rescue effort occurred, he delayed the public announcement until after the attempt had been completed.11 Christine Todd Whitman, head of the Environmental Protection Administration under President George W. Bush, provides an example of Option 6. Whitman cited her desire to return home and be with her family as her reasons for leaving the agency, but most observers have concluded that her real reasons were grounded in opposition to Bush administration environmental policies.12 Still another of Powell’s predecessors, Henry Kissinger, was a master at Option 5. Deeply convinced, and able to convince others, of his own indispensability, he utilized the resignation threat as a club to achieve his objectives.13 Robert Bork provides an example of Option 1. Although he apparently had serious misgivings about Richard Nixon’s decision to fire special counsel Archibald Cox in the Watergate “Saturday Night Massacre,” he nonetheless carried out the order without protest because, after the resignations of the Attorney General and Deputy Attorney General, he was the “one department-wide officer who was left, and who could make a good 9 10

11 12 13

For an account, see id. at 26–33. After his resignation, Bryan continued to campaign tirelessly for a peaceful end to the controversy with Germany. Although defeated in the Nebraska primary for a delegate position to the 1916 Democratic Convention, he nonetheless gave a widely acclaimed speech at the convention urging peace. He thereupon campaigned for Wilson, portraying Wilson as a peace candidate. Ultimately, though, public opinion turned against Bryan’s position, and Congress approved a war resolution on April 6, 1917. Id. at 31–3. Vance recounts these events and defends his actions in Cyrus Vance, Hard Choices: Critical Years in America’s Foreign Policy 409–13 (New York: Simon & Schuster, 1983). For an account, see Barton Gellman, Angler: The Cheney Vice Presidency 204–9 (New York: The Penguin Press, 2008). For accounts of Kissinger’s many threats to resign, see Seymour M. Hersh, The Price of Power: Kissinger in the Nixon White House 227, 383–4, 618, 638 (New York: Summit Books, 1983).

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attempt at both preserving the Department of Justice and preserving the Watergate special prosecution force.”14 During his long career as Franklin Roosevelt’s and Harry Truman’s Secretary of the Interior, Harold Ickes regularly used all of Options 2 through 5. He engaged in vociferous internal protest of government policy, loved bureaucratic infighting, and threatened to resign more times than his colleagues could count.15 Another example of the use of these options also comes from the Roosevelt administration. Edward J. Ennis, the Director of the Justice Department’s Enemy Control Unit and John L. Burling, his assistant, strongly opposed the expulsion of Japanese Americans from the West Coast, but nonetheless signed the brief defending these actions. They fought a long, passionate, and only marginally successful effort to change the language of the brief and to bring to the Court’s attention misrepresentations by the War Department.16 There is even evidence that they transmitted helpful information to American Civil Liberties Union lawyers opposing the government’s position.17 Asked years later why he had not resigned, Ennis replied that “we didn’t throw it up because we didn’t want to put it in the hands of Justice Department lawyers who were gung-ho for the Army’s position. I think we felt that we’d just stay with it and do the best that we could, which wasn’t a hell of a lot.”18 Mark Felt provides the classic example of Option 4. While remaining a part of the Nixon administration in his position as the Associate Director of the Federal Bureau of Investigation, he secretly became “Deep Throat,” providing Bob Woodward and Carl Bernstein with information that helped them uncover the Watergate scandal.19

14

15

16 17 19

See “The Nominee’s Recollection of His Watergate Role as Solicitor General,” New York Times, Sept. 17, 1987, B11. At his confirmation hearing to become an associate justice of the United States Supreme Court, Bork testified that he originally told Attorney General Eliot Richardson that he would resign after dismissing Archibald Cox. Bork changed his mind after Richardson urged him not to resign because the Department of Justice needed stability. Id. President Truman considered Ickes “‘no better than a common scold.’ An incorrigible gossip, and prime source of the detailed and all-too-accurate reports of cabinet meetings that filled Drew Pearson’s newspaper column.” He referred to him as “‘Honest Harold,’ who was always firing off letters of resignation, first to Roosevelt, then to him.” Weisband & Franck, Resignation in Protest 18. See also notes 24, & 25 infra. For a detailed account, see Peter Irons, Justice At War 163–351 (Oxford: New York, 1983). Id. at 305. 18 Id. at 350–1. See Todd S. Purdum, “‘Deep Throat’ Unmasks Himself: Ex-No. 2 at F.B.I.” New York Times, June 1, 2005, A1.

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Weisband and Frank imagine Adolf Eichmann as a particularly egregious example of Option 3. Eichmann’s job was to manage the transfer of Jews to Nazi extermination camps. Weisband and Frank ask us to think about a claim that if he had resigned, his replacement would have sent 8 million Jews to their death, instead of “only” 6 million.20 Finally, Robert McNamara offers an example of Option 7. At the news conference that followed his resignation as Secretary of Defense, McNamara uttered not a word of opposition to President Johnson’s Vietnam policy, but Washington journalists knew that that opposition motivated his departure.21 What criteria should one use to choose among these alternatives? Surely, a sensible analysis must at least begin with concern for the consequences of one’s actions. Our hypothetical General Powell needs to think through the likely outcome produced by each of the available options open to him. It matters, for example, that William Jennings Bryan’s resignation was ineffectual and that Henry Kissinger’s bluster often worked. Protesting internally may make little sense if it is certain that the protest will be ignored, and going along quietly may make quite a bit of sense if doing so gives one leverage to influence the outcome on another issue that might be more important. Suppose, though, that we abstract from concerns about consequences. Is there something to say about the choice that is consequence independent? Many people would want to say that Adolf Eichmann did the wrong thing even if his continuation in office did save lives. Perhaps they would say as well that Robert Bork did the right thing even if his resignation would have prevented the Saturday Night Massacre. In the parts that follow, I make first consequentialist and then nonconsequentialist arguments for why Weisband and Franck’s conclusions in favor of public resignation are too simple. II. Consequentialist Perspectives

In this part, I focus first on the likely effects of an individual’s decision to resign and then on the systemic effects of creating a culture of resignation. 20 21

Weisband & Franck, Resignation in Protest 91. See John Lewis Gaddis, “From Thunderbird to Hawk to Dove,” New York Times, Jan. 17, 1993; and Max Frankel, “McNamara Takes World Bank Post; War Shift Denied,” New York Times, Nov. 30, 1967.

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One difficulty associated with talking about individual decisions is that it makes generalization very difficult. The consequences of a given resignation will depend upon all the surrounding circumstances, and these circumstances will vary from case to case. Certainly, there will be some cases where resignation will produce the best overall consequences, and when this is true, obviously, a consequentialist will recommend this course of action. At least we can say this much, however: Resignations that are deliberately designed to avoid or minimize good consequences are very difficult to defend from a consequentialist perspective. Most cases falling under Options 6 and 7 and at least a few under Option 8 are in this category. Officials who resign in protest, but fail to make their protest public (Option 6) combine the worst of both worlds. On the one hand, the resignation removes them from positions of power where they might continue to do some good. On the other, it does little or nothing to advance the goals that motivated it. Although the practice is common, it is also hard to understand the justification for stating reasons for resignation that are innocuous, but leaking the real reasons (Option 7). Had he publicly broken with the Johnson administration, Robert McNamara might have become a rallying point for antiwar forces. Instead, he diminished the moral force of his resignation by trying to have it both ways. On the one hand, he maintained good relations with the President, who rewarded him by appointing him head of the World Bank. On the other, he tried to protect his historical reputation and curry favor with a segment of the Washington elite by quietly letting it be known that he was one of the “good guys” who had come to understand the moral calamity of Vietnam. Even some resignations accompanied by public protest (Option 8) suffer from the deliberate ineffectiveness problem. Consider, for example, Cyrus Vance’s departure from office. Some might be tempted to credit him for acting honorably by privately submitting his resignation before anyone knew whether the ill-fated Iran hostage rescue mission would be successful and publicly announcing his opposition only after the mission had run its course. One understands, of course, why he might have felt bound to keep his opposition secret for as long as the mission itself was secret.22 What, 22

According to Vance’s memoir, he acceded to President Carter’s request that he not make his resignation public or leave his position until after the mission was completed. Vance, Hard Choices 411. For a slightly different account, see Jimmy Carter, Keeping Faith: Memoirs of a President 513 (Toronto: Bantam Books, 1982).

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though, did he accomplish by resigning after the mission’s failure? Resignations of this sort flirt with narcissism. They serve to separate the departing official from the course of action he opposes, thereby satisfying his own sense of moral purity, but do nothing to change that course of action. At least from a consequentialist point of view, it makes more sense to stay and fight. More typically, a resignation comes before a policy or decision has run its course. In these circumstances, there is at least a chance that resignation will lead to political pressure that might reverse the policy. In many of these cases, however, the threat of resignation (Option 5) may be as or more effective than resignation itself. If resignation would in fact be disastrous for an administration, then surely, the administration will often perceive this before the fact and, so, respond to the threat. For example, the Bush administration seems to have modified its warrantless surveillance policy after the top echelon of the Justice Department threatened to resign.23 Of course, officials who threaten too often eventually lose their credibility if the threats are never carried out – the fate that, perhaps, befell Harold Ickes.24 23

The surveillance program required the signature of the Attorney General every 45 days but Jack Goldsmith, the head of the Justice Department’s Office of Legal Counsel, and James Comey, the Deputy Attorney General, had reached the conclusion that it was illegal. Matters were complicated when Attorney General John Ashcroft took ill and was hospitalized in serious condition. White House Counsel Alberto Gonzales and Chief of Staff Andrew Card went to Ashcroft’s hospital room to get his signature, but Goldsmith and Card got there first and Ashcroft refused to sign. In the wake of this incident, Goldsmith, Comey, and many lower-level officials contemplated resignation. See Barton Gellman, The Cheney Vice Presidency 293–306. Interestingly, Comey seems to have believed that it was improper to directly threaten resignation in order to produce a change in policy. He and Card therefore went through an elaborate charade whereby Comey managed to communicate the threat without actually making it. As Gellman recounts their conversation, Card was “concerned . . . that he had heard reports that there were to be a large number of resignations at the Department of Justice.” Comey gave him no comfort. “I don’t think people should try to get their way by threatening resignations,” Comey told Card. “If they find themselves in a position where they’re not comfortable continuing, then they should resign.” “He obviously got the gist of what I was saying,” Comey recalled. Id. at 307.

24

See also id. at 319. Ultimately, Bush modified the program so as to satisfy Justice Department officials. Id. at 320. Ironically, when Ickes finally made good on a resignation threat, he forced President Truman to withdraw the nomination of Edwin W. Pauley to be Under Secretary of the Navy – a nomination that Ickes opposed. See Weisband & Franck, Resignation in Protest 17–20.

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As the Kissinger example illustrates, however, loss of credibility is not a problem if one’s bluff is never called, and one’s bluff is unlikely to be called if the resignation would in fact be effective. At a minimum, then, in most cases an official should threaten resignation before actually carrying out the threat. Perhaps the reason why bluffs are frequently ineffective is because the resignation itself would be ineffective. In fact, it is striking how rarely resignation in protest has actually made a difference, at least in the American context. In their exhaustive treatment of the subject, Weisband and Franck can offer only two twentieth-century American examples where resignation led to a change in policy.25 Indeed, part of their point is that American officials who resign in protest tend to be ostracized and ignored. Of course, it does not follow that this will be true in all times and places. Weisband and Franck persuasively argue that the political culture in the United Kingdom makes resignation a more attractive option there. No doubt there are other cultures as well – Japan comes to mind – where public resignations have different effects and different social meanings. The subject of this article, however, is the effect and meaning of public resignation in the United States. Although Weisband and Franck regret the fact that American resignations tend to be ineffectual, their regret does nothing to change this state of affairs. It is the way things are, rather than the way they wish them to be, that matters. The way things are is that American resignations have almost never achieved change in the policy that triggered them.26 The leading counterexamples are the resignations of Elliot Richardson and William Ruckelshaus in conjunction with the Saturday Night Massacre. Richardson, the Attorney General of the United States, and 25

26

The examples are the resignations of Attorney General Eliot Richardson and his deputy in connection with the Watergate scandal, discussed at p. 57, infra, and the resignation of Harold Ickes in conjunction with President Truman’s nomination of Edward W. Pauley to serve as Secretary of the Navy. See note 24, supra. Of course, resignations are sometimes motivated by more than just the desire to change policy. For example, a resignation may be designed to provide needed support for political forces that may ultimately achieve victories going beyond the particular policy at issue. One difficulty with writing about resignations from the outside is that it is rarely possible to capture all of the motivations and effects experienced by people on the ground. It also bears emphasis that this section concerns only the consequentialist case for resignation. Many officials who resign from office do so for reasons unrelated to consequence. These resignations are discussed at pp. 62–8, infra.

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Ruckelshaus, his deputy, resigned rather than obey Richard Nixon’s order to discharge special prosecutor Archibald Cox.27 There is no doubt that these resignations added to the political pressure that eventually led to Nixon’s departure from office. Still, this single counterexample demonstrates only the point that we started with – that consequentialist judgments will vary depending on the surrounding circumstances. Moreover, even in this case, it is not obvious that resignation was the best course of action. Perhaps Richardson and Ruckelshaus would have been even more effective had they simply disobeyed Nixon’s order and forced him to remove them from office. We cannot know whether General Powell, like Richardson and Ruckelshaus before him, would have had a major impact on policy had he resigned. It is possible to imagine that his resignation would have been politically devastating for the administration. Still, given the many other examples of ineffectual resignation and the political culture that Weisband and Franck describe, our hypothetical General Powell (and maybe the real one, too) would have had to think long and hard before coming to the conclusion that his departure from office would, indeed, have derailed the Bush administration’s determined and heedless march toward war.28 Against this possibility is the opportunity to improve things at the margin if one stays on.29 The choice is perfectly illustrated by Robert Cover’s account of the conflicting advice antebellum abolitionists gave to Northern judges who were asked to enforce slavery. For Wendell Phillips, the conflict between the commands of the Constitution and evil of slavery left judges with only one choice: resignation.30 Lysander Spooner strongly disagreed. Spooner

27 28

29

30

Douglas E. Kneeland, “Bork Takes Over; Duties of Prosecutor Are Shifted Back to Justice Dept.,” New York Times, Oct. 21, 1973, 1. On Bush’s determination to go to war, see Bob Woodward, State of Denial 89 (2006); and Scott McClellan, What Happened: Inside the Bush White House and Washington’s Culture of Deception 127 (New York: Public Affairs, 2008). Consider, for example, the conduct of middle-level officials in the Roosevelt Justice Department who declined to resign despite their opposition to the expulsion of Japanese Americans from the West Coast so that the officials could continue to exercise influence over the government’s brief. See p. 52, supra. Robert M. Cover, Justice Accused: Antislavery and the Judicial Process 153 (New Haven: Yale University Press, 1975).

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thought the proper analogy was one of a man given a weapon on condition that he kill an innocent and helpless victim. In such a situation, Spooner argued, it is proper to make the promise, keep the weapon and use it, in violation of the condition, to defend rather than attack the victim. To give up the sword, to resign the judicial office, is “only a specimen of the honor that is said to prevail among thieves.”31 As Cover comprehensively demonstrates, in the event, judges followed neither Phillips’ nor Spooner’s advice. Instead, they typically remained in office while doing little or nothing to turn the “sword” of judicial power against slaveholders. Perhaps, Powell, too, can be accused of choosing the worst of all worlds. By not resigning, he failed to make a public, moral case against the war. Yet he also seems to have accomplished little by remaining in office. It does appear that he was successful in removing some of the more egregious misstatements from the UN presentation, but he seems to have had only minor impact beyond this.32 Still, if one asks what Powell should have done, it is not obvious that resignation is the right answer. Perhaps, he could have been more effective had he been more insistent or a better bureaucratic infighter. Apparently, Powell never managed to summon the gumption actually to tell President Bush that he opposed the pending war.33 Moreover, even if we confine our examination to what Powell did accomplish, something, after all, is better than nothing at all. Until the comprehensive history of the Bush administration is written, we will not know what good Powell was able to accomplish in other areas of foreign policy during his remaining tenure. The upshot is that in Powell’s case – and, by extension, in the broader range of cases – officials are more likely to achieve their own goals if they remain on the job. On the one hand, it is doubtful that they will have much impact by resigning and, on the other, they might continue to have at least some impact by staying. Oddly, although Weisband and Franck’s historical analysis strongly supports this conclusion, they fail to understand that their own data cuts against the resignation option. Suppose, though, that we stipulate, contrary to the historical record and merely for sake of argument, that resignation is indeed an effective strategy 31 33

Id. at 158. 32 Bob Woodward, State of Denial 120–1; 135. See “Falling on His Sword; Colin Powell’s most significant moment turned out to be his lowest,” Washington Post, Oct. 1, 2006, W 12 (“In fact, Powell had never advised against the Iraq invasion, although he had warned Bush of the difficulties and counseled patience.”)

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for changing policy. So far, we have merely assumed that the change in policy is a good thing. Is it? Of course, it will seem so to the official considering resignation, but there is no reason to think that the people who resign are systematically more likely to be right than the people who formulate the policy that motivates the resignation.34 People must act on their own best judgment, as imperfect as that might be, but that best judgment, itself, should include some humility about one’s best judgment. Typically, although of course not always, the official who resigns in protest is a lone dissenter. He will have lost out in a policy process that, for better or worse, reached a consensus. A person who resigns in order to frustrate this outcome should at least worry about the dangers of arrogance.35 Moreover, if we broaden our perspective from the individual official who resigns to the creation of a culture of resignation, we need to think about systemic effects. Not all of these effects are bad. A culture of resignation might deter executive officials from publicly lying about their policies, for

34

Consider, for example, the resignation of federal judge Andrew MacGrath the day after Lincoln was elected President. MacGrath provides one of the few examples in American history of a successful public resignation. With South Carolina at knife’s edge and seemingly unable to decide whether to secede from the Union, a federal grand jury refused to return indictments because the “‘ballot-box of yesterday’ effectively ended federal jurisdiction in South Carolina.” William W. Freehling, The Road to Disunion: Secessionists Triumphant 398 (Oxford: Oxford University Press 2007). Freehling describes what happened next: [Macgrath] paused a suspense-filled moment before responding to [the] defiance. Then he slowly rose, declaring that given the probable “action of the state,” he must “prepare to obey its wishes . . . .” As he pronounced federal judicial process legally closed, Macgrath’s fingers crept to the spot where his silken judicial robe was fastened. He slowly undid the garment. He languidly slipped it off. He calmly folded it over his chair. He had, he announced “for the last time, . . . administered the laws of the United States.” Now, “the laws of our State” must become “our duties.” Let all South Carolinians remember that “he who acts against the wish, or without the command of his State, usurps” its “inviolate . . . sovereign command.”

35

Id. at 399. According to the Charleston Currier, “[t]here were few dry eyes among the spectators and auditors.” Id. There is no doubt that MacGrath’s resignation was effective. It served to demonstrate that the secessionist cause was embraced by the most conservative elements of Southern society. Id. Yet few people today would say that the resignation produced good results. One could imagine that the fear of ostracism following resignation produces built in protections against hasty judgment. Against this tendency is the countervailing attraction that martyrdom holds for at least some people.

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example. Still, we need to think seriously about the downsides of widespread resignations. Resignations that are an accepted feature of government and widely resorted to might produce two, complementary pathologies. On the one hand, very frequent resignations lose their political potency. The act of resignation has symbolic power precisely because it is unusual. If it were the norm that officials resigned every time that they disagreed with a policy outcome, public resignation might be even more ineffectual than it is now.36 On the other hand, we need to think about the ex ante incentives that a culture of resignation creates for appointing officials. If resignation were a powerful tool, then these officials would have a strong incentive to screen potential appointees to avoid those who are likely to cause trouble by leaving in protest. This concern biases the selection process in favor of appointees who have no strong views and are likely to go along. Ironically, then, a culture of resignation might lead to less internal dissent, rather than more. Finally, one needs to think about what a culture of resignation does to democratic accountability and internal deliberation. The problem is clearest in a case like Robert Bork’s where, if Bork’s account is to be believed, his resignation would have left no one at the Department of Justice to carry out important programs.37 Of course, Bork’s case is an unusual one. Had General Powell resigned, there would have been no shortage of qualified individuals to take his place. In the more usual situation, the argument from democratic accountability is more complex. Proponents of resignation are right to argue that the act of resigning can trigger public debate that might otherwise not take place. On one account of democratic responsibility, this sort of dissent is essential to authentic public dialogue.38 While there is certainly something to this argument, a different version of public accountability cuts the other way. A successful resignation frustrates 36

37 38

Against this possibility stands the example of the United Kingdom, where resignations are both common and effective. See Weisband & Franck, Resignation in Protest 137. It is a mistake, however, to suppose that actions in one political culture will have the same impact as actions in another. In the United States, where public resignation is unusual, it is also singularly ineffective. There is no reason to suppose that if it were commonplace, its effectiveness would increase rather than decrease. See pp. 51–2, supra. See, for example, Weisband & Franck, Resignation in Protest 114–15.

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the efforts of an elected administration to carry out its program. On a Madisonian view of representative democracy, this is a loss. Perhaps the incumbent administration has gone amok, and a determined dissenter can trigger a necessary correction. But perhaps the administration is pursuing sound long-term goals with short-term political costs – goals that it was elected to achieve and that, in the long run, will be good for the country if not frustrated by demagogic intervention. As will always be the case with consequentialist arguments, it all depends on the circumstances. Resignation in protest also terminates internal deliberation that might both lead to wiser decision making and promote democratic accountability. The classic example is Abraham Lincoln’s cabinet, which Doris Kearns Goodwin aptly described as a “team of rivals.”39 Lincoln was able to keep together a group of strong-willed politicians whose disagreements with him and among themselves mirrored deep fissures in the nation itself. Lincoln used these divisions both to help formulate sound policy and to keep the policy sufficiently in touch with political sentiment to make it workable.40 Had his warring advisors insisted on resignation rather than sticking it out, the country would have been the poorer for it.41 To summarize, the analysis and examples discussed above suggest that there will often be strong consequentialist reasons to resist the temptation to resign. This is not to say that there is nothing at all to the consequentialist argument for resignation. For example, on rare occasions, a resigning official might be able to counter the “if only you knew what I know” argument that insiders regularly advance.42 Perhaps as well, public resignations produce an in terrorem effect that deters future misconduct. Still, a fair-minded reading of the history of American public resignations strongly suggests that consequentialists should resist the temptation to resign in protest.

39 40 41

42

Doris Kearns Goodwin, Team of Rivals: The Political Genius of Abraham Lincoln (New York: Simon & Schuster, 2005). Id. at 325, 474–85. None of this is to say that members of Lincoln’s cabinet did not think seriously about resignation. For example, William Seward initially withdrew his acceptance to serve as Secretary of State in an effort to force Salmon Chase from the cabinet. Id. at 317–18. Chase himself made many threats to resign, see, for example, id. at 493 and Lincoln eventually took him up on his offer. As noted above, threats are often likely to be as effectual as resignation itself. See pp. 55–6, supra. I am grateful to the late Thomas Franck for bringing this argument to my attention.

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III. Nonconsequentialist Perspectives

Single-minded preoccupation with consequences misses a big part of the point, however. Paradoxically, much of the instrumental good achieved by resignation stems from the appearance that the person leaving office is not acting instrumentally. In our culture, resignation has the reputation of being a deeply principled act that the actor takes without regard for shortterm political advantage. It is for just this reason that the person who resigns sometimes achieves this advantage. Obviously, the advantage will no longer be achieved if it becomes known that resignation is motivated by instrumental concerns. Even a consequentialist, then, must worry about the extent to which the nonconsequentialist case is plausible to others. And, of course, for thoroughgoing and honest nonconsequentialists, the case must be not just plausible but also right. In this section, I claim that there is indeed a nonconsequentialist argument for resignation, but that people who make the argument frequently underestimated the force of the argument on the other side. We can start by investigating why resignation is widely regarded as a deeply principled act. Two factors seem to be at work. First, resignation in protest is often a courageous decision that may do serious damage to the resigning official’s political career. As we have already seen, American political actors who destroy their reputation as “team players” are often shunned and have difficulty regaining positions of power and influence. Thus, resignations are often principled in the sense that an official who resigns places honor above personal advantage. Second, resignation in protest demonstrates personal integrity. The departing official leaves office because he refuses to associate himself with morally reprehensible conduct. On this view, Colin Powell’s resignation might or might not have stopped the march toward war, but the one thing it surely would have done is sever his involvement with the war. Making a break – decisively and unambiguously – with evil is no small thing. What are we to make of these claims for resignation? There can be no doubt that some officials who resign exhibit personal courage, and that, conversely, at least some officials who remain in office do so out of cowardice. As we have already seen, though, the idea of resignation as a badge of courage depends upon the very political culture that defenders of resignation deplore. If resignation became no more than a stepping-stone to higher

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office, then people who resigned would no longer exhibit courage by doing so. If we indeed value opportunities for disinterested sacrifice, we should not want to corrupt that sacrifice by providing material rewards for people who make it. Moreover, courage and disinterested sacrifice are not ends in themselves. Perhaps people who exhibit courage for no good reason deserve our admiration, but they surely do not deserve our emulation. If resignation cannot be justified on some other ground, then the sacrifice is wasted. Can it be justified as a matter of personal integrity? The problem is that there are also arguments grounded in integrity on the other side of the ledger. Public resignations violate norms of personal loyalty, trust, and honesty. A person who accepts appointment to office often makes a set of explicit or implicit promises to his patron. In exchange for the opportunity to exercise power and advance his career, the appointee makes a commitment to work together for interests that the patron defines. To be sure, sometimes it will be in the patron’s interest to be told things that the patron does not want to hear. Loyal appointees need not be – indeed, typically are not – sycophants. It might even be in the patron’s interest for the appointee to ignore the patron’s ill-considered orders, as, for example, John Ehrlichman and H. R. Haldeman regularly (but not regularly enough!) did when Richard Nixon gave them outlandish and bizarre directives.43 The appointee also has the right to sever the contract prospectively. A quiet resignation breaches no obligation, and once the relationship is severed, the appointee may regain the right, going forward, to disagree publicly with her patron. Having left his position in the Clinton administration and become a news commentator, George Stephanopoulos arguably violates no duty when he criticizes his former boss. But a public resignation is a different matter. A public attack on the way out the door for decisions made during one’s tenure with information gained because of that tenure is never in the interests of the person attacked. Such an attack will often be seen by the patron as disloyal and dishonest.

43

Stephen E. Ambrose, Nixon: The Triumph of a Politician 1962–1972, 329 (New York: Simon & Schuster, 1987); Compare with Bob Woodward, The Final Days 33, 265 (New York: Simon & Schuster, 1976) (noting that Kissinger, Haig, and Ziegler were all aware of Nixon’s “propensity to issue irrational orders” and that Ziegler in particular learned to ignore them).

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It does not follow that the attack is always wrong. Perhaps the appointing official herself has breached an implicit or explicit promise, thereby relieving the appointee of his obligations. Moreover, other moral commitments may outweigh the demands of loyalty and honesty. There are surely circumstances where loyalty to country outweighs personal loyalty. But if not always wrong, a public resignation is always at least morally problematic. It is, after all, a feature of the obligation of personal loyalty that it takes hold at precisely the time when there are strong prudential or moral reasons for desertion.44 We nonetheless value loyalty because it builds trust and human connection.45 Fear of public resignation, in contrast, breeds wariness and erodes candor. Oddly, a second argument against resignation reverses the first argument. Here the claim is that we should not hold public officials to standards of loyalty and candor that we expect of private citizens. As Michael Walzer argued effectively a generation ago, public officials must have “dirty hands.”46 Walzer’s argument is complex and he is deeply ambivalent about his own conclusions. The key idea is clear enough, however: If public officials are to be effective (and all of us need for them to be effective), then they must in a certain sense be amoral.47 They must embrace their enemies and betray their friends. They do good work, but pay for it with necessary evil that almost, but not quite, outweighs the good. On a Walzer-like view, then, officials who resign out of moral squeamishness probably did not belong in public service in the first place. We require public officials who are willing to sully their own reputations for the sake of the rest of us. Should we be persuaded by this view? I share

44

45

46 47

R. E. Ewin, “Loyalty and Virtues,” The Philosophical Quarterly 42 (1992): 403, 406 (“Loyalty cannot be based in any simple and straightforward way on one’s views of the merits of the object of loyalty, because the relationship, at least in part, runs in the opposite direction: Loyalty to some extent affects one’s views of who merits what and it keeps one in the group beyond the point at which cold consideration of desert would cease to do so.”) Id. at 419 (arguing that “[l]oyalty, the desire to be and remain with the group, the willingness to bear some cost for that and, at least to an extent, to take the interests of others as one’s own, is the raw material for the virtues.”) Michael Walzer, “Political Action: The Problem of Dirty Hands,” 2 Philosophy and Public Affairs (1973): 160. Id. at 164 (politicians are “required to learn the lesson Machiavelli first set out to teach: ‘how not to be good.’ . . . [They] will not succeed unless they learn, for they have joined the terrible competition for power and glory; they have chosen to work and struggle as Machiavelli says, among ‘so many who are not good.’”)

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Walzer’s ambivalence about the argument for dirty hands, so I will do no more here than lay out what seem to me to be the strongest considerations on either side. Some critics of arguments like Walzer’s – most prominently Bernard Williams – claim that it ignores the virtue of personal integrity.48 There is an important sense in which this charge misfires. A Machiavellian public servant with dirty hands is actually following moral principles of a sort, and at great cost to himself. In his deeply troubling short story Three Versions of Judas,49 Jorge Luis Borges writes about a schismatic theologian who treats Judas as the true hero of the resurrection story. By giving up his eternal soul, Judas allows the resurrection to happen and, so, saves all of humankind. The Machiavellian public servant who embraces evil to accomplish good is a Borgesian hero. Whereas others are willing to walk away from the struggle for the sake of their reputations and a good night’s sleep, the Machiavellian battles evil at close quarters where the fight is inevitably messy, ambiguous, and inconclusive. A related mistake is to associate the dirty-hands position with utilitarianism, thereby tarnishing it with the well-known difficulties of utilitarian theory. It is true that a Machiavellian is willing to do things that could not be justified in other circumstances and that he does them because of their consequences. But no moral theory, whether utilitarian or deontological, can afford to ignore consequences completely. Although a nonutilitarian might say that some actions are simply out of bounds without regard to consequences, other actions are surely justified in some circumstances even though they are impermissible in others. Of course, a Machiavellian might be a utilitarian, but she might also be motivated to get her hands dirty to achieve ends that she believes are goods in themselves, whether or not they maximize overall utility. Thus, a hypothetical (if not the real) Colin Powell might have stayed in office just because he believed that lying to the United Nations was a categorical evil, and that his continued service would prevent that evil from occurring. A problem arises for such a deontological Machiavellian only if achieving these ends requires actions that are, themselves, categorically prohibited. 48 49

Bernard Williams, “Consequentialism and Integrity,” in Consequentialism and Its Critics, ed. Samuel Scheffler (Oxford: Oxford University Press, 1988). Jorge Luis Borges, “Three Versions of Judas” in Labyrinths 163 (Viking: 1998).

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Perhaps Powell performed categorically prohibited acts, but it is also possible, at least some times, for a public official to remain in office and get her hands very dirty indeed while nonetheless steering clear of the kind of wrongdoing that cannot be justified even when necessary to achieve a greater good. I must confess that I have a weakness for public servants of this sort. Whatever else one says about them, they cannot be accused of naiveté. They approach their task with a clear mind and a realistic sense of the tragedy of moral compromise. Moreover, as Walzer recognizes at the conclusion of his essay,50 they are all the more selfless because their heroism must forever be unsung. Their actions are heroic because they flout usual moral norms for the sake of the rest of us, thereby endangering their reputations and even making themselves vulnerable to criminal prosecution or, in the case of Borges’ Judas, eternal damnation. The last point, though, leads to an obvious contradiction. If their heroism must, indeed, be unsung, then why am I singing it? Machiavellians are heroic because they risk all by flouting conventional morality, but this conclusion implies that conventional morality must remain robust. Without such norms, Machiavellian claims become merely self-serving excuses.51 Surely, we should condemn Eichmann’s crimes even if he were able to show that the Nazi who would have taken his place would have been marginally more evil. We should be concerned, as well, with how easy it is to fall in love with the night. Sophistication can be seductive, and sometimes, its lure should be resisted. Someone who consorts with evil must be exquisitely sensitive to a line that she must not cross. Many sophisticates are doubtless too confident of their own moral judgment and incorruptibility. And yet even as we condemn them, it is hard not to also admire those who try to keep their balance on this moral tightrope. Ultimately, it is wrong to think of these double agents as either heroes or scoundrels. The problem is

50

51

Michael Walzer, “The Problem of Dirty Hands,” 178 (associating himself with the view he attributes to Camus, that political action violating standards of morality “is like civil disobedience. In both men violate a set of rules, go beyond a moral or legal limit, in order to do what they believe they should do. At the same time, they acknowledge their responsibility for the violation by accepting punishment or doing penance.”) Id. at 179–80.

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interesting because many of them are both. It is more interesting, still, because these traits are inextricably linked to each other. Howard Campbell, the fictional narrator of Kurt Vonnegut’s Mother Night52, is an American spy who broadcasts vitriolic Nazi propaganda embedded with coded information of use to the Allied military. Campbell does a great deal of good, but doing that good requires him in some sense to become a truly evil person. After all, in order to continue on his mission, Campbell must be a convincing Nazi. The best way to convince others is actually to take on the traits one wants others to believe that one has. Does Vonnegut want us to think that Campbell has lost his balance on the tightrope? In an introduction, Vonnegut tells us that one moral of his story is “We are what we pretend to be, so we must be careful about what we pretend to be.”53 This is an argument for the virtue of personal authenticity, and, on one level, the novel can be read as an elaborate condemnation of Campbell for ignoring that virtue. Perhaps Colin Powell also deserves our censure for becoming a person different from the person who he thought (we thought?) he was. But Vonnegut brilliantly complicates matters by raising questions about whether his case for authenticity is itself authentic. Vonnegut’s introduction is followed by an obviously fictional “editor’s note,” also signed by someone identified as “Kurt Vonnegut, Jr.,”54 which is, in turn, followed by Campbell’s fictional memoir. Might Vonnegut intend for us to treat the “Vonnegut” who writes the introduction as still another fictional character? Vonnegut’s argument against pretense is itself deeply embedded in layers of pretense. Perhaps the moral of the “moral” is that true authenticity means not ceding the power of personal judgment to someone who would write morals for us. Or perhaps the “moral” is that there are no morals – that there is no “authentic self,” but only pretense all the way to the bottom. The “Vonnegut” of the introduction provides two other morals that could be taken to be more than pretense: “make love when you can. It’s good for you” and “when you’re dead, you’re dead.”55 Sex and death are real, all right. There can be no pretense about their existence. But, importantly, sex and death are not the stuff of duty, obligation, and moral clarity. It 52 54

Kurt Vonnegut, Mother Night (New York: Dell Publishing, 1961). Id. at ix. 55 Id. at viii.

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is not usually possible to argue someone into sexual desire, and there is no logical deduction that wards off or explains death. Although sex involves intimate connection while death entails radical separation, both are marked by loss of conscious control and an abandonment of intellectualized meaning. They are just there. Could resignation be like that? The next section explores this possibility. IV. “I Ain’t Gonna Work on Maggie’s Farm No More”56

In the discussion so far, I have tried to evaluate resignation according to criteria derived from both consequentialist and nonconsequentialist thought. My aim has been to show that resignation decisions are often complicated and that defenders of resignation have been too quick to claim that it is usually the “right answer.” In this section, I want to raise questions about whether the search for right answers asks the right question. The difficulty, briefly stated, is this: Grounds for decision are always already located within a web of connection and obligation. But as Thomas L. Dumm argues in his brilliant essay,57 resignation – or at least a certain type of resignation – is a declaration of independence from connection and obligation. Declarations of independence pose a particular problem for legal and political theory. They raise disquieting questions about whether it is possible to have a rule of law that reaches “all the way to the bottom.” These declarations always remind us that at the end of the chain, there is an illegal act. As Frank Michelman has taught us, legal obligation must begin somewhere, and the beginning always involves disentanglement from some preexisting legal obligation.58 Justifications for the disentanglement cannot 56

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I ain’t gonna work on Maggie’s farm no more. No, I ain’t gonna work on Maggie’s farm no more. Well, I wake in the morning, Fold my hands and pray for rain. I got a head full of ideas That are drivin’ me insane. It’s a shame the way she makes me scrub the floor. I ain’t gonna work on Maggie’s farm no more. Bob Dylan. Copyright ©1965; renewed 1993 Special Rider Music. Thomas L. Dumm, “Resignation,” Critical Inquiry 25 (1998): 56. Frank I. Michelman, “Always under Law?” Constitutional Comm. 12 (1995): 227.

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be grounded in the very regime that is being rejected. For this reason, declarations of independence must stand outside of law even as they provide a source for law. They are at once creative and destructive acts. Just as declarations of independence stand outside of legal obligation, so, too, some resignations might be said to stand outside of moral obligation. So long as one is located within a regime, there are moral reasons to abide by the obligations that regime imposes. The sense of connection, common purpose, and shared values internal to the regime provide the substrate upon which moral obligation to others depends.59 But, much as we often want to hide the fact from ourselves, there is always a prior choice of whether to be within the regime in the first place. Where, then, are we to get our reasons for our choice of reasons? This dilemma of justification is most apparent with regard to the nonconsequential reasons for and against resignation that I have discussed above. Consider, for example, the question of loyalty. A person who publicly resigns breaches a duty of loyalty, but that duty is itself based on the very connection that the resignation severs. No one, after all, has a duty of loyalty to complete strangers. We have to decide whether this or that person is someone we want to be loyal to.60 Criticizing as disloyal someone who walks away from a relationship ignores the fact that the obligation of loyalty is internal to the very relationship the person is rejecting. Often, arguments from personal integrity are counterpoised against arguments for loyalty. On this view, a person should remain loyal, but only so long as the obligation of loyalty does not force the person to violate the nature of who that person “really is.”61 The real Colin Powell and the fictional Howard Campbell should not remain in a job that requires them to violate core individual commitments. The trouble with this formulation is that it assumes that there is some “real” person who is severable from the acts that the person performs. The problem is most apparent when the “real” person is, like Howard Campbell, a fictional creation. As Vonnegut’s elaborate layers of invention 59 60 61

R. E. Ewin, Loyalty and Virtues 415–18 (arguing that loyalty to group is the “emotional setting” and “raw material” for virtues and vices). Id. at 406 (“Somebody who showed loyalty to an unworthy object might be described as foolish to be loyal.”) Compare with Bernard Williams, Consequentialism and Integrity 38 (arguing that utilitarian point of view causes one to lose one’s moral identity and to be alienated from one’s actions).

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demonstrate, however, we are all sometimes authors of our own persona. If people are indeed continually defined and redefined by the choices that they make, then it becomes incoherent to say that these choices are separate from the person making them. Thus, Colin Powell breached no obligation to his true nature by remaining in office. By remaining in office, he defined what his true nature was. Conversely, had he resigned from office, the act of resignation would have defined a different true nature. The decision therefore cannot be judged by criteria derived from sources outside the decision itself. There is a similar difficulty with consequentialist arguments about resignation. Consequentialist arguments cannot generate the goals that drive the arguments. Once a goal is specified, then a consequentialist knows that her actions should be judged by whether they advance her toward the goal. But the goal itself must come from somewhere else. It does not follow that the goal comes from nowhere at all. Our choice of ultimate goals is grounded in the moral and affective community within which we are located. Once a community is specified, then one set of goals makes sense, while another set seems silly or evil or does not even come into consciousness. Within such a community, then, consequentialism can be a guide to action. What, though, are we to say of the goal of disentangling oneself from the community that is goal-generating? The choice to put one community aside and choose another cannot be guided by preexisting goals. It is instead, a choice of what goals one wants to pursue. It follows, I think, that at least a certain kind of resignation stands outside of moral argument. Such a resignation defines a moral universe rather than being defined by it. This is not to say that decisions about resignation are not subject to praise or blame. Just as Colin Powell defined the kind of person he was by his decision to remain in the Bush administration, so too, I define the kind of person I am by what I think and say about Powell’s decision. In this sense, I may believe that the decision is right or wrong, but it is a mistake to suppose that I can argue others or myself into this reaction. Self-definition is not the same thing as argument. General Powell simply is (or is not) the kind of guy I want to emulate and defend. This analysis is subject to at least two sorts of objections. A moderate objection claims that most protest resignations are not in fact the way that I describe them. On this view, a few resignations involve existential

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rupture, but more often resignation reflects either continuity with a set of commitments that no longer coincide with the aims of a patron or mere disagreement within a paradigm shared with a patron. A more far-reaching objection claims that no resignation can involve existential rupture. On this view, all of our conduct is inevitably located within a frame that is impossible to escape. Consider first the moderate objection. Is it descriptively accurate? As suggested in the previous paragraph, we need to distinguish between three sorts of resignations in protest: Resignations that are no more than career moves and produce no internal conflict; resignations that involve decisive breaks with one’s colleagues but from within the context of a continuity of commitment; and resignations that involve true existential breaks. I doubt that many protest resignations are of the first type. To be sure, there are no empirical studies on the matter, but we have already explored the reasons why protest resignation typically involves major rupture. In American political culture, resignation in protest is very unusual. Prevailing norms place a high value on sticking it out and being a team player. An official who publicly resigns can expect her career to be seriously damaged if not altogether ended. She knows that people who were her closest friends, associates, and patrons will view her as a traitor. In an environment like this, officials are unlikely to resign in protest unless they are willing to break decisively with the past. It does not follow, however, that every resignation is accompanied by existential crisis. On the contrary, my guess is that most protest resignations are of the second type. In these cases, the shock of disentanglement from one’s prior friends and colleagues is buffered by a continuity of commitment to long-held ideals and values. When Martin Luther announced that he could “do no other” than embrace the ideas that led to his excommunication, he was acting pursuant to his deepest commitments, rather than fleeing from them. Similarly, for a modern resigning official, it may have once seemed that these commitments and values could be promoted within a particular regime, but it now becomes apparent that the same commitments and values require a break with the regime. To be sure, the break is painful but it should not be confused with a global redefinition of one’s life goals. With regard to resignations of this sort, my argument is normative rather than empirical. For reasons that I have already discussed, these resignations

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are difficult to justify.62 Because they are likely to be instrumentally ineffective, they will usually set back rather than advance the commitments that motivate them. Moreover, they violate norms of loyalty and candor, may actually discourage rather than promote internal dissent, and privilege private virtue over the public good. This leaves us with our third category. Resignations that involve existential break are, indeed unusual. They nonetheless merit our attention because, unlike resignations in the second category, they stand outside the realm of justification. Just because they are outside this realm, one can hardly make an argument to justify them. The most one can say is that they are not subject to the kinds of criticism I have outlined above and that they emphasize the possibilities of human freedom. For those of us who are fascinated by these possibilities and not merely terrified by them, resignations of this type will be appealing. This brings us to the more far-reaching objection. Perhaps the possibilities of human freedom are much more limited than I have suggested. Perhaps, try as we might, we simply cannot escape the frame that surrounds all of our choices. They are all located within a moral universe that we do not choose and cannot break out of. To be sure, a resigning official may think of himself as bravely disentangling himself from disabling constraints, but this self-congratulatory version of his behavior is an illusion. He is really doing no more than playing out a script deeply embedded in his culture, or in his unconscious, or in a matrix of power that is all the more constraining because it is invisible. Indeed, the skeptical argument goes, denying this possibility leads to contradiction. If, as I have said, a “true self” does not exist apart from decisions we make as to how to lead our lives, then it is quite mysterious what “self” makes these decisions. The claim for radical freedom seems to presuppose a homunculus that stands outside of the self-defining decisions even as it denies that a “self” exists apart from those decisions. The contradiction can be resolved only by unsentimentally rejecting any deciding “self” as a myth and embracing some form of strong determinism. I wish that I had something definitive to say that would put this criticism to rest, but I know of no way to refute global structural and determinist arguments. The best I can do is to claim that if the possibility of radical 62

pp. 53–61, supra.

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rupture is indeed illusory, it is at the least a very powerful illusion that is itself, in some sense, inescapable. Part of its power derives from the paradoxical fact that it is a necessary precondition to the very kind of commitment and connection that it endangers. Such commitments entail the possibility of rupture. Without this possibility, what would otherwise be a genuine commitment becomes merely habit or inertia. It turns out, then, that people who do not resign have reason to celebrate the decision of those who do. The internal sense of a genuine but presently unrealized possibility of breaking decisively and finally with what has gone before is what gives meaning to the decision to remain committed. V. Resignation and the Law

In this last section, I investigate the stance that the legal system does and should take with regard to resignation decisions. As a descriptive matter, I argue, the most salient feature of the law of resignation is how sparse it is. In the United States, resignation from high office is an almost completely lawfree zone.63 As a normative matter, my claim is that the absence of legal constraint supports the conception of resignation as radical break that I favor. With regard to the descriptive claim, it is striking how out of place normal legal rules seem in the context of resignation from high political office. In most legal environments, employers and employees can protect themselves from opportunistic behavior by entering into employment contracts. Although these contracts are not specifically enforceable,64 they can be enforced by damages65 and even, in some circumstances, by negative injunctions.66 Thus, an employer can enter an agreement with an employee requiring a term of employment, imposing damages if the employee resigns before the term expires, and even, to some extent, regulating the employee’s conduct after expiration. 63

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I make no similar claim about other political cultures. For example, until recently, South Africa had a constitutional provision that required a member of parliament to resign if she switched parties. The provision was eliminated by constitutional amendment. For a description, see Steven Budlender, “Composition of Parliament,” in Constitutional Law of South Africa § 17.1(c) (2008). See, for example, 25 Richard A. Lord, Williston’s A Treatise on the Law of Contract 566–9 (St. Paul: Thomson, 2002) and cases cited therein. Id. at 567 & n. 98. 66 Id. at 579–80 and cases cited therein.

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In contrast, employment relationships involving high government officials are unaccompanied by any effort to invoke the law to prevent opportunistic behavior. We need to ask why we do not see contracts between, say, presidents and secretaries of state that prevent resignation in protest. Why did President Bush fail to condition his initial offer to General Powell on a promise not to resign during Bush’s term of office, or at least, not to resign publicly, and then threaten him with legal action if he failed to comply?67 Because these contracts are unheard of, there are no decided cases dealing with them. It is an important cultural fact that it does not even occur to people to write such contracts. Moreover, although my conclusion is necessarily speculative, I think it relatively clear that if a court were ever asked to enforce such a contract, it would decline to do so. In the absence of decided cases about resignation, we necessarily have to reason from analogy to cases that have been decided. For the most part, these cases involve appointment and removal, rather than resignation. It is possible, of course, to believe that the appointment and removal problems are relevantly different from the resignation problem. Still, the appointment and removal cases are at least suggestive. They are consistent with the view that, as a general matter, we are very reluctant to place personnel decisions about high government officials under normal legal constraints. Several lines of authority support this interpretation. First, the Court has strongly hinted that personnel decisions at the highest levels of government involve “discretionary” functions to which normal legal rules do not apply. For example, in Mayor of Philadelphia v. Educ. Equal. League,68 the Court considered a claim that the Philadelphia mayor made racially discriminatory appointments to a governmental body. Evidence in the record indicated that, two years earlier, the mayor had stated that he “would not 67

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Based upon his comprehensive study of English, colonial, and early American practice, Josh Chafetz reaches the surprising conclusion that the Constitution offers members of the House of Representatives no right to resign from office. See Chafetz, “Leaving the House: The Constitutional Status of Resignation from the House of Representatives,” 58 Duke L. J. (2008): 177. As Chafetz acknowledges, however, by the early nineteenth century, “the matters seems to have been settled [that] Members . . . have the right to resign at will.” Id. at 222. Chafetz favors reviving the practice of requiring a request for resignation in cases where members resign to escape punishment from the House and when they resign “because they are simply sick of the job or wish to take jobs that are more lucrative or personally convenient.” Id. at 222, 230. Importantly, however, he does not argue for limitations on the right to resign in protest. 415 U.S. 605 (1974).

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appoint another Negro to the Board.”69 The Court held this evidence insufficient to support a finding of discrimination, even when it was taken together with statistical evidence pointing in the same direction. Its stated reason was that “an ambiguous statement purportedly made in 1969 with regard to the racial composition of the School Board proves [nothing] with regard to the Mayor’s motives two years later in appointing the 1971 Nominating Panel.”70 Was the Court’s decision influenced by the putative inappropriateness of applying normal legal principles to personnel decisions involving high political official? In other contexts, the Court has been more than ready to infer present discriminatory intent from past discriminatory actions and statements.71 Moreover, the opinion itself leaves no doubt that the Court was uncomfortable with the prospect of constraining such personnel decisions. The majority opinion went out of its way to suggest that it would have denied relief even if discrimination had been proved. The Court disapproved of the lower court’s determination that the mayor’s appointments were not “discretionary”72 and expressed “concern that judicial oversight of discretionary appointments may interfere with the ability of an elected official to respond to the mandate of his constituency.”73 It also cited with approval language in its earlier decision in Carter v. Jury Commiss’n,74 which had noted that there would be “problems” if a federal court “order[ed] the Governor of a State to exercise his discretion in a particular way.”75 Taken together, the dicta in Carter and Mayor of Philadelphia reflect the strongly and widely held intuition that, for example, a court should not interfere with a President’s decision to take race or gender into account when appointing a Supreme Court justice or a cabinet official.76 It is possible to put a veneer of legality on this result by characterizing the question as political or by erecting insurmountable burdens of proof or 69 71

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Id. at 617. 70 Id. at 618. See, for example, Keyes v. School Dist. No. 1, 413 U.S. 189, 207 (1973) (inferring discriminatory intent from prior actions); Hunter v. Underwood, 471 U.S. 222, 229 (1985) (inferring discriminatory intent from prior statements). 415 U.S., at 614. 73 Id. 74 396 U.S. 320 (1970). 75 415 U.S., at 614. Davis v. Passman, 442 U.S. 228 (1979) is not to the contrary. In Davis the Court reversed the dismissal of a complaint charging employment discrimination brought by an employee of a congressman . However, the plaintiff was a deputy assistant administrator, not a high executive branch official. Moreover, the Court expressly reserved the question whether the suit was barred by the Speech or Debate clause of Article I. See 442 U.S., at 249.

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standing rules. At bottom, though, the motivating force behind these legal justifications is a deep-seated belief that this is an area where executive discretion ought not be constrained by law. It does not follow, of course, that removal decisions are similarly unconstrained. On the contrary, a well-established line of authority recognizes the power of Congress to limit the President’s removal authority with respect to certain executive branch officials.77 Several points are worthy of note, however. First, the Court’s current test for limits on removal authority depends on the extent to which the limitation impedes the ability of the President to perform his constitutional duties.78 The test makes it quite unlikely that the Court would approve removal limitations on a cabinet-level officer like General Powell. Second, the Court has distinguished sharply between congressional limitations on executive removal, which it has sometimes upheld,79 and congressional involvement in the removal process, which it has always invalidated.80 When these two lines of authority are considered together, the upshot is a bias against executive and legislative control of removal decisions. On the one hand, Congress is permitted to free some executivebranch officials from the threat of either presidential or congressional oversight, thereby leaving the official in a law-free zone. On the other, Congress is prohibited from involving both the president and the legislature in oversight, a result that would maximize legal control. Finally, it is important to note that the legal control discussed above is over removal, not resignation. This lack of reciprocity is striking. Although Congress is sometimes permitted to make officials immune from removal

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See, for example, Morrison v. Olson, 487 U.S. 654 (1988); Wiener v. United States, 357 U.S. 349 (1958); and Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935). See Morrison v. Olson, 487 U.S. 654, 691 (1988) (“We do not mean to suggest that an analysis of the functions served by the officials at issue is irrelevant. But the real question is whether the removal restrictions are of such a nature that they impede the President’s ability to perform his constitutional duty, and the functions of the officials in question must be analyzed in that light”). See note 77, supra. See Bowsher v. Synar, 478 U.S. 714 (1986); and Myers v. United States, 272 U.S. 52 (1926). Compare with Metropolitan Washington Airports Authority v. Citizens for Abatement of Airport Noise, 501 U.S. 252 (1991) (congressional interference with appointment authority); Buckley v. Valeo, 424 U.S. 1 (1976) (same). For the Court’s distinction between cases where Congress has limited executive removal and where it has inserted itself into the removal process, see Morrison v. Olson, 487 U.S. 654, 685–86, 694 (1988).

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except for cause, no one suggests that high government officials can be bound by a “for cause” standard when they resign.81 Such a regime is so foreign to legal practice that, once again, there are no actual cases dealing with the problem. Imagining how a court would decide such cases requires imagining a legal culture so different from our own that it is difficult to speculate on the outcome. Suppose, though, that we suspend disbelief for just long enough to magically inject into our current legal culture a statute that, for example, prohibited the secretary of state from resigning under protest except upon a showing of good cause. My strong suspicion is that a court would find a way to invalidate, or at least not to enforce, the statute, perhaps on free speech grounds, perhaps by finding that it posed a political question or violated separation of powers principles. The real reason for invalidation, though, would be precisely because such a statute is incompatible with our political culture. This incompatibility, in turn, reflects a fundamental antipathy toward legal control over protest resignations. This is not to say that there are no legal controls at all over postresignation behavior. In Snepp v. United States,82 the Supreme Court enforced an agreement executed by a former Central Intelligence Agency official to submit all of his writings for pre-publication review. The case makes clear that not all cases of public resignations are free from legal regulation and that there are situations where contractual obligation is enforceable in the resignation context. Still, Snepp is more notable for its limits than for its holding. The Court characterized the government’s interest in restricting Snepp’s speech as “compelling” and “vital” and observed that pre-publication review was “essential to the effective operation of our foreign intelligence service.”83 The Snepp holding is consistent with the Court’s special and exceedingly

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Of course, there are many reasons why one would not want to specifically enforce a requirement that a high government official remain on the job. It would be difficult or impossible for a court to enforce the requirement that the official make a good faith effort to do the job, and these supervisory efforts would impose insurmountable separation of powers problems. On specific enforcement, see p. 73, supra. But these commonsense concerns do not explain why we do not see officials obliged to respond in damages for their lack of loyalty and why we do not see postresignation restrictions on their behavior, such as a prohibition on criticism of administration policy. 444 U.S. 507 (1980). 83 Id. at 512.

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deferential stance toward executive decisions when national security is at stake.84 More broadly, under standard doctrine, virtually all the usual constitutional rules crumble when the Court finds, as it did in Snepp, that there is a compelling state interest.85 It is hardly surprising, then, that the Court was prepared to make an exception to its usual rules in this context. Nothing in Snepp suggests that contractual bans on postresignation speech would be upheld in a more typical environment, and the lower courts have struck down such bans when dealing with matters other than national security.86 In still other contexts, Supreme Court doctrine actually encourages public resignation. Consider the implications of Garcetti v. Ceballos.87 Respondent, a deputy district attorney, alleged that his free speech rights were violated when he was disciplined because he had complained to his supervisor about allegedly false statements in a warrant application. Writing for the Court’s majority, Justice Kennedy started by observing that it was “well settled that ‘a State cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.’”88 Although government employee free speech rights are somewhat more constricted than those of ordinary citizens, there is no doubt that there would at least have been a First Amendment issue if respondent had complained to, say, the local newspaper. The Court nonetheless rejected respondent’s claim at the threshold because “his expressions were made pursuant to his [official] duties.”89 According to the majority, “When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”90

84 85 86

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See, for example, Boumediene v. Bush, 128 S. Ct. 2229, 2276 (2008); Department of the Navy v. Egan, 484 U.S. 518, 529 (1988); and Orloff v. Willoughby, 345 U.S. 83, 93–4 (1953). See, for example, Roe v. Wade, 410 U.S. 113, 154 (1973); and Korematsu v. United States, 323 U.S. 214, 219 (1944). See Harman v. City of New York, 140 F. 3d 111 (2d Cir. 1998) (invalidating requirement that child welfare and social services employees obtain permission before speaking with media); and Fire Fighters Assn. v. Barry, 742 F. Supp. 1182 (1990) (requirement that fire fighters obtain prior written permission before giving interviews while on duty is unconstitutional). 547 U.S. 410 (2006). 88 Id. at 413 (citing Connick v. Myers, 461 U.S. 138, 141 [1983]). Id. at 421. 90 Id.

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This distinction has struck many commentators as bizarre.91 On the Court’s view, an employee who respects the “chain of command” and obeys official policy by reporting to a superior has no constitutional protection. In contrast, an employee who takes matters into her own hands and violates those policies by contacting outsiders has a prima facie constitutional case. As Justice Stevens wrote in his dissenting opinion, “It seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors.”92 The distinction seems less perverse if we think of the case as posing the problems of loyalty and radical rupture discussed previously.93 An employee who remains within a community must abide by the rules of that community as defined, hierarchically, by her superiors. As the Court puts it, the disciplining of such an employee involves no more than “managerial discretion”94 and “simply reflects the exercise of employer control over what the employer itself has commissioned or created.”95 But this hierarchical control is justified only because the employee has the right to remove herself from this community. An employee who “goes public” with his complaints deserves protection precisely because he has acted disloyally. By breaking with the community, he breaks as well from the network of rules, norms, attachments, and obligations that form it. For the reasons just outlined, the ability to make a clean break of this sort is what both legitimates and gives meaning to the obligations in the first place. At first, these conclusions may seem anomalous because the respondent in Garcetti did not in fact resign. On the contrary, he argued that he should be allowed to keep his job and remain free of discipline based upon his speech. If he had acted disloyally by, for example, telling his story to a newspaper, he might have had his cake and eaten it too by making a radical break on the one hand while keeping his job on the other. This possibility may be more theoretical than real, however. Even when public employees speak as public citizens, their speech rights are sharply constrained. The government has discretion to restrict speech when its restriction is “directed at speech that has some potential to affect the entity’s 91

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See, for example, Erwin Chemerinsky, “The Kennedy Court: October Term 2005,” Green Bag 2d 9 (2006) 335, 340–41; and Cynthia Estland, “Harmonizing Work and Citizenship: A Due Process Solution to a First Amendment Problem,” Sup. Ct. Rev. 2006 (2006) 115, 1544–53. 547 U.S., at 427 (Stevens, J., dissenting). 93 See pp. 68–70, infra. 547 U.S., at 424. 95 Id. at 422.

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operations” or when the speech would “impair the proper performance of governmental functions.”96 Speech by disloyal employees who remain on the job is therefore limited by the employment needs of the government. Only when the speech is compatible with these needs but nonetheless restricted do the employee’s First Amendment rights take hold. Of course, the employer has no employment needs when the speaker is no longer a government employee. An official who has resigned is no longer subject to employer control and discipline. When these results are taken together, the upshot is that the more an employee is willing to break with her patron, the greater her protection. Employees who remain loyal by staying in their jobs and reporting up the chain of command have no First Amendment rights at all. Employees who stay in their jobs but exhibit disloyalty by talking to outsiders have some First Amendment protection but only if they do not thereby impede the government’s legitimate interests. Employees who make a clean break by talking to outsiders and resigning from office are immune from government control except in narrow circumstances where national security is involved and the government can show a compelling state interest in restriction. This pattern of results sharply favors those who are willing to make a clean break. To be sure, there is a superficial tension between the First Amendment and contract-law jurisprudence providing protection for resigning officials. The First Amendment provides legal protections for disloyal employees, whereas I have previously described contract-law doctrine as leaving public resignation in a law-free zone. But the tension is only superficial. In both situations, decisions about existential break are left unregulated – in one case by common-law or legal-cultural understandings, in the other by constitutional compulsion. Remarkably, this freedom from regulation is apparently unwaivable. As the Garcetti Court observed, “[t]he First Amendment limits the ability of a public employer to leverage the employment relationship to restrict . . . the liberties employees enjoy in the capacities as private citizens.”97 Another way to express this point is to say that an employee cannot bargain away his speech rights in exchange for a government job. Similarly, the general unavailability of normal contract remedies concerning public resignation entails an inability to bind oneself in advance to a set of requirements. 96

Id. at 418.

97

Id.

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In more usual normal circumstances, we think of this capacity to bind oneself as an aspect of freedom. Individuals can freely choose to limit their own freedom in the future in exchange for an enforceable promise that is worth more to them than the freedom foregone.98 Our unwillingness to enforce bargains of this sort in the context of public resignations suggests that the resignation decision is, indeed, special. A recognition of contractual obligation would entangle the contracting parties in a set of rules governing their behavior, albeit rules that they have authored themselves. If one believes that rules are simply out of place in the context of public resignation, then contracts should be out of place as well. Of course, I do not mean to claim that the people who created these legal doctrines are steeped in existentialist thought or that the argument I make here consciously motivated their judgments. I do claim, however, that they were influenced by a deep, if inchoate, intuition that some sorts of decisions should stand outside the need for justification and constraint that is otherwise everywhere around us. For the most part, the law appropriately recognizes that public resignations involve decisions of this sort. Whereas law typically constrains free choice, the law of resignation rubs our noses in it. Instead of creating a set of restrictive norms, the law of resignation bounds off a zone that cannot be restricted, even by our own previous decisions. By so doing, it reminds us that, ultimately, there is no escape from our own freedom. Because the radical exit option always remains open, we have no one to blame but ourselves when we silently submit to authority. Conclusion

Perhaps it is belaboring the obvious to say that General Powell had a choice when he decided to remain silent about his doubts concerning the Iraq war. If the argument I have made is correct, though, his real choice was different from the kinds of options we usually consider. Typically, those options require us to think about costs and benefits or about moral obligations. To the extent that we conceptualize General Powell’s choice in that way, 98

See, for example, Charles Fried, Contract as Promise: A Theory of Contractual Obligation 2 (Cambridge: Harvard University Press, 1981); and Michael J. Trebilcock, The Limits of Freedom of Contract 8–9 (Cambridge: Harvard University Press, 1993).

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there is much to be said – much more than is usually said – for the decision he in fact made. But we should not be so quick to let General Powell off the hook. His choice need not be conceptualized in that way. We might think of it instead as a truly free choice – free not just in the sense that he would not have been punished whatever he did, but also in the sense that it was unconstrained by the usual instrumental and noninstrumental considerations that “force” one judgment or the other. It is just because he had a free choice in this sense that he is ultimately responsible for the decision that he made.

Comment on Chapter 2: Resignations, the (Quasi) Plural Executive, and a Critical Assessment of the Unitary Executive Theory Ronald J. Krotoszynski, Jr.

Professor Seidman has thoughtfully and comprehensively surveyed the moral, political, and legal implications of an executive branch officer’s resignation in response to a presidential directive with which an executivebranch officer disagrees.1 Moreover, his taxonomy of eight options – starting with the weakest response of remaining in office and simply acceding to the policy, through intermediate options and concluding with the strongest possible response of noisily and publicly resigning – represents an almost complete menu of options open to an executive-branch officer who disagrees with her boss, the President, about a policy matter.2 Professor Seidman’s taxonomy, however, does not include an additional, ninth option: remaining in office, but refusing to implement the President’s policy.3 One’s immediate reaction to this proposed addition might be to dismiss it out of hand; after all, if a presidential appointee serves at the will of the President, how could a cabinet secretary refuse to implement a clear presidential order? The most direct answer: an appointee categorically opposed to a policy could force the President to exercise his power of removal by firing the official. In other words, Secretary of State Colin Powell could have considered taking a page from Nancy Reagan’s playbook and “just sa[id] no” when asked to give his Iraq war presentation at the United Nations. Strictly speaking, President George W. Bush could not force 1 2 3

Louis Michael Seidman, “Powell’s Choice: The Law and Morality of Speech, Silence, and Resignation by High Government Officials,” supra, at 49–53 (hereinafter Seidman, supra note 1). Id. at 50–1. Id.; but cf. id. at 63 (noting that two aides to President Richard M. Nixon, John Ehrlichman and H. R. Haldeman, routinely ignored particularly outrageous orders from President Nixon).

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Secretary Powell to give the speech, nor could President Bush force Powell to resign (whether loudly or quietly). Would forcing President Bush to fire Powell constitute a distinction without a difference? I think not: the decision to fire a high-ranking cabinet official requires that the White House disclose the dispute to the national media and citizenry; it is perhaps the “noisiest” option4 for an incumbent government official who disagrees with the policies of the President. Moreover, nothing in the Constitution or in our constitutional tradition requires that a cabinet secretary resign rather than force the President to exercise his removal power. General Douglas C. MacArthur both declined to follow President Truman’s directives and also refused to resign; he forced President Truman to fire him.5 Similarly, J. Edgar Hoover, the long-serving director of the Federal Bureau of Investigation, routinely refused to accede to presidential requests regarding FBI operations and investigations.6 In theory, any President from Roosevelt to Nixon could have fired Hoover, for good cause, for refusing to comply with a presidential directive; none did. As Professors Kelly, Harbison, and Belz have noted, notwithstanding Hoover’s blatant acts of insubordination, “president after president accepted Hoover, not only because they feared his political power but also because they benefitted from the FBI’s covert intelligence operations.”7 Thus, unlike MacArthur, Hoover managed to have his cake and eat it too.8 One could object, of 4 5

6

7

8

Seidman, supra note 1, at 50, 53–5. Robert J. Donovan, Tumultuous Years: The Presidency of Harry S. Truman, 1949–1953 (W. W. Norton & Co., 1982), 354–55 (discussing Truman’s sacking of Gen. Douglas MacArthur, including President Truman’s discussion of the matter with Chief Justice Vinson prior to implementing the decision); and Christopher S. Yoo, Steven G. Calabresi, and Anthony J. Colangelo, “The Unitary Executive in the Modern Era, 1945–2004,” Iowa Law Review 90 (2005): 601, 610–2 (discussing President Truman’s decision to remove Gen. MacArthur and its aftermath); see also David McCullough, “Truman Fires MacArthur,” Military History Quarterly (Autumn 1992): 8. Alfred H. Kelly, Winfred A. Harbison, and Herman Belz, The American Constitution: Its Origins and Development, 6th ed. (W. W. Norton & Co., 1983), 684 (“Led by the shrewd bureaucratic tactician and empire builder J. Edgar Hoover, the bureau became a power unto itself which had the overwhelming support of public opinion.”). Id. at 684–5. Kelly, Harbison, and Belz suggest that the inability of successive presidents to reign in Hoover and the FBI was “symptomatic of the executive’s inability to manage his political environment.” Id. at 684. In the early 1970s, President Richard M. Nixon attempted to preempt the FBI by creating a new intelligence service directly under the control of the White House, to be led by presidential aide Tom Huston. Id. at 691. J. Edgar Hoover, upon learning of the new intelligence program, denounced it publicly as “illegal and unacceptable.” Id. at 692. Following Hoover’s public denunciation of the Huston program, President Nixon simply abandoned it. Id.

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course, that Director Hoover’s deep file cabinet created an effective and insurmountable check on the power of the President to fire him; under this view, Hoover’s case is sui generis and does not generally recur. A more recent example of a cabinet-level secretary refusing to resign, but also refusing to comply with a presidential directive, exists: Attorney General John Ashcroft refused to accede to requests from the White House to approve the use of domestic spying programs. The White House sought a certification from the Department of Justice that ongoing domestic spying programs, involving warrantless wiretaps, were lawful.9 The department refused to comply with this request; Acting Attorney General James B. Comey, serving while Attorney General Ashcroft sought surgical treatment for pancreatitis, informed the White House that the Department of Justice would not provide the requested certification.10 In a now famous incident, on March 10, 2004, then-White House Counsel Alberto R. Gonzales and Chief of Staff Andrew H. Card, Jr., hoping that Ashcroft himself might overrule Comey’s decision, visited Attorney General Ashcroft’s hospital room while he was recovering from gallbladder surgery, and asked Ashcroft to sign the certification personally, thereby permitting the program to be lawfully renewed.11 According to contemporaneous notes taken by FBI director Robert S. Mueller, III, Attorney General Ashcroft refused to sign the order and instead directed Gonzalez and Card to take the matter up with the acting attorney general.12 In fact, Comey was so concerned about the White House attempting to take advantage of Ashcroft that he had previously requested that Mueller bar anyone other than Ashcroft’s wife from his hospital room.13 The White House continued the program without obtaining the necessary certification, which the Department of Justice steadfastly refused to provide after Ashcroft’s return. In order to prevent mass resignations at the Department of Justice and the FBI, including the resignations of both Director Mueller and Deputy Attorney General Comey, the White 9

10 11 12 13

David Johnston & Scott Shane, “Notes Detail Pressure on Ashcroft Over Spying,” New York Times, Aug. 17, 2007, A14; Dan Eggen & Paul Kane, “Gonzales, Senators Spar on Credibility; Account of Meeting in ‘04 Is Challenged,” Washington Post, July 25, 2007, A1. Johnston & Shane, supra note 9, at A14. Jeffrey Rosen, “Conscience of a Conservative,” New York Times, Sept. 9, 2007, § 6, 40. Dan Eggen, “FBI Director’s Notes Contradict Gonzales’s Version of Ashcroft Visit,” Washington Post, Aug. 17, 2007, A1. Id.

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House agreed to make changes to the program.14 For present purposes, the key point is that Attorney General Ashcroft refused to do the bidding of the White House, nor did he feel compelled to resign over the incident. President Bush would have been free to fire Ashcroft for his insubordination, but doing so would have revealed in a very public way the rift within the Bush administration regarding the legality of its domestic spying program – to say nothing of potentially disclosing the existence of the program itself.15 Although this incident is perhaps the most widely known, it is not unique to Ashcroft’s tenure as attorney general. When the assistant attorney general position became vacant at the Office of Legal Counsel (OLC), Ashcroft sent the White House a list of five names to consider for the appointment; John Yoo’s name, however, was not on Ashcroft’s list.16 White House Chief of Staff Card called Ashcroft a few hours after receiving the list to inform the attorney general that the White House would not consider any of his proposed nominees. The use of coercive interrogation techniques, also known as “torture,” stood at the crux of this dispute; Vice-President Cheney and his chief legal advisor, David S. Addington, wanted Yoo at OLC in order to ensure that the Department of Justice would routinely authorize practices that constitute torture. Attorney General Ashcroft did not repose confidence in Yoo and was unwilling to work with him in the OLC post. Attorney General Ashcroft did not resign or threaten to resign, but simply refused to accept Yoo in the OLC post; “[t]hrough a White House liaison, Ashcroft told Bush that Yoo was unacceptable.”17 In turn, “Ashcroft’s refusal created a tense standoff and was the only time in the attorney general’s tenure that [President] Bush was called upon to resolve a personnel dispute.”18 Had Ashcroft resigned, he would have been unable to block Yoo’s appointment to the critically important OLC post. By choosing not to 14 15

16 17

The nature and scope of these changes have never been reported; however, the modifications were sufficient to prevent the mass resignations from the Department of Justice and the FBI. See, for example, Peter L. Strauss, “The Place of Agencies in Government: Separation of Powers and the Fourth Branch,” Columbia Law Review 84 (1984): 573, 590 (“An administrator with a public constituency and mandate, such as William Ruckelshaus, cannot be discharged – and understands that he cannot be discharged – without substantial political cost.”). Carrie Johnson, “Administration Wanted Loyalist as Justice Dept. Legal Adviser; Top Officials Sought to Defend Interrogation Practices,” Washington Post, July 17, 2008, A4. Id. 18 Id.

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cooperate – essentially, holding both his ground and his office – Attorney General Ashcroft succeeded in blocking the appointment of someone at OLC who lacked the requisite independence from the White House to undertake the duties of that office properly. The portrait that emerges of Attorney General Ashcroft is complex: a high-level presidential appointee who routinely refuses to take orders from the president presents a very different model from the traditional understanding of presidential control over cabinet departments.19 Moreover, his behavior is completely inconsistent with the broadest theories of presidential authority, lately grouped under the “unitary executive” theory of the presidency.20 Ashcroft essentially took the position that he had an independent ability to execute the duties of his office unless and until the President removed him from it; the power to remove him from office did not encompass a parallel power to command his behavior while holding the office. In sum, Ashcroft’s behavior points the way toward a third model: refusing to implement a misguided policy, while also refusing to resign from office.21 In the balance of this essay, I will explore the plausibility of taking a “just say no” approach to misguided presidential directives. Is such behavior consistent with the Constitution itself? Or, alternatively, does Article II require that an executive officer holding office at the president’s pleasure either accept and implement presidential commands or resign? At a more practical level of analysis, is it plausible to imagine a cabinet-level 19

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See Seidman, supra note 1, at 75–6 (noting that although contemporary statutory and constitutional law does not provide firm limits on resignations from appointed executive-branch office, “a well-established line of authority recognizes the power of Congress to limit the President’s removal authority with respect to certain executive branch officials,” presumably including the Attorney General). For a thorough legal, political, and jurisprudential history of the “unitary executive” theory, see Mark Tushnet, “A Political Perspective on the Theory of the Unitary Executive,” SSRN Paper No. 1397746, http://ssrn.com/abstract=1397746. Professor Seidman notes this possibility in passing when recounting the attitude of midnineteenth-century federal judges toward the enforcement of fugitive slave laws that ostensibly required the return of runaway human slaves to their owners. Seidman, supra note 1, at 57–58. Discussing Lysander Spooner’s view that the fugitive slave laws were akin to a weapon to be used against an “innocent and helpless victim,” Spooner advocated accepting federal judicial office but instead of simply enforcing fugitive slave laws, using the position to combat their enforcement. Using the weapon analogy, Spooner argued that a federal judge should “keep the weapon and use it, in violation of the condition, to defend rather than attack the victims.” Id. at 58. This essentially constitutes an approach of intentional defiance: the judge should both refuse to resign and also refuse to enforce laws requiring the repatriation of human beings to chattel slavery status.

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secretary refusing to comply with a presidential directive? And, what bearing does the existence of a phalanx of “independent” agencies within the executive branch have on the proper resolution of these questions? In other words, if we accept that President Obama cannot directly command Federal Reserve Board Chairman Ben Bernanke, should we reflexively assume an ability to command Secretary of State Hillary Rodham Clinton?22 If the text of Article II does not mandate a binary choice of acquiescence or resignation, the possibility of simply refusing a misguided presidential command might be more plausible than one initially might suppose. If one also considers the modern practice of creating polycentric executivebranch entities with only attenuated and indirect forms of presidential control, the theoretical objections to a “faithless steward” become even less pressing. Rather than a “unitary executive,” in practice the United States has a kind of plural executive; within this structure, the holder of congressionally delegated responsibilities should be free to reject presidential demands; the power to fire does not imply, or at least should not imply, a corresponding power to control an executive officer like a ventriloquist’s dummy.23

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Compare A. Michael Froomkin, “The Imperial President’s New Vestments,” Northwestern University Law Review 88 (1994): 1345, 1372–4 (arguing that Congress may constitutionally vest the execution of laws in specific executive-branch personnel, but noting that “a reasonable reading of the Take Care Clause may require that the President retain the power to dismiss for ‘cause’ over all persons in the executive branch and further recognizes that precisely what constitutes ‘cause’ in the constitutional sense remains incompletely defined”) [emphasis in the original]; with Strauss, supra note 15, at 602 (“The responsibility of government was to be focally his [the President’s]; but day-to-day administration and decision, of necessity, was to be entrusted to the hands of others.”). See Morrison v. Olson, 487 U.S. 654, 697–9, 705–9 (1988); A. Michael Froomkin, Note, “In Defense of Administrative Agency Autonomy,” Yale Law Journal 96 (1987): 787, 812–14 (arguing that the power to remove an executive-branch officer for good cause should not, and does not, imply the ability to control her actions directly); Lawrence Lessig, “Readings By Our Unitary Executive,” Cardozo Law Review 15 (1993): 175, 176–7, 182–93 (discussing practices in the early years of the federal government in which Congress provided only attenuated forms of presidential control over key executive-branch agencies, such as the Department of Justice, and suggesting that these practices of providing limited presidential control seriously undermine claims to an unfettered power of the president personally to direct all work within the executive branch); Morton Rosenberg, “Congress’s Prerogative Over Agencies and Agency Decisionmakers: The Rise and Demise of the Reagan Administration’s Theory of the Unitary Executive,” George Washington Law Review 57 (1989): 627, 652–5 (discussing limited direct presidential control over significant activities within the Department of the Treasury in the early years of the Republic).

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I. The Constitutional Text and the Limited Case for the Unitary Executive

The framers of the Constitution of 1787 created a unique national office in the presidency. Unlike the legislative and judicial branches, which would be headed by collegial institutions, Article II squarely vests the executive power of the United States in the president: “The executive power shall be vested in a President of the United States of America.”24 Some judges and legal academics have argued that, in combination with the faithful execution clause,25 the vesting clause of Article II requires that the president enjoy plenary control over the activities of the executive branch of the federal government.26 As Justice Scalia has explained it, “[i]t is not for us to determine, and we have never presumed to determine, how much of the purely executive powers of government must be within the full control of the President. The Constitution prescribes that they all are.”27 Certainly the vesting of executive duties outside of entities located within the executive branch, or placing the responsibility for the execution of federal laws entirely in the hands of personnel not appointed by or accountable to the president, would raise serious constitutional

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U.S. Constitution, Article II, § 1. U.S. Const. art. II, § 3 (providing that the President “shall take Care that the Laws be faithfully executed”). Steven G. Calabresi & Kevin H. Rhodes, “The Structural Constitution: Unitary Executive, Plural Judiciary,” Harvard Law Review 105 (1992): 1153, 1165–7, 1207–08; Saikrishna Prakash, Note, “Hail to the Chief Administrator: The Framers and the President’s Administrative Powers,” Yale Law Journal 102 (1993): 991, 992; Geoffrey P. Miller, “Independent Agencies,” Supreme Court Review (1986): 41, 44–5, 96–7; see also Susan M. Davies, Note, “Congressional Encroachment on Executive Branch Communications,” University of Chicago Law Review 57 (1990): 1297, 1302 (“They [the Framers] created a unitary executive, popularly elected and politically accountable: a single person in whom all executive power would reside.”). It bears noting, of course, that the Framers did not provide for popular election of the President, see U.S. Const. art. II, § 1, cl. 2 (“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole number of Senators and Representatives to which the State may be entitled in Congress . . . .”), and the equal voting rights of the states in the U.S. Senate make the Electoral College’s composition deeply undemocratic, that is, states with very small populations, such Wyoming and Alaska, enjoy grossly disproportionate voting strength in the Electoral College. Thus, the House of Representatives has more democratic legitimacy than the President, if democratic legitimacy requires respect for the principle of equal voting power among citizens. See Reynolds v. Sims, 377 U.S. 533 (1964); and Baker v. Carr, 369 U.S. 186 (1962). Morrison, 487 U.S. at 709 (Scalia, J., dissenting) [emphasis in the original].

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concerns.28 Thus, Congress could not constitutionally vest the conduct of foreign relations in the federal courts, or appoint one of its own members to conduct the foreign policy of the United States.29 The question of another branch attempting to encroach on core executive functions and to aggrandize itself by usurping these functions raises an easier question, however, than an attempt to limit the direct personal control of the president over the execution of a law.30 Even if Congress cannot condition the discharge of an executive-branch officer on the consent of one or both houses, the Supreme Court has sustained limitations on the president’s power to remove executive-branch officials, including statutes that limit the power to fire an executive officer with substantial policymaking responsibility to “good cause” discharge.31 If Congress, when creating independent executive agencies, may limit the president’s power of removal to good cause – with “good cause” ultimately to be decided by the federal courts rather than the president – the notion 28

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31

For example, if Congress attempted to vest execution of a federal law with state governors rather than federal officers, the president would have no effective ability to ensure “faithful execution” of the law in question, nor would that aspect of the executive power be vested in the president. Compare M’Culloch v. Maryland, 17 U.S. 316 (1819) (holding that Maryland could not directly tax the Bank of the United States because a part cannot control an agency of the whole; by parity of reasoning, the control of a federal responsibility with a part (a state governor) also impermissibly attenuates national control over federal responsibilities); with New York v. United States, 505 U.S. 144 (1992) (invalidating on federalism grounds a federal law that “commandeered” state legislatures to implement federal policies). See Buckley v. Valeo, 424 U.S. 1, 121–3, 126–9, 137–42 (1976) (invalidating on separation of powers grounds the appointment of executive-branch officers by Congress); and Bowsher v. Synar, 478 U.S. 714, 726 (1986) (“Congress cannot reserve for itself the power of removal of an officer charged with the execution of the laws except by impeachment.”). One should note that Article II expressly provides that the president “shall receive Ambassadors and other public Ministers,” plainly vesting the president with responsibility for conducting diplomatic relations with other nations. See U.S. Const. art. II, § 3. The President’s authority over foreign affairs is further confirmed by the power to make treaties, with the advice and consent of two-thirds of the Senate, and the power to nominate and appoint, with the advice and consent of the Senate, Ambassadors. Id. at art. II, § 2, cl. 2. Compare Myers v. United States, 272 U.S. 52, 116–7, 163–4 (1926) (“Our conclusion on the merits, sustained by the arguments before stated, is that Article II grants to the President the executive power of the Government, i.e., the general administrative control of those executing the laws, including the power of appointment and removal of executive officers–a conclusion confirmed by his obligation to take care that the laws be faithfully executed . . . .”) with Humphrey’s Executor v. United States, 295 U.S. 602, 629–30 (1935) (“We think it plain under the Constitution that illimitable power of removal is not possessed by the President in respect of officers of the character of those just named.”). Mistretta v. United States, 488 U.S. 361, 410–11 (1989); Morrison v. Olson, 487 U.S. 654, 691–3 (1988); Humphrey’s Executor v. United States, 295 U.S. 602, 629–31 (1935).

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that the president must be able to repose absolute confidence in all of his subordinates rings false; in fact, the president might well have to tolerate subordinates in whom he utterly lacks confidence, if the “good cause” standard for discharge cannot be met. Moreover, although there is some debate in the literature on this point, a mere disagreement about the best policy options would not likely constitute “good cause” for discharge.32 The Supreme Court might limit the duties that could be vested with an independent agency, in order to ensure that persons more directly accountable to the president execute “core” executive functions. Yet, one would be hard pressed to think of a more quintessentially executive duty than the prosecution of crimes; nevertheless, the Supreme Court approved the creation of an Office of the Independent Counsel to investigate highranking executive-branch personnel, with the appointment made by a panel of federal judges, and with the president’s power to remove the appointee limited to “good cause” considerations, such as disability, malfeasance, or other serious misconduct.33 Chief Justice Rehnquist, writing for the 8-to-1 Morrison majority, found that an independent counsel constituted an “inferior officer” for purposes of the appointments clause34 and that the “good cause” removal provisions provided a sufficient measure of presidential control over the office.35

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34

Humphrey’s Executor seems to stand for this proposition. President Franklin D. Roosevelt removed Humphrey from the Federal Trade Commission not for failing to attend meetings or taking bribes but rather because Humphrey, an appointee of President Herbert Hoover, did not share Roosevelt’s policy preferences for how the agency should approach exercising its institutional jurisdiction. As President Roosevelt explained in a letter of August 31, 1933, to Commissioner Humphrey, “You will, I know, realize that I do not feel that your mind and my mind go along together on either the policies or the administering of the Federal Trade Commission, and, frankly, I think it best for the people of this country that I should have a full confidence.” Humphrey’s Executor, 295 U.S. at 619. Humphrey ignored President’s Roosevelt’s request that he resign and on October 7, 1933, President Roosevelt attempted to remove Humphrey from the Federal Trade Commission. Id. Morrison v. Olson, 487 U.S. 654, 689–93, 694–7 (1988). Moreover, the statute at issue, the independent counsel provisions of the Ethics in Government Act, 28 U.S.C. §§ 591–9 (1982 ed.), actually vested the power to remove an independent counsel with the attorney general rather than the president. See id. at § 596(a); see also Morrison, 487 U.S. at 691–3 (sustaining Congress’s decision to vest removal of an independent counsel with the attorney general, only for the good cause reasons set forth in section 596(a), and subject to review in a federal district court). Thus, in a technical sense, the president enjoyed only an indirect power to remove an independent counsel; instead, the attorney general – subject to judicial review – possessed this authority. Id. at 670–7. 35 Id. at 691–3.

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Taking Morrison as a baseline, it becomes entirely plausible to posit that the power to fire an executive officer does not necessarily imply the power to command or control a duly appointed executive-branch official holding office. Moreover, even if the separation of powers would not permit Congress to grant formal job protection to an officer vested with broad authority over a core executive function, such as the secretary of state or the attorney general, existing blackletter law seems to support the proposition that a delegation to a particular executive-branch official gives that official, and not the president, the power to exercise the duties of the office in question. In fact, the text of the Constitution seems to support this analysis. The faithful execution clause, intentionally written in the passive voice, charges the president with “tak[ing] Care that the Laws be faithfully executed,”36 not with “faithfully executing” the laws himself. Thus, the framers’ language bespeaks a duty of presidential oversight over subordinate officers within the executive branch, rather than a direct power of presidential action or control. Certainly the responsibility for ensuring faithful execution of the laws by others implies an ability to remove impediments to this objective, presumably including the power to discharge inept or corrupt subordinates within the executive branch. The point, however, remains that the power to remove a subordinate officer within the executive branch is simply not the same thing as the power to control or compel a subordinate officer to act or to refrain from acting. If this view is correct, even if the president has the power to fire a person holding an executive office, he would not necessarily enjoy the power to command them to undertake a particular task in a specific way or resign. In other words, if a person were willing to risk discharge, there is nothing constitutionally problematic with a high-ranking government official telling the president “no” with respect to a major policy issue about which the president and the presidential appointee disagree. Faced with such a refusal, the president’s options would include accepting the insubordination or sacking the appointee. And, the recent history of Attorney General Ashcroft would suggest that high-level presidential appointees sometimes do “just say no” when asked to approve policies or subordinates.

36

U.S. Const. art. II, , § 3.

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Notwithstanding the vesting and faithful execution clauses, some textual warrant exists in the Constitution itself for the view that executive officers are not necessarily mere lapdogs of the president. Article II, section 2, clause 1 provides that “[t]he President . . . may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.”37 If Article II gives the president virtually unfettered authority over presidential appointees, why would the framers have included a specific clause that expressly grants the president the power to require appointees to provide written opinions regarding matters falling within “the duties of their respective offices”? Note also that this power is facially limited to the “principal officer” within an executive department; it does not encompass inferior officers within an executive department. If the framers understood the president to have unlimited authority over executive officers, why would they have included such a clause in Article II? As one astute legal scholar has argued, “[a] reasonable interpretation of the Opinions Clause is that it exists because it was not assumed, or at the very least not obvious, that the President had absolute power over heads of departments.”38 Thus, the presence of the opinions clause suggests that the president’s authority over subordinates would be somewhat circumscribed; even if the president had the power to fire an appointee, he did not necessarily have the power to otherwise control or compel an appointee to do a particular task, even a task as innocuous as offering an opinion, in writing, about the operations of the department.39 II. The Unitary Executive Theory’s Implications for “Just Saying No”

I would be remiss not to note that the some public law scholars, advocating a “unitary executive theory,” have essentially argued that the president must be able to personally direct the work of subordinate executive-branch 37 39

Id. at art. II, § 2, cl. 2. 38 Rosenberg, supra note 23, at 689. Froomkin, “In Defense,” supra note 23, at 800–1 (arguing that the opinions clause refutes the inference that the president should enjoy plenary power over all executive-branch officers and asking “[i]f the President has so much control over the executive that he can fire at will, why put the power to request written opinions in the Constitution?”); Rosenberg, supra note 23, at 689–90 (“A broad reading of the Take Care Clause would have the effect of reducing the Opinions Clause–which appears among the grant of major presidential powers in section two–to surplusage.”).

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officers. For example, Professor Steven G. Calabresi has argued that “[t]he President could not possibly be said to have all of the executive power in order to be able to take care that the laws be faithfully executed if he could not tell his subordinates what to do.”40 Adherents of this theory of executive power believe that “the President alone possesses all of the executive power and that he therefore can direct, control, and supervise inferior officers or agencies who seek to exercise discretionary executive power.”41 The implications of this construction of presidential authority are quite significant; as Calabresi notes: “It renders unconstitutional independent agencies and counsels to the extent that they exercise discretionary executive power.”42 In a similar vein, Professor Saikrishna Prakash has argued that “[w]henever an official is granted statutory discretion, the Constitution endows the President with the authority to control that discretion.”43 Thus, “even if a statute grants discretion to the secretary of state and explicitly prohibits presidential intervention in the decision-making process, the president retains the constitutional authority to substitute his own judgment for the secretary’s determination.”44 Indeed, Prakash is particularly emphatic in his view that “Congress, however, has gone beyond its established role and has vitiated several decisions of the Constitutional Convention.”45 In particular, Congress has (1) “resuscitated the plural executive in the form of independent agencies,” (2) “splintered responsibility for execution of federal law among numerous agencies,” and (3) “established independent administrative officers”46 – all decisions that Professor Prakash views as patently unconstitutional. In his view, these developments have rendered Article II’s vesting and faithful execution clauses mere “nullities.”47 Thus, the unitary executive theory, at least in its strongest iteration, would result in the nullification of all limits on presidential control of independent executive-branch agencies that exercise 40 42

43 44

45

Calabresi & Rhodes, supra note 26, at 1207. 41 Id. at 1165. Id. at 1165–6 (emphasis in the original). To be clear, the advocates of the unitary executive do not argue that the president may order a subordinate to refuse to perform a mandatory ministerial task. See id. at 1166 n. 53 (“The unitary executive debate concerns only presidential control over discretionary exercises of executive power by subordinates.” (emphasis in the original)). Prakash, supra note 26, at 992. Id.; see also Calabresi & Rhodes, supra note 26, at 1165–6 (describing the “strong form” of the unitary executive theory and positing the legality of direct presidential usurpation of duties delegated to another executive-branch entity, such as the Federal Trade Commission, or by parity of logic, the Federal Reserve Bank). Prakash, supra note 26, at 1016. 46 Id. 47 Id. at 1017.

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policy-making authority, such as the Federal Communications Commission or the Federal Reserve Bank of the United States. The vesting and faithful execution clauses serve as the linchpin of unitary executive theories. The argument posits that unless the president can personally direct the decisions of executive-branch officers, he may not plausibly be said to enjoy the full executive power nor may he ensure that subordinates faithfully execute federal laws.48 Professor Prakash argues that “[t]he Framers did not labor over the executive’s duties under the Take Care Clause merely to create a glorified busybody who could only look over the shoulders of others to determine if they were faithfully executing federal law.”49 Instead, “[t]he Framers wanted the President to execute the law; in the Constitution, no other officer is so charged.”50 The implications of the unitary executive theory for post-New Deal administrative agencies would be quite remarkable: If the Framers wanted the President to execute federal law, may Congress (consistent with original intent) create administrative agencies that execute federal law without presidential supervision and control? The answer is no. The choice of who is constitutionally responsible for executing federal law was made in Philadelphia.51 Thus, under the strongest iteration of the unitary executive theory, the president must have the power to appoint and directly control all persons working within the executive branch of the federal government. Consistent with this approach, it would be quite impossible for a cabinet secretary to refuse a presidential order – under this theory of presidential power, Secretary Powell had a constitutional duty to do whatever President Bush instructed him to do.52 48

49 52

See id. at 1003; see also Morrison v. Olson, 487 U.S. 654, 705 (1988) (Scalia, J., dissenting) (arguing that the vesting clause “does not mean some of the executive power, but all of the executive power”); Calabresi & Rhodes, supra note 26, at 1177–9 (discussing the mandatory nature of the Article II vesting clause and that the vested executive power belongs to the president alone). Prakash, supra note 26, at 1003. 50 Id. 51 Id. Calabresi & Rhodes, supra note 26, at 1165; Prakash, supra note 26, at 1003; and Miller, supra note 26, at 44, 97 (arguing that the President may issue binding instructions to members of independent federal agencies and, if the agency ignores those orders, may fire agency members for insubordination). As Professor Miller states the matter, “[a]lthough the President cannot personally take the action necessary to implement a statutory authority vested in particular agencies, the President can make his or her views known to the agency official and can remove the official if the ultimate decision is contrary to the President’s instructions.” Id. at 97. The distinction turns on whether the president can constitutionally force a subordinate to work his will or whether the president may give instructions to subordinates, but discharge them if they fail to implement his directives.

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There are obvious and powerful objections to the unitary executive theory of presidential authority. Professor Lawrence Lessig, assuming the relevance of original intent for the sake of argument (but also noting that its relevance is a highly contestable proposition), nevertheless found multiple examples of limited presidential control of executive officers in the early years of the Republic.53 Based on this evidence, Lessig posits that “the practice of the executive in the early republic was inconsistent, or at least in tension, with the unitarian’s claim that the executive possesses an inherent power to direct and control all inferior officers.”54 Moreover, at a more practical level, it is clear beyond peradventure that the Supreme Court has not, and probably will not, adopt the unitary executive theory of presidential control of the executive branch; on the contrary, the Court has gone out of its way to sustain limits on direct forms of presidential control of executive-branch officers (even prosecutors).55 Moreover, the Justices have not drawn any distinction between discretionary duties and ministerial tasks when examining statutes that vest discretionary powers with executive-branch officers not subject to direct forms of presidential control; existing constitutional law plainly permits Congress to vest executive authority in independent agencies and commissions without transgressing the separation of powers. Thus, one simply cannot square the model of plenary presidential control over the executive branch advocated by proponents of the unitary executive theory with the controlling Supreme Court precedents on point. Why then has so much ink been spilled in pursuit of the unitary executive theory? Lessig plausibly argues that “[u]nitariness is our focus because we have come to believe that unitariness (as we have come to understand that notion) was essential to the Framers’ design.”56 In other words, because modern constitutional scholars assume a unitary executive as a baseline, we seek out confirmation of that assumption when reading the historical and legal record. As he puts the matter, “We believe the Constitution is unitarian, so we see unitarianism in all things the Framers did. Believing is seeing.”57 From a textual perspective, the unitary executive theory has trouble making sense of the opinions clause, which seems to suggest unstated limits 53 55

Lessig, supra note 23, at 182–96. 54 Id. at 196 (emphasis in the original). See supra text and accompanying notes 28 to 39. 56 Id. at 176. 57 Id.

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on the scope of presidential control of subordinates. Supporters of the unitary executive theory have adopted a simple (and expedient) interpretative move to address the opinions clause problem: they simply read the opinions clause out of the Constitution as a redundancy, given the presence of the vesting and faithful execution clauses.58 Professor Prakash takes an even bolder approach, arguing that “the Framers arguably included this provision [the Opinions Clause] to facilitate presidential control of discretion.”59 Under this approach, “[t]he Written Opinions Clause means that the President may ask for the considered opinions of the department heads and implies that the President will make the ultimate decision.”60 In either case, advocates of the unitary executive theory believe that “its text does not impose limits on the President’s power over the executive department.”61 The problem with these arguments is that they rest either on reading the opinions clause out of the Constitution or positing a conclusion as an argument. For example, Calabresi objects that “[t]he President could not possibly be said to have all of the executive power in order to be able to take care that the laws be faithfully executed if he could not tell his subordinates what to do.”62 But this begs the question of the precise mechanism of presidential control over subordinate executive-branch officers; there is nothing inconsistent with positing an ability to request an opinion and to use the answer provided as a basis for pursuing a “for cause” dismissal of the officer in question. Moreover, the ability to monitor and, if necessary, discharge subordinates in no way nullifies either the vesting clause or the take care clause. There is simply no reason to view more circumscribed presidential control over subordinates as fundamentally inconsistent with the framers’ institutional design. It also bears noting that the opponents of the unitary executive theory do not ignore the vesting and faithful execution clauses. For example, Professor 58

59

60

Prakash, supra note 26, at 1004 (noting that some advocates of the unitary executive theory “contend that the Written Opinions Clause is a mere superfluity and not worth serious discussion or attention.”); see also Davies, supra note 26, at 1302 (“The Opinion Clause makes explicit the authority of the President to receive information from his subordinates and to direct their performance of administrative activities, thereby insuring his ability to wield his constitutionally defined powers effectively.”). Prakash, supra note 26, at 1005; see id. at 1007 (“Instead of detracting from the Chief Administrator theory, the clause, interpreted in its full historical context, may actually advance the theory.”). Prakash, supra note 26, at 1007. 61 Calabresi & Rhodes, supra note 26, at 1207. 62 Id.

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Froomkin freely concedes that the President must have the ability to oversee the performance of executive duties; thus, Congress could not remove all presidential oversight of independent administrative agencies,63 nor could it delegate federal administrative power to state government officers or private entities.64 Thus, Froomkin argues that “[i]n some areas, such as foreign affairs, the President has power to remove at will regardless of what Congress may legislate; in other areas, where the enumerated powers are more closely matched, Congress has the power to require ‘cause’ for dismissal but perhaps not more.”65 The real question should not be whether the president enjoys omnipotence over all of his subordinates, but rather whether congressional limits on presidential control over subordinates frustrates democratic accountability over the executive branch. As Froomkin states the matter, “[p]lurality in the executive is suspect when it diminishes democratic accountability.”66 Adoption of a “for cause” standard for discharge enhances, rather than reduces, democratic accountability because “it requires that the President give reasons for a dismissal that can then be examined either by Congress and the people or by a court.”67 A “for cause” limitation on discharge “imposes political consequences for unwarranted dismissals in sensitive domestic offices” and enhances public accountability by “put[ting] the President on notice that Congress and the people will expect a reasoned explanation for personnel changes (and ensuing policy swerves) in critical offices.”68 Like Professor Froomkin, Professor Strauss approaches the question of presidential control over executive-branch personnel from a deeply pragmatic, rather than ideological, point of view. For Strauss, a balance of power between Congress and the president requires that the president enjoy some measure of control over subordinates, including the ability to appoint agency heads, that the agency have a relationship with the president that is “consonant with his obligation to see to the faithful execution 63 64

65

A. Michael Froomkin, “Still Naked After All These Words,” Northwestern University Law Review 88 (1994): 1420, 1432–3. A. Michael Froomkin, “Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution,” Duke Law Journal 50 (2000): 17, 146–50; A. Michael Froomkin, “Reinventing the Government Corporation,” University of Illinois Law Review (1995): 543, 574–6, 608–12. Froomkin, “Still Naked,” supra note 63, at 1432–3. 66 Id. at 1433. 67 Id. 68 Id. at 1434.

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of all laws,” and “the authority to demand written reports of the agency prior to its action on matters within its competence, with the strong implication that consultation if not obedience will ensue.”69 Strauss advocates a “substantial presidential relationship with any agency performing a significant governmental duty exercised pursuant to public law.”70 In sum, “[e]ven the most modest notion of what constitutes executive power suggests that the President must retain substantial lines of communication and guidance.”71 Professor Strauss’s concerns do not lie so much with the framers’ intentions or the Federalist papers, but rather with practical concerns about the wisdom of insulating government policy from any serious form of executivebranch oversight by the president. Congress and the president openly compete for control of federal agencies; if the president could not appoint or remove agency heads; if an agency could refuse to provide the president with information regarding its actions; if an agency could refuse to consider presidential priorities when exercising delegated authority from Congress, the balance of power would shift significantly in favor of Congress calling the shots. “To deny the President that authority would be to deprive him and the public of that responsibility, and effectively to permit the Congress, again, to establish multiple centers of law administration primarily under its control.”72 Thus, Strauss has a powerful normative objection to the unfettered exercise of both legislative and executive power by Congress; this is certainly a concern shared by the framers, but the principal goal is securing sound governance, rather than honoring some hoary and ill-defined original intention of the framers. Presidential oversight of executive agencies, including relatively independent executive agencies, promotes better policymaking and makes government more accountable. The ability to communicate with subordinates and to demand information from subordinates is simply essential to the ability of the president to ensure “faithful execution” of the laws. Thus, even legal scholars who do not generally embrace the broadest iterations of the unitary executive theory would agree that the president must have some measure of control over all executive officers. 69 70

Strauss, “Place of Agencies,” supra note 15, at 640–1; see also Peter L. Strauss, “Overseer or ‘The Decider’–The President in Administrative Law,” George Washington Law Review 75 (2007): 696. Strauss, “Place of Agencies,” supra note 15, at 641. 71 Id. at 642. 72 Id.

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To be clear, I do not endorse or support a genuinely “plural” executive in the sense of a federal executive branch in which multiple free agents implement federal laws and make policy free and clear of any significant presidential oversight. Indeed, I do not know of any legal scholar who would seriously support vesting the implementation of federal law wholly outside the control of the White House.73 The question is whether Congress may vest policymaking in particular hands and attenuate direct presidential control over the exercise of these duties. Attenuated presidential control over the exercise of delegated authority, in the form of powers of appointment and removal (even if limited to “good cause”) adequately vests the president with the executive power of the United States and permits him to ensure “faithful execution” of the laws. If an executive officer is failing to exercise her duties properly, the president may discharge the officer and appoint a more capable replacement – the requirement of giving public reasons for a discharge does not impede or preclude exercise of the president’s removal power.74 Advocates of the unitary executive theory demand greater direct presidential control over all operations of the executive branch, but they cannot 73

74

This could be accomplished in various ways (at least in theory). Congress could enact a federal law, but vest enforcement of the law with state elected officials or state agencies that are entirely unaccountable to the President. But cf. Printz v. United States, 521 U.S. 898 (1997) (holding unconstitutional on separation of powers grounds Congress’s attempt to “commandeer” local law enforcement officers to enforce the Brady Act’s identity check provisions for gun purchases); New York v. United States, 505 U.S. 144 (1992) (holding unconstitutional on separation of powers grounds Congress’s attempt to force state legislators either to join interstate compacts created to provide a shared waste disposal site for the long term storage of locally produced low level radioactive waste or, alternatively, to take ownership of the waste directly via a “take title” default rule for states that fail to join an interstate compact). Alternatively, Congress could vest the enforcement of a federal law in corporate or private hands. But cf. Carter v. Carter Coal Co., 298 U.S. 238, 310–11 (1936) (invalidating delegation of power to implement a federal program to private parties outside the government and describing the arrangement as “legislative delegation in its most obnoxious form; for it is not even delegation to an official or an official body, presumptively disinterested, but to private persons whose interests may be and often are adverse to the interests of others in the same business”). Either mechanism would result in federal law being enforced by a person or entity entirely outside the sphere of presidential control and would therefore be inconsistent with the Vesting and Faithful Execution Clauses. Moreover, this result would hold true regardless of whether one subscribes to the unitary executive theory of presidential powers. See, for example, Froomkin, “Reinventing the Government Corporation,” supra note 64, at 574–7, 608–12; Froomkin, “Still Naked,” supra note 63, at 1431–4. Froomkin, “Still Naked,” supra note 63, at 1432–4 (arguing that the power to remove for cause ensures both presidential control and presidential accountability to the Congress and to the citizenry).

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offer compelling arguments to support their demand of complete, unfettered presidential control over subordinates. As Lessig’s work demonstrates, the framing generation, including both the first congresses and presidential administrations, did not follow this model in structuring presidential oversight of executive-branch operations.75 As Lessig puts it, “[a] picture holds us captive” and “the view that the Framers embraced anything like the unitarianism spouted by the modern unitarians is just plain myth.”76 Importantly, the Supreme Court itself has been presented with multiple opportunities to embrace the unitary executive theory, but has rejected it, by overwhelming margins, with only Justice Scalia embracing – in dissent and alone – the broadest claims of unfettered executive control. In sum, although advocates of the unitary executive theory certainly have developed a plausible conception of the proper scope of presidential authority, their vision is not supported by historical practice, contemporary precedent, or even the text of the Constitution itself. It is at best a plausible, but not compelling, model of the appropriate separation of powers. Accordingly, an executive officer should not feel bound to observe the dictates of the president or resign from office; it would be perfectly lawful, and within existing constitutional traditions, for an executive officer, like Attorney General John Ashcroft, to “just say no” without offering to resign from office.77 At that point, the ball would be squarely in the president’s court: he could accept the refusal and move on or he could remove the subordinate officer (with an expectation that some sort of public explanation would be necessary). III. Speech and Silence Revisited: Could Powell Have Simply “Just Said No?”

Professor Seidman’s analysis of the practical limitations on senior executivebranch officials resigning from office, whether quietly or noisily, raises the important question of practical limits on the ability of executive officers to take actions antithetical to the interests of their presidential patron. As Seidman 75 77

Lessig, supra note 23, at 176–7, 186–96. 76 Id. at 176. Seidman, supra note 1, at 63 (“It might even be in the patron’s interest for the appointee to ignore the patron’s ill-considered orders, as, for example, John Ehrlichman and H. R. Haldeman regularly (but not regularly enough!) did when Richard Nixon gave them outlandish and bizarre directives.”).

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puts it, “[p]ublic resignations violate norms of personal loyalty, trust, and honesty.”78 Moreover, “[a] public attack on the way out the door for decisions made during one’s tenure with information gained because of that tenure is never in the interests of the person attacked.”79 A public attack accompanied by a resignation breaches reasonable expectations of “loyalty, trust, and honesty” and “will often be seen by the patron as disloyal and dishonest.”80 Paradoxically, perhaps, the option of remaining in office but refusing an unreasonable, unlawful, or unconstitutional order risks less public damage to the president, at least in the short term, than a resignation (whether noisy or quiet). Even a quiet resignation is likely to raise public questions about the reasons for the decision to leave, and the timing of a quiet resignation certainly would raise questions that the press would be unlikely to ignore. For example, if during the run-up to the Iraq war, rather than make a factually inaccurate speech to the United Nations Secretary Powell had quietly resigned from office – perhaps citing health or professional reasons – the absence of a press conference would not have seriously attenuated the impact of his resignation. A resignation of any sort would have been damaging to President George W. Bush and his administration’s goal of obtaining global support for a war against Iraq. On the other hand, suppose that instead of either giving the United Nations speech or resigning his office, Colin Powell had instead simply refused to give the speech. I have no doubt that President Bush could have fired Secretary Powell for such an act of insubordination, but it would have come at a tremendous cost to the Bush administration; President Bush would have been required to explain his decision to sack his secretary of state, and the truthful explanation (“Secretary Powell does not believe our administration’s claims about Iraq and weapons of mass destruction”) would have been a public relations disaster. Yet, if a president wishes to impose a policy on a subordinate, he must be willing to use his constitutional power of removal if that subordinate refuses to comply with his wishes.81

78 81

Seidman, supra note 1, at 63. 79 Id. 80 Id. See Myers v. United States, 272 U.S. 52, 163–4, 176–7 (1926) (holding that the Constitution and consistent historical practice give the president the power to remove subordinate executive officers without seeking the approval of Congress); see also Morrison v. Olson, 487 U.S. 654, 691–3 (1988) (holding that power to remove an executive officer from office for “good cause” satisfies separation of powers requirements that the executive powers be vested in the president and that the president ensure faithful execution of the laws).

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It would be mistaken, however, to suggest that rampant insubordination reflects an appropriate model for executive-branch officers; if subordinates routinely ignored presidential directives, the president’s ability to oversee the operations of the executive branch would cease to exist. Independent of any textualist or originalist arguments, securing sound policy and political accountability for government decisions requires that the buck stop somewhere – diffuse and ill-defined executive power would significantly impede any serious effort at securing accountability or coherency in government policymaking.82 Were all executive officers to follow their conscience any and every time they disagreed with the president, chaos would result. Moreover, the removal power will serve as an effective means of securing control only if the president resorts to its use relatively sparingly. The president must rely on subordinates to run the various departments and agencies of the federal government, and he simply could not fire the senior executive political appointees of entire departments. Thus, the threat of removal should serve as an incentive to secure compliance, but its aggressive use would lead to unstaffed positions and a likely paucity of would-be candidates to fill those positions left vacant through presidential removals. Were “just saying no” to become an accepted and relatively commonplace response to policy disagreements with the president, the United States would truly have a plural executive; as a practical matter, the president would not be able to direct the affairs of the executive branch. Instead, the heads of departments and agencies would enjoy de facto control over policy within their jurisdiction. Over time, “just saying no” might also incent presidents to seek candidates who promise to be loyal, even at the price of competence. It is difficult to see the benefits of adopting such an approach to structuring the relationship between the president and his subordinates. All of this suggests, rather strongly, that “just saying no” cannot be a commonplace strategy or one used without great circumspection. Only questions of the highest order could possibly justify intentional insubordination by a presidential appointee. And, yet, even if one accepts these caveats and limitations, the question of war in Iraq would seem to hit this mark – as would the question of whether to authorize torture or a domestic spying program. Even if a presidential appointee, like Secretary Powell or 82

Strauss, “Place of Agencies,” supra note 15, at 640–54.

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Attorney General Ashcroft, has a general duty to accept and implement presidential directives, at some point these officers have an independent duty to the law and to the Constitution itself. Although, as Professor Seidman notes, loyalty usually constitutes a virtue,83 the question of where the duty of loyalty ultimately lies remains an open one, at least in some circumstances. Is Secretary Powell’s highest loyalty to the President? To the Constitution? Or to the rule of law itself? It seems to me that circumstances can and will arise in which the question of loyalty will be quite complex; in which the answer of what a “loyal” subordinate should do will be far from clear. Should Secretary Powell have given a speech filled with what he believed to be untruths? Was this admirable? Should we wish for other executive officers to emulate this behavior? Or would the virtuous decision have been simply to refuse to give a speech that contained materials that Powell believed to be false or unreliable? At the end of the day, Powell held the trump card – and it was probably not resignation. Resignation would simply have led to some hard questions being asked by the press, but the speech, or one very like it, would have been delivered by someone else. The course of action most likely to make a real difference would have been to hold his ground by refusing either to resign or to give a speech Powell deemed untruthful. Just as John Ashcroft neither resigned nor acquiesced in the domestic spying program or the appointment of John Yoo to head OLC, Colin Powell could have stood his ground and dared the President to fire him. It is impossible to know whether this approach might have altered the course of history, but certainly it presented a greater probability of doing so than simply acquiescing in the President’s and Vice-President’s wish that he serve as the mouthpiece of war with Iraq. IV. Conclusion

Neither the Constitution nor our constitutional traditions preclude a presidential appointee from just saying no and refusing to implement a presidential directive that the appointee believes to be unconstitutional, unlawful, or simply misguided. Obviously, taking such a course of action constitutes very strong medicine and meaningful presidential oversight of the executive 83

Seidman, supra note 1, at 62–3, 71–3, 79–80.

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branch could not exist if appointees routinely adopted a “just say no” modus operandi. Nevertheless, in limited circumstances, holding one’s ground might represent a proverbial “third way” that threads the needle between the other options of simply doing as one is told or resigning office in protest. One also should note that we really do not know how often – or how infrequently – appointees just say no. The public press accounts of Attorney General Ashcroft’s refusal to approve a domestic spying program probably represent an unusual circumstance; when a high-level presidential appointee resists a presidential directive, more often than not the general public is not likely to learn about the insubordination. If the president is to maintain control and consistency of the vast federal policymaking apparatus, however, one must hope that such events are infrequent and involve only the most crucial questions of the day (indeed, questions that squarely implicate our most fundamental legal and moral values). In sum, then, Professor Seidman has done a masterful job of mapping out the legal, moral, and political implications of resigning – or not resigning – from public office over a policy disagreement with the president. With that said, however, public law scholarship should probably give greater attention to the option of “just saying no.” Plainly, greater scholarly attention and scrutiny on the legal, moral, and political implications of intentional acts of insubordination would be both useful and necessary in order to evaluate fully and conclusively the practice’s potential costs and benefits. Defining precisely when law, morality, and politics would support holding one’s ground and forcing the president to choose between firing an appointee or accepting an act of insubordination lies beyond the scope of this essay; the phenomenon merits consideration as a plausible “third way” for a highlevel presidential appointee faced with a presidential order that she is not prepared to implement.84 84

It bears noting that my discussion of “just saying no” should be, indeed must be, limited to the very highest political appointees within the executive branch of the federal government. Obviously, low-level employees of the Social Security Administration or the Merit Systems Protection Board must not be free to “just say no” if federal agencies are to honor basic Fifth Amendment due process rights implicating fair and equal treatment. See Heckler v. Campbell, 461 U.S. 458 (1983). One aspect of fundamental fairness is that like cases be decided in the same way. Accordingly, only those with substantial responsibility for making agency-wide policy within a federal executive department or agency could justifiably elect to disregard a binding presidential directive in order to advance higher level values, such as fidelity to the Constitution or the rule of law.

3 Anonymous: On Silence and the Public Sphere Danielle Allen

I. The Public Sphere and the Irrelevance of Silence

Typically, when scholars depict ideal public spheres or analyze real ones, they focus on constitutive patterns of speech and communication, not silence. Thus, for Hannah Arendt: The term ‘public’ signifies two closely interrelated but not altogether identical phenomena: it means, first, that everything that appears in public can be seen and heard by everybody and has the widest possible publicity. For us, appearance – something that is being seen and heard by others as well as by ourselves – constitutes reality. Compared with the reality which comes from being seen and heard, even the greatest forces of intimate life – the passions of the heart, the thoughts of the mind, the delights of the senses – lead an uncertain, shadowy kind of existence unless and until they are transformed, deprivatized, and deindividualized, as it were, into a shape to fit them for public appearance . . . . Second, the term ‘public’ signifies the world itself, in so far as it is common to all of us and distinguished from our own private place in it . . . Such a common world can survive the coming and going of the generations only to the extent that it appears in public. It is the publicity of the public realm which can absorb and make shine through the centuries whatever men may want to save from the natural ruin of time.1 In Arendt’s account of action, we can know what is common to us as a community only through speech – that is, acts of disclosure that make things intersubjectively real for diverse human individuals. Politics is a 1

H. Arendt, The Human Condition (Chicago: University of Chicago, 1989 [1958]), 50, 52.

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domain of action and speech. There is no place for silence.2 For Arendt, what is silent is private, and “the sacredness of this privacy was like the sacredness of the hidden.”3 What is enveloped in silence comes near to not existing at all. The same is true in Jurgen Habermas’ work. He takes his basic account of the public sphere fairly directly from Hannah Arendt, even paraphrasing long sections of the Human Condition (compare pages 3–4 from Structural Transformation with pages 24–37 and 58–67 from The Human Condition). But he puts even more directly the point that the public sphere is defined by speech: We are dealing with categories of Greek origin transmitted to us bearing a Roman stamp. In the fully developed Greek city-state, . .. [t]he public life [bios politikos], went on in the market place (agora), but of course this did not mean that it occurred necessarily only in this specific locale. The public sphere was constituted in discussion (lexis), which could also assume the forms of consultation and of sitting in the court of law, as well as in common action (praxis), be it the waging of war or competition in athletic games.4 In these and other standard accounts of the public sphere, silence is typically represented as unproblematic or, more likely, irrelevant. This paper will run the other direction, taking up the burden of investigating what we can learn about the public sphere – whether as aspirational ideal or real political phenomenon – by attending to silence. I will begin generally by exploring, in the first half of the paper, some examples of efforts to conceive of the public sphere with reference to silence instead of speech. This will lead to a re-conceptualization of the public sphere not as a space apart from and distinct from the private sphere but rather as a set of rituals or common practices that determine how private and public systems of meaning relate to each other. Are private and public truths in alignment with each other? Are they in contradiction with one another? When they are in contradiction with one another, how are those contradictions processed, or not? Within the framework of such questions, a

2 4

Ibid, 50–5. 3 Ibid, 62. J. Habermas, The Structural Transformation of the Public Sphere, trans. T. Burger with F. Lawrence, (Cambridge, MA: MIT Press, 1996 [1962]), 2–3.

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variety of forms of communication emerge as politically relevant that have previously been ignored within analyses of the public sphere. After having made a preliminary sketch in the first half of the paper of a modified approach to the study of the public sphere emerging from a focus on silence, I will turn in the paper’s second half to consider one kind of communication that becomes newly salient under such analyses: anonymous discourse. Anonymous speech is not silent generally but it is silent on the subject of authorship, a silence that brings with it a host of questions about citizenship and political communication not easily answered within conventional treatments of the public sphere. The re-conceptualization of the public sphere around silence, instead of speech, provides the tools necessary for grasping the political significance of anonymous speech. And a clear view of the role of anonymous speech within the public sphere will lead us to identify commonly neglected areas of the communicative domain that are nonetheless crucial to the health of democratic public spheres. The issue of anonymous speech should, in other words, provide a good example of how framing analyses of the public sphere around silence as well as speech will disclose blind spots in our current understanding of both ideal and real public spheres, and lead us to identify necessary political work.5 II. The Silent Public Sphere: Utopia

The public sphere can indeed be conceived in relation not to speech but to silence. I’ll offer two examples from antiquity – one utopian, the other dystopic – beginning with the utopian view of a public sphere constructed out of silence. At least two ancient Greek law-givers, Zaleucus and Charondas, were said to have established the following strict code concerning political speech: if a citizen wished to propose a revision to a law, he had to do so with his head in a noose; if the proposed revision found favor, it would be passed and he would leave with his life; if not, he would be executed immediately. As a consequence of this law, described by Diodorus Siculus as obtaining in Thurii, “Not a man dared to utter a word about 5

A commitment to democratic politics frames the analysis; I employ that commitment here without argument but see D. Allen, Talking to Strangers (Chicago: University of Chicago Press, 2004) for the argument.

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revising laws.”6 The second city to which the law was attributed was Locri. There it was said to have resulted in only one change to the laws over a period of more than two hundred years: when a man who was blind in one eye had put his head in the noose to propose that a man who blinded a oneeyed man should not lose one eye merely – on the eye-for-an-eye principle – but both eyes, on the argument that only the latter punishment would return to the doer the full consequences of his deed. The Athenian orator, Demosthenes, for instance, invoked this law to express admiration for the conservatism of a political system built, in contrast to Athens, out of silence.7 These laws of Zaleucus and Charondas, whether real or not, capture the utopian hope that the sounds in the public sphere might be limited to useful ones. These lawmakers had, supposedly, found a procedure to balance the costs and benefits of public speech so finely as to constitute public spheres characterized by vast reaches of silence interrupted only by clearly valuable or plainly reasonable speech. The speech of the one-eyed man is not merely a rare event. It is also self-evidently, even mathematically, sensible. His argument is essentially that a law prescribing the loss of one eye for the loss of one eye, does not concern integers, nor require an exchange of 1 for 1, but concerns proportions or percentages, and requires 50 percent of vision in exchange for 50 percent; and that therefore when the crime inflicts a 100 percent loss of vision, the punishment too should impose a loss of 100 percent. (One could also describe the proposal as advocating a shift from Aristotelian arithmetic justice, where everyone gets the same absolute quantity of something, to Aristotelian geometric justice, where everyone gets an amount of something in proportion to his need for it). Because the one-eyed man’s proposal is mathematically neat, there’s not much to argue about after we hear it. But this sort of reasonableness is also trivial. We see, therefore, that the silence, which we are to imagine as ruling in the cities of Locri or Thurii, consists not only of the limited frequency with which proposals for change will emerge but also of the minimal debate likely to follow the proposal. In the ideal speech situation as envisioned in this proto-Orwellian law, no argument is necessary; reason carries the day through the force of the silent recognition of 6

7

Diodorus Siculus, Library 12.21; Demosthenes, Against Timocrates 139–43. See also F. E. Adcock, “Literary Tradition and Early Greek Code Makers,” Cambridge Historical Journal, Vol. 2, (1972), No. 2, 95–109. Demosthenes, Against Timocrates, 139–43.

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self-evident truths. In this utopian public sphere, all enunciations are useful, reasonable, and plainly (if trivially) truthful. The utopian hope made manifest in this law – that the public sphere will be constituted entirely out of useful or plainly reasonable speech, while silence otherwise obtains – actually flows from two realistic sociological observations. First, there is the point that: “Silence is surely not the absence of sound – aren’t there always at least rattling leaves, scratching pens, and purring hard drives, or one’s own heart – silence must more particularly be the absence of voices that summon our attention.”8 Indeed, the relative frequency with which citizens receive summons for attention from one another has real political consequences, and these laws of Zaleucus and Charondas clearly present a method for reducing not only the frequency but also the power of such summonses. Not only does the law cultivate a general pre-emptive silence in the city, but its procedures provide for the immediate silencing – by a swift hanging – of any problematic challenger. As I’ve written in relation to Franz Kafka’s “In the Penal Colony”: Punishment seeks to control not merely the body in the one case and the soul in the other, but always the voice. The condemned are those and only those who have exhausted their appeals, their calling out, or, [who] as in ‘In the Penal Colony,’ have been prevented from calling out at all. They are permitted no defense and are denied even the opportunity to cry out. Their conviction stands, and with it the regime’s narrative of who and what they are. Only silence can secure the meaning of a punishment, which always at some level means “a final answer.” Silence must therefore fall on a punishment if it is to succeed. (Emphasis in original.)9 These laws of Zaleucus and Charondas, with their ominous ever-ready noose, thus forthrightly acknowledge this first sociological point that political authority is inevitably constructed out of moments of silence and appeals ceased. By focusing our attention on silence in this way, the laws of Zaleucus and Charondas force us to see that, to the degree that a public sphere contributes to sustaining political authority, it develops rituals to close conversation as well as to foster it. Such rituals don’t come in for much analysis in the work of Arendt and Habermas but deserve direct attention. A final public meaning, whether 8

D. Allen, “Sounding Silence,” Modernism/Modernity, vol. 8, no. 2, (2001): 332.

9

Id. 331.

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momentary or enduring, depends on someone’s silence, also either momentary or enduring. Rituals of closure therefore reveal that the public sphere consists of institutions, practices, and habits that weld public and private meanings together, joining something spoken out loud and broadly memorialized to something silenced. But what will be the ongoing relationship between that final public meaning and the private silence that secures it? Do they harmonize? Are they in permanent contradiction to one another? Or will the private silence evolve once more over time into public speech as part of a process moving toward a newly final moment of public meaning sutured to some new private silence? A comprehensive understanding of the public sphere, whether ideal or real, requires seeing it as a set of rituals or common practices that determine the nature of the relationship between private and public systems of meaning.10 One might organize a research project to track methods for closing conversations in different political orders with a view to understanding the varieties of public sphere in existence, and the different types of relationship each establishes between public and private meanings. The second sociological point lying beneath the utopian hope lodged in the laws of Zaleucus and Charondas has to do with change. When Demosthenes describes the law, he does so expressing admiration for the fact that it has made the Locrian legal system stable. In Locri, thanks to Zaleucus’ law, only one law had been changed in 200 years, as we have seen, at the proposal of the one-eyed man; in contrast to Locri, against which Demosthenes sets Athens in a disadvantageous light, there is freedom of speech in Athens, and so the laws change all the time, Demosthenes complains. He further criticizes his fellow orators for even trying “arbitrarily [to] repeal the well-tried laws of Solon.”11 Demosthenes’ analysis of the law presumes that the relative quantity of speech and silence in a public sphere relates directly to rates of social and political change experienced by that community. Here is the second sociological observation: the more speech and less silence, the greater the likelihood that laws will be frequently revised. The less speech and more silence, the more one can count on the conservatism of a legal regime. There’s something to this point in that 10

11

In contrast to a Hegelian analysis that might focus on a dialectical tension between public and private meanings, and anticipate an emergent synthesis, my argument treats the tension as permanent so that the interesting question about the public sphere is the diversity of possible types of relation between private and public systems of meanings. Demosthenes, Against Timocrates, 139–43.

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Athens – which was famous for its idealization not just of rights of speech but of frank speech or parrhesia, saying any and everything – was also famous for the rapidity of its social and technological changes.12 There is much more to say about this issue of the relation between speech–silence ratios and rates of social change, but we’ll first have to consider a dystopic picture of a public sphere built out of silence. III. The Silent Public Sphere: Dystopia

Dystopic public spheres built out of silence are a frequent subject of analysis in Greek tragedy. One has only to remember the famous, pitiable watchman in Aeschylus’ Agamemnon, who laments that “an ox stands on his tongue,” a line that Hamlet repeats, of course, and that continues to echo in literature as in Zora Neale Hurston’s Their Eyes Were Watching God, where it migrates from public to private sphere: She got up that morning with the firm determination to go in there and have a good talk with Jody. But she sat a long time with the walls creeping in on her. Four walls squeezing her breath out. Fear lest he depart while she sat trembling upstairs nerved her and she was inside the room before she caught her breath. She didn’t make the cheerful, casual start that she had thought out. Something stood like an oxen’s foot on her tongue, and then too, Jody, no Joe, gave her a ferocious look. A look with all the unthinkable coldness of outer space. She must talk to a man who was ten immensities away.13 Of all Greek tragedies, the play that most explicitly thematizes a dystopic public sphere constructed out of silence is the Antigone. You’ll remember the story. After Oedipus goes into self-imposed exile, his two sons are to take turns ruling the city of Thebes, each for a year, before handing rule back to the other sibling. Eteocles holds the throne first, and at the end of the year, refuses to cede it; Polyneices attacks the city, his own home, in order to win the throne.14 Both brothers die in the field, killing each other, and Oedipus’ 12 13 14

J. Ober, “The Rules of War in Classical Greece,” in The Athenian Revolution (Princeton: Princeton University Press, 1996), 53–71. Z. Hurston, Their Eyes Were Watching God (Urbana: University of Illinois Press, 1991 [1937]), 102. Anyone who wishes to argue that brotherly love should be the model for political interaction needs to remember this case of brotherly love and the excessive kinds of rivalry experienced by siblings. See D. Allen, Talking to Strangers (Chicago: University of Chicago Press, 2004), 125–6.

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brother Creon succeeds to the throne and inherits guardianship of Oedipus’ two daughters, Antigone and Ismene. Just before the play opens, Creon has decreed that while Eteocles is to be given full funerary honors, Polyneices, as a traitor and enemy to the city, should be left unburied. The play opens as Antigone determines to bury her brother despite the decree. She acts, and her uncle sentences her to death by imprisonment without food in a cave; her cousin and fiancé, Haemon, son of Creon, is unable to convince his father to relent. As in the laws of Zaleucus and Charondas, a noose marks the climax of this play and defines the public sphere. Led off to her doom, Antigone hangs herself in the cave. Her death is accompanied by several other events that happen in quick succession. Shortly before she hangs herself, the chorus make the case to the previously unpersuadable Creon that he should both release Antigone and bury Polyneices. Creon accedes but he does not quite follow the chorus’ instructions. Leaving in haste, he goes first to bury Polyneices and, only after completing what should have been the second task, does he head to Antigone’s cave to release her. His error means he comes too late. As he approaches her cave, he hears an unintelligible, piercing cry (literally: “the untombed/meaningless sounds of a bitter cry” (τῷ δ᾽ ἀθλίας ἄσημα περιβαίνει βοῆς/ ἕρποντι μᾶλλον ἆσσον)). As the herald reports the scene, Creon then wails, “My son’s voice greets me . . . . Is that the voice of my son that I hear?”15 The unintelligible, piercing cry is indeed the voice of Haemon, for the son has just discovered Antigone’s corpse and cried out in agony. As his father appears, just too late to save Antigone, Haemon charges at him with a sword and then turns the sword on himself fatally. By the time Creon gets back to town after his son’s horrid death, his wife has already heard the news and killed herself too. Creon is a ruined man. The title of the play, Antigone, was not given by Sophocles himself but attached to the play as part of the tradition of reception, no doubt because Antigone is the most unusual and so most intriguing character in the play. But the structure of the play indicates that Creon is the main character. He is in the play from start to finish while we lose Antigone about two-thirds of 15

Sophocles, Antigone, 1210–20. All translations of the Antigone are from Sir Richard Jebb, Sophocles. The Antigone of Sophocles. Edited with introduction and notes by Sir Richard Jebb. (Cambridge: Cambridge University Press, 1891). Translations have been modified by the author.

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the way through. It is he who suffers a great fall, a moment of instantaneous and excruciatingly painful recognition, and a total transformation of his life. Antigone never changes. And the climax of the play is when Creon says: “Is that the voice of my son I hear?”16 The word he uses for “I hear” (suniemi) also means “to recognize” or “to understand.” This is the first moment that Creon has understood anything. Indeed, from start to finish the play has proceeded through a series of arguments in which Creon refuses to listen and in which his interlocutors – the guardsman, Antigone, Haemon, and Teiresias – all criticize him for that failure and underscore the extremes of silence that obtain in the city. Here is the exchange with the guard, for instance: Guard: Creon: Guard:

Will you allow me to speak? Or shall I just turn and go? Do you not know even now how much your voice sickens me? Is the pain in your ears, or in your soul?17

Or with Antigone: Antigone: How could I have won a nobler glory than by giving burial to my own brother? All here [i.e. the chorus, representing the city elders] would admit that they approve, if fear did not grip their tongues. But tyranny, blest with so much else, has the power to do and say whatever it pleases. Creon: You alone out of all these Thebans see it that way. Antigone: They do, too, but for you they hold their tongues.18 And Haemon, too, makes the point that his father badly misperceives the shape of public opinion because he does not hear, and lives enveloped by silence: Father, the gods implant reason in men, the highest of all things that we call our own. For my part, to state how you are wrong to say those things is beyond my power and my desire, although another man, too, might have a useful thought. In any case, it is my natural duty to watch on your behalf all that men say, or do, or find to blame. For dread of

16

17

ἆρ᾽ εἰμὶ μάντις; ἆρα δυστυχεστάτην / κέλευθον ἕρπω τῶν παρελθουσῶν ὁδῶν; / παιδός με σαίνει φθόγγος. ἀλλὰ πρόσπολοι, / ἴτ᾽ ἆσσον ὠκεῖς καὶ παραστάντες τάφῳ / ἀθρήσαθ᾽, ἁρμὸν χώματος λιθοσπαδῆ / δύντες πρὸς αὐτὸ στόμιον, εἰ τὸν Αἵμονος / φθόγγον συνίημ᾽ ἢ θεοῖσι κλέπτομαι. (Id. 1212–18). Id. 315–17. 18 Id. 502–8.

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your glance forbids the ordinary citizen to speak such words as would offend your ear.19 Only when Haemon’s voice rises from the tomb, bewailing the hanged Antigone with “the untombed meaningless sounds of a bitter cry” (τῷ δ᾽ ἀθλίας ἄσημα περιβαίνει βοῆς/ ἕρποντι μᾶλλον ἆσσον), does Creon finally hear.20 Moreover, it is voice itself without any particular content that Creon finally cognizes; the Greek word for meaningless, “asema,” means without any markers or any indications of meaning. The word also means “untombed.” Haemon’s cry is pure sound; it is pure life. Antigone’s substantive arguments, which Creon was unwilling to hear, were silenced by her death; now Haemon refuses to accept the authority of his father that is to be constructed out of Antigone’s silence and so untombs voice itself, as a counterforce to established political authority. In this play, the noose serves not to limit public speech but to bring it to such a pitch of intensity that the autocrat at last hears it – if too late. This helps us to see that the laws of Charondas and Zaleucus conveyed a second utopian hope, not merely that only truthful, useful, plainly reasonable speech will emerge in the public sphere but also that the “powers that be” will hear what they need to hear in a timely fashion. In order to make effective practical judgments, political authorities need accurate assessments of what people think and therefore need to avoid two phenomena that corrupt perceptions of the shape of public opinion: “pluralistic ignorance” and “spirals of silence.”21 In the literature of political science, pluralistic ignorance designates the fact that, when real views go unvocalized, people tend to assume that others agree with them, which results in misperceptions concerning the actual spread of public opinion. And a spiral of silence designates the phenomenon by which increasingly uneven patterns in the vocalization of views also provide citizens with false data about the actual spread of opinion. D. Garth Taylor describes this second phenomenon thus: If the individual discovers he agrees with the prevailing view it boosts his self-confidence and enables self-expression without the danger of social isolation. If he finds his views are losing ground he will become 19 21

Id. 683–91. 20 Id. 1210–11. D. Garth Taylor, “Pluralistic Ignorance and the Spiral of Silence: A Formal Analysis,” The Public Opinion Quarterly, Vol. 46, no. 3, (1982): 311–35.

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more uncertain and therefore less inclined to express his opinion to others. These different patterns of behavior influence others’ quasistatistical pictures of opinion. The tendency of one to speak up and the other to remain silent starts off a spiraling process which increasingly establishes one opinion as the prevailing one.22 Both of these problems reflect core features of silence as a mode of communication. The trouble with silence – what makes it politically difficult to make sense out of – is that it can mean either yes or no.23 A clear example of silence’s equivocal meaning can be found in the difference between the handling of a right to silence, or non-self-incrimination, in the British and American cases. In the British case, juries are permitted to draw adverse inferences when defendants invoke the right to silence; in the American case, they are instructed not to do so.24 Both pluralistic ignorance and the spiral of silence result from errors in how individuals interpret the silence of others: taking as affirmative a silence that is in fact negative, in the first case; or taking as negative a silence that may be affirmative, in the second. Novelist and essayist Ralph Ellison recognized the great significance of silence’s equivocal meaning, and of the sorts of cognitive errors it tends to generate. In his novel, Invisible Man, the anonymous black protagonist is encouraged by his grandfather to deal with the white power structure by living “with your head in the lion’s mouth. I want you to overcome ’em with yeses, undermine ’em with grins, agree ’em to death and destruction, let ’em swoller you till they vomit or bust wide open. Learn it to the young-uns.”25 The old-man’s relatives think he’s lost his mind but in fact he is making a remarkably astute sociological observation. Affirmative silences stabilize the status quo but if powerholders take silences as affirmative or acquiescent when in fact they are negative and resistant, powerholders will develop significant misperceptions of the realities they inhabit until the misalignment between their perceptions and reality becomes so great as to reach a breaking point, and their capacity to act in the world, their power, simply gives way. Silence, or fake acquiescence, can serve as a political weapon when it is used to mislead powerholders about the truth of their situation; 22 24 25

Id. 314. 23 Allen, (2001): 327. D. Seidmann, “The Effects of a Right to Silence,” The Review of Economic Studies, vol. 72, no. 2, (2005): 593–4. R. Ellison, Invisible Man (New York: Vintage Books, 1995 [1952]), 16.

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not knowing the truth of their situation, they will fail to make sound practical judgments about it. This sociological observation is at the heart of some of the most trenchant observations about the sudden collapse of the autocratic regimes of the former Soviet bloc in 1989 and the years immediately following. In an initial phase, silence provides what looks like stability. Historian and political scientist Josiah Ober describes the relevant situation thus: [A deep political] problem arises when many prefer a cooperative equilibrium different from the current one but remain ignorant of others’ preferences and intentions. This can be exemplified by the “despised but stable dictatorship.” Most of the dictator’s subjects would be willing to assume some personal risk to get rid of the dictator, but the action threshold for each remains too high until and unless each potential actor has good reason to believe that others will act in concert with her. Because each lacks that good reason, due to an absence of common knowledge regarding preferences and intentions, all stay quiet and the dictator remains in power.26 But the very same silence also provides for the development of conditions that increase the likelihood of revolutionary, instead of evolutionary, change. As the events in eastern Europe in 1989 made clear, autocratic situations can transform with startling speed when there is a sudden emergence of common knowledge arising from sudden publicity after a long period of communal silence.27 Contra Demosthenes’ praise for the conservatism of Locri, political situations where authority is established through, and a public sphere is constructed out of, silence would be better understood as situations not of stability but of blockage and paralysis, susceptible to rapid, radical change.28 26

27 28

J. Ober, Democracy and Knowledge, (Princeton: Princeton University Press, 2008), 11; see also 177: “The lack of common knowledge, resulting from a failure of publicity in respect to preferences and commitments, can therefore be fatal to the capacity of a community to act in a coordinated fashion to gain ends that all believe to be desirable and that are in fact achievable. This phenomenon helps to explain, for example, the survival of widely despised autocrats, just as the sudden emergence of common knowledge can help explain their sudden overthrow,” citing T. Kuran, “Now Out of Never: The element of surprise in the East European revolution of 1989,” World Politics (1991): 44:7–48; Private Truths, Public Lies: The Social Consequences of preference falsification, (Cambridge: Harvard University Press, 1995). Id. One could usefully analogize such political effects to Freud’s models of the consequences of psychological repression.

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Creon fails to hear what he needs to hear not simply because he doesn’t take on board the arguments of particular characters like Antigone, Haemon, and Teiresias, but also because he takes the formal silence of the general population – “dread of your glance forbids the ordinary citizen to speak such words as would offend your ear” – as an affirmative silence indicating agreement with him. This is his undoing. Because he misjudges the strength of the disagreement marshaled around him, he misunderstands the likely consequences of his actions. The speed of Creon’s downfall nicely symbolizes the speed with which a regime of silence can collapse on itself, specifically because over time it has become a regime based on pluralistic ignorance. We can presume that Haemon’s death stands in symbolically for social costs Creon could expect to suffer with respect to the general population also. We can now add another element to our revisionist account of the public sphere. Insofar as the public sphere comprises a set of rituals or common practices that determine the nature of the relationship between private and public systems of meaning, the public sphere is also an apparatus built by humans for managing social change. Will change be steady and evolutionary? Will it instead arrive as radical, rapid eruptions puncturing long stretches characterized by minimal change? Arendt addresses the relevance of temporality in the public sphere by arguing that the public sphere provides citizens the context for securing immortality: “It is the publicity of the public realm which can absorb and make shine through the centuries whatever men may want to save from the natural ruin of time.”29 But the public sphere is an instrument with which human beings confront the challenges of temporality at a more fundamental level: with their different varieties of public sphere, human beings make different kinds of time. Time is, in other words, not only given to us by the laws of physics but also made by us. The idea is that time (in the social world) arises from how change is organized. A fundamental difficulty in the efforts of social scientists to understand social change lies in our failure to recognize that the temporality we study is in fact a different phenomenon than that which is measured by clocks. Social time does slow down and speed up; it runs backward as well as forward, as the ancients had claimed in myths.30 29 30

H. Arendt, (1989 [1958]), 52. D. Allen, “Time’s Fluidity: on the elasticity and regularity of time in ancient Greek thought,” Daedalus, (2003).

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Before we turn away from the Locrian noose as a utopian symbol, ugly as it is, we can offer a third and final refinement of our interpretation of this symbol, and also of the idea of the public sphere. The noose stands in for the fact that communication in the public sphere is always mediated by institutions and procedures that establish the costs and benefits of political expression. To study the public sphere, then, must always be a matter of analyzing institutions, as well as discourse. As we have seen, the symbol of the noose conveys at least two of the utopian hopes that we implicitly lodge in such mediating institutions: (1) that they will permit the entrance into the public sphere only of reasonable, useful, truthful speech, and (2) that they will allow the powers that be to hear what they need to hear in time. But taken together, these two hopes arise from a deeper wish that it might be possible to construct a set of institutions that convert silence into speech in ways that accurately represent the shape of public opinion so that the public sphere might be free of all of silence’s equivocations. As if one might build a faucet just so and turn on a tap, and get a clear, bright stream of something called public opinion. One hopes not merely for the purity or reasonableness of what is expressed in the public sphere but also to avoid muddying silences. These carry the danger that private truths and public accounts will pull apart from one another profoundly, leaving societies vulnerable to dizzying periods of change. A comprehensive analysis of any particular public sphere, then, would involve study of how institutions (including informal but durable cultural practices) organize or manage change where this work is understood as a matter of how public and private systems of meaning are brought in relation to one another over time.31 What, then, has our attention to silence – and to utopian and dystopic accounts of public spheres constructed out of silence – added to our resources for understanding the public sphere? Silence helps shape the public sphere but is an equivocal mode of communication. Interpretable as either yes or no, silence as well as speech establishes the patterns, content, and structure of the public sphere. This is why, for all the opinion polling that precedes an election, it is still possible sometimes to be surprised by the outcome of the vote itself; we never try to measure the silences but they also 31

The debate within political theory in the 1980s between liberalism and communitarianism could profitably be re-described as a disagreement about how much distance can be maintained over time between private and public meanings; liberals mean to secure such distance; communitarians argue for the impossibility of doing so.

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are meaningful. But perhaps the most important function of silence is to trail along, like a shadow, to each and every public meaning that emerges from a ritual of closure. In managing the relationship between speech and silence, the institutions of the public sphere constantly weave public and private systems of meaning into one or another kind of relationship to one another. And these relationships between public and private systems of meaning, whether of alignment or misalignment, harmony or discord, proximity or distance, establish, I propose, the temporal dynamics of that society. We have identified some utopian hopes that affect efforts to engineer the structure of the public sphere, in particular and most fundamentally, the hope that we might find a cost–benefit framework for public speech that would in fact ensure that only reasonable political speech enters the political domain.32 This is also a desire to make social temporality fully regular and predictable. But the utopian examples of the laws of Zaleucus and Charondas should make clear how extreme, how unacceptable, how futile are both these hopes. And if such a precise calibration of discourse and such a regularization of social temporality are impossible, we are better off trying to learn which sorts of relationships between private and public systems of meaning, which sorts of rituals for opening and closing conversation, and which sorts of methods for identifying and interpreting publicly meaningful silences give us the best prospects for securing a sustained democratic flourishing. There is much theoretical work to be done here because our main guides to thinking about the public sphere – again I mean Arendt and Habermas, but we could also include Rawls – present and analyze highly reasonable, entirely vocalized public deliberations. A research program that progressed in this other direction – moving from silence to an idea of the public sphere – would, in contrast, need to explore precisely those types of communication that produce problems for conventional distinctions between private and public forms of discourse. One might here take up a range of 32

A contemporary version of such a utopian hope was recently expressed by a British journalist, in response to furor over the use by Carol Thatcher (daughter of Margaret) of a racial epithet: “I’m surprised they’ve [the Commission on Equality] not said anything at all, as it’s something that’s occupying the thoughts of quite a few people across the nation. Racist comment falls within their remit, and you’d have thought they’d maybe make a comment that racist language of any sort is something that shouldn’t happen in Britain in 2009.” In D. Smith, “Equality chief blasted over race row: Trevor Phillips attacked for failure to speak out over Carol Thatcher ‘golliwog’ furore,” The Observer, February 8, 2009.

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topics – from hate speech, to religious speech, to speech concerned with sexuality, to speech emerging out of secret societies, to the speech of linguistic minorities – but in this paper, my target of choice will be anonymous speech. I will return again to our dystopic public sphere, the one presented in the Antigone. In addition to helping us toward revisions to the idea of the public sphere, the play provides resources for thinking about anonymity, which will itself launch us toward a further extension of our understanding of the components of a successful democratic public sphere. IV. Between Silence and Speech: A Dark, Silent Word

Anonymous speech is a hard phenomenon to pin down analytically. Like other forms of speech, it can be good or bad, true or false, reasonable or unreasonable. The anonymous speech of a whistleblower who checks corruption is invaluable; the anonymous speech of the slanderer, in contrast, is an object of condemnation from Greek tragedy to the Old Testament and Chinese memorials. Anonymity reduces the costs to the speaker of speaking while increasing the costs to the listener of assessing what is said, thereby shifting some of the burdens of communication from speaker to listener.33 This is what unites the different instances of anonymous speech, whether we hold them in regard or not. Whether such shifts are egalitarian or inegalitarian depends on the balance of power that existed prior to the act of anonymous communication. Once we come to see clearly, however, that the central feature of anonymous speech is its capacity to shift communicative burdens from speakers to listeners, we will be able to identify important institutions within democratic public spheres whose function is to prepare citizens to bear just these kinds of burdens. Analysis of the role of anonymous speech in the public sphere will, in other words, lead us to extend our conventional understanding of the key structural features of successful democratic public spheres. In the descriptions of the utopian laws of Zaleucus and Charondas, all was silence other than the reasonable speech of the one-eyed man under the threat of the noose. In the dystopic description of Creon’s public sphere, Antigone, Haemon, and Teiresias broke a common silence to speak 33

See Martin Redish’s essay in this volume, “Freedom of Expression, Political Fraud and the Dilemma of Anonymity.”

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desperate truths under the threat of the noose. But theirs were not the only voices in the play; in fact, Sophocles also gave the silence of the citizens a voice and in so doing makes an important sociological point. There is a third category of communication that lives between silence and speech and that rises and falls in some relation to how any given public sphere titrates the balance between silence and speech. Let’s call it gossip. Several characters in the play make reference to what the citizens are saying behind Creon’s back. When Creon suggests to Antigone that she “alone out of all the Thebans sees matters” as she does, she responds by saying: “They do, too, but for you they hold their tongues” (508–9). They do not, though, always hold their tongues, and Haemon best captures the nature of the communication that lives between silence and speech, telling his father: Dread of your glance forbids the ordinary citizen to speak such words as would offend your ear. But I can hear these murmurs in the dark (ἐμοὶ δ᾽ ἀκούειν ἔσθ᾽ ὑπὸ σκότου τάδε), how the city moans for this girl, saying: “No woman ever merited death less – none ever died so shamefully for deeds so glorious as hers, . . . ” Such is the word shrouded in darkness that silently spreads. (τοιάδ᾽ ἐρεμνὴ σῖγ᾽ ἐπέρχεται φάτις.) 34 “Such is the word shrouded in darkness that silently spreads”: this is an extraordinary phrase. How can speech be silent? And what does darkness have to do with speech that is silent? In the dark we cannot see one another’s faces; darkness is therefore a symbol for masked identity. Speech that hides authorial identity analogously serves to darken communication. A hidden face, enveloped by darkness, becomes the symbolic substitute for a hidden name. Anonymous speech does not answer the question, Who goes there? Silent on the point of authorship, it is dark speech. But anonymous speech takes some of its very power from this darkness. No one takes responsibility for it by standing up in public as its author. Precisely by virtue of not having an author, anonymous speech is disembodied and thus invisible, and this very invisibility, paradoxically enough, gives rumor or gossip its power. In the Antigone and other Greek tragedies, the laws of the gods and of time immemorial were often called authorless.35 34 35

Sophocles, Antigone, 690–700. See D. Allen, The World of Prometheus, (Princeton: Princeton University Press, 2000), 90–3.

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Precisely because they lacked a specific date of origin, a specific author, they seemed to convey eternal verity. The Greek word translated earlier simply as “word” is phatis. It means both “a word from heaven or an oracular word” and “common talk or rumor.” Like phatis, the Greek word pheme and the Latin fama, from which we take the word “fame,” also meant both “an utterance prompted by the gods” and “rumor.” Both of these concepts¸ phatis and fama, were personified as goddesses, and all of these terms also designated communications that travel without known or visible authors. Anonymous rumor and gossip draw their own power from an implicit proximity to divine speech. The other source of the power of rumor and gossip – of speech that is silent about authorship – is its complete disregard for any boundary between private and public. Rather, rumor and gossip unite private and public realms, operating in both rather than distinguishing between them. Hence the proverbial association of gossip with women, who until the twentieth century were traditionally figures located in the private and not the public realm in both literary and political contexts. Another look at the Antigone reveals as one of its core points that this type of “dark” speech and the power it carries easily outstrip the power of established authority with its careful calibrations of speech and silence. The play opens and closes with gossip among women at or outside the gates of the city. Thus, at the beginning of the play, Antigone drags her sister Ismene outside the city gates and says: “And now what is this new edict that they say the general has just decreed to all the city? Do you know anything? Have you heard? Or does it escape you that evils from our enemies are on the march against our friends?”36 Ismene answers that she hasn’t heard anything and Antigone responds: “I knew it well, so I was trying to bring you outside the courtyard gates to this end, that you alone might hear.”37 Speaking in the hushed tones of intimacy and engaging the rituals of trust that inhere in friendship, those who pass on anonymous gossip often deploy the power of the intimate realm in order to achieve public effects. Creon’s downfall begins in this moment of gossip at the walls of the city and is completed in another one. At the end of the play, Eurydice, wife of Creon, has gone to the gates of the city to pray, and there gossip about her

36

Sophocles, Antigone, 1–6.

37

Id. 7–19.

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son’s death reaches her ears, well in advance of Creon’s own return to the city. Eurydice describes what she heard in the gossip thus: People of Thebes, I heard your words as I was on my way to the gates to address divine Pallas with my prayers. At one and the same time I was loosening the bolts of the gate to open it, and the sound of a blow to our house struck my ear. In terror I sank back into the arms of my handmaids, and my senses fled. But repeat what your news was, for I shall hear it with ears that are no strangers to sorrow.38 Woman that she is, Eurydice is prepared to hear the silent words that circulate as gossip or “dark speech” on the borders of the public sphere. The power of the dark, silent word phatis, to disseminate meanings and common knowledge – even as it meanders along a course back and forth between private and public spaces – outpaces the effort of the autocrat Creon to control events and speech in his city. The treatment of speech and silence in the Antigone suggests that the greater the misalignment between private beliefs and public accounts, the greater will be the volume of phatis, or rumor and gossip, spreading in contradiction to the public accounts. An analysis of the public sphere from the perspective of silence not speech has therefore now led us to identify a third mode of communication lying between silence and speech: the dark speech of anonymous discourse. On the positive side, discovery of this third mode of communication provides resources for thinking about the problem of pluralistic ignorance and the spiral of silence. Is silence within a citizenry a sign of consent and affirmation or an indication that private truths have separated from public accounts? In the latter case, we might expect to see numerous forms of dark speech circulating, and an intensifying presence of such dark speech might serve as an indication that the official accounts of the state of public opinion have gone wrong. Anonymous speech springs up so that the costs of speaking can be reduced or avoided. It’s a solution when the costs of public speech have been set too high; this is the idea captured in whistle blower policies. But anonymous speech also increases the costs of listening to what is said.39 And in causing an increase in the costs of listening, it is also always a problem. Creon actually had heard something of the dark mutterings in the 38

Id. 1183–91.

39

Redish, ibid.

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city, but he misjudged their source. When the chorus tries to suggest that perhaps Polyneices has been buried by the gods, Creon responds: “No! From the very first certain men of the city were chafing at this edict and muttering against me, tossing their heads in secret, and they did not keep their necks duly under the yoke in submission to me.”40 By cloaking the name of a speaker in silence, anonymous speech puts on the listener the burden of bearing additional investigative costs that a name – and its reputational content – normally reduce. As Redish points out, when we don’t know who the author of a statement is, we’re not in a position to judge how her interests and agendas might be inflecting her claims.41 Separating truth from falsehood is harder, too, when we don’t know whether the speaker is someone who is generally truthful.42 In the Antigone the dark, anonymous speech circulating among the citizenry and providing a surround to the dominant silence of the public sphere is truthful, conveying accurate judgments of the moral questions at issue between Creon and Antigone. The dark, silent word is on the side of Antigone. But the cost of figuring out who was doing the murmuring and what it really meant were too great for Creon, to his detriment. And rumor and gossip do not always get matters right. When they don’t, we typically call them slander or calumny. Calumny mimics the power of the invisible word of God. Calumniators are therefore also blasphemers. In the original Greek, blasphemy, which comes of course from pheme, means both “to speak profanely” and “to slander.” Like other forms of speech, anonymous discourse can be “true” or “false,” “reasonable” or “unreasonable.” But these are not the terms that dominate the conceptual field clustering around the idea of anonymity. Its distinctive shifting of communicative burdens from speakers to listeners gives anonymous speech such great power that it is often called either “divine” or “blasphemous.” The word “devil,” derives from the Greek “diabolos,” which originally means “slanderer.” The association of anonymous speech to both the sacred and the diabolic is our most important clue to its role within communicative domains: anonymous speech is fundamentally about power.

40 41 42

Sophocles, Antigone, 290. Redish, ibid; M. Yildiz, “Endogenous Communication Networks with Belief Heterogeneity,” (Seminar Paper, Institute for Advanced Study, 2009). D. Allen (2004), 140–60.

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We have been tracing out accounts of the public sphere under the ugly sign of a noose. The first noose, in the law of Zaleucus and Charondas, stands in for the utopian hope that it is possible to impose costs on useless or false speech of such magnitude that everything a citizen dares to say in public will be of value. The second noose, that which hangs Antigone, stands in for the second utopian hope, incompatible with the first, that the powers-that-be will hear everything they need to hear before it is too late. In our fantasies, we imagine a structure for the public sphere where the taps of opinion can be turned on just right: so that only pure sounds flow out, and so that those who need to hear the voices of the people hear them efficiently. In our fantasies, all the silence that serves as background to the reasonable utterances and their timely uptake protects a sphere of intimacy, as Arendt describes it, irrelevant to public life. But the extremity of the proposal-at-the-noose procedure on the one hand and the disastrous situation in Thebes on the other, indicate that it is impossible to get just right a titration between speech and silence that allows for a clear delimitation of the realms of public and private. Instead, to the degree that the titration is incorrect, dark, silent speech will emerge out of the private realm and meander through both private and public spaces but without taking on a fully public character. And even when the titration is better than average, there will always be some who seek to readjust distributions of power, whether rightly or wrongly, by drawing on the specific types of power that inhere in the dark, silent speech of anonymous discourse. The idealized accounts of the public sphere – found in places like Arendt’s Human Condition, Habermas’ writings, Mill’s idea of the marketplace of ideas, and Rawls’ treatments of public reason – presume that the public sphere is constructed entirely out of speech accompanied by full self-disclosure on the part of the speaker. We need to look elsewhere to ascertain how the public sphere can effectively handle the sorts of costs and distinctive efforts to build power introduced by anonymous speech. The only political thinker that I have been able to identify as engaging with the issue of dark speech is Machiavelli.43

43

The Psalms of the Old Testament also frequently take up the topic of calumny.

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V. The Public Sphere in the Lion’s Mouth

Machiavelli’s Italy exhibited the same utopian hopes concerning the structure and function of the public sphere as had the cities of ancient Greece. His contemporaries also developed memorable symbols that conveyed these hopes; foremost among these were sculptural installations called “Mouths of Truth” or “Bocca della Verita” and set up in Florence, Venice, and Rome (at least) over the course of the Medieval and Renaissance periods. These sculptural figures were mounted on walls and consisted of a face, typically of a lion and sometimes of a man with wild hair, with its mouth wide-open, ready to receive notes making anonymous accusations or the hand of a would-be accuser. In the case of the Roman mouth of truth, the legend sprang up that one tested the truthfulness of accusations – in order to sort legitimate charges from slander – by requiring the accuser to put his hand in the lion’s mouth. If he were to make a false accusation, the lion would bite off his hand. This legend must have emerged somehow, one speculates, from the real use of similar sculptural objects in Venice. There the mouths of truth were affixed to the exterior of the palace of the Doges, the aristocratic leaders of Venice, so that citizens could make accusations of one another through this unusual mail box slot. The accusations would be taken up by a “Council of Ten.” The Venetian republic set up the Council of Ten after the discovery of a conspiracy in 1310 and charged it “with the security of the Venetian republic and with the rights, interests, and morals of its citizens.”44 As part of discharging its duties, the council set up the mouth of truth as a way of trying to draw out for public use exactly the sorts of anonymous, dark speech that typically circulated privately and served to cloak conspiracy. The Venetian leadership wished to hear what it needed to hear before it was too late.45 These two mouths of truth – the Roman and the Venetian – represent exactly the same sorts of utopian hopes for the public sphere as we found in the symbolic content of the laws of Zaleucus and Charondas. In the Roman 44 45

E. A. Kracke, “Early Visions of Justice for the Humble in East and West,” Journal of the American Oriental Society, vol. 96, no. 4, (1976): 498. Kracke (Id.) also traces the evolution of similar efforts to reduce silence and increase speech – but in a fashion controlled by those in power – in China (the complaint box) and Sweden (the position of ombudsman), which has now proliferated universally.

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case, the legend served to suggest that immediate and terrible consequences would follow on any effort to supply the public sphere with false information. The implicit hope is that citizens will so fear to speak falsely that only truthful speech will flow into the public sphere. And in the case of the Venetian Mouth of Truth, the Doges and their Council of Ten clearly hoped to convert silence and silent speech or dark speech into public speech in a timely fashion. Nicolo Machiavelli is one of the few political philosophers to have written explicitly about dark speech, and he focuses on its negative varieties, the speech not of the whistleblower but of the calumniator. He takes up the topic of calumny not in the Prince but in his Discourses, which proposes methods for protecting free government. In Book 1, chapter 8 of the Discourses entitled, “Calumny is as hurtful in a Commonwealth as the power to accuse is useful,” he frames the problem by reference to a Roman example of political disruption generated by slander: Manlius Capitolinus was jealous of honors accorded to Furius Camillus and so spread the rumor that Camillus had in fact misappropriated funds that should properly be distributed to the plebs; by virtue of spreading this rumor, Capitolinus was able to stir up enough political unrest in Rome to force the Senate to establish a dictatorship to restore order. About this incident, Machiavelli writes: “In this passage we are taught how hateful a thing is calumny in all free States, as, indeed, in every society, and how we must neglect no means which may serve to check it.”46 His proposal for how to deal with dark speech is to ensure that the costs of lodging formal accusations against fellow citizens are as low as possible while also ensuring that the cost of making calumnious accusations outside of formal channels is high. He writes: And there can be no more effectual means for checking calumny than by affording ample facilities for impeachment [for example, legal charges], which is as useful in a commonwealth as the other is pernicious . . . . calumny needs neither witness, nor circumstantial proof to establish it, so that any man may be calumniated by any other; but not impeached; since impeachment demands that there 46

N. Machiavelli, Discourses on Livy, trans. H. Neville, ed. J. Roland. (2003 [original date, 1675, 1772, 1999]) Original URL: http://www.constitution.org/mac/disclivy_.htm | Text Version Maintained: Jon Roland of the Constitution Society; issued by Liberty Library of Constitutional Classic.

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be substantive charges made, and trustworthy evidence to support them . . . . The legislator should so shape the laws of his State that it shall be possible therein to impeach any of its citizens without fear or favour; and, after duly providing for this, should visit calumniators with the sharpest punishments. Those punished will have no cause to complain, since it was in their power to have impeached openly where they have secretly calumniated.47 Importantly, Machiavelli places more emphasis on efforts to reduce the costs of making accusations through formal channels than on the effort to increase the cost of acting outside formal channels of accusation. His approach to the problem of calumny – can we treat Redish’s category of political fraud as a related concept? – thus foregrounds the value of judicial institutions – and not merely deliberative bodies – to the healthy construction of the public sphere, and not merely as an instrument to block or punish dark speech but rather as a mechanism for converting it into socially productive forms. Recent scholarship on the public sphere has tended to over-emphasize deliberative contexts rather than adequately scrutinizing how well the judicial institutions of any given polity contribute to the structure of its public sphere. Indeed, those contributions to the deliberative democracy literature that have addressed courts have tended to focus on the deliberative practices of jurors and/or judges.48 Machiavelli, in contrast, draws our attention to the value of the adversarial forms of speech exemplified by prosecutor/plaintiff and defendant. The judicial system, he points out, provides precisely for clarifying the interests and agendas of the speakers involved in a dispute and for weighing evidence and determining, in some conclusive sense, the facts of the matter.49 Criminal and civil proceedings, 47 48

49

Id. C. Sunstein, David Schkade & Lisa Ellman, “Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation,” 90 Virginia Law Review (2004): 301; C. Sunstein, David Schkade, Lisa Ellman & Andres Sawicki, Are Judges Political? An Empirical Investigation of the Federal Judiciary (Brookings Institution Press, 2006); C. Sunstein, Reid Hastie, John Payne & David Schkade, Punitive Damages: How Juries Decide (Chicago: University of Chicago Press, 2002); C. Sunstein, “Group Judgments: Deliberation, Statistical Means, and Information Markets,” 80 New York University Law Review (2005): 962. My argument, in other words, takes an approach to what to make of “interests” in the deliberative realm which differs from the standard line in deliberative democracy literature where, following Habermas, scholars often enjoin citizens to check their interests at the door of the deliberative assembly.

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on his argument, force the conversion of dark speech into acceptably public, fully vocalized forms, and the result of this, as he says, is that the targets of the accusation of dark speech are either “condemned or absolved.” Truthful dark speech, which gives voice to meaningful and valuable silences and makes accurate accusations, is thereby distinguished from dark speech that sets out to abuse the conventional misalignment between private truths and public accounts. The speech of the whistleblower is separated from the speech of false accusation. That which is sacred (because it is truthful) is separated from that which is blasphemous (because it secures power through its falsehood). The adversarial structures of judicial institutions provide this important fact-finding service for the public sphere. Moreover, adversarial and deliberative spaces are related. Various forms of fraudulent speech, introduced to the deliberative public sphere, are easily discredited if the speaker could easily have pursued action on her claims in a judicial arena but did not.50 The very presence of strong adversarial institutions processing dark speech improves the caliber of speech in the deliberative realm, not by keeping dark speech out of the deliberative realm but by providing structures within which the extra costs involved in interpreting silence can and will be borne. But even Machiavelli’s argument is optimistic, for not all slanderous charges raise legally actionable issues. During the 2008 election season, for instance, when anonymous emails circulated on the Internet charging Barack Obama with being a closet Muslim, this dark speech made some actionable charges – that Obama was running for the presidency despite not being a U.S. citizen; that he had forged or otherwise doctored his birth certificate – but the core charge that Obama was not really a Christian had only cultural and not legal implications. Most silent speech that seeks to affect public 50

One can put this point in an even more dramatic fashion. A comparison of the propaganda that preceded genocidal projects in the twentieth century, as described in S. Power, A Problem from Hell: America and the Age of Genocide (New York: Harper Perennial, 2007), reveals the common rhetorical feature of avoidance of adversarial judicial institutions. In multiple examples, propagandists made accusations of guilt against their prospective victims that they were unwilling to channel through or have vetted within formal judicial institutions; indeed in some instances the rhetoric is constructed around the claim that judicial institutions are no longer up to the job of assessing and responding to the supposed guilt of the targets. In other words, when political rhetoric includes not only calumnious accusations but also claims to have superseded judicial institutions, political life has crossed its Rubicon.

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discourse will work in this domain and examples abound (as another example, take the case of Mr. and Mrs. Eaton during Andrew Jackson’s administration).51 But in fact, it is possible to build institutions and practices in the cultural as in the legal domain to clarify the agendas and interest positions behind the dark speech and to vet all facts asserted by it. Torts for libel and defamation are relevant here, of course, but so are the professional protocols developed by the news media over the course of the twentieth century as well as those of academic historians. Thus in the United States in the early twentieth century, for instance, journalists and editors across the country established codes of ethics for their profession. According to the historian John H. Summers: The American Society of Newspaper Editors (ASNE) crafted the most influential set of ethical guidelines. In 1923 the newly formed group called for ‘fair play.’ As formulated by the ASNE, ‘fair play’ meant that ‘a newspaper should not publish unofficial charges affecting reputation or moral character without opportunity given to the accused to be heard.’ Furthermore, ‘a newspaper should not invade private rights or feelings without sure warrant of public right as distinguished from public curiosity.52 One could enumerate at length the protocols for journalists that emerged from this effort: for instance, of checking sources, using unnamed sources only for very good reasons, clarifying conflicts of interest affecting the evidence provided by sources, not making campaign contributions, not accepting payments from the subjects of stories, and so forth. But the important general point is simply that two core activities of adversarial courtroom speech – clarifying conflicts of interest or interest positions and weighing evidence – are conducted also in other investigative contexts: the newsroom and academic research halls among them. If the structure of the public sphere is to succeed at converting dark speech into public speech so that it can be judged and truthful “silent speech” separated from abusive “silent speech,” then the deliberative institutions of the public sphere must be supplemented with an array of 51 52

J. Meacham, American Lion: Andrew Jackson in White House (New York, Random House, 2008), 70ff. J. H. Summers, “What Happened to Sex Scandals? Politics and Peccadilloes, Jefferson to Kennedy,” The Journal of American History, vol. 87, no. 3, (2000): 842.

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adversarial institutions and cultural practices.53 And on the Machiavellian analysis, dark speech will become a serious problem for a polity not when there are flaws in the structure of deliberative spaces but when vetting institutions (including the judicial system) either have erected excessively high barriers of entry to those lodging accusations or have otherwise ceased to function effectively. Currently, there are signs of trouble on both fronts. Legal scholars track the increasing difficulty for ordinary citizens of entering the legal realm.54 And newspapers now confront the prospect of imminent demise; as newspapers go out of business, journalistic protocols and the accompanying professional ethics also come under pressure. How should democratic citizens respond? To focus for now only on the latter problem, we might begin by recognizing that we do not need newspapers, as such, but rather the adversarial forms of communication that they advanced and defended. Newspapers themselves, as businesses, were only one way of giving institutional form to the set of norms exemplified by that profession at its best. Thus, we can and should be seeking out and fostering such new institutions and cultural practices as are able to shore up this adversarial component of the democratic communicative domain. Indeed, during the 2008 U.S. presidential election, several new “fact-checking” enterprises grew up to fill just such needs. The best of them emerged from out of traditional news media.55 For instance, Politifact, a Pulitzer Prize winning website run by the St. Petersburg Times in Florida, sought to track all the anonymous Internet rumors and dark speech churned up about all the candidates and provide fact checks, investigating “more than 750 claims” over the course of the campaign.56 In other words, Politifact sought to reduce to a manageable level for listeners and readers the costs of attending to anonymous speech. Cultural organizations such as these, as opposed to legal regulation, are the best hope for ensuring that dark speech is separated into that which is to be

53 54 55

56

I would argue, therefore, that protocols of anonymity used within the context of academic review succeed precisely because they are embedded in a highly adversarial context. H. Elliott, “The Functions of Standing,” Stanford Law Review, Vol. 61, (2008): 459, 487–92. My emphasis on the positive functions of the commercial news media suggests a need to modify Habermas’ view in Structural Transformation that the commercial media by and large generate communicative distortions. Here I argue that they provide a useful function in reducing communicative distortions. http://www.pulitzer.org/citation/2009-National-Reporting.

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condemned and that which is to be absolved and made available for responsible voicing. Contra Arendt’s hopes, not all that passes through the public sphere is subject to full publicity. In the inevitable separation of private truths from public accounts, dark speech grows up and weaves its way through both private and public spaces contributing thereby to the flow of opinion in the public sphere. And dark speech will forever be one component of the public sphere. As a consequence, democratic citizens who wish to construct a healthy public sphere must look to the quality not only of their deliberative but also of their adversarial institutions. VI. Conclusion: The Public Sphere Re-conceived

We might think of public spheres not merely as spaces for lexis and praxis, or speech and action, as Habermas formulates it, but also as patterns of rising and falling voices – an ocean of emergent public claims, sinking silences, confirming quiet, and re-emergent claims. Once we envision the public sphere in this fashion, we are obliged to come to a clearer understanding of how any given political order establishes relations among public and private meanings and organizes the ongoing negotiations among them over time. This is relevant to thinking about differential rates of socio-political change and about what makes for a healthy democratic public sphere. Envisioning the public sphere in this fashion makes a range of communicative phenomena suddenly theoretically salient. Anonymity was the example treated here. By investigating anonymous speech, we disclose broad swaths of the public sphere, and in particular adversarial institutions, practices, and habits that have recently dwelt in scholarly shadows but which deserve to be foregrounded once more. What else might we find if we pressed onward with an examination of how silence contributes to the construction of the public sphere and of how public and private meanings can be welded together by the institutions and practices of the public sphere? I should hope we might identify other important institutions or practices that citizens and theorists alike have come to take for granted but which deserve adequate scrutiny if we are to maintain, and where necessary rebuild, a functional democratic public sphere.

Comment on Chapter 3: Silencing by Exclusion: A Reaction to Anonymous: On Silence and the Public Sphere Heather Elliott

Most political theorists writing about the public sphere focus, as Professor Allen demonstrates, on “constitutive patterns of speech and communication, not silence.”1 In her useful corrective to this strand of political thought, Professor Allen turns her attention to “what we learn about the public sphere . . . by attending to silence.”2 There can be utter silence (the absence of speech), which communicates equivocal messages: Does someone’s silence in response to another’s speech signal acquiescence? or instead resistance?3 There can also be dark, silent speech, a paradoxical phrase that Allen takes from the Antigone to denote anonymous speech.4 This dark, silent speech can indicate a disjuncture between the story by the governors and that told by those governed: “the greater the disalignment between private beliefs and public accounts, the greater will be the volume of . . . rumor and gossip spreading in contradiction to the public accounts.”5 When anonymous speech permits truth to be spoken to power, it serves a valuable function.6 However, when speech is anonymous, the costs of lying decrease and the risk of untruthful, even calumnious, speech increases.7 How can society experience the benefit of truthful accusations while avoiding the costs of calumny? The answer, according to Professor Allen, is recourse to judicial and other adversarial institutions. Any account of the public sphere, she says, must take account of such institutions,8 and, in particular, how accessible 1 2 5

Danielle Allen, “Anonymous: On Speech and Silence in the Public Sphere,” in this volume, at 106. Id. at 107. 3 Id. at 116–18. 4 Id. at 121–26. Id. at 124. 6 Id. 7 Id. at 125. 8 Id. at 128–29.

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they are.9 Allen’s invocation of adversarial institutions emphasizes their value as truth-finders – institutions that sort calumny from whistleblowing. Inherent in Allen’s account, however, is an additional value for these adversarial institutions. They are themselves alternative fora for those who would speak truth to power. As I will argue here, then, our understanding of the public sphere depends on the degree to which courts are open to those who would otherwise be silenced. After attempting to do justice to Allen’s argument on the role of adversarial institutions, I will turn to problems of access in our own judicial system – problems that permit judicial institutions themselves to silence those who seek their judgments. In particular, I will argue that the doctrine of standing to sue, in which courts determine who may and may not proceed to sue, makes courts less accessible, to the detriment of the public sphere.10 “The Public Sphere in the Lion’s Mouth”

Allen identifies Machiavelli in the Discourses as perhaps the only political theorist who identified the benefits and costs of anonymous speech to the public sphere. It is valuable to encourage accusations, for true accusations make the governors aware before conspiracies or other hidden evils could harm the republic.11 For Machiavelli, the answer is to encourage anonymous speech while making the costs of calumny extremely high: “The legislator should so shape the laws of his State that it shall be possible therein to impeach any of its citizens without fear or favor; and, after duly providing for this, should visit calumniators with the sharpest punishments.”12 The legend of the Lion’s Mouth illustrates this principle; the legend states that one could accuse only with one’s hand in the mouth of a lion, which would detect lies and punish any liar by biting off his hand.13 The equivalent truth-seeking entity for Machiavelli was the court. And here, Allen argues, is one of the failings of typical political theory in its focus on “constitutive patterns of speech and communication, not silence.” A focus on silence and on anonymous speech “foregrounds the value of 9 10 11 12

Id. at 132. In making this argument, I will draw heavily on an analysis I presented in “The Functions of Standing,” Stanford Law Review 61 (2008): 159. Allen, “Anonymous,” at 127. Id. at 129, quoting Machiavelli, Discourses on Livy, trans. by H. Neville. 13 Id. at 127.

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judicial institutions – and not merely deliberative bodies – to the healthy construction of the public sphere, and not merely as an instrument to block or punish dark speech but rather as a mechanism for converting it into socially productive forms.”14 Thus, Allen argues, political theorists have “tended to over-emphasize deliberative contexts rather than adequately scrutinizing how well the judicial institutions of any given polity contribute to the structure of the public sphere.”15 By permitting anonymous speech to be made and then tested, courts allow us to distinguish between “[t]ruthful, dark speech, which gives voice to meaningful and valuable silences and makes accurate accusations” and “dark speech that sets out to abuse the conventional misalignment between private truths and public accounts.”16 Thus, as Allen summarizes Machiavelli, “[t]he adversarial structures of judicial institutions provide this important fact-finding service for the public sphere.”17 However, if “the judicial system . . . ha[s] erected excessively high barriers of entry to those lodging accusations,” problems emerge for the public sphere.18 Thus, Allen concludes, any inquiry into the public sphere must take account not only of deliberative institutions such as legislatures and town halls, but also of adversarial institutions, such as courts, that serve “to clarify the agendas and interest positions behind the dark speech and to vet all facts asserted by it.”19 It is to these barriers of entry that I now turn my attention. Barriers to Entry

Access to courts in the United States is restricted in countless ways:20 the law may not make certain harms legally actionable; a court may lack jurisdiction over the subject matter of the case or over the proposed defendant; a plaintiff may fail to satisfy his procedural obligations; and so on. One 14 17

18 20

Id. at 129. 15 Id. 16 Id. at 130. Id. As Allen notes, however, not all false dark speech is subject to judicial evaluation. Some accusations – such as “Barack Obama is a Muslim” – are not actionably slanderous even if they have powerful cultural implications. Id. Other institutions may serve to illuminate this kind of dark speech: the news media and academic researchers engage in the kind of fact-finding necessary to unmask calumny. Id. at 131. Id. at 132. 19 Id. at 131. For clarity, I will focus my discussion here on the federal courts. Parallel issues arise in the state courts.

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particular set of restrictions, however, is particularly relevant to Professor Allen’s public-sphere argument. Justiciability doctrines require that a plaintiff show her claim is ripe for judicial resolution, that her claim has not become moot, and (my focus for the remainder of this response) that she has standing to sue. All these doctrines require a court to ask, “is this a claim I should/have/need to hear?” And standing doctrine, in particular, allows a court to silence a potential petitioner – as I will argue, to the detriment of the public sphere. Standing doctrine asks the plaintiff, “what’s it to you?”21 It demands that the plaintiff show why she is the one who should be heard on a particular question. The technical requirements can be stated simply: a plaintiff must show she has suffered “injury in fact” that is “fairly traceable” to the defendant and can be redressed, at least in part, by a judgment from the court.22 On a superficial level, the doctrine is sensible. We want someone to sue only if she has actually suffered some kind of harm; we want her to sue the right person or persons; and we want her to sue only if a court can provide meaningful relief. Otherwise, we’re wasting the resources of the court, as well as the time and money of the plaintiff and defendant. If this were the only purpose of standing doctrine – and arguably, it was the only purpose until the middle of the twentieth century – all would be well.23 Standing doctrine has gone well beyond this simply purpose, however. The Court has stated that the doctrine helps assure the “proper – and properly limited – role of the courts in a democratic society.”24 The question is transformed from one regarding the capacity of the courts into one that focuses on “the role assigned to the judiciary in a tripartite allocation of power”25 and asks whether the plaintiff’s question might more properly be answered in the legislature or the executive branches. The doctrine thus permits the courts to exclude complainants based not on factors of judicial efficiency and resources but on the kind of question that is being asked. Cases involving widely shared injuries are illustrative. What if a plaintiff claims a harm that has also been suffered by many other people? On the one hand, she may readily satisfy the technical requirements of standing 21 22 23 24

Antonin Scalia, “The Doctrine of Standing as an Essential Element of the Separation of Powers,” Suffolk University Law Review 17 (1983): 882. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). Elliott, “Functions of Standing,” Stanford Law Review 61 (2008): 468–75. Warth v. Seldin, 422 U.S. 490 (1975). 25 Flast v. Cohen, 392 U.S. 83 (1968).

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doctrine, if she has suffered a concrete and particular injury. But the fact that her injury is shared by many other people raises problems once we are thinking about the constitutional separation of powers: if large numbers of people are affected, doesn’t that look like the kind of issue the political branches should deal with? Some cases in this category fail the initial standing test itself. Thus a plaintiff cannot sue as a pure “private attorney general,” who pursues lawbreakers solely because she wants to see the law obeyed.26 She has suffered no injury concrete and particular to her; she cannot be distinguished from the countless other people who also wish to see the law obeyed. Moreover, because such people are (presumably) so numerous, they should join forces to insist that their democratically elected representatives ensure the punishment of lawbreakers.27 If they do not do so, perhaps the law is one that we do not want strictly enforced.28 Similarly, courts do not allow taxpayers to challenge government expenditures.29 Any one of us could name a government expenditure we hate, but in that we are all alike. If we are all concerned about budgetary issues, we should be able to lobby the political branches to fix the problems.30 Nor does it matter that, if standing is denied, “as a practical matter no one can [sue].” Instead, the Court has emphasized that “[o]ur system of government leaves many crucial decisions to the political processes.”31 However, once the plaintiff suffers an injury concrete and particular to her, albeit widely shared, this sorting mechanism breaks down. A case involving an injury that is shared by large numbers of people is one that, on the logic above, should go to the political branches; yet, if the plaintiff has shown the requisite injury, the court may proceed. So, in Massachusetts 26

27 28 29 30

31

Sierra Club v. Morton, 405 U.S. 727 (1972) (emphasizing that a plaintiff must satisfy standing limitations in order to sue, even if, after surviving that test, the plaintiff may then act as a “private attorney general” and “argue the public interest in support of his claim”). Massachusetts v. EPA, 549 U.S. 497 (2007) (“[R]edress of grievances of the sort at issue here is the function of Congress and the Chief Executive, not the federal courts.”). Scalia, “The Doctrine of Standing as an Essential Element of the Separation of Powers,” Suffolk University Law Review 17 (1983). Hein v. Freedom from Religion Found., 127 S. Ct. 2553 (2007) United States v. Richardson, 418 U.S. 166 (1974) (concurrence of Justice Powell) (“Indeed, taxpayer or citizen advocacy, given its potentially broad base, is precisely the type of leverage that in a democracy ought to be employed against the branches that were intended to be responsive to public attitudes about the appropriate operation of government.”). Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208 (1974).

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v. EPA, the global warming case decided in April 2007, a majority of the Supreme Court found that Massachusetts had standing to sue: it was losing shoreline thanks to rising sea levels caused by global warming.32 This was a sufficient injury, and it was irrelevant that everyone on the planet faces some kind of harm from global warming. So far I have shown only that the courts cannot consistently implement the separation-of-powers purpose asserted for standing doctrine. This may have some implications for the public sphere: questions may be heard by the courts that we think are better answered in the legislature – to use Allen’s terms, the adversarial institutions will become involved in areas we think are better left to the deliberative institutions. But another problem with standing doctrine poses problems closer to the heart of Allen’s thesis. Allen suggests that access to courts is key in resolving certain kinds of questions, in particular those situations where those in power do not want to listen. Dark speech circulates in Creon’s Thebes because Creon has made forthright speech impossible;33 the courts, as Machiavelli argues, permit us to evaluate such dark speech for its truthfulness.34 Adversarial institutions address such refusals to listen in another way, however. Courts provide a valuable alternative forum for those who would otherwise be silenced. In Carolene Products’s famous footnote four, the Court emphasized its role in hearing those who might be ignored by the majoritarian institutions. The political process fails in certain instances, and the Court provides a refuge for those who fall victim: [L]egislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny . . . . . . . [P]rejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.35 Access to the courts is therefore essential when the deliberative institutions refuse to listen to certain claims. If access to the courts is hindered in these 32 34

Massachusetts v. EPA, 549 U.S. 497 (2007). 33 Allen, “Anonymous,” this volume, at 114. Id. at 128–9. 35 United States v. Carolene Prods. Co., 304 U.S. 144 (1938).

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situations – if standing is used to distort democratic politics – the implications for the public sphere would be dramatic. A good case can be made that standing doctrine can produce this very result. Allen v. Wright is an excellent example.36 The plaintiffs there were African Americans challenging tax-exempt status for private white-only schools in the South; the plaintiffs contended that, because of favorable tax treatment, the schools were able to persist in discriminatory behavior, thus denying plaintiffs the benefit of attending integrated schools. Congress had repeatedly forbidden the Internal Revenue Service to implement new regulations that would have permitted the agency more effectively to identify discriminating schools and deny them tax-exempt status. The Allen plaintiffs thus had no ready audience there or with the President.37 They could seek no political redress and thus, according to Carolene Products, deserved a hearing in the federal courts. Yet the Supreme Court found that they lacked standing. The Court first stated that it was “entirely speculative . . . whether withdrawal of a tax exemption from any particular school would lead the school to change its policies.”38 The plaintiffs therefore failed the causation prong of the standing test. But as Justice Stevens pointed out in dissent, tax policy usually assumes precisely the opposite: if you make it more expensive for people to do things, they tend to choose less-expensive alternatives.39 If segregated schools were to persist in discriminating, even after revocation of their tax-exempt status, that would demonstrate the racism that they were not, while tax-exempt, legally permitted to implement through admissions policies. The Court also found standing lacking in a second way. The plaintiffs had contended that the IRS’s refusal to revoke the tax-exempt status of the white-only private schools itself constituted an injury: the IRS was not taking 36 37 38 39

Allen v. Wright, 468 U.S. 737 (1984). Stuart Taylor Jr., “Reagan – Not the Law – Shifted on Bias and Taxes,”New York Times, Jan. 17, 1982, E4. Allen v. Wright, 468 U.S. 737 (1984). Id. at 785–8 (Stevens, J., dissenting); see also Gene R. Nichol, Jr., “Abusing Standing: A Comment on Allen v. Wright,” University of Pennsylvania Law Review 133 (1985): 640 n.27 (“[T]he causation and redressability reasoning in . . . Allen . . . was directly at odds with Congress’s theory in granting tax exemptions: the five Supreme Court Justices joining the majority opinion[] . . . seem to believe that private parties do not change their behavior to reduce their taxes.”).

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racial discrimination seriously, which was an injury to plaintiffs’ dignity. The Court held that the claimed dignitary injury was either a generalized grievance – “an asserted right to have the Government act in accordance with law”40 – or an “abstract stigmatic injury.”41 To decide otherwise, the Court said, “would transform the federal courts into no more than a vehicle for the vindication of the value interests of concerned bystanders.”42 Remember, those “concerned bystanders” were parents seeking to enforce their rights under Brown v. Board of Education. This conclusion cannot be squared with Carolene Products, as Justice Brennan implied in his Allen dissent: By relying on generalities concerning our tripartite system of government, the Court is able to conclude that the respondents lack standing . . . without acknowledging the precise nature of the injuries they have alleged. In so doing, the Court displays a startling insensitivity to the historical role played by the federal courts in eradicating race discrimination from our Nation’s schools.43 Allen is not alone. Nichol argues persuasively that standing doctrine “systematically favors the powerful over the powerless.”44 This bias means that “the power to trigger judicial review is afforded most readily to those who have traditionally enjoyed the greatest access to the processes of democratic government.”45 Thus, for example, Nichol shows that standing has been granted more leniently to whites than blacks in the context of race discrimination (particularly in voting), to men rather than women in the context of sex discrimination, and generally to the privileged rather than the underprivileged.46 But if the doctrine tends to admit those who already have the ear of the political system and to reject those to whom the deliberative branches refuse to listen, the doctrine provides court access precisely when it would seem unnecessary – admitting those who are best able to seek political 40 43 44 45 46

Allen v. Wright, 468 U.S. 737 (1984). 41 Id. at 755. 42 Id. at 756. Allen v. Wright, 468 U.S. 737, 767 (1984) (Brennan, J., dissenting). Gene R. Nichol, Jr., “Standing for Privilege,” Boston University Law Review 82 (2002): 301. Id. at 333. Id. at 322–9. Justice Douglas raised a similar concern when he dissented in Schlesinger v. Reservists Comm. to Stop the War. 418 U.S. 208, 229 (1974) (Douglas, J., dissenting), arguing that standing doctrine “protects the status quo by reducing the challenges that may be made to it and to its institutions. It greatly restricts the classes of persons who may challenge administrative action.”

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remedies – and denies it precisely where it should be granted – shutting out those who lack access to the “traditional levers of democratic decisionmaking.”47 The adversarial institution that is supposed to serve as a forum when the political branches silence certain groups instead helps to reinforce that silence.48 Ironically, the Court’s standing jurisprudence reinforces this distortion of the public sphere by making it easiest for business and commercial entities to establish standing. Such entities usually sue to challenge government regulations; they sue as “regulated entities” to contend that government regulation is irrational, arbitrary, or inefficient. Under current doctrine, the standing of a regulated entity is typically self-evident: when “the plaintiff is himself an object of the [government] action (or forgone action) at issue . . . there is ordinarily little question that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it.”49 But business and commercial interests arguably have the most access to the corridors of power.50 Nevertheless, the Court persists in making it easy for regulated entities to get standing, and hard for everyone else – and that approach, again, actually has the effect of exacerbating existing inequalities in the democratic system. Conclusion

Professor Allen correctly turns our attention to the role of adversarial institutions in the public sphere, and to the problem posed when barriers of entry to such institutions are too high. I believe further exploration of this issue should pay attention to the role of courts in hearing those to whom the political branches refuse to listen, and to the ways in which current doctrine may prevent access precisely when it is most needed. 47 48 49 50

Gene R. Nichol, Jr., “Standing for Privilege,” Boston University Law Review 82 (2002): 301. Michael J. Klarman, “The Puzzling Resistance to Political Process Theory,” Virginia Law Review 77 (1991): 747. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). Of course, the term regulated entities embraces small businesses and others who are not powerful. My point is simply that a rule giving greater access to regulated entities than to others is not a rule that crisply enforces democratic values.

4 Freedom of Expression, Political Fraud, and the Dilemma of Anonymity Martin H. Redish*

I. Introduction: The Right Not to Speak as the Right of Expression

One of the long-accepted paradoxes of both the doctrine and theory of free expression is that the constitutional right to speak subsumes the constitutional right not to speak.1 A closer look at the underpinnings of the right not to speak, however, makes clear why it is properly thought to fall within the bounds of the First Amendment’s guarantee of free expression.2 Governmentally compelled expression breaches the wall between government and individual that is essential to the viability of a liberal democracy. It therefore undermines the values fostered by free expression in a variety of important ways.3 A traditionally recognized subcategory of the constitutional guarantee of silence is the right of anonymity – in other words, the right not to reveal one’s identity when exercising one’s affirmative right to express oneself. In one important sense, of course, the right of anonymity qualitatively differs from the right not to speak. While the latter could be construed to apply to a generic right to keep silent, the right of anonymity represents an expressive hybrid. It applies when and only when one first chooses to speak, write, or associate for political purposes. The right of anonymity, then, is a selective * Louis and Harriet Ancel Professor of Law and Public Policy, Northwestern University School of Law. 1 See, for example, Wooley v. Maynard, 430 U.S. 705 (1977); West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). 2 U.S. Constitution, Amend. I. 3 I have explored this issue in detail in prior writing. See Martin H. Redish, Money Talks: Speech, Economic Power and the Values of Democracy (New York: New York University Press, 2001), 174–8.

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form of expressive silence: it is only when the speaker first affirmatively chooses to speak that this form of silence comes into play. Nor are the theoretical underpinnings of the right of anonymity identical to the rationale for a generic right to remain silent. While the latter is grounded primarily in the desire to avoid humiliation, demoralization, and cognitive dissonance,4 the former is designed to avoid chilling the speaker’s willingness to contribute fully and frankly to public discourse without fear of retribution from either government or private power centers. From one perspective, it would be difficult to deny the beneficial impact on the public discourse that flows from the First Amendment right of anonymity. One need not be a trained psychologist to recognize that the constitutional insulation of speaker identity is likely to embolden speakers, resulting in an increase in expressive contributions. It is therefore not surprising that anonymity has played an important role in American history5 and has widely been recognized by the Supreme Court as a central element of First Amendment protection.6 This is not always the case, however. For example, the Supreme Court has upheld required revelation, in most situations, of the names and amounts of contributors to political campaigns.7 The Court found that the interest in avoiding political corruption justified whatever deterrent impact might result on campaign contributions (though it is true that the Court’s recognition of such contributions as protected speech is somewhat limited).8 Constitutional protection of speaker anonymity should not be free from controversy, however. True, with only rare exception, the Supreme Court has brushed aside asserted state counter-interests in deterring or ferreting out fraud or libel.9 But there also exist important competing First Amendment interests harmed by the constitutional protection of anonymity, and the question must be asked whether, when the dust settles, the interests of free expression are more harmed than helped by the near-unwavering guarantee of a speaker’s right to anonymity.

4 5 6 7

8

See discussion infra text at nn. 24–7. The Federalist Papers, it should be recalled, were all written under assumed names. See, for example, Talley v. California, 362 U.S. 60 (1960); McIntyre v. Ohio, 514 U.S. 334 (1995). Buckley v. Valeo, 424 U.S. 1, 71 (1976) (per curiam). The Court noted, however, that had the contributor demonstrated a “serious” threat to First Amendment interests and an “insubstantial” governmental interest, its conclusion might have been different. 9 Id. at 66–7. Talley v. California, 362 U.S. 60 (1960).

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The problem with the unbending protection of anonymity is that while it may avoid the chilling of speakers, it simultaneously denies information that might be of significant value to the recipients of that expression in judging the merits of the speakers’ arguments. In this way it risks distorting and undermining the electorate’s democratic decision making. It is true that we recognize a First Amendment right not to speak, even though forced speech could conceivably provide valuable information to readers, viewers, or listeners. But anonymity gives rise to far more complex problems than does purely compelled speech because, unlike silence, anonymity always accompanies affirmative acts of expression. The danger of anonymity centers around the risk of what I refer to as “political fraud.” By this I do not mean the commercial fraud that, all agree, is uniformly unprotected by the First Amendment.10 I refer, rather, to the conscious effort to deceive the public solely for political or ideological purposes. It is surely not uncommon for those who contribute to public discourse to openly lie about information or opinion in order to deceive the populace into taking specific action (for example, voting for or against a particular candidate) or inducing the public to persuade government officials to take certain action. It is true, of course, that in many instances it will be impossible to separate goals of political gain from those of financial gain. Speakers often seek to manipulate the political process for purposes of their own financial interests. But in the case of what I call political fraud, the connection to financial gain of the speaker is indirect; the immediate goal of the speaker is not to induce listeners to give him money, but rather to induce them to take specified political action. It is by no means certain that such deception lies outside the scope of First Amendment protection. In the line of cases growing out of New York Times Co. v. Sullivan,11 the Supreme Court made clear that consciously false defamatory statements of public officials or public figures are unprotected.12 However, the Court has never resolved the question of whether intentionally false but non-defamatory statements are similarly denied constitutional protection, and the issue has surprisingly received virtually no 10

11 12

Central Hudson Gas and Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 563–4 (1980) (excluding all false commercial speech from the scope of First Amendment protection). 376 U.S. 254 (1964). See Garrison v. Louisiana, 379 U.S. 64 (1964); Rosenbloom v. Metromedia, 403 U.S. 29 (1971); Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). 376 U.S. at 279–80.

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attention in either decisions or scholarship.13 The answer to the question is by no means easy or obvious. As an abstract matter, one would hope to be able to deter or punish such knowingly false statements. But vesting in government a freewheeling power to punish even intentionally deceptive statements could lead to serious erosion of First Amendment guarantees by stifling or deterring risk-averse speakers. The First Amendment problem would become considerably greater were we to expand the category of consciously false statements to include those that are intentionally misleading. Political advocates invariably provide only one side of a debate; they will inevitably omit data, evidence, or arguments that undermine their position. One could conceivably classify such truncated arguments as intentionally misleading. Yet it is all but inconceivable that we could exclude such advocacy from the First Amendment’s scope. The First Amendment dilemma in protecting false or misleading political speech is that while refusing to protect such expression could seriously undermine the viability of the system of public discourse, allowing such expression can simultaneously undermine important First Amendment values. Different theorists have envisioned the value of free expression from different perspectives. While many scholars assume the right to be primarily or exclusively that of the speaker, others – such as Alexander Meiklejohn – have characterized the right to be exclusively the listeners’.14 His position was that the First Amendment protects the right of the listener to receive expression, rather than the right of the speaker to speak. The First Amendment guarantees the right of free expression, Meiklejohn argued, in order to facilitate the process of self-government by providing the electorate with information and opinion that will facilitate their performance of the self-governing function in the voting booth.15 To permit politically fraudulent statements could seriously undermine this function by distorting the relevant information available to the voters. Thus, one could just as easily argue in favor of suppressing political fraud in the name of the First Amendment as protecting it.

13

14 15

The one appellate decision that appears to have considered the issue in detail was in the Supreme Court of the State of Washington. State ex rel. Public Disclosure Comm’n v. 119 Vote No! Committee, 135 Wash.2d 618, 957 P.2d 691 (Washington 1998). There the court found that the First Amendment did protect conscious falsehoods outside of the defamation context. Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People (New York: Harper, 1960). See discussion infra text at nn. 28–32.

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One possible resolution of the dilemma created by political fraud is to leave non-defamatory, false, or misleading political speech protected, but at the same time revoke the constitutional protection of anonymity. In this way, government would be able to provide background information about the speaker’s identity so that the recipient could more effectively place the speaker’s expression in perspective. Perhaps listener skepticism is the best antidote to deceptive political speech. If recipients of expression know who the speaker is, in today’s world of technology it will usually not be very difficult to learn of the speaker’s hidden political or economic agendas, if any. Of course, it would be unreasonable to expect most listeners to take the time and effort to Google an individual speaker, but we can rest assured that at least a few will, especially those with competing interests. Those individuals will then have the incentive to publicize the connections and interests of the speaker. In this manner, recipients of speech will be better able to judge the persuasiveness of the speaker’s arguments and information. It is a reality of communication that who the speaker is will, in many instances, appropriately affect a listener’s perception of and judgment about the expression. One can appropriately analogize the situation to the adversary system. In a litigation, both judge and jury are fully aware of the preexisting interests that both the attorneys and expert witnesses possess. To be sure, that the communicator is far from unbiased does not necessarily imply that what she says will be of no value to the adjudicator. However, if the judge and jury were not aware of those pre-existing interests, they perhaps would not be nearly as skeptical of both sides’ evidence and arguments as they should be and could therefore be more easily misled. The recipient of the communication, in other words, is in a far better position to judge the persuasiveness of the expression by knowing who the speaker is, because that knowledge enables that recipient to place the expression in proper perspective. Though the metaphor to our judicial system is by no means perfect, roughly the same beneficial dynamic could operate in public discourse were speakers required to reveal their identities. It would be disingenuous, I readily concede, to suggest that no harm to expressive values results from the loss of speaker anonymity. However, it is important to understand that the harm need not be as severe as might first be thought. Initially, First Amendment anonymity can appropriately be subdivided into two categories: expressive anonymity and associational

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anonymity. The former applies to direct contributions by the speaker to the public discourse, while the latter applies to private associational choices that an individual makes. While some of the important decisions concerning anonymity have concerned the expressive variety, the large majority have involved associational anonymity.16 In the 1960s, the Supreme Court decided a series of cases in which southern states sought the names of members of civil rights organizations in their state. The Court found such efforts to violate the First Amendment on the grounds that they violated the right of First Amendment anonymity.17 The specter of governmental ability to ferret out the names of members of unpopular political associations should be truly frightening to anyone who values democracy and liberty, and the Court was clearly correct in blocking such efforts. It must be emphasized, however, that were we to revoke constitutional protection for anonymity in an effort to dilute the problems of political fraud, we would need only do so in the expressive context. One who wishes to privately join a political association could do so without fear of governmental publicity or retribution. More importantly, the greatest protection against ideologically grounded abuse of this new governmental power would be the First Amendment’s prohibition on under-inclusive viewpoint-based selectivity. Absent demonstration of some non-ideological compelling interest, government would be allowed either to require all expression to reveal the speaker’s identity, or none. It would not be allowed selectively to designate only specified expression for the loss of speaker anonymity. I should make clear that my suggestion about limiting anonymity in an effort to dilute political fraud is just that – a suggestion. I cannot say that I am myself totally convinced at this point that the expressive benefits are worth the expressive costs, though I am clearly leaning in that direction. If we were to seek some sort of compromise between the two competing First Amendment concerns, perhaps we could confine the loss of anonymity rights to those situations in which the speaker not only fails to reveal her true identity but actually adopts a false identity that is found to affirmatively mislead the listener as to the speaker’s interest in and relationship to the arguments made. At the very least, however, I hope to raise awareness about 16 17

See cases cited in note 6, supra; discussion, infra text at nn. 80–2. See, for example, Shelton v. Tucker, 364 U.S. 479 (1960); cases cited in note 49, infra.

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this troubling dilemma of First Amendment theory – something to which at this point surprisingly little attention has been raised. In the first section of this essay, I plan to lay the theoretical groundwork for the analysis and proposals that will follow, by comparing and contrasting the speaker- and listener-focused theories of free expression.18 The next section explores the elements of and arguments in support of the doctrine of First Amendment anonymity, in both its expressive and associational varieties.19 In the third substantive section I examine the dilemma of political fraud,20 and in the final section I examine the intersection of the two categories of free-speech doctrine, by shaping the limit on anonymity as the best available resolution of the political fraud dilemma.21 II. The Right Not to Speak, the Right of Anonymity, and the Theory of Free Expression A. The Right Not to Speak and the Values of Free Expression

Before one may effectively explore the First Amendment implications of the right of anonymity, it is first necessary to understand the expressive grounding of the right not to speak at all. To be sure, a right to anonymity and a right not to speak are by no means identical. But in an important sense, anonymity is a subcategory of a right not to speak: the choice not to reveal one’s name is a narrower exercise of a broader right to choose not to speak at all, because it represents the decision of the speaker to selectively limit his expression. Thus, whether or not one places a First Amendment value on a right of anonymity must begin with an exploration of the theoretical grounding of the right not to speak. Numerous tomes have been written about the theoretical foundations of the guarantee of free expression, and it would be counterproductive to reprise all of the many controversies that have surrounded the question. It is interesting, however, that relatively little of that theoretical inquiry has focused on the basis for an individual’s right not to express himself. In earlier writing, I provided my own views on that issue. I argued that “[c]ompelled speech undermines the interests fostered by protection of free expression by giving rise to four distinct but related harms: confusion, 18

Section II, infra.

19

Section III, infra.

20

Section IV, infra.

21

Section V, infra.

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dilution, humiliation, and cognitive dissonance.”22 By “confusion,” I meant the risk of “confusing the populace as to the actual strength and popularity of substantive positions advocated by the government.”23 Were private individuals to parrot the positions of those in power despite their actual opposition to those positions, the populace could easily be misled as to the popularity of those positions. By “dilution” I meant the risk of “diluting the force of the speaker’s persuasiveness in the eyes of the listeners,”24 because the force of a speaker’s voluntary expression of a contrary viewpoint would be undermined by the speaker’s parroting of government’s positions. The risk of humiliation referred to the risk of “publicly humiliating the speaker [by forcing him to utter words with which he disagrees], thereby possibly demoralizing him and undermining his resolve to maintain his own positions . . . .”25 Finally, by cognitive dissonance I referred to “a psychological process whereby an individual who has been forced to express a view contrary to her own eventually rationalizes her actions by subconsciously adopting the positions she has been forced to express.”26 All of these harms, I argued, rationalized the Supreme Court’s well-accepted doctrine that forced expression contravenes the First Amendment.27 Not all theories of free expression are so quick to accept a categorical right not to speak. Political philosopher Alexander Meiklejohn, for example, viewed the First Amendment guarantee of free expression solely as a means of benefitting the listener. He saw the value of free speech to be the manner in which it facilitates the democratic process. His theory started with the premise that “[g]overnments . . . derive their just powers from the consent of the governed. If that consent be lacking, governments have no just powers.”28 He considered government officials in a democracy to be merely agents of the true governors, the electorate. Because the electorate exercises its governing function in the voting booth, it is necessary to guarantee free and open debate so that the citizens can benefit from all possible information and opinion in making their governing decisions.29 22 23 27 28 29

Martin H. Redish, Money Talks: Speech, Economic Power and the Values of Democracy (New York: New York University Press, 2001), 175. Id. 24 Id. 25 Id. 26 Id. (footnote omitted). See, for example, Wooley v. Maynard, 430 U.S. 705 (1977); West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). Meiklejohn, supra note 14, at 9. Alexander Meiklejohn, “The First Amendment Is an Absolute,” Supreme Court Review (1962): 245.

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However, the speaker’s interest in communicating mattered not at all in Meiklejohn’s philosophy. The function served by the speaker, instead, was solely as a communicator of information and opinion to the citizen, thereby facilitating the citizen’s performance of the democratic function.30 By no means have all free speech scholars concurred in Meiklejohn’s view about the irrelevance of the speaker’s interest. Indeed, some respected scholars place relatively little, if any, value on the listener’s receipt of the expression.31 Nevertheless, if one were to follow Meiklejohn’s reasoning to its logical conclusions, one might well place no protection whatsoever on the right not to speak. Where forced expression might benefit the listener’s self-governing decision making, not only would such speech appear not to violate the First Amendment, but under Meiklejohn’s theory it would actually seem to further its values. The Supreme Court appeared to echo Professor Meiklejohn when, in Red Lion Broadcasting Co. v. FCC,32 it upheld against First Amendment attack the Federal Communications Commission’s “fairness doctrine,” which (prior to its repeal by the Reagan administration) “imposed on radio and television broadcasters the requirement that discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage.”33 Justice White, speaking for the Court, found the doctrine to be consistent “with the First Amendment goal of producing an informed public capable of conducting its own affairs . . . .”34 “It is,” he wrote, “the right of the viewers and listeners, not the right of the broadcasters, which is paramount.”35 Yet mystifyingly, a few years later in Miami 30 31

32 35

Meiklejohn, supra note 14, at 26. See generally C. Edwin Baker, Human Liberty and Freedom of Speech (New York: Oxford University Press, 1989). Professor Baker’s focus is on the liberty interest of the speaker. Thus, where the expression is not derived from the voluntary choice of the speaker (for example, where the expression comes from a corporation), Baker finds no value in the speech, despite the fact that listeners may well benefit as a result. See C. Edwin Baker, “Realizing Self-Realization: Corporate Political Expenditures and Redish’s The Value of Free Speech,” University of Pennsylvania Law Review 130 (1982): 646. I have been quite critical of his approach. See, for example, Martin H. Redish, “Self-Realization, Democracy, and Freedom of Expression: A Reply to Professor Baker,” University of Pennsylvania Law Review 130 (1982): 678; Martin H. Redish, “Commercial Speech, First Amendment Intuitionism and the Twilight Zone of Viewpoint Discrimination,” Loyola of Los Angeles Law Review 41 (2007): 67. 395 U.S. 367 (1969). 33 Id. at 369. 34 Id. at 392. Id. at 390. For a pioneering explanation of the First Amendment theory underlying the right of access, see Jerome A. Barron, “Access to the Press – A New First Amendment Right,” Harvard Law Review 80 (1967): 1641.

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Herald Publishing Co. v. Tornillo36 the Court declined to uphold a seemingly parallel legislatively imposed right of access to the print media, without ever attempting to distinguish Red Lion, thereby leaving the listener-focused version of First Amendment theory in a rather unsettled state. In prior writing, I have vigorously argued against the constitutionality of a governmentally imposed right of access of the kind upheld in Red Lion. “[T]he redistribution of expressive resources,” I reasoned, “may well threaten both the systemic and individual values sought to be fostered by the right of free expression. To require the operator of an expressive resource to provide a forum for the expression of views it deems offensive may skew the flow of public debate . . . .[and] give rise to the many threats to the individual’s mental autonomy normally associated with governmentally compelled expression . . . .”37 I thus gleaned from the First Amendment right not to speak a parallel First Amendment right to resist providing an expressive platform for the expression of views with which one disagrees.38 It is important to note that while I have little doubt that both forms of compulsion should be deemed unconstitutional, the First Amendment interests are by no means all one-sided in the context of compelled speech or right of access. Government’s inability to require speech or to require private communicators to establish a private right of expressive access threatens to reduce the amount of information available to the populace and thereby undermines the democratic facilitation function that a listenerfocused First Amendment theory posits. But when competing First Amendment interests are implicated, some “tragic choices” will have to be made.39 On balance, it seems clear to me (and, at least in part, to the Court) that the expressive harms of both compelled speech and a coerced right of expressive access far outweigh what are concededly real expressive benefits. Whether the calculus is the same when the right of anonymity is at stake, however, is by no means clear. It is to that issue I now turn. 36 38

39

418 U.S. 241 (1974). 37 Redish, supra note 3 at 193. Id. at 179 (“Although neither the burdens nor the benefits of the right of access are identical to those of compelled speech, many of the significant threats to the values of free expression to which compelled speech gives rise are abundantly present in the right-of-access context as well.”). Cf. Guido Calabresi and Philip Bobbitt, Tragic Choices (New York: Norton, 1978).

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B. The Right of Anonymity as a Sub-Category of the Right Not to Speak

Though they are not identical, the right against compelled speech and coerced expressive access surely share the same constitutional DNA with the right of anonymity. Much as it has protected the right against compelled speech, the Supreme Court has generally protected a speaker’s right to insulate his identity. For example, in Talley v. California40 the Court held unconstitutional a city ordinance prohibiting distribution of any handbill that did not have printed on it the name of the individual who prepared, distributed, or sponsored it. The Court held the ordinance unconstitutional on the grounds that compelled speaker identification unduly chilled speakers. It pointed to numerous historic incidents of anonymous protests and calls for political action. As a justification for the ordinance, the city argued that the identification requirement was necessary to reveal those responsible for fraud, false advertising, and libel.41 The Court rejected this argument, noting that the ordinance was not confined to such situations, so it need not consider the constitutionality of an ordinance so limited.42 Similarly, in its subsequent decision in McIntyre v. Ohio Election Commission,43 the Court held unconstitutional an Ohio statute that prohibited the distribution of any material “designed to influence the voters in an election . . . unless there appears on such form of publication in a conspicuous place or is contained within said statement the name and residence or business address of the chairman, treasurer, or secretary of the organization issuing the same, or the person who issues, makes, or is responsible therefor . . . ” Writing for the majority, Justice Stevens stated: “‘Anonymous pamphlets, leaflets, brochures, and even books have played an important role in the progress of mankind.’ Great works of literature have frequently been produced by authors writing under assumed names.”44 There is certainly nothing inherently unreasonable in the Court’s thinking. As a historical matter, we need only recall the Federalist Papers, where Hamilton, Madison, and Jay assumed aliases, to recognize that anonymity 40 43

362 U.S. 60 (1960). 514 U.S. 334 (1995).

41 44

Id. at 64. 42 Id. Id. at 341 [citing Talley].

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has played an important role in the intentionally robust and wide-open nature of our expressive framework. Moreover, as a practical matter, it is not difficult to predict that forced speaker identification will have a chilling effect on speakers who seek to contribute unpopular ideas to the expressive marketplace. As previously noted, the right of anonymity is in some sense appropriately seen as a subcategory of the broader right not to speak, and therefore a conceptual cousin of the constitutional protection against coerced imposition of a right of private expressive access. The individual, after all, is choosing to restrict her expression by refusing to utter her name. The constitutional question is whether government can force her to do so. In this sense, the inquiry is parallel to the question of whether the public may be deprived of information or opinion because a potential speaker is unwilling to provide it. It would be a mistake, however, for us simply to collapse the different categories of constitutional inquiries. In certain ways the First Amendment argument for anonymity is even stronger than the rationale for a right not to speak. When a private individual chooses not to speak, the First Amendment interests of the citizens in expanding their knowledge are not advanced.45 Under these circumstances, the populace is deprived of whatever beneficial impact they might have received had the individual chosen (or been forced) to communicate. In these instances, the Court has concluded that the First Amendment interest in allowing the speaker expressive autonomy overrides the competing listener-centric First Amendment interest in providing the populace with information and opinion. Anonymity, in contrast, is by its nature inextricably linked to the affirmative exercise of a speaker’s right to express oneself. Indeed, a distinctive concept of anonymity is incoherent in the context of total silence. In such a situation, anonymity is simply subsumed by the allpervasive choice of the individual not to express himself. Anonymity is only of value, then, when a speaker has first chosen to contribute to public discourse, for it is only then that the issue of speaker identity comes into question. 45

Where forced expression requires the private speaker to parrot governmental positions that he does not accept, then the listeners are, of course, better off with total silence than with misleading private support for government positions. The fact remains, however, that as a categorical matter silence in and of itself cannot possibly advance the public discourse.

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If it is true, as the Supreme Court has suggested, that a prohibition on anonymity inevitably chills expression, then a choice against allowing anonymity – unlike the choice not to permit silence under certain circumstances – may well reduce the sum total of information and opinion contributed to public discourse. Hence, recognition of a constitutional right to remain totally silent represents a speaker-centric First Amendment approach that, in certain circumstances,46 may well undermine the values sought to be fostered by a listener-centric First Amendment theory, while a right of anonymity arguably undermines both speakercentric and listener-centric models of free expression. From this perspective, the constitutional interest in protecting anonymity appears to be even far more powerful than those underlying the well established right not to speak at all. When a private individual or entity successfully resists coerced expression, that individual or entity may well choose to remain completely silent. That is not necessarily so, however, in the case of anonymity. In cases where a speaker seeks anonymity, the speaker is necessarily seeking to communicate, but seeking to do so anonymously. C. Distinguishing the Expressive and Associational Subcategories of Anonymity

The Supreme Court has construed the First Amendment right of anonymity to apply beyond the directly expressive context. It has recognized anonymity interests also when the right of expressive association is involved. The First Amendment right of association, it should be noted, finds no express grounding in the provision’s text. By its terms, the First Amendment protects the rights of speech, press, and assembly – not a right to associate. However, the Court has inferred a right to associate from the rights of speech, press, and assembly. In NAACP v. Alabama ex rel. Patterson, the Court reasoned that “[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group 46

This is particularly true when the government seeks to compel the private individual or entity to reveal information that might be valuable to the populace. It is also true in the case of a forced provision of expressive access to other private individuals, as was the case in Red Lion. It is not the case, however, when the government seeks to force the private individual to reiterate government held positions with which the speaker disagrees.

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association . . . .”47 In that case the state attorney general issued a subpoena demanding that the organization disclose the names of its Alabama members. The NAACP, the Court stated, “has made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members has exposed those members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility. Under these circumstances we think it apparent that compelled disclosure of petitioner’s Alabama membership is likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate . . . .”48 Though both are rightly deemed protected by the First Amendment, in certain senses association appears to be appropriately distinguishable from direct expression. While the latter involves a direct communication between speaker and listener, the former involves at most an indirect form of communication. As a general matter, association is a more private activity than direct expression. It is true, of course, that often associational activity proximately leads to direct expression. However, the First Amendment associational right logically applies just as much to settings in which no direct expression will result. In the case of association, the private individual joins with others in organizations that may or may not engage in direct expression. Yet the First Amendment right will apply as much in these contexts as when the association is for the purpose of producing contributions to public discourse. For example, the First Amendment right of expressive association applies to a private political organization in which the members distribute no leaflets and take out no advertisements, but instead do nothing more than meet in private settings so that the members can exchange their private views on issues of the day. The First Amendment right is applicable in such settings, both conceptually and theoretically, because individuals are furthering all of the values served by the expressive 47 48

357 U.S. 449, 460 (1958). Id. at 462–3. The Court also stated that “[i]t is not sufficient to answer, as the State does here, that whatever repressive effect compulsory disclosure of names of petitioner’s members may have upon participation by Alabama citizens in petitioner’s activities follows not from state action but from private community pressures. The crucial factor is the interplay of governmental and private action, for it is only after the initial exertion of state power represented by the production order that private action takes hold.” Id. at 463. Shelton v. Tucker, 364 U.S. 479 (1960) (upholding First Amendment right of schoolteachers to keep secret the list of organizations of which they are members).

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guarantee by communicating their views to others and hearing the others express their views to them.49 While conceptual distinctions between association and expression may exist, the logic of guaranteeing the right of anonymity appears to be identical in both contexts. Whether the individual exercising his First Amendment right is doing so directly through expression or indirectly through association, the reason for anonymity is the same: general awareness that the speaker holds unpopular views could easily lead to public shunning or other negative consequences. Loss of anonymity could therefore readily lead to the chilling of the exercise of either expressive or associational rights. However, when one includes as part of the constitutional calculus the negative consequences for the First Amendment caused by protection of speaker anonymity, it may well be appropriate to draw a distinction between expressive and associational anonymity.50 Before one can understand the basis for that distinction, one must first understand the constitutional “dark side” of the right of anonymity. To comprehend the First Amendment difficulties caused by assurance of anonymity, one must also understand a seemingly unrelated First Amendment concern: the problem of political fraud – consciously false and deceptive contributions to the public discourse that are potentially as toxic to democratic decision making as subprime mortgages are to banks. Once the significant harms of political fraud are understood, we will then be in position to also understand how constitutional protection of anonymity dangerously facilitates the perpetuation of that fraud. III. The First Amendment and the Dilemma of Political Fraud A. Conscious Falsity and the First Amendment

In certain narrowly defined circumstances, falsity can conceivably advance First Amendment values, as when an author writes fiction or when two 49

50

There are a number of respected free speech scholars who have framed the First Amendment right exclusively in terms of a speaker’s intent to contribute to public discourse. As a literal matter at least, private exchanges of political views would not seem to qualify under this description of the right of expression. However, as I have recently argued, to the extent the “public discourse” approach actually intended to exclude such private communications, it is total nonsense. See Martin H. Redish and Abby Marie Mollen, “Understanding Post’s and Meiklejohn’s Mistakes: Adversary Democracy and the Theory of Free Expression,” Northwestern University Law Review 103, (2009): 1303. See discussion infra text at nn. 80–2.

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people exchange fantasies. However, when falsity is misrepresented as the truth as part of the public discourse, the expression’s relevance to the interests sought to be fostered by the First Amendment is questionable. Indeed, one could reasonably suggest that it actually undermines those values.51 Nevertheless, under certain circumstances the Supreme Court has chosen to extend full First Amendment protection to false statements. In the line of cases beginning with New York Times Co. v. Sullivan,52 the Court held that even false and defamatory speech receives full First Amendment protection when it concerns public officials or public figures, reasoning “[t]hat erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need to survive’ . . . .”53 The Court’s concern, in other words, was that risk-averse would-be speakers might well wish to make statements that are true, but would be deterred from doing so for fear that they would ultimately be determined to be false – and therefore actionable – by a jury years later. It is therefore necessary to protect a category even of harmful, false statements in order to avoid the chilling effect on true expression that would likely result from the opposite decision.54 While several Justices disagreed,55 the New York Times majority chose not to make the First Amendment protection of defamation of public officials absolute. Instead, it fashioned an exception for defamatory statements said with “actual malice,” defined as statements made with knowledge that they are false or with reckless disregard for their truth or falsity.56 Thus, while the First Amendment was construed to protect even false defamatory statements, it was not construed to protect consciously false defamatory statements.57

51 54

55

56

57

See discussion infra text at nn. 58–62. 52 376 U.S. 254 (1964). 53 Id. at 271–2. Absent First Amendment insulation, the Court reasoned, “would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so.” Id. at 279. Justices Black, Douglas, and Goldberg differed with the majority on not making the First Amendment protection against defamation actions absolute. Id. at 293 (Black, J., concurring) (joined by Douglas, J.), 297 (Goldberg, J., concurring) (joined by Douglas, J.) Id. at 279–80. Note that the label is something of a confusing misnomer. “Malice,” in the sense of evil intent, is by no means sufficient to bring defamatory speech within the exception. For example, a speaker could be motivated by the malicious goal of destroying his victim, yet nevertheless believe in the truth of his allegations. Note that the Court also recognized an exception for statements made with reckless disregard of their truth or falsity. However, in subsequent decisions the Court confined this exception

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If one were to ask why consciously false statements represented by the speaker as truthful are categorically excised from the First Amendment’s protective scope (a question, by the way, the Court has never asked), two conceivable answers come to mind. First, it could be argued that such statements are inherently devoid of value – in other words, they foster no conceivable interest sought to be fostered by First Amendment protection. Second, it could be argued that such statements are so likely to be harmful that they can be categorically excluded, ex ante. In what way are they harmful? In the specific context of the New York Times doctrine, the answer is obvious: consciously false defamatory comments unfairly and unjustly harm individuals’ reputation without any corresponding benefit to society. When the statements are uttered without knowledge of falsity, the Court did see a benefit in protecting them, as a means of providing the “breathing space” necessary to assure robust and wide-open debate. However, when the speaker knows that what she is saying is false, the New York Times majority reasoned, the concern about chilling truthful speech is rendered irrelevant.58 Absent this concern, consciously false defamatory statements appear to serve no First Amendment value. Surprisingly, the issue of whether the New York Times’ doctrine’s categorical exclusion of consciously false speech applies as well in areas of expressive regulation other than defamation is unresolved.59 To be sure, it is well established that commercial fraud – defined as the “use of deceit, a trick or some dishonest means to deprive another of his/her/its money, property or a legal right”60 – is categorically outside the scope of First Amendment protection.61 However, it is clear that this exception was confined to issues concerning the protection of commercial speech, and in any event applies as much to false

58

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60 61

narrowly to make it virtually identical to actual knowledge of falsity. See St. Amant v. Thompson, 390 U.S. 727 (1968). Note also that at the time of its decision, New York Times’ First Amendment protection of false defamatory statements was confined to comments about public officials. However, in subsequent years the Court extended that protection to comments about public figures as well. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). The concurring opinions differed with this assessment on the grounds that even a well-meaning speaker might fear the burdens and risks involved in defending against the allegation of conscious falsity. New York Times v. Sullivan, 376 U.S. at 293 (Black, J., concurring). For present purposes, however, I proceed on the assumption of the correctness of the majority’s conclusion. The Court has also applied the New York Times doctrine in the context of so-called “false light” privacy. Time, Inc. v. Hill, 385 U.S. 374 (1967). However, this tort is strikingly similar to the defamation tort in relevant ways. http//dictionary.law.com. Central Hudson Gas & Elec. Corp. v. Public Service Comm’n, 447 U.S. 557, 563–4 (1980).

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commercial claims made without knowledge of falsity as it is to those made with such knowledge.62 But what about non-defamatory consciously false statements made in the context of political debate? Virtually no court has even touched upon the issue, much less resolved it. The only appellate court case to deal extensively with the issue is the Washington State Supreme Court’s decision in State ex rel. Public Disclosure Commission v. 119 Vote No! Committee,63 where the court refused to find the exception for conscious falsity to apply outside of the defamation context of the New York Times doctrine. The statute that the court found unconstitutional imposed punitive civil penalties for, among other things, sponsoring, “with actual malice,” “political advertising that contains a false statement of material fact.”64 Concerned with the sweeping chill on political speech that might result from such a statute,65 the court was hesitant to find all conscious falsehoods beyond the First Amendment’s scope. The statute’s inclusion of the “actual malice” requirement was presumably designed to confine its reach to consciously or recklessly false statements, thereby satisfying the New York Times test and rendering the statute constitutional. But the court held that the defamation context differed significantly from the case of general political advocacy: “[T]he State’s reliance on the law of defamation is misplaced. By its nature, defamation concerns statements made by one person against another and is designed to protect the property of an individual in his or her good name.”66 The state defended the statute on the grounds that it fostered an informed public, but the court disagreed. The state’s argument, the court said, “presupposes the State possesses an independent right to determine truth and falsity in political debate. However, the courts have ‘consistently refused to recognize an exception for any test of truth . . . .’”67 Rather than relying “on the State to silence false political speech,” the court reasoned, “the First Amendment requires our dependence on even more speech to bring forth the truth.”68 Therefore ‘[t]he preferred First Amendment remedy of ‘more speech, not enforced silence’ thus has special force.’”69 62 63 64 65 66 68

Id. State ex rel. Public Disclosure Comm’n v. 119 Vote No! Committee, 135 Wash.2d 618, 957 P.2d 691 (Washington 1998). R.C.W. 42.17.530. The court, emphasizing the importance of political speech as part of the First Amendment’s protection, concluded that the law “coerces silence . . . .” 957 P.2d at 627. Id. at 628–9. 67 Id. at 624–5 [quoting New York Times, 376 U.S. at 271]. 957 P.2d at 626. 69 Id. at 627 (citation omitted).

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No doubt, the Washington Supreme Court had its heart in the right place. It quickly turned to the well-known First Amendment dictate to answer false speech with true speech, rather than with suppression. And why not? Surely the dictate has a strong pedigree, finding its most articulate advocacy in the works of such giants as John Stuart Mill70 and Justices Holmes71 and Brandeis.72 It represents classic “marketplace-of-ideas” thinking, a well known branch of free speech theory. Despite its once-venerable origins in the theory of free expression, in modern times the marketplace-of-ideas approach has been the subject of severe scholarly criticism.73 In the words of one commentator, “[i]t is naïve to think that truth will always prevail over falsehood in a free and open encounter, for too many false ides have captured the imagination of man.”74 For present purposes, however, the broader validity of the marketplaceof-ideas theory is beside the point. Even if one were to accept its premises – solely for purposes of argument – the Washington Supreme Court still missed a basic point in relying on the marketplace-of-ideas theory to invalidate a statute that punished consciously false statements. The marketplaceof-ideas theory could conceivably justify invalidating a governmental prohibition on the expression of certain ideas deemed by those in power to be false. As the Supreme Court has stated, “There is no such thing as a false idea.”75 Used in this manner, the marketplace-of-ideas theory does no more than rationalize the constitutional prohibition on governmental suppression of unpopular viewpoints – an essential element of a viable democratic process. But a prohibition on suppression of the expression of normative viewpoints does not necessarily imply a similar prohibition on suppression of the expression of basic descriptive or historical facts. Democracy may not be able to coexist with governmental ability to suppress ideas it deems distasteful, but it may well coexist with government’s ability to punish 70 71 72 73

74 75

See generally John Stuart Mill (1859), On Liberty (London: J. W. Parker). Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) (“[T]he ultimate good desired is better reached by free trade in ideas . . . .”) Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring) (advocating marketplace of ideas rationale for free expression). As I wrote many years ago, “[t]he ‘marketplace-of-ideas’ concept, in its use as a defense of free speech, has often been subjected to savage attack.” Martin H. Redish (1984), Freedom of Expression: A Critical Analysis (Charlottesville: Michie Co., ), 46. Harry Wellington, “On Freedom of Expression,” Yale Law Journal 88 (1979): 1105, 1130. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974).

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someone for saying it is raining outside when it is not. More importantly, even were we to decide to protect false statements of fact out of fear that free expression would likely be chilled as a result, it still does not automatically follow that the expression of consciously false statements should be equally protected. One who makes a consciously false statement is not attempting to make a good-faith effort to contribute to the public discourse; rather, he is doing nothing more than attempting to deceive. On this basis, one might readily conclude that consciously false statements fall outside the First Amendment because they do not contribute to the marketplace of ideas. The Washington Supreme Court’s distinction between suppression of consciously false statements in the defamatory and non-defamatory contexts turned on its assessment of the strength of the competing governmental interests: defamation causes severe individual harm, while non-defamatory falsehoods in a political campaign have no comparably harmful impact. But the court was much too quick to dismiss the government’s asserted compelling interest. Perhaps this resulted because the state failed to articulate the true harm to the First Amendment that flows from permitting the expression of conscious falsehoods in the political process. B. The First Amendment Harm of Conscious Falsehoods

No one, I imagine, would dispute the absence of First Amendment protection for the expression in the following situation: A tells B that he will sell him his car if B gives him $500. Relying on this representation, B gives A the money and A tells him he will deliver the car later that afternoon. However, A never had any intention of selling B his car, and instead simply absconds with the money, never to be seen by B again. While of course A used words and voice in the process, it would be absurd to suggest he was engaging in real expression. Rather, he was employing words as part of a criminal act of fraud, much as a holdup man says to his victim, “Your money or your life.” In neither case could it seriously be suggested that principles of free expression are implicated. My example of A’s fraudulent behavior would be dealt with by modern First Amendment doctrine under accepted principles of commercial speech protection: false commercial promotions are unprotected, whether they are said with knowledge of falsity or were merely honest mistakes.

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Now imagine the following situation in a more political context: a candidate for Congress speaks to a group of Vietnam-era veterans and tells them he understands what they went through in battle because he, too, served in combat in Vietnam. He is therefore in a better position than his opponent to understand their needs and protect their interests in Congress. On the basis of this representation, he asks for and receives monetary contributions to his political campaign from audience members. In reality, the candidate never served in Vietnam but had instead been a draft dodger and staunch antiwar activist. Though this expression takes place in a political rather than commercial context, it is difficult to imagine that the candidate’s words should receive any more First Amendment protection than A’s words did in my first hypothetical. Reduced to their simplest form, both cases involve nothing more than the use of expression as part of a scheme to defraud victims out of their money. In both situations, words are employed as part and parcel of a criminal act of stealing money. My final hypothetical involves a slight twist on the second example. Assume that, as in example number two, the candidate falsely represents to the veterans’ group that he served in combat in Vietnam, just as they did. Now, however, assume that instead of seeking financial contributions, he simply asked for audience members’ votes on election day. All of a sudden, the Washington Supreme Court in 119 Vote No! Committee tells us, the “expression” of the candidate becomes part of the core of the First Amendment, and therefore constitutionally immune from governmental punishment. Yet in virtually every sense, the candidate’s behavior in example 3 parallels his behavior in example 2: in both, the candidate made a knowing misrepresentation on which his victims reasonably relied, causing them to give up something of value. It is true that in one case it was their money while in the other case it was their vote that was stolen, but if one invokes a Meiklejohnian listener-centric perspective on the First Amendment,76 in a certain sense loss of the victims’ vote is at least as harmful as loss of the victims’ money. While loss of the money is a compelling harm external to the First Amendment that justifies suppression (assuming, for purposes of argument, that the fraudulent statements constitute “expression” in the first place), loss of the vote is internal to 76

See discussion supra text at nn. 28–32.

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the First Amendment. If the sole or primary purpose of free expression is to facilitate citizens’ performance of the self-governing function in the voting booth, as Meiklejohn posited, then protecting the candidate’s expression in the name of the First Amendment actually counterproductively undermines the First Amendment simultaneously. And this is so, even if one does not believe, as Meiklejohn did, that the listener-centric model is the only proper way to view First Amendment interests. Put simply, protecting consciously false statements made by candidates or their supporters in a political campaign amounts to what can be accurately labeled political fraud. Such fraudulent statements do more harm than simply misinform the electorate, as the state apparently argued in 119 Vote No! Committee. Rather, such expression affirmatively confuses and deceives the electorate, thereby distorting both public discourse and democratic decision making. It does not matter whether one rationalizes exclusion of fraudulent expression from the First Amendment on the grounds that it is conceptually to be characterized as an act (that is, the equivalent of theft) rather than expression or on the grounds that the harm caused by fraud is categorically deemed sufficient to counterbalance whatever expressive interests are implicated. Either way, the end result is that fraud falls outside the bounds of constitutional protection. It is not immediately clear why the identical logic does not apply as well to political fraud. C. The Dilemma of Political Fraud

The problem with reaching the conclusion that political fraud is to be excluded from the scope of First Amendment protection may well center on the concern raised by the Washington Supreme Court. Categorical exclusion of political fraud from the First Amendment would place ominous power in the hands of those in authority to threaten or coerce those who oppose them. My example of the political candidate’s blatant misrepresentation may be extreme; other examples of allegedly consciously false statements may involve more subtle misrepresentations that many could reasonably find to be simply part of the political process. Where the proper line is to be drawn will naturally be difficult to determine. These difficulties become even more troubling when one moves from openly false statements (“I served in Vietnam”) to judgmental (“I was the best governor this state has ever seen”) or factually accurate but misleading

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statements (“I have great experience; I have been elected to high office twice,” without revealing that both times the speaker was impeached, convicted, and removed from office). On the one hand, it can be argued that, as a fortune cookie once said, “A half-truth is a whole lie.” In other words, strategically selective expression of only a portion of relevant argument will invariably mislead a listener as much as a directly false statement will. Therefore, if we are to regulate or suppress affirmatively false assertions in the political arena, logically it is equally necessary to do the same for statements intentionally rendered misleading by their strategic incompleteness. On the other hand, the idea that presenting only one side of a debate can be punished by government for being misleading seems intuitively preposterous. Under such a scheme, every speaker would be transformed from an advocate for her position to an objective observer. Moreover, even if the speaker wanted to avoid misleading listeners due to selectivity, it would often be difficult for the speaker to know at what point she had actually included “enough” counterarguments or information to qualify her speech as non-misleading. Surely, such a system could not survive in a world where speech is designed to be robust and wide-open. We are presented, then, with a very real regulatory dilemma. Either we protect consciously false expression in the political arena – expression that inherently serves no First Amendment value and can seriously undermine and distort performance of the democratic process – or we invite widespread chilling of potentially valuable expression and place a dangerous weapon of suppression in the hands of those in power. Both alternatives appear to give rise to seriously harmful consequences for important interests sought to be fostered by the constitutional guarantee of free expression. Neither result, then, seems particularly inviting from a constitutional perspective. There are several conceivable methods of resolving this dilemma. For example, we could exclude affirmatively false information disseminated with knowledge of its falsity but deem argumentation found to be misleading for no reason other than its strategic incompleteness to be fully protected. Under this regulatory model, the First Amendment would not protect a congressional candidate’s unambiguously false assertion that he served in Vietnam, but would protect an argument for gun control emphasizing the number of children killed by gun accidents but failing to mention the number of crimes aborted because the intended victim

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possessed a handgun. In support of this middle position, one could argue that the most invidious forms of consciously false expression are affirmative misrepresentations of specific facts, while the greatest expressive chill would be caused by the suppression or punishment of technically accurate but misleadingly incomplete statements. Whether this compromise solution provides a satisfactory answer to the dilemma, however, is open to question. It is perhaps reasonable to argue that the harm caused to the democratic process by consciously false statements is likely at least as great as the harm caused to an individual by consciously false defamation. The fact remains, however, that confining the exception for conscious falsity to the defamation context has the beneficial effect of restricting the reach of the expressive chill potentially caused by the exception for conscious falsity to that one area.77 Once we choose to extend the exclusion from constitutional protection to all consciously false statements made in the political arena (or, perhaps, in any arena covered by the First Amendment),78 the potential chill becomes far more pervasive. Perhaps one can help to resolve the dilemma of political fraud by adjusting established constitutional doctrine on the subject of anonymity. It is to this issue that my analysis now turns. IV. Diluting Political Fraud by Adjusting the Rules of Anonymity Protection

There can be little question that the constitutional guarantee of anonymity exacerbates the problem of political fraud, even if we proceed on the assumption that political fraud is fully protected by the First Amendment. In many instances, it seems reasonable to predict, political fraud either 77

78

The feared chill, it should be recalled, is based on the assumption that even a speaker who honestly believes what he is saying may fear that a jury will subsequently conclude that he knew of his expression’s falsity and at the very least the speaker may fear having to undergo the legal process required to determine whether he knew what he was saying was false. It should be noted that regardless of the subject area of the expression, any time consciously false statements are made for the purpose of obtaining money from victims, the widely recognized exception for economic fraud is logically triggered. Thus, when New Republic writer Stephen Glass and New York Times reporter Jayson Blair falsified stories in their respective publications, regardless of the stories’ subject matter such activity would not be protected by the First Amendment because customers are asked to pay money for the publications on false pretenses. “Magazine Dismisses Writer Accused of Hoax,” New York Times, 12 May 1998, sec. A, p. 17; “Times Reporter Who Resigned Leaves Long Trail of Deception,” New York Times, 11 May, 2003, 1.

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centers upon, or is at least facilitated by, a speaker’s right of anonymity. Initially, a speaker who is not permitted to restrict his identity will probably be less likely to make flagrantly fraudulent statements for fear of public shunning. More importantly, the speaker’s identity itself is often likely to be part of the fraud. For example, a speaker advocating particular legislation that would benefit a certain interest may not wish to reveal that he would be the primary beneficiary of that legislation. By retaining his anonymity, he can – if only by implication – falsely project himself as an objective observer. In judging the value, completeness, or sincerity of expression, it is appropriate for listeners to include as part of their calculus who the speaker is. The statement that smoking does not cause heart disease is likely to be taken far more seriously if it is uttered by a heart specialist with no connection to tobacco companies than by a representative of the tobacco industry. And this is so, it should be emphasized, even if the substance of the expression itself is not consciously false. It is human nature that a speaker who has a special interest in listener acceptance of his speech is likely (if only subconsciously) to shade the substance and structure of his argument. It might be argued that a listener’s judgment concerning the merits of expression should be influenced not at all by the speaker’s identity. Rather, the value of the expression should be deemed to stand or fall on its own: either it is persuasive or it is not. Who the speaker is, the argument proceeds, has no relevance to its impact. Such a view is misguided, however, because it ignores the realities of the communicative process. Rarely does expression contain within its four corners arguments that are self-proving. Instead, speech often contains not easily verifiable assertions of fact or conclusory assessments of worth. In either case, the listener’s confidence in the speaker’s expertise and personal agenda will potentially possess enormous relevance to how the listener assesses the value of the speech. I do not mean to suggest that the speaker’s identity is the only relevant factor in assessing the impact of expression. But it would be at least equally absurd to suggest its irrelevance to that assessment. This does not mean that the speech is necessarily false or intentionally deceptive. An attorney representing a client is not expected to make her opponent’s case to the judge or jury; she naturally has a personal and professional interest in acceptance of her arguments. Indeed, this personal and professional agenda is intentionally built into the adversary system,

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because it is thought that it will ultimately lead to more effective representation and more accurate decision making.79 It surely does not follow, however, that what the attorneys say is false or fraudulent. But it would be folly to allow the attorneys to hide their identities or allegiances. Both judge and jury are placed in a far better position to measure the arguments made by their awareness of the identity and allegiances of the advocates. Requiring speaker identity thus would facilitate the democratic decision making process in several important ways. First, the voters would be able to place the substance of the expression in far better perspective by knowing who the speaker is, because it will enable them to shape their acceptance of the views expressed in light of the objectivity and expertise of the speaker, even if the speaker made no affirmative representations about either consideration. Second, the speaker would be unable to affirmatively misrepresent the level of both her personal interest and qualifications. Third, in situations in which the speaker is advocating election or appointment of another individual, the voters would be able to judge the candidate by who her supporters are. It is certainly true that revoking the right of anonymity will not cure all dangers of political fraud. Indeed, in the examples I gave at the outset to illustrate the problem of political fraud, the identity of the speaker was already known. Even if the speaker’s identity is known, the expression may still be misleadingly incomplete, or even an outright lie. Moreover, even if the speaker’s identity is known, she may still conceal her preexisting political or financial connections and interests.80 Nevertheless, it is reasonable to predict that speaker identification will go a long way to deter at least extreme cases of political fraud or at least dilute its general impact on the populace by enabling them, through use of modern technology, to quickly determine the speaker’s underlying agenda. There is, of course, a negative side to the revocation of the constitutional guarantee of anonymity. For example, the thought of the Southern states of the 1950s and 60s employing the exposure of membership lists to intimidate the NAACP and other civil rights organizations is both frightening and 79 80

Martin H. Redish, “The Adversary System, Democratic Theory, and the Constitutional Role of Self-Interest: The Tobacco Wars, 1953–1971,” DePaul Law Review 51 (2001): 359. In prior work I have discussed the First Amendment right to conceal one’s associations. See Martin H. Redish, The Logic of Persecution: Free Expression and the McCarthy Era (Stanford: Stanford University Press, 2005).

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intolerable.81 We must start from the premise that any construction of the First Amendment that would authorize such governmental action is to be rejected. But it is important to recall the distinction between associational anonymity and expressive anonymity.82 The interest in avoiding political fraud could readily be confined to abolition of the right to anonymity that accompanies direct contributions to public discourse, for it is such expressive activity that most proximately causes the First Amendment harms to be avoided by the reduction in political fraud. Even in the case of directly expressive anonymity, I concede that certain First Amendment interests would be threatened by loss of constitutional protection. But it is important to note two important qualifying factors. First, revocation of the constitutional protection of expressive anonymity does not, in and of itself, prevent anonymity. In order to prohibit anonymity, the majoritarian branches of either the state or federal governments would still have to take action. Second, in revoking the right to anonymity, the majoritarian branches could not do so in a selective or discriminatory manner. For example, government could not dictate that only expression advocating certain political positions lose a right to anonymity; either government takes the right from all speakers, or it takes it from none. This viewpoint qualification is a fairly common element of free speech doctrine. For example, government may well be permitted to prohibit distribution of leaflets in the middle of roadways in order to prevent accidents. It could not, however, prohibit only the distribution of anti-war literature in the middle of roadways. The same would be true for government’s ability to revoke speaker anonymity. This equal protection element of the right of free expression assures imposition of an important political restraint on government’s ability to restrict expressive rights. Government may be far more hesitant to impose a restriction when that restriction must reach all speakers than when it is permitted to limit the reach of its restriction to selected groups who are under-represented among governmental decision makers. For example, in the case of southern states seeking NAACP membership lists in the 1960s, even were we to ignore the arguable difference between expressive and associational anonymity suggested earlier, revocation of a First Amendment right of anonymity would nevertheless not imply the constitutionality of 81

See discussion supra at text at nn. 80–2.

82

See discussion supra at text at nn. 80–2.

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such forced exposure. The constitutional problem would no longer be forced exposure; it would, rather, be discrimination based on ideology. There exists a widely recognized First Amendment right to equal treatment: government may not discriminate in its treatment of different speakers on the basis of ideology, even if there exists no free standing right to engage in the regulated behavior. I fully acknowledge the difficulty in making the Solomonesque choice between the First Amendment interest in anonymity on the one hand and the competing interest in avoiding or deterring political fraud, on the other. In order to dilute the harms to democratic decision making that derive from rampant and otherwise unregulable political fraud, we are forced to incur the risks of chilling the exercise of expressive rights in certain contexts. If one were ultimately to find the choice intolerable, there does exist a possibly less invasive version of the loss of anonymity right. Perhaps we could revoke the anonymity only in situations in which concealment of a speaker’s true identity can be shown to be part of an affirmative effort to mislead. Thus, it would be only where a speaker, rather than remaining anonymous, identifies himself as someone other than who he is in a way that would falsely induce material reliance by listeners, that the right of anonymity would be deemed irrelevant. For example, assume that on a chat room for law firm associates a law firm’s hiring partner not only fails to identify herself, but also talks as if she were an associate at her firm and praises its treatment of younger lawyers. In this case, the speaker has done more than remain anonymous; she has affirmatively portrayed herself as someone she is not for the purpose of inducing detrimental reliance on the part of the recipient of her communication. At least in cases of pure anonymity, the listener is put on notice of the possible need to question the force of the speaker’s arguments.83 The possible problem with this approach is that while in one sense it seems more limited than a total prohibition on anonymity, in another sense it may open the very Pandora’s Box of political fraud regulation that we have sought to keep shut. One can reasonably excise the issue of anonymity from the constitutional thicket of political fraud, because, standing alone, it is 83

The same logic would apply when an alias is chosen but it is obviously and unambiguously an alias – for example, “Publius” as one of the authors of the Federalist Papers. Use of that name is, as a practical matter, the equivalent of doing nothing more than concealing the speaker’s identity.

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separable from an inquiry into the substance of particular messages. The supposedly narrower focus on a speaker’s affirmative efforts to misrepresent his identity differs little, if at all, from the broader case-by-case inquiry into the fraudulent nature of any contribution to public discourse. One can therefore question whether we can justify inquiring into only a small grouping of instances involving substantive political fraud. This danger could be reduced, however, by confining the exception to constitutional protection of anonymity to affirmative misrepresentations of identity. V. Conclusion

Ultimately, one must make a tragic First Amendment choice. While I could not dismiss as unreasonable a choice different from my own, I nevertheless believe that abolition of the right of expressive anonymity is fully justified as a prophylactic means of deterring and diluting the serious First Amendment harms caused by political fraud. These harms, it should be noted, as a practical matter do not seem even arguably remediable through any other mode of governmental regulation. The resolution of the dilemma of political fraud that I propose, much as Justice Holmes once said about the First Amendment itself in perhaps his most famous opinion, would be “an experiment, as all life is an experiment.”84 Unfortunately, we can demand no more of ourselves than this. 84

Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).

Comment on Chapter 4: Anonymity, Signaling, and Silence as Speech Paul Horwitz*

Introduction

Martin Redish’s contribution to this symposium, Freedom of Expression, Political Fraud, and the Dilemma of Anonymity, is a characteristically thought-provoking work. Redish’s contribution is literally unsettling: it aims to raise doubts about the merits of anonymity as a First Amendment right, despite the seemingly well-established status of this right.1 Professor Redish writes in a typically careful and thoughtful fashion, zeroing in on the danger posed by anonymous speech that is politically fraudulent – that is, anonymous speech that amounts to a “conscious effort to deceive the public solely for political or ideological purposes.”2 The danger, Redish writes, is that stripping the identity of the speaker from the speech prevents listeners from properly judging that speech and, in appropriate cases, disregarding it for reasons of bias, inaccuracy, and so forth. He writes that “[i]t is a reality of communication that who the speaker is will, in many instances, appropriately affect a listener’s perception of and judgment about the expression.”3 Ultimately, he argues that the “abolition of the right of expressive anonymity is fully justified as a prophylactic means * Associate Professor, University of Alabama School of Law. I am grateful to Austin Sarat for organizing the symposium, to Martin Redish for his provocative paper, and to Shahar Dillbary and Paul Gowder for valuable comments on a draft of this response. 1 See, for example, Talley v. California, 362 U.S. 60 (1960); McIntyre v. Ohio, 514 U.S. 334 (1995); Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182 (1999); Watchtower Bible & Tract Soc’y v. Vill. of Stratton, 536 U.S. 150 (2002). 2 Martin H. Redish, Freedom of Expression, Political Fraud and the Dilemma of Anonymity, 145. 3 Redish, “Freedom of Expression . . . ” 147; see also R. H. Coase, “The Market for Goods and the Market for Ideas,” American Economic Review 64 (1974): 384, 386 (“It is difficult to know how much credence to give to information or to check on its accuracy if one is ignorant of the source.”).

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of deterring and diluting the serious First Amendment harms caused by political fraud.”4 Professor Redish’s contribution adds complexity to an area of First Amendment doctrine – the right to speak anonymously – that, as he notes, has received too little attention from mainstream First Amendment scholarship.5 This is a fair claim. Still, other bodies of legal scholarship have made useful contributions to at least some of the issues Redish raises. In this commentary, I use these cognate lines of scholarship to make two central claims and a couple of subsidiary ones. First, I hope to contribute to Professor Redish’s project by adding another layer of complexity to the picture of anonymous speech that he offers. Drawing on a substantial body of scholarship concerning Internet speech and intellectual property law, I want to suggest that it is not enough to focus on the general category of anonymous speech. Instead, we must break this category down into at least two subsets: anonymous and pseudonymous speech. I will show that even if we accept Redish’s account of the dangers of anonymous politically fraudulent speech, our concerns and prescriptions may vary depending on what kind of anonymous speech we are talking about. Second, drawing on the literature on signaling theory, I want to offer a more direct critique of Redish’s argument. Although he varies somewhat in his description, Redish often characterizes anonymity as a “subcategory of the right not to speak.”6 Signaling theory, however, suggests that the decision to speak anonymously sends an important message about the reliability of that speech. Thus, instead of viewing anonymity as a form of silence, we should view anonymity (and pseudonymity) as a highly expressive form of speech – one whose signals about the reliability of the speaker may diminish or obviate concerns about the harms of anonymous speech, and thus reduce or eliminate the need for the more radical solution that Redish tentatively suggests: the elimination of anonymity. In addition to calling Professor Redish’s argument into question, the signaling approach has two secondary implications for the jurisprudence of anonymous speech. First, contrary to Redish’s argument, it is impossible 4 5 6

Redish, id. 171. Id. 149. (noting that “relatively little of [the] theoretical inquiry [into the First Amendment] has focused on the basis for an individual’s right not to express himself”). Id. 149.

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to effectively divide “First Amendment anonymity” into separate categories of “expressive anonymity and associational anonymity.”7 Redish wants to remake doctrine in the former category while leaving the right to anonymous association untouched. I suggest that the two are actually inseparable; indeed, protecting associational anonymity helps maintain the preconditions under which anonymous speech serves a vital signaling function. Second, my approach underscores the well-recognized tension between the Supreme Court’s First Amendment doctrine protecting anonymous speech and its more skeptical view of anonymity in the area of campaign finance regulation. Although a full treatment of that issue is beyond the scope of this response, I tentatively suggest that the Court’s famously troubled doctrine in the campaign finance area ought to be modified, justified on stronger grounds, or abandoned altogether. I. Anonymity and Pseudonymity

I begin with a needed clarification. Redish writes in general terms about “the right of anonymity,” which he defines as “the right not to reveal one’s identity when exercising one’s affirmative right to express oneself.”8 If we are to properly understand and examine the “dilemma of anonymity,” however, it may be necessary to take a more fine-grained approach to the general category of anonymous speech. Happily, there is a burgeoning legal literature dealing with the taxonomy of anonymous speech, much of it stemming from Internet law and some of it stemming from intellectual property law.9 That literature may help provide further clarity about what is at stake when we consider anonymous speech.

7 9

Id. 147–8. 8 Id. 143. See, for example, Lyrissa Barnett Lidsky & Thomas F. Cotter, “Authorship, Audiences, and Anonymous Speech,” Notre Dame Law Review 82 (2007): 1537; Carole Lucock & Michael Yeo, “Naming Names: The Pseudonym in the Name of the Law,” University of Ottawa Journal of Law & Technology 3 (2006): 53; Laura A. Heymann, “The Birth of the Authornym: Authorship, Pseudonymity, and Trademark Law,” Notre Dame Law Review 80 (2005): 1377; Tal Z. Zarsky, “Thinking Outside the Box: Considering Transparency, Anonymity, and Pseudonymity as Overall Solutions to the Problems of Information Privacy in the Internet Society,” University of Miami Law Review 58 (2004): 991; David G. Post, “Pooling Intellectual Capital: Thoughts on Anonymity, Pseudonymity, and Limited Liability in Cyberspace,” University of Chicago Legal Forum (1996): 139; Lee Tien, “Who’s Afraid of Anonymous Speech? McIntyre and the Internet,” Oregon Law Review 75 (1996): 117; Anne Wells Branscomb, “Anonymity, Autonomy, and Accountability: Challenges to the First Amendment in Cyberspaces,” Yale Law Journal 104 (1995): 1639.

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For present purposes, the crucial distinction is between anonymity and pseudonymity.10 Anonymous speech can be understood in a straightforward fashion as “a message that provides the recipient with no information . . . concerning the identity of the message originator.”11 Genuinely anonymous speech provides no clues as to who is speaking. A commenter on a blog post on the Internet who chooses to post as “Anonymous,” for example, gives us no background information by which to judge the credibility of his or her remarks. It is often possible for other readers, or at least the manager of the blog, to determine something about the commenter’s identity, such as the originating address from which the comment is sent. For now, however, assume the speech is perfectly anonymous – as it may be, if the message is sent from a remailer or otherwise stripped of any identifying information.12 Perfectly anonymous speech would appear to raise in the starkest terms the concerns voiced by Redish. It is speech that gives its recipient no clue as to who is speaking, and thus gives the recipient no cues that might “affect [the] listener’s perception and judgment about the expression.”13 We can contrast anonymity with its “close cousin, pseudonymity.”14 Pseudonymous speech is speech that “is anonymous,” but that “contains some information about the identity of some cognizable entity that is the originator of the message.”15 It is thus a subset of anonymity,16 but with the crucial difference that it contains some identifying information about the speaker. Some, but not all, of the speakers discussed by the courts as examples of anonymous speech are thus actually pseudonymous speakers: Publius, for example, the pseudonym for the authors of The Federalist, or “Concerned Parents and Taxpayers,” the pseudonymous author of the leaflet that was in fact written and distributed by Margaret McIntyre.17 Pseudonymous speech must be further divided into a number of categories. Consider the following three matched pairs. First, a pseudonym 10

11 12

13 16

David Post, on whom much of the following discussion is drawn, adds a third relevant element: traceability, the ability to trace the identity of an anonymous or pseudonymous speaker. See Post, supra note 10, at 150–1. I leave the issue of traceability for the most part to one side. Id. 149. Of course, even perfectly anonymous speech of this sort says something about the identity of the speaker; it tells us, at least, that the speaker is someone who was willing to go to the effort and expense of maintaining perfect anonymity. I will address this aspect of perfectly anonymous speech below, and it need not detain us for now. Redish, “Freedom of Expression . . . ” 147. 14 Post, 142. 15 Id. 152. Id. 154. 17 McIntyre, 514 U.S. at 337.

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can be non-misleading, in the sense that it conceals the author’s identity but does not attempt to misdirect its recipients (for instance, the unhelpful pseudonym “X”), or it can be misleading, in the sense that the author uses a name that affirmatively attempts to cause recipients to make inaccurate assumptions about the speaker’s identity (for example, a pro-drilling group that calls itself “Citizens for a Clean Earth,” or a white male writer who comments on the Internet under the name “blackwoman”). Second, a pseudonym can be used on one occasion only, or it can be part of a continuing series of communications. Finally, and relatedly, a pseudonym can be constant, in the sense that it is used by the same speaker across a range of continuing communications; or it can be shifting, in the sense that the speaker chooses a different pseudonym every time she speaks. And we must add one further detail. Both pseudonymous and anonymous speech can be mediated or unmediated. In some cases, no one will know who the speaker is. In other cases, the speech is “published through the intermediation of a publisher who is likely to know the speaker’s identity.”18 Both the distinction between anonymous and pseudonymous speech and the further distinctions I have offered here significantly affect Redish’s arguments against anonymous speech. Again, his basic argument is that speaker identity can be helpful in evaluating the recipient’s judgment about the accuracy, reliability, and potential bias of a particular speech act, and thus that the “abolition of the right of expressive anonymity is fully justified as a prophylactic means of deterring and diluting the serious First Amendment harms caused by political fraud.”19 But the merits of this argument will vary significantly depending on the precise nature of anonymous speech that is involved. Genuinely anonymous speech, affirmatively misleading pseudonymous speech, and single-occasion pseudonymous speech all seem to fall within the scope of Professor Redish’s concerns. But that hardly accounts for all, or even most, pseudonymous speech. Some pseudonymous speech has accurate descriptive value: a speaker who properly labels himself “A Medical Professional” provides at least some information that might help readers evaluate the credibility of his comments on medical issues. Other

18

Lidsky & Cotter, 1567.

19

Redish, 171.

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pseudonyms may be largely unhelpful in and of themselves; “Publius” is an example. But if that pseudonymous speaker engages in a continuing series of communications over time, her speech will take on common characteristics that have some attributional value, and readers will be able to evaluate the trustworthiness and credibility of her pseudonymous communications by judging them against the background of all she has already said. Readers of The Federalist were surely in a different position in judging Federalist #85 than they were in judging Federalist #1, because they had a substantial record against which to judge Publius’ arguments. Indeed, a pseudonym can ultimately take on every bit as much meaning as an actual name. As Laura Heymann observes, “there is no difference in the reader’s perception of authorship between ‘Mark Twain’ and ‘John Grisham,’ even though the former is a pseudonym for Samuel L. Clemens and the latter is, presumably, the author’s true name.” 20 A pseudonymous speaker who maintains a constant identity can accumulate “reputational capital” in that name over time.21 That capital can accrue or diminish depending on the content of the speech. A pseudonymous speaker who generally shows herself to be trustworthy over time can earn as much or more credibility than a speaker who uses her actual name; conversely, a pseudonymous speaker who engages in political fraud or reveals an underlying ideological agenda can be discounted if she uses the same pseudonym on subsequent occasions. Finally, whether an anonymous or pseudonymous speaker is speaking in a mediated or unmediated fashion may also affect the weight of Redish’s arguments. Even an unmediated pseudonymous speaker, we have seen, may accumulate reputational capital in a way that helps us evaluate his speech. But some anonymous or pseudonymous speakers are mediated; some intermediary is aware of their real-world identity. If that intermediary is trustworthy or cares about his own reputation, there is less reason to discount the reliability of the unnamed speaker. Thus, if a reliable publisher vouches for the credibility of a pseudonymous author and will suffer a reputational loss if that author commits political fraud, then we have reason to believe the publisher will filter out bad pseudonymous speech.22 20 22

Heymann, 1396. 21 Post, 142. Saul Levmore, “The Anonymity Tool,” University of Pennsylvania Law Review 144 (1996): 2191, 2201–2; see also Clayton P. Gillette, “Reputation and Intermediaries in Electronic Commerce,” Louisiana Law Review 62 (2002): 1165.

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In sum, I suggest that Redish needs to further refine the categories of anonymous speech he discusses. Anonymity is too blunt a tool to be useful for legal analysis. Pseudonymous speech is not necessarily the same thing as anonymous speech, and even pseudonymous speech can vary greatly in its credibility and in the reader’s ability to evaluate it: “Not every pseudonym, so to speak, is a ‘Jane Doe.’”23 If, as he suggests, Redish is concerned with weighing the costs and benefits of restrictions on anonymity,24 these distinctions will require us, and help us, to engage in a finer-grained balancing of the costs and benefits of this sort of speech.25 II. Anonymity as Signal

The discussion so far has been clarifying rather than critical. It suggests some additional factors that may help evaluate Professor Redish’s argument and its applicability to particular situations, but it does not criticize his underlying conclusion about the dangers of anonymous speech. In this section, I want to offer a more directly critical view of Redish’s argument in favor of abolishing a right of expressive anonymity. As with the last section, I shift the ground from general First Amendment theory, which is the terrain on which Redish stands, by identifying the contribution that another strand of legal scholarship may make in considering the issue of anonymous speech. That field, signaling theory, has been employed in a rich legal literature. One of its leading practitioners is Eric Posner, and I will draw primarily on his work here. Posner, who makes use of an ample literature on signaling in economics and game theory, offers signaling as an account that helps explain the mechanisms of cooperation in repeated interaction between two or more 23 25

Lucock & Yeo, 93. 24 Redish, 148. In fairness, I should note that these arguments are directed at the initial draft of Professor Redish’s symposium paper. At the symposium itself, Redish made clear that he recognized some of the distinctions I have discussed here. His prescriptions were also more closely tailored at the oral delivery of his remarks: he suggested, somewhat contrary to the thrust of his initial paper, that he would permit absolutely anonymous speech, including the use of pseudonyms such as “Publius,” on a “buyer beware” theory, while still prohibiting the use of false or misleading pseudonymous political speech. I welcome his clarifications. For reasons I pursue below, however, I think they may significantly undermine his positive case for prohibiting any forms of anonymous speech. For now, it is simply worth noting that if, as his paper suggests, Redish’s proposals involve a balancing of the costs and benefits of anonymous political speech, the apparently limited scope of his proposal also suggests that he can put fewer gains into the scale when engaging in that cost-benefit analysis.

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parties. Imagine two “types,” he says: a “good” or cooperative type with a low discount rate, and a “bad” or opportunistic type with a high discount rate.26 In seeking a partner for repeated interactions, a party with some interest in long-term cooperation would prefer a good type. In order for good types to distinguish themselves from bad types, they send signals. One signal “is to incur large, observable costs prior to entering a relationship.”27 By incurring such costs, the good type signals that he has a low discount rate – that he is interested in a long-term investment. For example, a bank might signal potential investors by building expensive headquarters; this signals that the bank is a good type “because only good types can reap high enough future payoffs to recover their costs.”28 Posner argues that “any costly action can be a signal, that is, a mechanism for establishing or preserving one’s reputation.”29 These signals, he suggests, include many of the norms of public interaction – manners, dress, business norms, giftgiving, courtship rituals, and others – that form the stuff of daily life. Signals thus form and constitute our social norms.30 This is a decidedly brief description of signaling theory, and I have left out the criticisms raised against it,31 but it should suffice for our purposes. The relevance of signaling theory is that it suggests the type of speech one engages in – attributed, anonymous, or pseudonymous – can itself be a sort of signal.32 This insight suggests itself, albeit in reverse fashion, if one considers the standard justifications for anonymous speech. As the Supreme Court noted in McIntyre, “[t]he decision in favor of [anonymous speech] may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one’s privacy as possible.”33 In short, attributed speech is costly. A speaker who attaches her 26 27 31

32

33

Eric A. Posner, Law and Social Norms 18 (Cambridge: Harvard University Press, 2000). Id. 19. 28 Id. 21. 29 Id. 24. 30 See id. 22–7. For some representative criticisms, see, for example, Dan M. Kahan, “Signaling or Reciprocating? A Response to Eric Posner’s Law and Social Norms,” University of Richmond Law Review 36 (2002): 367; Kristin Madison, “Government, Signaling, and Social Norms,” University of Illinois Law Review (2001): 867 (reviewing Posner, supra note 27). For discussions of the relationship between speech, including anonymous speech, and signaling, see, for example, Lior Jacob Strahilevitz, “Reputation Nation: Law in an Era of Ubiquitous Personal Information,” Northwestern University Law Review 102 (2008): 1667; and Steven A. Hetcher, “Cyberian Signals,” University of Richmond Law Review 36 (2002): 327. McIntyre, 514 U.S. at 341–2; see also Redish, 144 (anonymous speech protections are “designed to avoid chilling the speaker’s willingness to contribute fully and frankly to public discourse without fear of retribution from either government or private power centers”).

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name to particular speech acts incurs all the potential costs of identifying herself, such as condemnation or retaliation. Thus, a willingness to attribute speech to one’s own true identity is a form of signaling mechanism. It alerts potential recipients of that speech that the speaker is willing to be held accountable for his speech. Incurring this cost thus signals that the speaker should generally be held to be more likely to be a trustworthy and reliable participant in ongoing public dialogue. Conversely, anonymous speech can be another form of signal: it can alert the recipient of the speech that the anonymous speaker is more likely to be a “bad” type. Such a speaker, by cloaking himself in anonymity, signals his unwillingness to incur any costs for his speech. The McIntyre Court was surely right to say that there are many plausible reasons why even a good person might choose to speak anonymously. Nevertheless, the decision to speak anonymously signals that the speaker has a high discount rate: he is unwilling to invest in his long-term public reputation by incurring the immediate costs of attribution. Whether or not he has legitimate reasons to do so, such a speaker signals that listeners should be more suspicious of the reliability and trustworthiness of this speaker, and less willing to invest in repeated public dialogue with him. To complete the picture, a variety of signals can be sent by pseudonymity, depending on the particular kind of pseudonymous speech. A pseudonymous speaker who uses a name that could be traced to his actual identity, or who uses the same pseudonym in repeated interactions, or who puts his identity in the hands of a trusted intermediary, is sending a particular level of signal about his reliability by incurring at least some potential reputational and other costs. By contrast, a pseudonymous speaker who uses an utterly unrevealing name, or a misleading one, or who engages in certain kinds of pseudonymous speech, such as a one-time communication or the use of shifting pseudonyms, suggests a higher discount rate and thus less reliability as a speaker.34 34

To be sure, one may not know at the outset that a pseudonymous speaker is using shifting pseudonyms, or a misleading pseudonym, or is engaging in only a one-shot communication. But this presents little difficulty, because we can begin with the assumption that the reliability of any pseudonymous speaker starts out at a low level, and only increases as it becomes clear that the pseudonymous speaker is in fact willing to incur costs, such as if the speaker continues using the same pseudonym. In practice, this is little different from attributed speech: we are likely to attach less value to attributed speech the first time a particular person speaks, and to attach more value to the speech as we become convinced of that person’s reliability and persuasiveness.

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In short, viewed through the lens of signaling theory, attributed, anonymous, and pseudonymous speech can be seen as sending a variety of signals about the reliability or accuracy or good character of the speaker, depending on the precise nature of the attributional choice made by the speaker. They are all forms of signals sent to the universe of potential listeners, and will be valued or deprecated accordingly by their recipients.35 This account, in my respectful view, raises serious difficulties for Professor Redish’s treatment of anonymity as a First Amendment right. Although he is very cautious on this point and should not be read as making this point too starkly, Redish tends to view anonymity as “a subcategory of a right not to speak.”36 Elsewhere, he describes it as “[a] traditionally recognized subcategory of the constitutional guarantee of silence.”37 Although I do not think this conclusion significantly drives Redish’s analysis, for some readers the treatment of anonymity as a form of silence rather than a form of speech may dilute the perceived interest in preserving anonymous speech. On the signaling account of anonymous speech that I have offered here, however, it is inaccurate to describe anonymous speech as a form of silence or not speaking. Instead, this account leads us to view anonymity as a form of speech. This is somewhat similar to the Court’s claim in McIntyre that “the identity of the speaker is no different from other components of the document’s content that the author is free to include or exclude.”38 In other words, anonymity, as part of the suite of editorial decisions about what to include or exclude from a particular speech, is itself a speech act, and regulation of that decision is a form of contentbased regulation. But my focus is somewhat different here. The choice of attribution is a choice about what level of costs the author is willing to incur, and thus what kind of signal he is willing to send to readers. By using his real name, a speaker incurs high costs and sends a 35

36

A somewhat similar point is made, although not in terms of signaling theory, by Larry Ribstein. See Larry E. Ribstein, “From Bricks to Pajamas: The Law and Economics of Amateur Journalism,” William & Mary Law Review 48 (2006): 185, 194–5 (“Amateur journalists . . . can reduce [ ] private costs [such as reputational damage] by not identifying themselves. Indeed, current technology probably allows bloggers who are willing to pay the costs of total anonymity to avoid any constraints on their activities, including [ ] reputational constraints . . . . However, anonymity also reduces the private benefits . . . and therefore the incentive to blog that most amateur journalists have.”). Redish, 149. 37 Id. 143. 38 McIntyre, 514 U.S. at 348.

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signal about his substantial reliability and willingness to be held accountable for his speech. By using a consistent pseudonym, a speaker sacrifices some transparency and thus trustworthiness (more so if the pseudonym is misleading, although that advantage will fade over time as the pseudonym’s body of writing becomes familiar), but still incurs some costs by using a constant name that will accrue positive or negative reputational capital. On the other hand, an anonymous speaker or one with a shifting pseudonym sends a much stronger signal that she has a high discount rate and should be treated with great skepticism. Each of these signals positively communicates something about the author; each of them must therefore be treated as an aspect of speech, not silence. Recall again that Professor Redish’s argument in favor of abolishing expressive anonymity is, with suitable caution, based on a balancing of the “expressive costs” and “expressive benefits” of anonymity, particularly in the context of political fraud.39 If that is so, it should be clear by now that treating anonymity and pseudonymity as signaling acts may alter the costbenefit calculus in a way that significantly obviates the need to eliminate anonymity. Even if political fraud is harmful and even if anonymity incentivizes or contributes to this harmful sort of speech, the signaling effect of various attribution choices also serves as a meaningful safeguard against the worst of these harms. Listeners will respond to political or other speech with varying degrees of trust depending on whether the speaker is signaling through attribution that he is a “good” type or a “bad” type or falls somewhere in between. A speaker who uses honest attribution will be treated with a greater level of trust, at least as a default; a speaker who uses a consistent pseudonym similarly can build a level of trustworthiness by incurring at least some costs for speaking; a purely anonymous speaker, or a one-shot speaker, attributed or otherwise, or one who uses a shifting pseudonym, sends a different kind of signal and will receive less trust and thus do less harm. We might still worry about false or misleading pseudonyms,40 but that concern is not as great as it may seem. Because all one-shot speakers will likely be treated with less trust because they have neither incurred 39 40

Redish, 148. Recall that Professor Redish’s oral remarks at the symposium suggested he might ultimately limit his willingness to prohibit anonymous political speech to this narrow category. See supra note 26.

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significant costs nor accumulated reputational capital, they will all be discounted by their listeners. A misleading pseudonym that is used on a consistent and repeated basis will quickly be treated more skeptically than will fully attributed speech. Its repeated nature also means the speech advanced by this speaker will ultimately be subject to critique and disproof. A speaker who labels himself “Environmental Man,” but who writes regularly against a host of environmental laws, may eventually be disbelieved or discredited in the eyes of his readers. The only remaining concern in this category may be the case of speakers who falsely use a non-pseudonymous name: for example, a representative of the Republican Party places a scandalous advertisement that is falsely labeled as coming from a particular Democratic Party candidate. In that case, however, the real candidate already has ample incentive to monitor for and respond to this kind of outright lie, and will likely have recourse to existing civil remedies. We hardly need remake First Amendment doctrine concerning anonymous speech for such marginal reasons. Thus, with respect to political fraud or any other kinds of speech, the signaling effect of various kinds of attribution choices, including the choice to speak anonymously or pseudonymously, will send meaningful signals about the reliability of that speaker. We will know something about “who the speaker is” for purposes of “judging the value, completeness, or sincerity” of that expression.41 We may not know everything about the speaker, but her attribution choices will give us enough signals to assign different levels of trust or distrust to various categories of speaker. For this reason, many cases of anonymously or pseudonymously authored political fraud are unlikely to be given much credence. Once we view anonymity as signal and speech, it is even more doubtful that we ought to sacrifice the potential 41

Id. 167. Of course, there are other criticisms of the argument that identity is important in evaluating speech because of what it tells us about the reliability of the speaker – a line of argument that Daniel Solove labels the “judgment and trust critique.” Daniel J. Solove, “The Virtues of Knowing Less: Justifying Privacy Protections Against Disclosure,” Duke Law Journal 53 (2003): 867, 975. For criticisms of the “judgment and trust critique” of anonymity, see, for example, id. at 1032–64; Heymann, supra note 10, at 1397–8; Tien, supra note 10, at 145 (arguing that “the very utility of reputation as a proxy for judgment also carries costs for speech in the form of bias,” because we may overvalue speech by people we like and respect and undervalue speech by people we dislike or do not know). Although I find these arguments powerful, and believe they also support the case against Professor Redish’s proposal, they have been made well elsewhere, and I leave them to one side here.

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benefits of anonymity because of the feared costs of political fraud associated with anonymity.42

III. The Preconditions for Anonymous Speech as Signal and the Disaggregation of Expressive and Associational Anonymity

The argument I offered in the last section has an important subsidiary implication that again suggests a line of criticism of Professor Redish’s article. The subject of this criticism is his suggestion that “First Amendment anonymity can appropriately be subdivided into two categories: expressive anonymity and associational anonymity.”43 Our discussion so far has concerned expressive anonymity; associational anonymity concerns “private associational choices that an individual makes.44 The right of associational anonymity has been upheld by the Supreme Court in a series of cases, many of them dating from the heyday of the civil rights movement. In those cases, the Court generally rejected state efforts to force groups such as the NAACP to reveal the names of its members, on the grounds that mandatory disclosure of the members’ identities would expose them to “economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.”45 Redish argues that “it may well be appropriate to draw a distinction between expressive and associational anonymity”46 for purposes of considering what to protect

42

43 45 46

For similar arguments, see, for example, Tien, supra note 10, at 143 (noting that the ability to evaluate the credibility of anonymous speech will be greater where we are dealing with “an extended thread of discussion” rather than “one-shot messages”); Lidsky & Cotter, supra note 10, at 1539 (“[A]udiences are likely to discount the value of nonattributed speech, thus mitigating some (but not all) of anonymous speech’s potential harm”), 1588 (“Any regulation of anonymous speech should begin with the presumption that information consumers are likely to discount unattributed speech and to use indicia other than author identity to judge its reliability. In other words, regulation of anonymous speech should start with the assumption that the audience itself will be able to dissipate much of the harm of anonymous speech.”); Richard M. Cardillo, Note, “I Am Publius, and I Approve This Message: The Baffling and Conflicted State of Anonymous Pamphleteering Post-McConnell”, Notre Dame Law Review 80 (2005) 1929, 1955 (“Readers understand that anonymous advocacy may have dubious origins and will accord it an appropriate level of skepticism.”). Redish, 147–8. 44 Id. 148. NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958); see also Bates v. Little Rock, 361 U.S. 516 (1960); Shelton v. Tucker, 364 U.S. 479 (1960). Redish, 157.

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and what to reject, because expressive anonymity “most proximately causes the First Amendment harms to be avoided by the reduction in political fraud.”47 He would continue to protect associational anonymity while cutting back on the scope of protection for expressive anonymity. I am less convinced that we can or should disaggregate expressive and associational anonymity. This is so for reasons relating to the efficacy of attribution choices as expressive signals. For signaling to be fully effective, it must meet certain preconditions. We have already seen that a standard account of signaling requires that an action must be costly to be a signal. In addition, the signal must be capable of being understood as a signal by the relevant interested parties; and the behavior must be “undertaken for purposes of signaling and not for other purposes.”48 In short, for signaling to be effective, it cannot be unduly influenced by exogenous factors. Public or private factors that disrupt a person’s ability to signal, or that add enough “noise” to the signal that they prevent it from being properly understood by its recipients, will undermine the value of a signaling regime. Pressures on associational anonymity may be one such undercutting force. After all, an important aspect of a person’s “private associational choices” is precisely that it enables her to speak anonymously. Individuals may join expressive associations for a variety of reasons, of course: to enjoy membership goods such as retail discounts, for example, or out of sympathy for that group’s ends. They may also join because they want to take advantage of the greater speech resources possessed by that group rather than engaging in individual speech: associational speech has a megaphone effect. But one important reason why people join expressive associations is that they provide a vehicle for anonymous speech. It may well be easier and safer for an individual to speak through the NAACP than to argue for civil rights in his own voice and under his own name, because he may incur significant (and often extralegal) costs in doing so. Of course, these “anonymous” – more properly, pseudonymous and corporate – groups will develop their own reputations, and speech by particular associations may have greater or lesser signaling value and may be judged accordingly. The

47 48

Id. 169. Edward Rock and Michael Wachter, “Meeting by Signals, Playing by Norms: Complementary Accounts of Nonlegal Cooperation in Institutions,” University of Richmond Law Review 36 (2002): 423, 427.

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important point, however, is that individuals may well see associations as a means of speaking anonymously. Forcing the disclosure of membership lists, as various southern states attempted to do with the NAACP, disrupts this signaling system. The goal of these disclosure laws was twofold. They sought to remove the veil of anonymity from individual members, so that they could be subjected to public and private harassment for the speech undertaken on their behalf by the association. They also sought to drive away members who had been attracted to the NAACP and other groups precisely because of their anonymity, and thus weaken these groups’ ability to survive. Anonymitystripping, in this context, thus risked diminishing the overall level of discourse on important public issues altogether. Moreover, these laws disrupted the signaling value of both anonymous and attributed speech, by using exogenous factors to affect individual choices about how – and how visibly – to speak. This means that, pace Redish, it may be impossible to disaggregate expressive and associational anonymity. The two are not so easily treated as separate matters. Rather, associational anonymity is one of the means of preserving the conditions under which attributional choices about speech, including the decision to be more or less anonymous, can have a signaling value. To be sure, the two categories of anonymous speech are not necessarily related in every case: an individual may choose between attributed or anonymous speech without considering associational anonymity as a third option, or she may join an association for reasons having nothing to do with either speech or anonymity. Still, the argument I offer suggests that associational and expressive anonymity are more closely linked than Redish suggests, and that we protect associational anonymity in part because it helps preserve the signaling value of expressive anonymity. Indeed, this point leads to a broader one. A variety of First Amendment doctrinal rules – for example, the doctrines prohibiting content regulation and the “heckler’s veto” – can be viewed as safeguarding the signaling value of attributional choices in speech. Of course, the First Amendment protects some forms of retaliation against speakers. For instance, one may vocally disagree with a speaker; indeed, under defamation law as modified by the First Amendment, one may do so vituperatively. But, by curtailing some of what it considers illegitimate methods of public or

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private retaliation against particular speech acts, the First Amendment preserves the signaling value of particular attributional choices by speakers, including whether to speak openly, anonymously, or pseudonymously, by ensuring that those choices are not too costly.49 The protection of associational anonymity is thus only one method among many by which First Amendment law helps speech maintain its signaling value. Expressive anonymity, viewed as a form of speech, is thus part of a continuum of protected choices (including attributional choices) about the nature and intensity of one’s speech; and protecting expressive anonymity is one of the many means of making speech possible at all, both as a matter of signaling and more generally. IV. Coda: The Tension between Anonymity Jurisprudence and Campaign Finance Jurisprudence

The foregoing discussion raises one last question. If attributional choices with respect to speech – including the choice to speak anonymously – have an important signaling value that helps recipients of such communications decide how much weight to give to various speech acts, what should we make of the courts’ treatment of campaign finance laws under the First Amendment? A number of writers have already waded into these waters, noting a seeming contradiction between the Supreme Court’s strong defense of anonymity in cases like McIntyre and its far gentler treatment of mandatory disclosure laws in the campaign finance context.50 An expanded treatment of this question is well beyond the scope of this paper. But the tension is worth noting just the same. To be sure, even when reviewing campaign finance laws the courts have been at least somewhat protective of attribution choices, including the choice of anonymity. Thus, in upholding laws requiring the disclosure 49 50

For a hint of arguments along these lines, see Posner, 221. See, for example, Lidsky & Cotter, supra note 10, at 1547–55; Cardillo, supra note 43; Robert F. Bauer, “Not Just a Private Matter: The Purposes of Disclosure in an Expanded Regulatory System,” Election Law Journal 6 (2007): 38; William McGeveran, “Mrs. McIntyre’s Checkbook: Privacy Costs of Political Contribution Disclosure,” University of Pennsylvania Journal of Constitutional Law 6 (2003): 1; Richard L. Hasen, “The Surprisingly Complex Case for Disclosure of Contributions and Expenditures Funding Sham Issue Advocacy,” University of California Los Angeles Law Review 48 (2000): 265.

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of the identity of donors to minor parties and independent candidates in Buckley v. Valeo,51 the Supreme Court held that those requirements could be overcome by the showing of “a reasonable probability that the compelled disclosure of a party’s contributors’ names will subject them to threats, harassment, or reprisals from either Government officials or private parties.”52 Moreover, the disclosure laws may have stronger justification in the campaign finance context than in the general context of anonymous political speech.53 So it may be possible to reconcile the two very different treatments of anonymity in the courts’ First Amendment jurisprudence. Still, even if reconciliation is possible, it does not mean there is no tension between the two lines of cases.54 When combined with this paper’s arguments in favor of the signaling value of anonymity and other attributional choices, this tension suggests that the Supreme Court ought to reconsider this famously tangled area. Perhaps the cleanest remedy would be to reconsider the starting point for the campaign finance regulation cases: the idea that money is speech. Perhaps the Court needs to more fully acknowledge the value of anonymity, even within the campaign finance context, while mustering stronger arguments for overcoming anonymity in this context. Maybe the Court should focus more closely on the question of when and whether campaign contributions, as opposed to other forms of political expression, actually have a public signaling function. Or perhaps, as many have urged, the Court should consider abandoning its (relatively) permissive approach to disclosure laws in the campaign finance regulation context altogether. Conclusion

My criticisms notwithstanding, Professor Redish is to be commended for bringing fresh thinking to the question of anonymous political speech 51 52 53 54

424 U.S. 1 (1976). Id. at 74; see also Brown v. Socialist Workers ’74 Campaign Committee (Ohio), 459 U.S. 87 (1982) (finding that this standard had been met in that case). For such arguments, see, for example, Lidsky & Cotter, supra note 10, at 1552–4. See id. at 1555 (“Even if McConnell v. Federal Elections Commission, 540 U.S. 93 (2002)] and McIntyre are technically distinguishable, they have a deep theoretical inconsistency. The McConnell Court’s assumptions about both the value of anonymous speech and the ability of the audience to properly interpret it differed markedly from the assumptions in McIntyre.”).

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and unsettling some of our easy assumptions in this area. He makes clear that his primary goal is to “raise awareness about this troubling dilemma of First Amendment theory,”55 not to settle the matter; his article provides an excellent starting point for such a discussion. Still, a genuinely productive conversation about the role of expressive anonymity within the First Amendment will have to account for a few more factors than Redish has yet adduced. In particular, it will have to account for wide variety of attributional choices that fall under the general rubric of “anonymity.” More importantly, it will have to account for the signaling-based possibility that, far from being a “subcategory of the constitutional guarantee of silence,”56 anonymity, in all its many forms, is actually a highly expressive and nuanced kind of speech. In my view, these considerations weigh rather heavily against Professor Redish’s proposal for the repeal of protection for certain kinds of anonymous political speech, as interesting as that proposal may be. 55

Redish, 148–9.

56

Id. 143.

5 Speech, Silence, the Body Peter Brooks

On December 8, 2008, Khalid Sheikh Mohammed told Colonel Stephen Henley, presiding at his military tribunal, that he and four companions intended to “announce our confessions to plea in full”: enter a plea of guilty to all charges, and to demand that they be executed.1 They were of course making a claim to both religious and political martyrdom – and putting the tribunal in a bind between punishment and the creation of martyrs to the enemy cause. But for all that, their six years of imprisonment at Guantánamo might make even less fanatical prisoners wish to cop a plea that simply put an end to everything. I was reminded of the ancient words of Maimonides, explaining why the Halakah forbids confessions from the accused suspect: It is a scriptural decree that the court shall not put a man to death or flog him on his own admission [of guilt] . . . . For it is possible that he was confused in mind when he made the confession. Perhaps he was one of those who are in misery, bitter in soul, who long for death, [who] thrust the sword into their bellies or cast themselves down from the roofs. Perhaps this was the reason that prompted him to confess to a crime he had not committed, in order that he be put to death. To sum up the matter, the principle that no man is to be declared guilty on his own admission is a divine decree.2 1

2

William Glaberson, “Alleged 9/11 Plotters Offer to Confess at Guantánamo,” New York Times, December 8, 2008, A-1. When questions arose as to whether making a confession would block the tribunal from exercising the death sentence, the offer to plead guilty was apparently withdrawn. See Peter Finn, “Five 9/ll Suspects Offer to Confess,” Washington Post, December 9, 2008, A01. Maimonides, The Code of Maimonides: Book Fourteen, The Book of Judges 52–53 , trans. Abraham M. Hershman, quoted in Leonard W. Levy, Origins of the Fifth Amendment (1968; 2nd Ed, New York: Macmillan, 1986), 438. Justice Felix Frankfurter in Culombe v. Connecticut (1961) cites the eighteenth-century treatise on evidence by Sir Geoffrey Gilbert: “ . . . our Law in this differs from

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Maimonides surely speaks, if not directly to the case of Khalid Sheikh Mohammed, more generally to a world of suicide bombers, jihadists, special renditions, black sites, and Dick Cheney’s “dark side.” Confession is, among other things, a dramatic way to call for self-extinction, a final word cursing and defying the world in the name of a personal right to die in defiance. Maimonides recognizes the presence in human beings of what Freud would centuries later call the death drive, Todestrieb, and the need for humane society to protect against it, to insist that the instinct for selfpreservation is healthy – indeed, definitional of sanity – and that anything that goes against it should not be received in the court of law. KSM’s demand to confess may yet more closely resemble a scene from a Dostoevsky novel, perhaps most of all Ivan Karamazov’s appearance at the trial of his brother, Dimitri, with the claim not only that Dimitri is innocent of their father’s murder but that he has received Smerdyakov’s confession to the deed, and that in some deeper sense he, Ivan, is the guilty one because he did nothing to prevent Smerdyakov from this displaced parricide. To Ivan’s confession, the court replies with skepticism. “Witness, your words are incomprehensible and impossible in this place,” says the judge.3 One suspects that Colonel Henley, presiding at the Guantánamo tribunal, would have liked to be able to say as much. Confession at the wrong time and the wrong place can simply be an embarrassment. More pertinently, the use of confession – of a voluntarily made utterance – to seek the death of the self stands as a contradiction to the protections on confessional speech that civilized jurisprudence has elaborated over centuries, and by that fact, casts some doubt on the very nature of the confessional utterance. To complicate things further, one must add that KSM’s demand to be able to confess was, it now seems clear, made in the wake of an earlier confession during interrogation that involved “enhanced” interrogation techniques, to borrow the disgusting euphemism of the Bush administration. That he was waterboarded is certain; what other techniques were used is unclear, but the probable spectrum can be extrapolated from the report of the International Committee of the Red Cross on the treatment of fourteen

3

the Civil Law, that it will not force any Man to accuse himself; and in this we do certainly follow the Law of Nature, which commands every Man to endeavor his own Preservation; and therefore Pain and Force may compel Men to confess what is not the Truth of Facts, and consequently such extorted Confessions are not to be depended on.” (367 U.S. 568, 582, n. 24) Fyodor Dostoevsky (1990), The Brothers Karamazov, trans. Richard Pevear and Larissa Volokhonsky (New York: Vintage Books, 1991), 686.

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“high value” detainees, and then the “Memorandum for John Rizzo, Acting General Counsel of the Central Intelligence Agency,” dated August 1, 2002, and signed by Jay S. Bybee of the Office of Legal Council of the Department of Justice, describing (and justifying) in some detail the torture of Abu Zubaydah.4 KSM’s original confession was doubtless the product of what any objective observer would call torture. So that we have in this case someone tortured into a confession that he later wishes to repeat “voluntarily,” indeed as an act of defiance to the court, but in a spirit of selfimmolation to a cause that the court itself cannot possibly accredit. One is put in mind of the Inquisition’s rule that a confession made under torture had to be repeated twenty-four hours later without torture for it to be acceptable. Of course, this insistence on the torture-free confession was accompanied by the promise that a recantation of the tortured confession would be followed by . . . more torture. The margin of freedom to speak “voluntarily” within a torture economy is narrow indeed. In that sense, Khalid Sheikh Mohammed’s move to throw his confession in the court’s face brilliantly mimes the court’s attempt to pretend that his original confession had any legal validity. Guantánamo justice has an Alice-inWonderland quality – “Sentence first, verdict afterwards!” – that will surely soon condemn it to the most soiled pages of American history. Since the time when I wrote the preceding paragraphs, Khalid Sheikh Mohammed’s case has been transferred from the Guantánamo military tribunal to federal court in New York City, by order of Attorney General Eric Holder. This is surely progress in the restoration of the rule of law. Yet all the while applauding Holder’s decision, one might note that the transfer confirms the accused’s success in bringing the military tribunal to a kind of impasse. It remains to be seen whether civilian justice can prove more resilient. I don’t want to dwell further on Guantánamo and its sequels, or on the recourse to torture in the misbegotten “war on terror.” Instead, I wish to consider what America’s once seemingly unimaginable transformation of itself into a torture regime – on the model of countries we most reprobated, such as Argentina during the “dirty war” – may teach us about our domestic 4

“Report of the International Committee of the Red Cross to John Rizzo,” 14 February 2002, available at http://www.nybooks.com/icrc-report.pdf; and “Memorandum for John Rizzo, Acting General Counsel of the Central Intelligence Agency,” August 1, 2002, available at http://www. aclu.org/safefree/general/olc_memos.html

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criminal justice system and its production of confessions. I don’t intend to revisit the best-known cases from Miranda onwards, but to reach back to a less-discussed case and then forward to what appears to be current Supreme Court thinking on the issue. 1. Blood, Body, and Tongue

The less-discussed case is Schmerber v. California (1966), in which the Supreme Court decided that forcing an unwilling DUI suspect to be strapped to a gurney, have a tourniquet tied round his arm, and blood extracted with a needle does not violate the privilege against self-incrimination. Justice William Brennan, writing for the Court, argues that the privilege against self-incrimination “protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question did not involve compulsion to these ends.”5 Brennan cites Justice Holmes in Holt v. United States: “[T]he prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.”6 I find that interesting, and probably an accurate description of the law still today, but also troubling. Can we be so sure that the body in pain does not speak? Certainly torture regimes believe that it does.7 In his dissent in Schmerber, Justice Hugo Black ripostes that the Court’s finding that “compelling a person to give his blood to help the State convict him is not equivalent to compelling him to be a witness against himself strikes me as an extraordinary feat” (773). Blood, says Black, is indeed “testimonial.” (Indeed, we may well think of fluids that come from within the body, extracted from under the skin, as testimonial: see Mark Antony on Julius Caesar’s wounds, which “like dumb mouths do ope their ruby lips.”8) 5 7 8

Schmerber v. California, 384 U.S. 757, 761 (1966), 6 Holt v. United States, 218 U.S. 245, 252–3. In the background of my argument here and throughout my essay lies Elaine Scarry’s important book, The Body in Pain (New York: Oxford University Press, 1985). William Shakespeare, Julius Caesar, III: i, 280: “Over thy wounds now do I prophesy, – /Which, like dumb mouths, do ope their ruby lips,/To beg the voice and utterance of my tongue, – /A curse shall light upon the limbs of men;” etc.: Antony goes on to call for civil war and slaughter. One notes that the bleeding wounds, as mouths, beg utterance by way of the living witness’s tongue.

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Black continues: “It is a strange hierarchy of values that allows the State to extract a human being’s blood to convict him of a crime because of the blood’s content but proscribes compelled production of his lifeless papers” (775).9 One may be sympathetic to this view, and also to Justice William O. Douglas’ dissent on privacy grounds (citing Griswold v. Connecticut), and Justice Abe Fortas’ protest that “As prosecutor, the State has no right to commit any kind of violence upon the person” (779). And yet, Brennan – who normally of course staked out positions protective of the rights of the accused – may in his opinion lay bare a central distinguishing feature of Fifth Amendment history and jurisprudence. It is what a defendant may do with his tongue – what may issue from his mouth – that is considered worthy of special protection. The body of the suspect or defendant is not protected by the Fifth Amendment. Confession is a verbal act, motivated by the “will” (a somewhat problematic term), a discourse proffered to a listener. In another instance, United States v. Ceccolini (1978), the Court cites words written by Justice Warren Burger when he was on the District of Columbia Circuit Court: “The proffer of a living witness is not to be mechanically equated with the proffer of inanimate evidentiary objects illegally seized . . . . The living witness is an individual personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give.”10 It is as if the Court implicitly understood – without ever articulating it as such – that the problem of confession, its voluntariness or its compulsion, is one that concerns a speech act. Brennan himself worries that there will be other cases in which bodily compulsion will elicit testimonial compulsion in its wake. He writes: The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling “communications” or “testimony,” but that compulsion which makes a suspect or accused the source of “real or physical evidence” does not violate it.

9

10

It is not certain that those “lifeless papers” still would be protected today, given the Court’s decisions in Fisher v. United States (1976) and Andresen v. Maryland (1976); even private diaries were held to be unprotected by the U.S. District Court for the District of Columbia in Senate Select Committee v. Packwood (1994); but see limitations placed on the interpretation of Fisher in United States v. Hubbell, 530 U.S. 27 (2000). 435 U.S. 268, 277, citing Smith v. United States.

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Although we agree that this distinction is a helpful framework for analysis, we are not to be understood to agree with past applications in all instances. There will be many cases in which such a distinction is not readily drawn. Some tests seemingly directed to obtain “physical evidence,” for example, lie detector tests measuring changes in body function during interrogation, may actually be directed to eliciting responses which are essentially testimonial. To compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment. Such situations call to mind the principle that the protection of the privilege “is as broad as the mischief against which it seeks to guard.” Counselman v. Hitchcock, 142 U.S. 547, 562. (384 U.S. 757, 764) This fudges the future while adhering to the compelled blood test – a future in which the line between body and voice may be finely attenuated. Recall that one of the Inquisition’s intermediate steps toward obtaining a confession was known as “showing the instruments”: that is, the simple display of instruments that could, and would, be used to inflict pain on the body was often sufficient to loosen the tongue. (Brennan indeed recognizes the modern equivalent of the problem in a footnote, arguing that if fear of the needle produced testimony from the suspect, the State might “have to forgo the advantage of any testimonial products of administering the test.”11) Black’s dissent underlines this moment of apparent hesitation in Brennan’s opinion: “The Court itself, at page 764, expresses its own doubts, if not fears, of its own shadowy distinction between compelling “physical evidence” like blood which it holds does not amount to compelled 11

Brennan’s footnote follows his claim: “Prisoner’s testimonial capacities were in no way implicated; indeed, his participation, except as a donor, was irrelevant to the results of the test, which depend on chemical analysis alone.” (at 765) As if sensitive to his use of the word “donor” – which to me suggests giving freely rather than under compulsion – Brennan adds the footnote, which says in part: “This conclusion would not necessarily govern had the State tried to show that the accused had incriminated himself when told that he would have to be tested. Such incriminating evidence may be an unavoidable by-product of the compulsion to take the test, especially for an individual who fears the extraction or opposes it on religious grounds. If it wishes to compel persons to submit to such attempts to discover evidence, the State may have to forgo the advantage of any testimonial products of administering the test – products which would fall within the privilege. Indeed, there may be circumstances in which the pain, danger, or severity of an operation would almost inevitably cause a person to prefer confession to undergoing the ‘search,’ and nothing we say today should be taken as establishing the permissibility of compulsion in that case. But no such situation is presented in this case.”

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self-incrimination, and “eliciting responses which are essentially testimonial.” (“Shadowy distinction” is an effective phrase in thinking about where we now find ourselves, as a nation, groping in Cheney’s “dark side.”) Blood will out, as a traditional saying has it. And now, with DNA testing, it has a language that, while it may not speak, can certainly be read. Viewed in the retrospect of a nation that accepted torture with surprising ease – admittedly in trying circumstances – and made Jack Bauer an icon of national security, Schmerber raises questions about the relation of speech, silence, and the body that remain in the domain of “shadowy distinctions.”12 We know that once there were tortured bodies in domestic police routines – think back to Brown v. Mississippi, in 1936, where the suspects were hung by their arms from the ceiling and beaten – but we believe, I think on the whole correctly (despite an occasional case like that of Amadou Diallo), that “the third degree” has left the police stationhouse. Since Miranda v. Arizona in 1966, and its somewhat remarkable reaffirmation in Dickerson v. United States in 2000, coercion seems to be largely psychological, not physical. Nonetheless, the nature, quality, and effect of the permissible coercion remain shadowy, and the consequences in the way we treat criminal suspects still subject to doubt. Let me suggest that the Guantánamo experience – the attempted creation of an extraterritorial lockup that tries to keep the very names of the incarcerated from the outside world, seems to regard them as incarcerated in perpetuity, and denies them the bottom-line right of habeas corpus – throws a troubling light on our routine criminology and penology.13 Prisoners at Guantánamo are an outrageous metaphor for larger societal attitudes that wish to lock up, throw away the key, and forget about those who have gone afoul of the law. Guantánamo reiterates, in the darkest print, my sense that we as a society don’t know how we want to conceive of “our” criminals, and would rather not be reminded of the fact that they exist at all. Three strikes, you’re out – leave it to a good old sports metaphor to think your way through the problem. 12

13

For a thoughtful discussion of the relations of speech, silence, the body, and a “right not to be tortured,” see Louis Michael Seidman, Silence and Freedom (Stanford: Stanford University Press, 2007), 119–42. The Supreme Court of course largely restored the right to habeas corpus for Guantánamo prisoners in Hamdan v. Rumsfeld, 548 U.S. 55 (2006) and Boumediene v. Bush, 128 S.Ct. 2229 (2008). The implications of these decisions are presently the subject of litigation in several courts.

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This brings me to the two latest Supreme Court rulings on Miranda, interrogation techniques, and the treatment of suspects taken into custody (there is, incidentally, very little about the treatment of non-custodial suspects, a subject that lies just outside the law as surveilled by courts).14 Both cases, Missouri v. Seibert and United States v. Patane, were decided on June 28, 2004.15 Taken together, they seem almost fiendishly designed to make it impossible to know exactly where the Court stands. Seibert appears to support the continuing relevance of full-blooded Miranda doctrine, but only in a plurality opinion written by Justice David Souter; while Patane appears to propose the evisceration of Miranda – though again only in a plurality opinion, this one by Justice Clarence Thomas, while Souter dissents. The “finality” of the Supreme Court in this instance is nicely self-cancelling. In Patane, Thomas essentially argues that Miranda only enforces an evidentiary rule and has nothing to say to police interrogators – an interpretive handstand, as much of Miranda is precisely addressed to police interrogators. It attempts to characterize the “inherently compelling pressures” on the suspect under interrogation in the “closed room,” cites extensively from the interrogation manuals used to train police interrogators, and explicitly dictates the famous mantra that must initiate any interrogation before it can be considered admissible in a court of law. Hence I find it somewhat misleading that Thomas writes: “Just as the selfincrimination clause primarily focuses on the criminal trial, so too does the Miranda rule. The Miranda rule is not a code of police conduct, and police do not violate the Constitution (or even the Miranda rule, for that matter) by mere failures to warn” (at 15). And later in his opinion: “It follows that police do not violate a suspect’s constitutional rights (or the Miranda rule) by negligent or even deliberate failures to provide the suspect with the full panoply of warnings prescribed by Miranda. Potential violations occur, if at all, only upon the admission of unwarned statements into evidence at trial” (at 23). And further: “It is not for this Court to impose its preferred police practices on either federal law enforcement officials or their state counterparts” (at 24). I think Warren 14

15

On the problem of what constitutes “custody,” and in general on issues of interrogation forty-plus years after Miranda, see Charles D. Weisselberg, “Mourning Miranda,” 96 Cal. L. Rev. 1519 (2008). Missouri v. Seibert, 542 U.S. 600 (2004); United States v. Patane, 542 U.S. 630 (2004).

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was precisely attempting to impose “preferred practices” in Miranda, and 34 years later Rehnquist in Dickerson reiterated that the practices instituted by Miranda, which have become part of our national culture, needed to be followed to the letter – and that no return to the old “totality of the circumstances” voluntariness test, as proposed in the Nixon crime bill that the Fourth Circuit Court of Appeals argued legislatively superseded Miranda, could take the place of the four-part warning. Rehnquist of course famously declared that the Miranda warnings were “of constitutional dimension,” and therefore could not be legislatively overruled. 2. “I am dying, please”

Nonetheless, Thomas’s finding that a Fifth Amendment violation occurs only when coerced testimony is presented against the defendant at trial is an accurate description of current Supreme Court doctrine. The relevant immediate precursor case on this point is Chavez v. Martinez, a case in which Thomas concludes, in an opinion announcing the Court’s judgment, that the Fifth Amendment privilege is inapplicable when coerced statements are not used at trial – as in Martinez’s case, because he was never prosecuted for a crime.16 Oliverio Martinez has no grounds for claiming liability against Officer Benjamin Chavez for his unwarned interrogation, in circumstances I shall detail in a moment. Still, though his opinion in its entirety garners only the support of Rehnquist, with parts supported by Scalia and O’Connor, the facts of this case and Thomas’s comments on them are troubling. Souter writes an opinion concurring in the judgment, then gives a very brief coda that in fact constitutes the “opinion of the Court” in this very splintered decision: Whether Martinez may pursue a claim of liability for a substantive due process violation is thus an issue that should be addressed on remand, along with the scope and merits of any such action that may be found open to him. (at 779–80) 16

Chavez v. Martinez, 538 U.S. 760 (2003), at 766. Let me take this opportunity to thank warmly my friend Louis Michael Seidman for reminding me of the importance of this case, and for a dialogue that has helped me immensely in my groping toward clarity on the issues under discussion.

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Defendant Martinez had been shot “several times” by police officer Peña during an altercation with the police and taken to the hospital with multiple gunshot wounds that would leave him permanently blinded and paralyzed from the waist down. At the hospital, Officer Chavez proceeded to interrogate Martinez (without any Mirandizing) as he slipped in and out of consciousness and the ER doctors attempted to minister to his wounds. According to Thomas, “The need to investigate whether there had been police misconduct [at the scene of the shooting] constituted a justifiable government interest given the risk that key evidence would have been lost if Martinez had died without the authorities ever hearing his side of the story.” (at 775) Thus does Thomas distill the grisly transcript of the interrogation, which is cited extensively by Stevens in dissent. Stevens prefaces his citations with the claim: “As a matter of fact, the interrogation of respondent was the functional equivalent of an attempt to obtain an involuntary confession from a prisoner by torturous methods. As a matter of law, that type of brutal police conduct constitutes an immediate deprivation of the prisoner’s constitutionally protected interest in liberty.” On these grounds, says Stevens, the decisions of the District Court and the Court of Appeals that Chavez is protected by “qualified immunity” as a police officer – as Thomas concludes – is wrong. Stevens then introduces portions of the tape-recorded interrogation of Martinez by Officer Chavez at the hospital (in an English translation of the Spanish original): Chavez: O[liverio] M[artinez]: Chavez: O. M.: Chavez: O. M.: Chavez: O. M.: Chavez: O. M.: Chavez: O. M.: Chavez:

What happened? Olivero, tell me what happened. I don’t know. I don’t know what happened (sic)? Ay! I am dying. Ay! What are you doing to me? No, . . . ! (unintelligible scream). What happened, sir? My foot hurts . . . Olivera. Sir, what happened? I am choking. Tell me what happened. I don’t know. ‘I don’t know.’ My leg hurts. I don’t know what happened (sic)?

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O. M.: Chavez: O. M.: Chavez: O. M.: Chavez: O. M.: Chavez: O. M.: Chavez: O. M.: Chavez: O. M.: Chavez: O. M.: Chavez: O. M.: Chavez:

Peter Brooks

It hurts . . . . Hey, hey look. I am choking. Can you hear? look listen, I am Benjamin Chavez with the police here in Oxnard, look. I am dying, please. OK, yes, tell me what happened. If you are going to die, tell me what happened. Look I need to tell (sic) what happened. I don’t know. You don’t know, I don’t know what happened (sic)? Did you talk to the police? Yes. What happened with the police? We fought. Huh? What happened with the police? The police shot me. Why? Because I was fighting with him. Oh, why were you fighting with the police? I am dying . . . OK, yes you are dying, but tell me why you are fighting, were you fighting with the police? (at 784–85)

And again: Chavez: O. M.: Chavez: O. M.: Chavez: O. M.: Chavez: O. M.: Chavez: O. M.: Chavez:

Nothing, why did you run (sic) from the police? I don’t want to say anything anymore. No? I want them to treat me, it hurts a lot, please. You don’t want to tell (sic) what happened with you over there? I don’t want to die, I don’t want to die. Well if you are going to die tell me what happened, and right now you think you are going to die? No. No, do you think you are going to die? Aren’t you going to treat me or what? Look, think you are going to die, (sic) that’s all I want to know, if you think you are going to die? Right now, do you think you are going to die?

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O. M.: Chavez: O. M.: Chavez: O. M.: Chavez: O. M.: Chavez:

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My belly hurts, please treat me. Sir? If you treat me I tell you everything, if not, no. Sir, I want to know if you think you are going to die right now? I think so. You think (sic) so? Ok. Look, the doctors are going to help you with all they can do, Ok?. That they can do. Get moving, I am dying, can’t you see me? come on. Ah, huh, right now they are giving you medication.

On which Stevens comments: “The sound recording of this interrogation, which has been lodged with the Court, vividly demonstrates that respondent was suffering severe pain and mental anguish throughout petitioner’s persistent questioning” (at 786). The excruciating dialogue of Chavez and Martinez sounds as a kind of parodic echo of the dying Hamlet to his friend Horatio: If thou didst ever hold me in thy heart, Absent thee from felicity awhile, And in this harsh world draw thy breath in pain, To tell my story.17 Justice Kennedy in fact alludes to the “special status in the law of evidence” of a declarant who thinks his death is imminent, citing a case from 1892 that makes the claim that “the certain expectation of almost immediate death will remove all temptation to falsehood, and enforce as strict adherence to the truth as the obligation of an oath could impose,” and noting that Federal Rule provides an exception from the hearsay rule for “certain statements under belief of death.”18 That takes us back to the foot of the Tyburn gallows confessions collected by the “Ordinary” (or chaplain) of Newgate Prison and published, to the Ordinary’s profit, in chapbooks, in seventeenth- and eighteenth-century England. To be sure, the deathbed confession has long held a special place in literature, as in law, though I am not convinced that imminent death really is a guarantee of truth, especially in circumstances when the confession has all the aspects of a desperate last-minute plea bargain.19 17 18 19

William Shakespeare, Hamlet V, ii, 347–50. At 797. The case cited by Kennedy is Mattox v. U.S., 140, 152 (1892). On the “Newgate biography,” see my Troubling Confessions: Speaking Guilt in Law and Literature (Chicago: University of Chicago Press, 2000), 159–60.

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But that is beside the main point of Kennedy’s forceful dissent in Chavez, in which he claims, contra Thomas and Souter, that “A constitutional right is traduced the moment torture or its close equivalents are brought to bear. Constitutional protection for a tortured suspect is not held in abeyance until some later criminal proceeding takes place.” (at 789–90) Kennedy states explicitly: Our cases and our legal tradition establish that the Self-Incrimination Clause is a substantive constraint on the conduct of the government, not merely an evidentiary rule governing the work of the courts. (at 791) The conclusion that the Self-Incrimination Clause is not violated until the government seems to use a statement in some later criminal proceeding strips the Clause of an essential part of its force and meaning. (at 793) It damages the law, and the vocabulary with which we impart our legal tradition from one generation to the next, to downgrade our understanding of what the Fifth Amendment requires. (at 794) In my view the Self-Incrimination Clause is applicable at the time and place police use compulsion to extract a statement from a suspect. (at 795) Kennedy, then, takes a strong stand, not only that Martinez’s due process rights were violated by Chavez’s torturous interrogation but that the Fifth Amendment indeed is in play within the situation of interrogation, not just at trial. While this proposition does not win in Chavez or in Patane, it seems to me arguably the most faithful reading of Miranda. I would at minimum argue that Warren intended the protections stipulated in Miranda to attach at the moment a suspect is taken into custody and interrogated and, because his opinion takes its stand on the Fifth Amendment self-incrimination clause, he would have agreed with Kennedy that the Fifth Amendment can be invoked in protection of a suspect’s rights, whether or not a trial ensues. Whereas Thomas, citing O’Connor in Withrow v. Williams, asserts that “true Fifth Amendment claims” involve “the extraction and use of compelled testimony,” Kennedy, Ginsburg, and possibly Stevens as well, think the extraction alone gives rise to such a claim.20 20

Chavez v. Martinez, at 767, citing Withrow v. Williams, 507 U.S. 690, 705 (1993).

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It is surely disquieting to proponents of Miranda that its warnings are described by Thomas as “judicially crafted prophylatic rules” (at 772), and by Scalia as “judicially create prophylatic rules” (at 780), which do not receive the protection of a constitutional right. Kennedy points to this interpretation as one of the respects in which Thomas’s opinion is “fundamentally flawed,” because “the Court disavowed the ‘prophylactic’ characterization of Miranda in Dickerson v. United States” (at 789, n. 3). Dickerson, the Court’s notable reaffirmation of Miranda in 2000, did indeed seem to affirm that the protections guaranteed by Miranda were of “constitutional dimension.”21 One senses that those who have never truly accepted Miranda, despite Dickerson, keep planting mantraps for its future burial. That is certainly the case in Patane, though it is hard to know what the status of some of Thomas’s arguments are as they don’t seem applicable to the case at hand, which concerned a weapon discovered through an unwarned questioning, a “fruits” issue rather than direct testimony. Scalia and Rehnquist sign on to Thomas’s opinion, whereas the other two votes in the plurality – from O’Connor and Kennedy – see the need for a “balancing” of interests in the application of Miranda, and see no harm done in this particular case. Souter, on the other hand, perceives that Thomas is laying the basis for a conceivable future repudiation of Miranda – or, more likely, its attenuation into a mere evidentiary rule – and precisely singles out for comment Miranda’s messaging to the police: Miranda rested on insight into the inherently coercive character of custodial interrogation and the inherently difficult exercise of assessing the voluntariness of any confession resulting from it. Unless the police give the prescribed warnings meant to counter the coercive atmosphere, a custodial confession is inadmissible, there being no need for the previous time-consuming and difficult inquiry into voluntariness. That inducement to forestall involuntary statements and troublesome issues of fact can only atrophy if we turn around and recognize an evidentiary benefit when an unwarned statement leads investigators to tangible evidence. There is, of course, a price for excluding evidence, but the Fifth Amendment is worth a price, and in the absence of a very good reason, the logic of Miranda should be followed: a Miranda violation raises a presumption of coercion . . . M (at 33). 21

Dickerson v. U.S., 530 U.S. 428, 437–9 (2000).

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Souter here references O’Connor’s opinion in Oregon v. Elstad, but emphasizes an essential point that seems so often to get lost in Elstad as well as in such monstrous progeny as Patane: that a statement made by a suspect in custodial interrogation without or before the Miranda warnings should be presumed to be involuntary, or coerced. If this simple rule were kept in mind, the discussion of the admissibility of the so-called “voluntary” (pre-warning) statements of Elstad and Seibert, and of the use of “fruits” of pre-warning statements as in Patane, becomes irrelevant: anything resulting from a Miranda violation has to be thrown out. This is also, I think, what Scalia, dissenting in Dickerson, describes as the “fairest reading” of Miranda (at 447). Souter (though he joined the majority in Elstad) here underlines the incompatibility of the invitation to “flout Miranda” offered by Patane and his own defense of Miranda in Seibert. Patane is a messy opinion, largely dedicated to laying a landmine for the next time the Court revisits Miranda doctrine. (And the changes on the Court since 2004 seem to be ominous for Miranda if and when it returns to the docket.) Seibert is more interesting, and directly relevant to speech, silence, and the body. We may recall that counsel for Seibert dubbed the method used by police interrogator Richard Hanrahan the “Missouri Two-Step,” though it in fact seems to have become a weapon in the police arsenal in many localities, and was – and with variants probably still is – taught in seminars and workshops for interrogators. The point of the “two-step” is to get an admission from the suspect before he or she is Mirandized, then have it reiterated in admissible form after the warnings. 3. The Missouri Two-Step

In the story recounted by Missouri v. Seibert, Patrice Seibert was awakened by a police officer and arrested at 3 a.m., in the hospital bed where she slept. She was in the hospital along with her seventeen-year-old son Darian, who was being treated for severe burns incurred in a fire at the mobile home where he lived with Patrice, his four brothers, and another seventeen-yearold, Donald Rector, who died in the fire. Darian, along with a brother and two friends, set the fire intentionally to make it appear the cause of death of his 12-year-old brother Jonathan Seibert, who was severely handicapped from cerebral palsy and had in fact died in his sleep the night before.

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Jonathan’s body was covered with bedsores, and Patrice feared she would be accused of criminal negligence toward him. Hence she apparently acquiesced in her sons’ arson plan. Did she acquiesce also in the death of Donald Rector, who had to be present in the trailer to demonstrate that Jonathan was not left alone? Or did she assume he would get out alive? When Officer Hanrahan began his questioning of her in the early morning hours – deliberately withholding Miranda warnings – he squeezed her arm and repeatedly said: “Donald was also to die in his sleep.”22 Patrice finally said “yes.” At this point, Hanrahan allowed her a twenty-minute break for coffee and a cigarette. Then, he proceeded to give Patrice the Miranda warnings, and turned on his tape recorder. His opening remark to this new round of questioning cast it as a sequel to the earlier round: “Ok, ‘trice, we’ve been talking for a little while about what happened on Wednesday the twelfth, haven’t we?” He confronted her with what he called the “understanding” about Donald. But Patrice now denied any understanding that Donald was supposed to die in the fire, asserting instead that she expected him to get out alive. Hanrahan cited her earlier unwarned admission: “’Trice, didn’t you tell me that he was supposed to die in his sleep?” Her protest was soon superseded by another “yes,” confirming his version of events. On the basis of this confession, she was found guilty of second-degree murder and sentenced to life in prison. First, the body of Patrice Seibert. She is arrested at 3 a.m. in the hospital, and taken to the police stationhouse for questioning, which includes squeezing her arm (how this is done and what it means isn’t clear from the record) and the denial of a coffee and cigarette break until she has made an admission. That’s not torture, not even waterboarding, and not the forcible bloodletting of Schmerber. But it does implicate the body in the confessional process. The early hour and the deprivation of caffeine and nicotine certainly are intended to stress the body. Then, the tongue: how should we understand Patrice Seibert’s “yes” to Hanrahan’s initial postulation that Donald “was to die” in his sleep. The “was to” construction sounds like a motive, to which Patrice assents, but it’s not necessarily quite that: it may be more in the realm of a possible supposition from her son’s plot, or a kind of fatalistic understanding of how things in fact played out. Then, post-Mirandizing, Hanrahan’s language shifts slightly and 22

Missouri v. Seibert, 542 U.S. 600, 605.

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subtly: now Donald “was supposed to die” in his sleep. This gives greater intention to the act – and Patrice eventually gives in. But to what? Her “yes” may be little more than confirmation that she did in fact say “yes” under the initial, pre-warning interrogation. In her Seibert dissent, O’Connor picks up the point she argued, for the majority, in Oregon v. Elstad: that the Court has never afforded constitutional protection to the psychological effects of interrogation. Elstad also concerned an unwarned admission, though arguably unintentionally obtained by the police when they began to question teenage Michael Elstad in his bedroom before he was brought to the stationhouse and Mirandized – after which he confirmed the admission. One could at least plausibly argue in Elstad’s case that the unwarned admission was obtained by mistake, whereas in Seibert it is part of the interrogator’s deliberate methodology. O’Connor in Elstad assumes good faith on the part of the police, and argues that we cannot then worry about the effects of the unwarned admission on the subsequent warned confession: “endowing the psychological effects of voluntary unwarned admissions with constitutional implications would, practically speaking, disable the police from obtaining the suspect’s informed cooperation even when the official coercion proscribed by the Fifth Amendment played no part in either his warned or unwarned confessions.”23 She continues: “This Court has never held that the psychological impact of voluntary disclosure of a guilty secret qualifies as state compulsion or compromises the voluntariness of a subsequent informed waiver” (at 312). And then: “The causal connection between any psychological disadvantage created by his admission and his ultimate decision to cooperate is speculative and attenuated at best. It is difficult to tell with certainty what motivates a suspect to speak.” Having so disposed of the darker reaches of psychological motivation, she at the end of her opinion implicitly re-establishes the language of free will: “We hold today that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.” In her Seibert dissent, O’Connor goes further, to argue that intentional versus unintentional questioning pre-Miranda warnings doesn’t make any difference, because the state of mind of the interrogating police officer has no 23

Oregon v. Elstad, 470 U.S. 298, 311.

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bearing on the psychological effects produced on the suspect: “Thoughts kept inside a police officer’s head cannot affect” the suspect’s experience of interrogation (at 624). That is a position one might want to question, all the more so from what we have learned about the participation of psychological experts in torturous interrogations carried out by the CIA. The intentions and expectations of an interrogator surely can affect the suspect’s response. O’Connor also revives – to critique it – the “cat is out of the bag” metaphor (originally used by Justice Jackson in United States v. Bayer [1947]) that plays such a large role in Elstad, noting that this was the position, espoused by the Oregon Court of Appeals, that the Supreme Court roundly rejected in Elstad: The Court of Appeals of Oregon . . . had endorsed a theory indistinguishable from the one today’s plurality adopts: “The coercive impact of the unconstitutionally obtained statement remains, because in a defendant’s mind it has sealed his fate. It is this impact that must be dissipated in order to make a subsequent confession admissible.” [citation omitted] We rejected this theory outright. We did so not because we refused to recognize the “psychological impact of the suspect’s conviction that he has let the cat out of the bag,” but because we refused to “endow” those “psychological effects” with “constitutional implications.” (at 49) O’Connor thus warns us once again against getting into the messy business of psychology. The enmity of the law and psychology is very much in evidence here, which is probably as it should be in cases of confession. The law – including Miranda, in its “liberal” interpretation – needs a bright-line test for the voluntary and therefore acceptable confession. The problem is, if the Court won’t deal in psychology, the police certainly will, and do. Legal scholar Charles Weisselberg has recently argued that current sophisticated police tactics in the wake of Dickerson and Seibert, including describing evidence against a suspect before Mirandizing and seeking a waiver from the outset of questioning, indicate that “Miranda’s safeguards have been relocated to the heart of the psychological process of interrogation.”24 Police interrogators understand that psychology, very much including its psychoanalytic ramifications, claims – in contrast to the 24

Weisselberg, “Mourning Miranda,” at 1563.

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Supreme Court – that the components of confession are many and various, and the contexts of confessing of paramount importance. Confessions like Ivan Karamazov’s may in certain contexts be “impossible,” or in other contexts, such as the Guantánamo tribunal, an embarrassment – and in many others, useful. The stationhouse will in any case find ways to get confessions, whatever “prophylactics” the Court has devised. In the oral argument before the Supreme Court in Missouri v. Seibert, in December 2003, a question from the bench – from Justice Kennedy – pressed Patrice Seibert’s attorney on what constitutes coercion of the suspect: “Is he afraid that he’ll be beaten – or she in this case – or has the will be[en] broken down so that the decision is a little more clouded and – and it would have been clearer to the person if the warning had been given at the outset? These are – these are matters of psychology that Elstad told us that we really should not be speculating about.”25 In contrast, Souter during the oral argument remarks: “I have difficulty in accepting the plausibility of a conclusion . . . that the ostensible waiver in the second case is really a free waiver as distinct from sort of throwing up one’s hands and saying it’s too late to say no now.”26 That metaphorical throwing up of the hands takes us directly to the realm of (folk) psychology. In his opinion in Seibert, Souter tries precisely to get at the situation of the suspect who has first made her unwarned admission, then is pressed to repeat it: Upon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to remain silent, let alone persist in so believing once the police began to lead him over the same ground again. A more likely reaction on a suspect’s part would be perplexity about the reason for discussing rights at that point, bewilderment being an unpromising frame of mind for knowledgeable decision. What is worse, telling a suspect that “anything you say can and will be used against you,” without expressly excepting the statement just given, could lead to an entirely reasonable inference that what he has just said will be used, with subsequent silence of no avail. (at 24–25)

25 26

Missouri v. Patrice Seibert, No. 02–1371. Oral argument, Tuesday, December 9, 2003. Alderson Reporting Company, 30–1. Missouri v. Seibert, oral argument, 6.

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This is, in my view, an accurate analysis of the situation of Patrice Seibert, and probably most other suspects made to do the Missouri two-step. The suspect’s post-warning “yes” may merely be a nearly inevitable confirmation that she has said “yes” before the warning – which proves little except the imperative need to follow Miranda to the letter. What Souter discovers here – like Patrice Seibert on that fateful early morning – is that you can’t confess twice. Once issued from the lips, confessional speech cannot be recalled. That is because confession is truly a speech act, akin to promising. Once you say “I do” in the proper context, you are married, and that’s it. In confession, too, context is everything. That is something Earl Warren understood, and tried to correct through the “clear-cut fact” of the warnings, though his solution contained the seeds of its destruction in the possibility of a suspect’s waiving the very rights Miranda guaranteed. And also in the very formalism of the solution, as if contexts could themselves be established purely by speech acts – as if the physical and bodily contextual conditions were not essential as well. 4. Criminal Justice and Its Actors

So, to return to the problematic I am trying to establish, by way of a tenuous thread linking Guantánamo to Schmerber to Seibert: how do we wish to understand the speech act of confession – the testimony of the tongue – in relation to the psychological effects of what is experienced as a bodily compulsion? How do we wish to understand confession as it relates to the kind of pressure exercised on the body through deprivation, compulsion or, at a minimum, what Warren in Miranda calls the “compulsion inherent in custodial surroundings”? Does the situation in which Patrice Seibert is questioned “matter” to us in any deep way? If the bloodletting of Schmerber probably strikes most of us as justified in practice, if not perhaps fully rationalizable in doctrine, it’s because we think a medical test of intoxication for those using automobiles on the public way is generally a good idea. But the Missouri two-step makes sense only if we are willing to agree with Thomas’s argument in Patane that police conduct is irrelevant, and O’Connor’s argument in Seibert that we must eschew the dark abyss of psychology when dealing with legal protections. The extra-judicial system by which we apprehend and question suspects understands, on the contrary, that psychology is utterly relevant.

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There was a considerable (though by no means unanimous) public outcry when it was discovered that professional psychologists were advising the military and the CIA on effective methods of “enhanced” interrogation. Was this part of ethical professional practice? To be quite unfair to O’Connor for a moment, her reply in the matter of criminal interrogations would seem to be “it doesn’t matter, since we’re not going to deal in psychology.” Not because psychology doesn’t exist, but because the law is other, different, a system of principles and rules that will deviate from its true aim if it lets itself be seduced into the byways of psychic functioning. I think her view of psychology might find quite stunning confirmation in a relatively early piece of Sigmund Freud’s, his lecture to a seminar on Jurisprudence in Vienna in 1906, titled “Psychoanalysis & the Establishment of the Facts in Legal Proceedings” (a piece brought to my attention in a fine article by Susan Schmeiser).27 Freud here blithely proposes that the free association on which psychotherapy is predicated be applied to the interrogation of criminal suspects. The interrogator would feed them words and, according to their free associations in response, would be able to lead them toward the confession of guilt. The idea would be to “compel the accused person himself to establish his own guilt or innocence by objective signs”; interrogation would lead inevitably to “self-betrayal.” Rather chillingly, in the light of psychologists’ collaboration with the CIA interrogators, Freud seems pleased to note the similarity in tasks of the detective and the psychoanalyst: “The task of the therapist . . . is the same as that of the examining magistrate. We have to uncover psychical material; and in order to do this we have invented a number of detective devices, some of which it seems that you gentlemen of the law are now about to copy from us.”28 And yet, as Freud goes on, one may doubt that the police interrogator would feel blessed by what he was hearing. Freud says that as psychoanalysts, “We are on the look-out for remarks which suggest any ambiguity and in which the hidden meaning glimmers through an innocent expression . . . it is not difficult to understand that the only way in which a carefully guarded secret betrays itself is by subtle, or at most ambiguous, 27 28

Susan Schmeiser, “No Truth Machine: Law, Psychoanalysis, and Uncertainty,” Law, Culture and the Humanities 2 2006: 179–200. Freud, “Psycho-analysis and the Establishment of the Facts in Legal Proceedings,” Standard Edition 1906: 103–14.

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allusions. In the end the patient becomes accustomed to disclosing to us, by means of what is known as ‘indirect representation’, all that we require in order to uncover the complex.” This is maybe not quite what the police precinct needs to hear. “Indirect representation” wouldn’t seem to be its specialty. And then Freud finally tells his legal audience: “I should also like to point out that your test may possibly be subject to a complication which does not, by its very nature, arise in psychoanalysis. In your explanation, you may be led astray by a neurotic who, although he is innocent, reacts as if he were guilty, because a lurking sense of guilt that already exists in him seizes upon the accusation made in the particular instance.” If that is the case – if we may be lured into imputing criminal guilt when in fact faced with psychic guilt – the parallel between police interrogator and psychoanalyst lies in ruins. Far from a sure guide to “the truth,” psychoanalytic free association posits the existence of a wholly other kind of truth, one in which the law can’t and won’t deal. Yet I don’t think O’Connor wins the contest hands down. We cannot, as post-Freudians, post-Foucauldians, or even just post-Proustians and postWoolfians, pretend that the criminal suspect is a kind of pure res cogitans, a disembodied decision maker, or a product of Enlightenment psychology with attributes of will and memory, instincts of self-preservation and perhaps sympathy, but no more irrational forces at play (which is of course a parody of Enlightenment psychology – but a parody often echoed in the law).29 As Robert Weisberg has put it, Fifth Amendment jurisprudence tends to produce “shallow generalizations about the psychology of volition.”30 It comes back to a question that continues to haunt me: what do we, as a society, want our criminal suspects to be? Do we want to treat them as full human agents whose speech we will engage, dialogically, in a search for the truth? Probably not – that’s too complex, too slow, too expensive, too subtle. Do we reserve them the right to silence just because we know the whole process of their apprehension and custodial interrogation is too crude, too weighted, too “inherently coercive” (Souter dissenting in Patane) to wish them to speak freely? Or do we wish to give them simply the formal guarantee that if they entrap themselves, our hands are clean? 29 30

See Seidman’s argument about the apparent persistence of “Cartesian dualism” in legal arguments about “the will,” in Silence and Freedom, 78ff. Robert Weisberg, “Criminal Law, Criminology, and the Small World of Legal Scholars,” University of Colorado Law Review 63 (1992): 521, 538–9.

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It’s often said that confession is the most efficient form of law enforcement, the queen of proofs, that which allows you to punish in full knowledge of the malefactor’s guilt. I would suggest instead that confession remains at center stage because it allows those doing the punishing to act in the conviction of their own righteousness. If the suspect has confessed, you can go ahead to lock him up or execute him without remorse. Your hands are clean. That may be why the signed confession, whatever the contexts in which was obtained, still is very hard to undo, even in the light of probative evidence to the contrary. I still find it hard to square the law’s relentless search for confessions, its intense pressure to confess, with the seeming protections against coerced testimony against oneself. I think – though I admit to being tentative about this – that the criminal justice system does need to consider more fully, and more subtly, what criminal suspects are “really” like, in their bodies and their minds, and then to elaborate more intelligible and enforceable provisions for protection against involuntary and unwitting self-incrimination. Warren in Miranda claimed a need to look behind the closed door of the “interview room,” at what was going on in “incommunicado” interrogation. Recall Warren’s words: “Interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms.”31 Through his readings in the interrogators’ instructional literature, he did fill in some of the gaps in our knowledge and managed to shine a bright light into a murky, extra-judicial realm. But his remedy was inadequate, and one has the impression that our lock-them-upand-throw-away-the-key culture has been largely content to see the door to the interview room – not to mention the black hole of such as Bagram Prison – closed again.32 Our criminal suspect population, and our criminal interrogation procedures at the stationhouse, remain too distant from what Brennan in Elstad called the “marble-palace psychoanalysis” of the Supreme Court. Somewhere between the marble palace and Bagram must lie a more efficient, humane, and accurate context for harvesting the kinds of speech that the law needs, and can gather without coercion.

31 32

Miranda v. Arizona, 384 U.S. 436, 448. See Weisselberg’s conclusion, based on a study of current police instructional material in California: “As a prophylactic device to protect suspects’ privilege against self-incrimination, I believe that Miranda is largely dead.” “Mourning Miranda,” at 1592.

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And this is why, though no one is waterboarded in the precinct station and anything approaching physical torture is surely very rare indeed, we might want to use the experience of Guantánamo – and worse places, in Afghanistan and elsewhere – as an interestingly distorting mirror of our practices in the daily administration of criminal justice. Looking in that mirror, we may see more of Cheney’s dark side than we usually admit to. Recall Albert Camus’ adage – from the time the French army was using torture in the Algerian War – that we must be “neither victims nor torturers.” If we don’t want to be torturers, we would do well to think more about the status of our victims. Are they really what we want? Though we no longer think of Jeremy Bentham’s panopticon prison as the way toward the reform of malefactors, do we really want to accept as its alternative the black hole?

Comment on Chapter 5: Torture and Miranda Fredrick Vars

Peter Brooks’s fine essay offers a fascinating juxtaposition. On the one hand, a terror detainee previously tortured to confess reiterates his confession at a hearing and asks for the death penalty and martyrdom. On the other, a woman interrogated by police without Miranda warnings repeats a confession after receiving the warning. In both cases, Brooks suggests, the second, “voluntary” confession should be suppressed. What Brooks does not emphasize in his essay is that in the second case it was. The case is Missouri v. Seibert.1 The facts are straightforward: Patrice Siebert confessed during an unwarned custodial interrogation, was allowed a 20-minute coffee and cigarette break, received Miranda warnings and signed a waiver, then confessed again under directed questioning. This “two-step” strategy was deliberate. Brooks asserts that this technique “was – and with variants probably still is – taught in seminars and workshops for interrogators.”2 That’s true only if those running the workshops haven’t carefully read Seibert or are not interested in the results of interrogations being used in court. In the trial, the post-warning statements were admitted and a jury convicted Seibert. The Missouri Supreme Court reversed. The United States Supreme Court affirmed that reversal: the conviction was overturned because the post-warning statements should have been suppressed. Justice Souter, in a plurality opinion joined by Justices Stevens, Ginsburg, and Breyer, held that “the facts here do not reasonably support a conclusion that the warnings given could have served their purpose.”3 Justice Kennedy concurred in the judgment: “If the deliberate two-step strategy has been 1

542 U.S. 600 (2004).

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2

Brooks, 204.

3

542 U.S. at 617.

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used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made.”4 No such measures were undertaken. Justice Breyer’s concurring opinion agrees with Justice Kennedy’s opinion that there is a good-faith exception to the general rule of excluding the “fruits” of initial unwarned questioning.5 Albeit in a fractured set of opinions, the Court clearly prohibited deliberate use of the “two-step” technique. To be sure, Brooks recognizes that the two-step is out by asserting only that “variants” probably remain. Downplaying Seibert’s pro-Miranda holding, Brooks foreshadows doom in future Miranda cases before the Court. Given that the Court expressly reaffirmed Miranda’s constitutional status in 2000,6 this fear seems to be overstated. Brooks’s stronger point lies with the word “variant” – police will inevitably tailor their interrogation strategy to be as coercive as they can get away with. They will always be one step (or two) ahead of the Court in devising techniques of compulsion not directly barred by past precedent. The danger to Miranda (or, rather more important, to the right against selfincrimination) may be less in the courts than on police stops and in police interrogation rooms. So much for the holding in Seibert. Brooks focuses instead on Justice O’Connor’s dissent. Here, too, Brooks exaggerates the threat. Most importantly, O’Connor’s position did not convince a majority of the Court. But the point singled out by Brooks is itself not worrisome. According to Brooks, O’Connor asserts that “the Court has never afforded constitutional protection to the psychological effects of interrogation.”7 That assertion is of course false and is not O’Connor’s position. If we don’t think stationhouse detention puts undue psychological pressure on a suspect, why do we require Miranda warnings? The whole point is to avoid compelled confessions; surely that’s not limited to thumb-screws. Psychology is plainly relevant. All of O’Connor’s statements on this point refer to “voluntary” statements: by calling them “voluntary,” she sidesteps consideration of psychology. Tracing this line of thought back to its original context confirms the point. O’Connor was talking about “voluntary unwarned admissions” (emphasis in original): the suspect made an admission when an officer 4 6

542 U.S. at 622. 5 542 U.S. at 618. Dickerson v. United States, 530 U.S. 428 (2000).

7

Brooks, 206.

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explained why the officer was there.8 Psychology is relevant to whether a confession was unconstitutionally coerced, but once it’s determined that a statement is voluntary, inquiry into psychology ceases. Though his estimate of the disease is overstated, Brooks’s recommended prescription may nonetheless be valid: I think – though I admit to being tentative about this – that the criminal justice system does need to consider more fully, and more subtly, what criminal suspects are “really” like, in their bodies and their minds, and then to elaborate more intelligible and enforceable provisions for protection against involuntary and unwitting self-incrimination.9 Both psychology and physiology are relevant to the question of voluntariness. Case law and public policy should keep that in mind. Brooks pairs Seibert with another Miranda case decided the same day, United States v. Patane.10 In his plurality opinion, Justice Thomas wrote: “The Miranda rule is not a code of police conduct, and police do not violate the Constitution (or even the Miranda rule, for that matter) by mere failures to warn.”11 Brooks quotes this language and other words to the same effect in support of the conclusion that “Thomas essentially argues that Miranda only enforces an evidentiary rule, and has nothing to say to police interrogators – an interpretive handstand, as most of Miranda is precisely addressed to police interrogators.”12 Thomas does say, correctly, that Miranda is a rule of evidence, albeit of constitutional stature; Thomas does not argue that Miranda “has nothing to say to police interrogators.” The message of Miranda, before and after Patane, could not be clearer: violate me and the resulting confession will not be admissible.13 Brooks’s critique of Justice Thomas misapprehends the nature of Miranda. It has always been about the admissibility of evidence, not about some freestanding constitutional right not to be coerced into confessing.14 (Here, 8 10 13

14

9 Oregon v. Elstad, 470 U.S. 298, 311 (1985). Brooks, 212. 11 12 542 U.S. 630 (2004). 542 U.S. at 637. Brooks, 197. See Miranda v. Arizona, 384 U.S. 436, 444 (1966) (“[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.”). None of the Miranda cases involve failures to warn standing alone. See Sornberger v. City of Knoxville, 434 F.3d 1006, 1024–25 (7th Cir. 2006) (“[V]iolation of the Miranda safeguards cannot provide the basis for § 1983 liability without use of a suspect’s statements against him in a ‘criminal case.’”).

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obviously, the analogy to torture breaks down: torture is proscribed directly, not through an evidentiary rule). Brooks sees danger for Miranda lurking in Thomas’s language. There is danger elsewhere in the opinion (the holding, for example), but not in the quoted text. Brooks claims Justice Souter perceives the same threat as he does and responds to it expressly. The trouble for Brooks is that the passage he quotes from Souter’s opinion is addressed to a much different question: whether Miranda’s exclusionary rule extends to the fruit of interrogations or just to the statements themselves. That’s what Patane is about. This is an important question for Miranda, but one that has little to do with whether Miranda is a code of police conduct or merely a rule of evidence. The upshot of Seibert and Patane is that Miranda is in better shape in the Court than Brooks suggests. But Brooks rightly points out that police have developed and will continue to develop strategies to get around Miranda. To that he might have added that the very success of the Miranda opinion may mitigate its positive impact on compelled confessions. The words of the Miranda warning are so ubiquitous that detainees may tune them out, just as they do when watching police dramas on television. Indeed, Miranda itself may contribute to the problem, placing form over substance by providing cover for coercive techniques. On the most important point of his essay, then, Brooks is exactly right: more attention should be paid to the psychology and physiology of confession and better protections against coercion implemented. Miranda does not go far enough.15 So much for the second half of the juxtaposition. Brooks says less about the first in his essay, but said more during the question-and-answer period following his presentation: the confession of terrorism suspect Khalid Sheikh Mohammed should be excluded. When confronted with the nowfamiliar hypothetical of a suspect who knows how to stop a ticking timebomb, Brooks responded that government agents should go ahead and torture but then should be punished.16 One questioner asserted that this position was “circular,” presumably reflecting the view that torture is either right or wrong. Another audience member defended Brooks’s position on 15

16

This is not a new idea. For example, Thomas Grisso, Juveniles’ Waiver of Rights (New York: Plenum Publ’g Corp., 1981): 98–101; Steven D. Clymer, “Are Police Free to Disregard Miranda?” Yale Law Journal 112 (2002): 447, 536 & n.484. There is some tension between disallowing the confession, on the one hand, and using information gained through torture in the timebomb hypothetical, on the other.

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the grounds that it sets the right disincentive to torture, a defense Brooks then adopted. As a property law teacher, I strongly concur that there is nothing “circular” about allowing activity but assessing damages. In Boomer v. Atlantic Cement Co.,17 for example, the defendant operated a large cement plant near Albany, New York. Defendant had invested in excess of $45 million in the plant, which employed more than 300 people. Neighboring landowners brought a nuisance action for an injunction and damages, alleging injury from dirt, smoke, and vibration. The trial court found a nuisance and awarded temporary damages but denied an injunction. The Court of Appeals agreed that an injunction was not warranted. “The total damage to plaintiffs’ properties is, however, relatively small in comparison with the value of defendant’s operation and with the consequences of the injunction which plaintiffs seek.”18 Notably, the court excluded from the cost-benefit analysis the interests of the public at large, stating that air pollution policy was outside its purview. Boomer and Brooks’s proposal have much in common. They deny injunctions in favor of less rigid protections against misconduct. Boomer substitutes damages (a liability rule) for an injunction (a property rule).19 Brooks’s proposal likewise jettisons the injunction, but substitutes instead (presumably criminal) sanctions. Both Boomer and Brooks are concerned with incentives. Boomer offered the cement plant the choice of paying permanent damages or shutting down. With damages set at the appropriate level, this remedy internalizes the external costs of operations. The plant will operate only if the benefits of doing so outweigh the harms. Brooks hopes punishment for torturers will do the same. That is where the analogy starts to break down. First, although the discussion did not reach this level of detail, it would appear that punishment might be imposed on the wrong person. An antiterrorism agent who is told that torture is justified in certain circumstances but will nonetheless be punished is not the guilty party; rather, it is the supervisor who gave that instruction. It is as if the court in Boomer leveled the damages against the employee who operated a polluting backhoe 17 19

257 N.E.2d 870 (N.Y. 1970). 18 257 N.E.2d 872. Guido Calabresi & A. Douglas Melamed, “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral,” Harvard Law Review 85 (1972): 1089.

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instead of the employer that told him to do so. Again, it’s not “circular” to say something is wrong and yet to permit it with sanctions, but it’s no way to run a business or bureaucracy. Agents and employees must be able to know what to do and not to do, or they’ll demand to be compensated in advance for the risk of being punished later for doing the “right” thing. Second, and relatedly, there is a strong possibility that government agents will be over-deterred from torture. Inflicting torture on another no doubt imposes substantial psychic injury. And the reward from stopping the timebomb goes primarily to the people saved, not to the one doing the saving. But the torturer alone will be punished. Because the owner of the cement plant in Boomer reaped all of the profits of operation, there was no comparable risk of over-deterrence (assuming a competitive market in cement). Third, punishing the torturer does nothing to compensate the tortured. In Boomer, the damages were paid not to the state but to the injured neighbors. Thus, to rehabilitate Brooks’s proposal, the government – not the individual agent – should pay damages not just to society but also to the victims of torture. This leads us to another flaw in Brooks’s approach: problems assessing damages. It is argued in property law that liability rules should be favored when the cost of assessing damages is relatively low.20 In Boomer, assessment was more difficult than the court anticipated. An estimate of $185,000 turned into an actual award of $710,000. In torture, the assessment problem is perhaps even more difficult. How much does a broken finger merit? An hour of waterboarding? What costs are relevant?21 To be sure, tort law puts values on physical injuries all the time, but the psychic trauma of torture is a different species of harm. Unlike the court in Boomer, whoever sets torture policy will not be able to ignore the broader public interests at stake. Every captured American, in and out of uniform, will face an increased threat of being tortured. To the personal harm of torture must be added the loss of political capital worldwide. Violating treaty obligations makes global cooperation on all issues less likely. 20 21

James E. Krier & Stewart J. Schwab, “Property Rules and Liability Rules: The Cathedral in Another Light,” N.Y.U. Law Review 70 (1995): 440. Is there a moral imperative against torture that trumps utilitarian analysis?

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Achieving an optimal level of torture requires knowledge of even more unknowables. The ticking timebomb scenario does not arrive with a label. Human beings trying to identify such situations will do so with error. A pure utilitarian calculus would require knowing the expected lives saved in such scenarios, the probability that torture will prevent the explosion and, more generally, the false negative and false positive rates for different thresholds of torture. In medicine, a statistic called number needed to treat (NNT) corresponds to the number of interventions required to achieve one positive outcome. Assuming torture sometimes works, there must be a corresponding “number needed to torture”: the number of individuals tortured in order to save one life by defusing a ticking timebomb.22 There is no way to measure these variables and costs or to compensate for them, so we’ll never know if the sanctions for torture are set at the right level. When assessment is intractable, legal theorists argue, go with a property rule.23 In private law, the thinking is that the parties will do better negotiating a solution for themselves. That rationale obviously does not apply with much force in the torture context, although treaties against torture would seem to reflect this type of bargaining. In any event, a preference for a property rule doesn’t settle the question about whether ticking timebomb torture should be allowed or forbidden, but it does suggest a middle-ground approach like Brooks’s is unlikely to be satisfying.24 But what of Khalid Sheikh Mohammed? Should his second confession be permitted? Brooks advocated exclusion, but his own juxtaposition suggests more facts are needed. I would generally follow Justice Kennedy’s approach in Seibert, rephrased as follows: If torture has been used, posttorture statements that are related to the substance of statements made under torture must be excluded unless curative measures are taken before 22

23 24

My guess is that that number is quite high, and would remain so even if one adopted Alan Dershowitz’s torture warrant proposal. See Alan Dershowitz, “Is There a Torturous Road to Justice?” Los Angeles Times, Nov. 8, 2001, 19. Krier & Schwab, “Property Rules . . . ” 440. A more satisfying approach may be a general prohibition on torture coupled with criminal defenses such as duress and necessity and doctrines of mitigation and clemency. Rosa Brooks, “Ticking Bombs & Catastrophes,” Green Bag 2d 8 (2005): 311, 315. This is a different type of middle ground, more akin to shifting the property rule on a case-by-case basis than to an acrossthe-board liability rule. Assessment problems, however, remain in defining the scope of necessity, for example. And appeals to discretionary clemency provide poor guidance to government agents. I personally favor an absolute ban on torture, with very steep penalties for violations.

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the post-torture statement is made. An example of a curative measure might be the passage of a considerable period of time and being informed by trusted legal counsel that the statements under torture are inadmissible. However, the burden would remain on the government to show that the curative measures were effective and the new statement reflected an independent act of will despite the inevitable psychological scars of torture.25 25

“No person . . . shall be compelled in any criminal case to be a witness against himself . . . .” U.S. Constitution, Amendment V; see also Brooks, “Ticking Bombs . . . ” 315 (“We believe torture is wrong because we believe it wrong to seek to break the will of another, wrong to violate his or her autonomy.”).

Index

accountability, democratic, 60 accusations, 135 Addington, David S., 86 Aeschylus, 112 Agamemnon (Aeschylus), 112 agreement, 19, 39 bilateral, 31 in contract law, 29–32 unilateral, 31 aidos (honor and shame), 28 Allen v. Wright (1984), 140 Allen, Danielle, 11–13, 134–6, 139 American Society of Newspaper Editors (ASNE), 131 amorality, political, 64 anonymity, 121, 125, 143–71, 181 and discount rate, 178–81 and right not to speak, 149, 153–5 and the Supreme Court, 144 associational (Redish), 14, 155–7 categories, 155–7 dilemma, 143–71 expressive (Redish), 14, 15, 147, 155–7, 185, 187 right of, 13–15, 174 selective silence, 143 Antigone, 11, 123 Antigone (Sophocles), 12, 123–5 Aphrodite, 24–9 Arendt, Hannah, 12, 106, 118, 120, 126, 133 Artemis, 24–9 Article II, 87–90, 93 Ashcroft, John, 55, 85–7, 92, 101, 105 assumpsit, 30 Austin, J. L., 6–7, 19–20, 21–3, 33, 38 authenticity, personal, 67 authorship, 108, 122 Baird, Douglas G., 30 bargain test, 30, 40

222

Bauer, Jack, 16, 196 Belz, Herman, 84 Bernake, Ben, 88 Bernstein, Carl, 52 Black, Hugo, 15, 193, 195 blasphemy, 125 Boomer v. Atlantic Cement Co. (1970), 218–19 Borges, Jorge Luis, 65 Bork, Robert, 51, 52, 53, 60 Brandeis, Louis, 1, 161 Brennan, William J., 15, 141, 193–5 Breyer, Stephen G., 214 Brooks, Peter, 15–17, 214–21 Brown v. Board of Education (1954), 141 Brown v. Mississippi (1936), 196 Bryan, William Jennings, 51, 53 Buckley v. Valeo (1976), 188 Burger, Warren, 194 Burling, John L., 52 Bush, George W., 2, 51 Bybee, Jay S., 192 Calabresi, Steven G., 94, 97 calumny, 12, 125, 128–9, 134–5 Camillus, Furius, 128 campaign finance regulation, 174, 187 Campbell, Howard, 67–8 Camus, Albert, 213 Capitolinus, Manlius, 128 Card, Andrew, 55 Card, Andrew H., Jr., 85 Carolene Products, 139–41 Carter v. Jury Commiss’n (1970), 75 Carter, Jimmy, 51 Cavell, Stanley, 27, 37 Chafetz, Josh, 74 change, 111 Charondas, 11, 108, 110, 115, 120, 121, 126, 127 Chase, Salmon, 61

Index Chavez v. Martinez (2003), 198 Chavez, Benjamin, 198 chilling, 157, 159, 162, 166 clause Faithful Execution, 94 Take Care, 95 Vesting, 94, 95 Written Opinions, 96 Clause Appointments, 91 Faithful Execution, 89, 93, 97 Self-Incrimination, 202 Take Care, 88, 93, 97 Vesting, 89, 93, 97 Written Opinions, 93, 97 Clinton, Hillary Rodham, 88 closure, 111 Comey, James B., 55, 85–6 common action (praxis), 107 compelling harm, 163 compromise, moral, 66 compulsion, 80, 152, 193–4, 202, 209, 215 concealment, 42, 46 confession, 16, 17, 190–2, 194, 203, 209, 212 and Miranda, 216 and self-extinction, 191 compelled, 215 Tyburn gallows, 201 confusion, 149 consequentialist position (Seidman), 9, 53–61 Constable, Marianne, 5–8, 12, 39–40, 43 contract employment, 73 law agreement as obligation, 29–32 and speech, 7, 21 conventions, 44 misrepresentation, 39–47 cooperation, 178 Council of Ten, 127 courts, 10, 135–6 access, 135, 136–42 and anonymity, 175 and bargaining, 30 and defamation, 14 and duty to speak, 42 and good cause removal, 90 and national security, 78 and the State, 160 strict scrutiny, 34 Cover, Robert, 57 Cox, Archibald, 51, 52, 57 Creon, 112–14, 118, 122 Deep Throat, 52 defamation, 14, 145, 158, 160, 186

223 Demosthenes, 109, 111, 117 Diallo, Amadou, 196 Dickerson v. United States (2000), 196, 198 dilution, 149 disclosure, 41 laws, 186, 187 discount rate, 178–81 Discourses (Machiavelli), 128, 135 discussion (lexis), 107 dissonance, cognitive, 14, 144, 150 Douglas, William O., 15, 194 Dumm, Thomas L., 68 Dystopia, 112–21 Eaton, Mr. and Mrs., 131 Ehrlichman, John, 63 Eichmann, Adolph, 53, 66 Electoral College, 89 Ellison, Ralph, 116 Ennis, Edward J., 52 Eteocles, 112 Euripides, 6, 21, 24–9 Eurydice, 123 evidence, blood, 193–6 expectation interests, 29 expression forced, 14, 154 free, 4, 143–71 fair play, 131 fairness doctrine, 151 falsity, conscious, 157–64 Federalist, The, 153, 175, 177 Felt, Mark, 52 Fifth Amendment, 198, 202, 203, 211 First Amendment, 1, 34, 80, 143–71 Fish, Stanley, 4 Fortas, Abe, 194 Franck, Thomas M., 49, 53, 56, 58 fraud commercial, 145, 159 economic, 166 political (Redish), 13–15, 129, 164–71, 172, 176, 182, 183 Freud, Sigmund, 210 Froomkin, Michael, 97 Garcetti v. Ceballos (2006), 78–9, 80 Ginsburg, Ruth Bader, 202, 214 Goldsmith, Jack, 55 Gonzales, Alberto, 55 Gonzales, Alberto R., 85 Goodwin, Doris Kearns, 61 Gorgias (Plato), 2 gossip, 12, 122–4, 134

224 Griswold v. Connecticut (1965), 194 Guantánamo, 16, 190, 192, 196, 209 Habermas, Jürgen, 12, 107, 120, 126, 133 Haemon, 113, 114, 118, 122 Haimon, 12 Halakah, 190 Haldeman, H. R., 63 Hamer v. Sidway (1891), 30 Hamilton, Alexander, 153 Harbison,Winfred A., 84 Hart, H. L. A., 33 heckler’s veto, 186 Henley, Stephen, 190–1 Heymann, Laura, 177 Hill v. Jones (1986), 40–7 Hill, Fannie, 37 Hippolytus, 6, 21–9, 38, 39 Hirschman, Albert O., 5, 8 Holmes, Oliver Wendell, 3, 161, 171, 193 Holt v. United States (1910), 193 honesty, 63, 64 Hoover, J. Edgar, 84 How to Do Things with Words (J. L. Austin), 6, 19, 21 Human Condition (Arendt), 107, 126 humiliation, 150 Humphrey, Hubert, 91 Hurston, Zora Neale, 112 Huston, Tom, 84 Ickes, Harold, 52, 55 identity constant, 182 and pseudonym, 176, 177 speaker, 167–8, 170, 172, 176, 181 reliability, 153, 183 illocutionary force (J. L. Austin), 28, 32, 34 In the Penal Colony (Kafka), 110 indirect representation (Freud), 211 Inquisition, 192, 195 intent, subjective, 30 interrogation coercive, 86 custodial, 16, 216 enhanced, 17, 191, 210 Invisible Man (Ellison), 116 Ismene, 113, 123 Jay, John, 153 Johnson, Lyndon B., 53 judgment and trust critique (Solove), 153, 183 Just Silences (Constance), 38 justice arithmetic, 109 geometric, 109 justification, dilemma of, 69

Index Kafka, Franz, 110 Karamazov, Dimitri, 191 Karamazov, Ivan, 191 Kateb, George, 4 Kelly, Alfred H., 84 Kennedy, Anthony, 78, 201–2, 214, 220 Kissinger, Henry, 51, 53, 56 law common, 37 criminal, 34, 45 evidence, 34 obscenity, 36 perjury, 34, 45 positive, 7–8 defined, 33 speech as limit, 33–8 tort, 21, 34, 131 Lessig, Lawrence, 96 libel, 144 Lincoln, Abraham, 61 Lion’s Mouth, 135 Locri, 109, 117 loyalty, 63–4, 69, 104 MacArthur, Douglas C., 84 MacGrath, Andrew, 59 Machiavelli, Niccolo, 12, 126–33, 135 Machiavellian, 65–6 Madison, James, 153 Maimonides, 190 malice, 158 malice, actual, 158, 160 market place (agora), 107 marketplace of ideas, 3, 161 Martinez, Olivero, 198 Massachusetts v. EPA (2007), 138 Mayor of Philadelphia v. Educ. Equal. League (1974), 74–5 McIntyre v. Ohio Election Commission (1995), 153, 179, 181, 187 McIntyre, Margaret, 175 McNamara, Robert, 53, 54 meaning, objective, 30 Meiklejohn, Alexander, 146, 150–2, 164 Memorandum for John Rizzo, 192 Mertz, Elizabeth, 32 Miami Herald Publishing Co. v. Tornillo (1974), 152 Michelman, Frank, 68 Mill, John Stuart, 4, 12, 126, 161 Miranda v. Arizona (1966), 196, 197, 204 Miranda warning, 8, 16, 36, 198, 203, 204, 214–21 misrepresentation, in contract law, 39–47 Missouri Two-Step, 204, 214, 215 Missouri v. Seibert (2004), 179, 197, 214–17

Index Missouri v. Siebert (2004), 16 Mohammed, Khalid Shaikh, 190, 191, 217 Morrison v. Olson (1988), 91 Mother Night (Vonnegut), 67–8 Mouths of Truth, 127 Mueller, Robert S., III, 85 NAACP v. Alabama ex rel. Patterson (1958), 155 New York Times Co. v. Sullivan (1964), 145, 158–60 Nichol, Gene R., Jr., 141 Nixon, Richard, 51, 57, 84 nomoi (social conventions), 28 non-consequentialist perspective, 9, 62–8 nondisclosure, 42 noose, Locrian, 11, 108, 115, 119, 121, 126 number needed to treat (NNT), 220 Nurse, 24–9 O’Connor, Sandra Day, 198, 203, 215 Obama, Barack Hussain electoral slanders, 130 oath of office, 18 Ober, Josiah, 117 Oedipus, 112 Oregon v. Elstad (1984), 204 Pauley, Edwin W., 55 perlocutionary effect (J. L. Austin), 28 personnel decisions, discretionary, 74–6 Phaedra, 24–9 phatis, 12 Phillips, Wendell, 57 Plato, 2 pluralistic ignorance, 115 politics and silence, 106–33 and speech, 106–7 Politifact, 132 Polyneices, 112, 125 Poseidon, 24 Posner, Eric, 178–9 Powell, Colin, 8–10, 48–51, 62, 65, 70, 81–2, 83, 101–4 Prakash, Saikrishna, 94, 97 preexisting interests, 147 Prince, The (Machiavelli), 128 privacy, 107 false light, 159 promise, 6 enforceable, 31 specific performance, 31 promise (J. L. Austin), 21–3 correspondence between word and intention, 22

225 pseudonyms, 152 Psychoanalysis & the Establishment of the Facts in Legal Proceedings (Freud), 210 public (Arendt), 106 public life (bios politikos), 107 public sphere and institutions, 119–21 and social change, 118–21 dystopic, 112–21 rituals, 111 utopian, 108–12 Publius, 170, 175, 177, 178 Rawls, John, 12, 120, 126 Red Lion Broadcasting Co. v. FCC (1969), 151 Redish, Martin, 13–15, 125, 129, 172–5, 178 regulated entities, 142 Rehnquist, William, 91, 198, 203 removal authority, 76, 87, 90 and Congress, 92, 94 for cause, 88, 90, 97, 102 independent counsel, 91 reputational capital, 177 resignation and law, 73–81 and policy change, 56, 58 as a declaration of independence, 68–73 as a principled act, 62 culture of, 59 in protest, 61 kinds of, 71–3 legal control, 76–81 public, 49, 63 public-protest, 49, 54 threat, 55 Restatements, 30–2, 41 rhetoric, 2 Richardson, Eliot, 52, 56 right not to speak, 149–55 right to remain silent, 3 Roberts, John G., 5, 19 Roosevelt, Franklin D., 52, 91 Ruckelshaus, William, 56, 86 rumor, 12, 134 Saturday Night Massacre, 51, 53, 56 Scalia, Antonin, 89, 198, 203 Schmeiser, Susan, 210 Schmerber v. California (1966), 15, 193–5, 196 Seidman, Michael Louis, 8–10, 12, 83 self-incrimination, 193, 197 Seward, William, 61

226 shadowy distinction, 196 Siculus, Diodorus, 108 Siebert, Patrice, 214 signaling theory, 173–4, 178–87 silence and resignation, 48–82 as absence of voices, 110 by exclusion, 134–42 dystopic, 11 irrelevance, 106–8 public, 106–33 right to (non-self-incrimination), 116 utopian, 11 Sixth Amendment, 45 slander, 121, 125, 128 Snepp v. United States (1980), 77–8 Socrates, 2 Solan, Lawrence M., 35, 46 Sophocles, 113, 122 sophrosune (virtue, piety, chastity), 28 Souter, David, 16, 197, 198, 202, 203, 214, 217 speech adversarial, 129 anonymous, 12, 108, 121–6, 134, 175 as promise (J. L. Austin), 21–3 compelled, 13, 145, 152 dark, 12–13, 122–4, 126, 128–30, 134, 136, 139 judicial review, 136 false, 158 free, 4 governing, 21 legal, 7, 37 philosophical, 2 pseudonymous, 173, 175 categories, 175 reasonable, in the public sphere, 108–12 spirals of silence, 115 Spooner, Lysander, 57, 87 St. Petersburg Times, 132 standing doctrine, 137–42 standing-to-sue, 135 State ex rel. Public Disclosure Commission v. 119 Vote No! Committee (1998), 160, 163–4 statement involuntary, 16, 199, 203 voluntary, 150, 204, 214, 215 Stephanopoulos, George, 63 Stevens, John Paul, 79, 140, 153, 199, 202, 214 Structural Transformation (Habermas), 107 Summers, John H., 131 Talley v. California (1960), 153 Taylor, Garth, 115

Index Teiresias, 114 temporality, 118 Thebes, 112 Their Eyes Were Watching God (Hurston), 112 Theseus, 24–9, 39 Thomas, Clarence, 16, 199, 202, 216 Three Versions of Judas (Borges), 65 Thurii, 108 Tiersma, Peter, 31, 35, 46 time, 118 Todestrieb (Freud), 191 torture, 16, 17, 192, 202, 220 regime, 192 total speech situation (J. L. Austin), 29, 40, 44 traceability, 175 Truman, Harry, 2, 52 trust, 63 Tsai, Robert, 1 unitary executive theory, 87–105 United States v. Ceccolini (1978), 194 United States v. Patane (2004), 16, 197–8, 202, 204, 216 utilitarianism, 65 Utopia, 108–12 utterance constative (J. L. Austin), 22 illocutionary (J. L. Ausin), 22 locutionary (J. L. Ausin), 22 oath, 19 passionate (Cavell), 27, 28, 36 performative (J. L. Austin), 19, 20 and convention, 21, 29 felicity conditions, 19, 26 perlocutionary (J. L. Ausin), 22 prompted by the gods/rumor (pheme/fama), 123, 125 under belief of death, 201 Vance, Cyrus, 51, 54 verbs performative (J. L. Austin), 32 commissives, 32 expositives, 32 verdictives, 32 Vonnegut, Kurt, 67–8 Walzer, Michael, 64 Warren, Earl, 197, 202, 209, 212 Weisband, Edward, 49, 53, 56, 58 Weisberg, Robert, 211 whisleblower statutes, 10 whistleblower, 121, 130, 135 White, Byron, 151

Index Whitman, Christine Todd, 51 Whitney v. California (1927), 1 will theory, 30 Williams, Bernard, 65 Wilson, Woodrow, 51 Withrow v. Williams (1993), 202 Woodward, Bob, 52

227 word (phatis), 123, 124 word as bond, 38 Yoo, John, 86, 104 Zaleucus, 11, 108, 111, 115, 120, 121, 126, 127 Zubaydah, Abu, 192