A retired legal secretary once described to me the brief-writing process her boss used in the 1960s.
Long before the advent of desktop computers, Microsoft Word, and Westlaw, legal writing frequently unfolded as a largely oral process. The boss in question approached it that way. He rummaged around on his desk among stacks of paper and piles of open law books until he found the nugget for which he was searching. The lawyer leaned back in his chair; pondered for a while; and then dictated a paragraph as his secretary scribbled on a notepad in shorthand. Thus did the brief progress, paragraph by paragraph, until the dictation was complete; the notes were typed; and the brief was finished. The arduous task of preparing the brief on a typewriter kept the number of drafts to a minimum.
It was a different era. In a lot of different ways.
I thought about this oral writing process as I re-read Near v. Minnesota, 283 U.S. 697 (1931).
Near addressed a Minnesota statute targeting any person “‘engaged in the business of regularly or customarily producing, publishing, or circulating, having in possession, selling or giving away . . . a malicious, scandalous and defamatory newspaper, magazine, or other periodical . . . .’” Id. at 701 (quoting Mason’s Minnesota Statutes, 1927, § 10123-1). Persons engaging in such activity were deemed to be “guilty of a nuisance” and were subject to being enjoined in state district court from continuing to publish. Those who disregarded the injunction could be held in contempt and punished by a fine of not more than $1,000 or by imprisonment in the county jail for not more than 12 months.
Rest assured, the statute was not totally one-sided; it made available “the defense that the truth was published with good motives and for justifiable ends . . . .”
“Malicious, scandalous and defamatory” aptly described the work product of Jay Near, a muckraker who freely blended fact, opinion, speculation, outrage, and religious intolerance in a weekly newspaper called The Saturday Press. Chief among Near’s targets were the Minneapolis mayor, the police chief, and the county attorney. Near published a series of articles accusing the trio of cozying up to organized crime leaders and failing to investigate illicit activities. These articles earned Near an injunction under the Minnesota gag law, which was upheld by the Minnesota Supreme Court. Near appealed to the United States Supreme Court.
The Supreme Court invalidated Minnesota’s gag law as a violation of free speech rights protected under the First and Fourteenth Amendments. Chief Justice Charles Evans Hughes wrote the majority opinion, joined by Justices Roberts, Stone, Holmes, and Brandeis. The dissent was written by Justice Butler, joined by Justices Sutherland, McReynolds, and Van Devanter.
Said Chief Justice Hughes in an oft-quoted portion of the opinion: “The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct.” Id. at 720. “Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional privilege.” Id.
The drafting-by-dictation anecdote came to mind as I read another paragraph in the Near majority opinion. It came to mind because spoken sentences often are longer and harder to follow when reduced to print on the written page. Consider this paragraph from Near:
If we cut through mere details of procedure, the operation and effect of the statute in substance is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter – in particular that the matter consists of charges against public officers of official dereliction – and, unless the owner or publisher is able and disposed to bring competent evidence to satisfy the judge that the charges are true and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is made punishable as a contempt. This is the essence of censorship.
Id. at 713. I like the powerful ending. But the opening sentence launches the reader on a verbal triathlon.
I have not researched the process by which Chief Justice Hughes drafted opinions in general. I do not know if that sentence was dictated. In his book Minnesota Rag, author Fred W. Friendly recreates the conference at which the justices decided the outcome of Near and describes the opinion-writing process in general terms; that account does not provide details about the mechanics of drafting. But to my ear, the first sentence of this paragraph sounds like someone talking out loud. Or delivering a speech. The paragraph’s opening sentence stitches together at least four distinct concepts.
The statute allows public authorities to prosecute a publisher for printing scandalous and defamatory matter. The matter in this case focused on charges of dereliction against public officials. The publication will be suppressed unless the publisher can convince a judge that the challenged article is true and published with good motives. Further publication is punishable by contempt.
This is the same information in smaller – and much easier to read – bites. But I must admit that it loses some of its rhythm.
Perhaps the Chief Justice’s lengthy sentence was envisioned as a powerful oration when the opinion was read aloud from the bench. Perhaps it merely reflects a different approach to legal writing from a different era. Would Near read differently if modern word-processing equipment had been available in 1931? Would Near have greater or lesser impact if it were rewritten using current techniques to enhance reader comprehension? I will leave those questions hanging. It takes an appellate nerd to raise them; only an appellate nerd of the first order would attempt to provide answers.
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