Language Matters

I often joke that I am "aggressively literate" - I read and write furiously and often. Indeed, my professional life depends on the quality of both my reading and my writing. How I interpret case law, statutes, and constitutional provisions can determine how well I grasp a legal concept, or whether or not I can spot a good case when it walks in the door, or how successful I am arguing a client's position before a judge, jury, or hearing officer. And my writing must be concise and logical - it is the primary vehicle for the majority of my advocacy as an attorney.

To lawyers, words matter. Language matters. We bicker endlessly over the definition of otherwise simple words like "cause," "reasonable," and "shall." The wording of a statute, which seemed clear and broadly inclusive to its authors, can take on an entirely different meaning in the hands of lawyers and judges. And words with important social ramifications, such as "corruption," can be narrowly reinterpreted several times over until they are effectively stripped of import.

In his essay "Politics and the English Language," George Orwell wrote about how language can be manipulated by those in power to control others. Political language, he wrote, is "bad writing" which consists "largely of euphemism, question-begging and sheer cloudy vagueness." Orwell went on:

The great enemy of clear language is insincerity. When there is a gap between one's real and one's declared aims, one turns as it were instinctively to long words and exhausted idioms, like a cuttlefish spurting out ink. In our age there is no such thing as ‘keeping out of politics’. All issues are political issues, and politics itself is a mass of lies, evasions, folly, hatred, and schizophrenia. When the general atmosphere is bad, language must suffer.

A more recent essay, one by Brett Max Kaufman, examines Orwell's other major critical indictment of political language: Nineteen Eighty-Four. Though we now know the Orwellian nature of U.S. government surveillance, where all electronic communications by all Americans everywhere are routinely scooped up and held for future law enforcement use, our spymaster overlords had to exploit language to capture the unstoppable power they now possess. Kaufman writes:

Take, for example, the government’s bulk collection of Americans’ phone records under Section 215 of the Patriot Act. (Or take, for that matter, “the Patriot Act.”) The statute authorizes the government to obtain “any tangible thing . . . relevant to an authorized investigation” concerning foreign intelligence or terrorism. Yet according to the Foreign Intelligence Surveillance Court’s breathtaking interpretation—which remained secret (and shielded from public scrutiny) until Edward Snowden came along—a record of every single phone call made on American telecommunications networks is “relevant” under Section 215.

The government has claimed that this is so because in order to find the small number of phone records it might be interested in later, it needs all of the records now. But that reading renders the word “relevant” effectively meaningless. Instead of serving as a limitation on the reach of the law, it places almost any conceivable “thing” within the government’s grasp.

In the words of the Privacy and Civil Liberties Oversight Board, which recently put forward an extensive legal analysis of the government’s theory, the interpretation means that relevance “becomes limited only by the government’s technological capacity to ingest information and sift through it efficiently.”

Just as Big Brother exploited language to turn unorthodox thoughts into crimes, our real-life leaders manipulate the meaning of words to further their own authoritarian power grabs. But this is a tricky subject, especially for lawyers. While Kaufman demands that words be given "their ordinary meanings," the obvious question becomes: who gets to decide what is ordinary?

In recent years, judges, including the Justices on the U.S. Supreme Court, have turned more heavily to mainstream dictionaries to define simple words and discern their larger, legal meaning. This has not happened without controversy. Using a common dictionary to define a word in a complicated statute can strip the statute of the legislature's intent. As the famous Judge Learned Hand wrote in 1945:

It is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary, but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.

Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945). Despite Judge Hand's legacy of legal genius, judges today are largely ignoring him.

Dictionaries reflect common usage, and common usage is a democratic process. If a large enough number of people use a word to mean a certain thing, it can find its way into a dictionary and then later be enshrined as the "official" definition in a binding legal decision. Jargon, improper uses, and "non-words" can be legitimized by majority rule. If, for example, enough people follow the Supreme Court's still-novel interpretation of "corruption" to mean only quid pro quo bribery and nothing more, then that's what corruption comes to mean. That definition, of course, enables all kinds of political influence, "ingratiation," and favor-giving which falls short of bribery but no doubt detaches our representatives from the majority of their constituents.

The point here is that language matters. How we use words matters. Being clear, concise, and consistent is critical to protect us from the overreach of the powerful. Allowing our leaders, whether legislative, executive, or judicial, to speak in vapid, empty terms to cover their underlying abuses of power is a derogation of our duty as citizens. George Orwell didn't just warn us about video and audio surveillance - he warned us about thought surveillance, in the form of manipulated language. We should take heed.