Thursday, May 08, 2003

In reading the oral argument transcript from the recent Supreme Court case of Nike v. Kasky, I was struck by how very few instances there are where anyone utters more than two sentences in a row that are structurally and grammatically flawless, as one would expect to see in writing. Nearly everyone stumbles over their words on many occasions. And this is Laurence Tribe, Ted Olson, and the Justices themselves, all of whom are very smart and accomplished people, and all of whom are talking about a case that they have studied intensely. Yet the spoken words of these luminaries come across on the printed page, in many instances, as rather disjointed. This sparks a few thoughts:

1) Extemporaneous speaking is hard.
2) I sure would hate to see my own conversations transcribed for the world to read.
3) If even the most brilliant lawyers stumble over their words so often, maybe people should give George Bush a little slack.

UPDATE: A couple of examples to show what I mean:

Question from a Justice on p. 7 of the transcript:
Do -- do we have a case in which we say that a -- a civil scheme -- I -- I suppose there are some criminal remedies here, but let's just think about this as a civil scheme, that a civil scheme of this type is so burdensome, so extensive, that it chills speech and is therefore invalid? I --- I ---
And a followup question:
We -- we have plenty of criminal cases that the criminal laws are either vague or overly broad and that they chill speech.

From Laurence Tribe, p. 8 of the transcript:
I mean, the central meaning of New York Times v. Sullivan and Gertz and, you know, and Time v. Hill is that even when you have someone who is harmed, reputational harm, concrete harm, so that the regulation of speech is simply ancillary to vindicating tangible interest, even there the chilling effect is so great that even though there's no positive value in false statements you have to put a burden --- it's a matter of public interest.


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