I Have Gumption-Trapped Myself

getting unflummoxed

Yo me enojo.

The English language’s expression of emotions makes emotions most commonly either something we are (“I am angry”) something done to us (“that angers me”) or both (“you are making me angry”). You could say, “I anger myself,” but people would look at you funny in most contexts, because we don’t think of emotions as something that we impose on ourselves.

If you say “I pleasure myself,” people don’t think you’re talking about your rich inner life.

The only exception that leaps to mind, “joy,” is a weak one. We have the reflexive “enjoy,” but it is only transitive—you can’t simply “enjoy,” but you have to enjoy something, even if it is yourself. Further, the emotion, “enjoyment” is not “joy,” but something weaker (as the prefix and suffix distance us from the root).

We English speakers don’t naturally think of emotions as something that we impose on ourselves, because language steers thought, and from birth we hear people talking about being angered by things outside their control. This must somehow be adaptive, because English has evolved plenty, adopting what is useful from every language it has brushed up against, and it hasn’t adopted a reflexive way of talking about emotions.

But there are times when it’s more useful to think of the things going on within our heads as things of our own making: If you offer me annoyance or anger, I am better off recognizing that I need not accept it—that only I can annoy or anger me.

Cleaning Out the Cellar

I’ve had some ideas for posts bouncing around in my head, and I haven’t been able to bring them to satisfactory conclusions, and I’ve allowed that to stop me from writing here—a classic gumption trap.

It’s probably a good idea, though, for me to stash some writing ideas away for at least a few weeks before coming back to them. If their time has passed, I probably shouldn’t have written about them anyway; I’m looking for themes that don’t have an expiration date, especially an expiration date dictated by the attention span of social media.

Citizen Lane asked some time ago, “Are white public defenders just chasing racial justice clout?” in response to a person who had posted a thread on Twitter by a manager in a New York appellate public defender organization who “want[ed] to talk about how public defense in particular provides cover and legitimacy to ‘nice white folks’” and so proceeded to do so, proving the assertion beyond dispute by merely making it, because the kind and compassionate white people who go to work at PDOs are never going to argue with a Black public defender who asserts that “Black PDs threaten the myths they believe about themselves.”

Typical responses to the thread:

Thank you for making me think about this. Thank you for making me uncomfortable so that I realized I need to reflect on this regularly.

and

Everyone falling over themselves to shout you down is only proving your point. Lots of people showing who they really are.

This was a classic Kafkatrap: any denial of the accusation was evidence of guilt.

And maybe these public defenders are guilty. A Black public defender has told me that he has experienced more racism as a public defender than ever before in his life, and I have no reason to doubt him. Maybe these nice white people who go to work doing indigent defense in order to improve the state of racial justice in America really are threatened by Black lawyers doing the same work.

On the other hand, the accusation of racism is easy to make—it requires no evidence—and irrefutable, which makes it a powerful weapon against people who care about being called racist. If you accuse everyone around you of being a racist who is threatened by you, you’re probably just an asshole.

On the scale, “need to hear that they are actually racist,” public defenders who have dedicated their lives to defending Black people accused of crimes are pretty low down: they are already doing their part to end racial injustice. But on the scale, “care about being called racist,” these defenders are very high.

That makes “White PDs are actually racist” a vicious attack, not only in the modern sense of cruelty, but also in the archaic sense of sinfulness.

In Favor of Pedantry

A “lawyer” is a person who practices law. An “attorney” is a person appointed to act for another. (You can look it up.) The words are not technically interchangeable, but they are commonly treated as interchangeable. Lawyers often call themselves “an attorney,” because they don’t know any better, and because the latinate “attorney” sounds fancier (more syllables!) than the Saxon “lawyer.” So when I described the correct usage of the two words on Twitter, the attorneys were not having one bit of it. Everyone uses lawyer and attorney to mean the same thing! Lawyers do! Court clerks do! Bailiffs do! Even judges!

I accept that there is common usage, and there is technically correct usage. Here mine is technically correct.

I recognize that the technically incorrect usage is common, and that English often evolves so that the technically incorrect usage often becomes technically correct by becoming common. We are not yet at that point. Every printed dictionary I consult, as well as every writing guide, agrees with me.

I recognize, too, that saying “I am an attorney” is understood as “I am a lawyer,” and saying “I am Joe’s attorney” is understood as “I am Joe’s attorney.” It does not cause confusion to use “attorney” to mean lawyer.

Nevertheless, it is important to recognize that the words denote different things.

A Bigger Toolbox

Generally it’s important to have words to describe things. More words are better, because if there is a word for a thing, you don’t have to use multiple words to point to it. When there is one word to describe one thing, and another word to describe another, the language is diminished by those words’ drifting together to become synonyms. If there were not a word for a person legally appointed by another to act as his or her agent, we would invent one.

There’s a lesson in the words.

The distinction between “lawyer” and “attorney” is didactically important. Thinking about the fact that you exist as an attorney only by virtue of your relationship with a client may bring home the importance of putting that relationship above all others (the criminal-defense principle). As a lawyer you may argue for your own interests or the greater good, but when you are acting as the attorney for a client, you set those things aside.

Those who know, know.

Most lawyers and judges cannot write worth a damn. If you write, “Fred is an attorney,” the vast majority of other lawyers and judges will not recognize the incorrect usage. The few who know the correct usage will.

Do you really know who, among the judges and lawyers you are writing for, knows the difference and who does not? Do you notice how your audience uses the words? You may think that everyone agrees with your usage, but if someone writes, “Fred, Joe’s attorney, has been a lawyer for over 25 years,” do you even notice that attorney and lawyer are used differently? If you notice, do you know if she is using the words correctly deliberately, or accidentally?

Technically correct usage will pass muster with everyone. Incorrect usage will grate on those who know what is correct, and you don’t know who those people are. If you are capable of choosing one or the other, why not write so that those who recognize the distinction are not distracted from the substance of your writing by what is, usage notwithstanding, error?

I doubt that this is a controversial proposition in the abstract. The great bulk of lawyers, who still use “comes now” and “wherefore, premises considered” in pleadings cannot possibly disagree; and the small majority of lawyers who choose their words carefully are unlikely to.

“Wherefore, premises considered…”

I suspect that, in the specific case of “attorney” and “lawyer,” it is that great bulk of lawyers, who still use “whereas” and “know all men by these presents,” who insist upon “lawyer” and “attorney” being synonymous. Those who choose their words carefully are likely to have—and to consult—dictionaries and style guides, and to recognize that we can improve our writing every day.

What is speech?

In Lane’s post today, he writes about the meaning of speech. I don’t have Lane’s education in philosophy—any philosophy I might have studied, I’ve long since forgotten—but I think I understand the bounds of speech in First Amendment law.

What does speech do? Speech conveys information, asks questions, and evokes emotions. As Justice White wrote in 1991’s Barnes v. Glen Theatre, Inc., “Generating thoughts, ideas, and emotions is the essence of communication.”

All speech is conduct, and some conduct is speech. The Arizona Supreme Court, in Brush & Nib Studio, LC v. City of Phoenix, wrote of pure speech:

Pure speech includes written and spoken words, as well as other media such as paintings, music, and film ‘that predominantly serve to express thoughts, emotions, or ideas.’

Rather than “express” emotions, I would say “evoke.” The emotions that speech is intended to evoke are not necessarily those being expressed (for example, a writer might express enthusiasm for eating the children of Ireland in order to evoke amusement in his readers).

As the use of the adverb “predominantly” suggests, there is no clean line to be drawn between pure speech and other expressive conduct. That is, all pure speech is expressive conduct; some expressive conduct is pure speech.

The Supreme Court has held that conduct should be treated as speech (protected from content-based restriction by the First Amendment) when it is intended to convey a particular message (its purpose, you might say), and that message is likely to be understood by listeners (its function).

The message here is the thoughts or ideas expressed, the question asked, or the emotions evoked.

To sum up, speech is that which has as its purpose and function the expression of ideas, the asking of questions, or the evocation of emotions.

Electronic Harassment

The Court of Criminal Appeals finally ruled on Citizen Lane’s and my challenges to the constitutionality of the Online Harassment statute. Here are the opinions in Barton—majority, concurring (Yeary, J.), and dissenting. They did not get it right.

Their rationalization was that repeated (i.e. more than one) electronic communications sent with the intent to harass, annoy, alarm, abuse, torment, or embarrass another, and sent a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another, are “non-speech conduct.”

If I post a Substack newsletter, and in it I say, the five majority judges should be ashamed of themselves, that is obviously speech—pure speech, not even close to the line—even if I evince an intent (to which I will readily confess) to embarrass them, and even if they are reasonably likely to be embarrassed by my words (this would require them to care that they’ve done their job poorly). The purpose (intent) and function (effect) of my words do not make them non-speech; in fact, the United States Supreme Court has said (in Reed v. Town of Gilbert, Arizona) that restrictions based on the function or purpose of speech are, by virtue of that basis, content-based restrictions.

But by the Court of Criminal Appeals’s reasoning, if I post a second Substack newsletter, and in it I say again, the five majority judges should be ashamed of themselves, that and the first newsletter become non-speech conduct, unprotected by the First Amendment. I may be prosecuted under the Electronic Harassment statute.

Fortunately, four judges dissented. That might help us get into the Supreme Court.¹ If we can get there, we win. Getting there is the difficult part. More on that another day.

Judge Yeary wrote an emotional concurrence, in part:

That the law would seek to defend private citizens from such targeted harassment is no more surprising than that it would seek to protect them from stalking, offensive touching, or assault.

If we’re going on pure emotion, then one might add indecent language or insult to the list of things that the law may self-evidently protect us from. But we know that indecent language and insult are protected speech, because, setting aside emotion, there is a categorical difference between stalking, offensive touching, and assault, which cause or threaten physical injury; and embarrassment or offense, which cause at worst (if you accept them, that is) emotional injury.