Example 9.5
Takeaway point 9.5: Emphasize that your adversary’s position makes it impossible to draw a line between lawful and unlawful conduct.
Legal rules need to be administrable, so many judges will wince when the line between legal and illegal conduct is blurry.
Thus, call the court’s attention to any opposing argument that leads to an unworkable rule or requires enormous amounts of fact-finding to administer the rule. The following example reflects this skill, and it also shows how to camouflage a policy argument by making it look like a fact-based argument.The dispute involves a federal statute that made it a crime to create, sell, or possess depictions of cruelty to animals if the depicted conduct is “illegal under federal law” (such as a dog fight or a bull fight). Stevens, a writer and documentary producer, was indicted under this statute for selling violent movies that depicted dog- fighting and wounded dogs. Stevens was convicted by a jury, but the Third Circuit vacated the conviction, holding that the statute violated the free speech protections embedded in the First Amendment. The government challenged this decision at the Supreme Court. There, a number of animal rights groups, including the Humane Society, submitted amicus briefs in support of the government. Stevens’s brief counters amici’s arguments by presenting facts that hint at the difficulty of distinguishing between legal and illegal speech.
Source: Stevens’s brief in United States v. Stevens, 559 U. S. 460 (2010).
The brief emphasizes that the Humane Society itself depicts grusome images of dog fighting on its website. The comparison suggests that the Humane Society’s depiction of animal cruelty is indistinguishable from what Stevens did.
The brief elsewhere tries to make Stevens’s videos sound mild — they merely “contain[] yelps” — whereas the movie that the Humane Society praised is described in deliberately graphic terms. This part of the brief highlights the difficulty of drawing a line between acceptable depictions of animal violence and unlawful depictions.
The brief slips in some helpful details about Stevens’s motives to make him sound less loathsome. Even your policy arguments need to reflect the “victims and villains” principles discussed in Chapter 1.
This footnote achieves three goals. First, it uses the prosecutor’s own words from the trial to show that Stevens’s depictions were not as horrific as the government suggested. Second, this footnote tries to confront the bad fact that the dogs’ wounds were visible, as shown by the first two citations to the film Japan Fights. And third, the footnote advances a separate, almost subliminal argument about the difficulty of drawing lines between legal and illegal movies: exactly how much violence or gruesomeness is enough to throw a filmmaker in jail? This sort of argument should sometimes be explicit, but can sometimes be most effective when it is subtle. See Appendix A, Principle B.4.
The brief’s argument is that the statute discriminates based on viewpoint. But rather than simply stating this, the brief leads the reader to the same conclusion by showing that the Humane Society’s argument inexorably leads there.
As we saw, Example 9.1 made a similar argument, discussing various violent books. Example 9.1 was extracted from a brief that cited the Stevens case almost a dozen times and discussed it extensively. The similarity demonstrates that top lawyers litigate similar cases in similar ways, meaning that you should read briefs and motions in your field so that you know the custom. Learn from your rivals — and then outlitigate them.