Example 9.6
Takeaway point 9.6: Use policy arguments to address the concerns that readers will have about the biggest weaknesses in your case.
Policy arguments are sometimes most powerful when they confront your client’s biggest obstacle to winning.
We see that technique here, where a municipal official falsely claimed that he had won the Congressional Medal of Honor. Congress had banned anyone from knowingly lying about having won this military award, and a trial court convicted the official. Lying about military service will strike many judges as despicable — and valueless. The public defenders who wrote this brief confront the instinct that lying is worthless.Source: The convicted liar’s brief in United States v. Alvarez, 132 S. Ct. 457 (2011).
When the facts disfavor your client, emphasize the law — or the policy.
The brief begins by showing that the Court entertained a similar argument in the landmark First Amendment case, New York Times Co. v. Sullivan, 376 U.S. 254 (1964). In that case, a group of African American civil rights leaders had been sued in Alabama after making minor factual errors in an advertisement, and the suit intended to impede the civil rights movement. The Supreme Court vacated the trial court’s award; the current Justices would know this case’s history, so the citation to Sullivan is a gentle reminder that punishing falsehoods can lead to grave problems.
The brief aggressively defends lying by drawing on familiar circumstances in which lying is reasonable or beneficial, thus addressing the biggest weakness in the case: the instinct that lying is worthless. This brief’s robust defense of lying was inspired by Chief Judge Kozinski’s dissent before the case reached the Supreme Court.
The lawyers use social science research to show the scope of the policy problems that the brief discusses.
The brief shows that the government is already prosecuting MySpace users under the same theory it is advancing in this case and that a Justice Department official called for broader prosecution of lying — a slippery slope argument. This approach exemplifies how to use cases and legislative testimony to validate your policy arguments.
The brief alludes to the “birther” controversy surrounding President Obama. This illustration reflects the skill that Example 9.5 explored by showing the risks of letting the government draw the line between permissible and impermissible lies. And it worked. The majority in Alvarez wrote, “Permitting the Government to decree this speech to be a criminal offense would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle.”