November 15, 2012

Does the Supreme Court understand Orwell's "1984"? No!

Yesterday, I was studying United States v. Alvarez, the case, decided last June, about the Stolen Valor Act (which made a crime about lying about having received a military medal). In the process of explaining why the law violates the right to freedom of speech, Justice Kennedy, speaking for the majority, wrote:
Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth. See G. Orwell, Nineteen Eighty-Four (1949) (Centennial ed. 2003).... Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.
All right. Fine sentiments about free speech, but what is "1984" doing in there? Did it seem like a good idea to drop in a literary reference to look classy or something? Did nobody notice that the reference is completely wrong? The Ministry of Truth in "1984" wasn't a government institution that enforced truthfulness, which is the way it's used in that paragraph. Such an institution would be bad and inconsistent with American First Amendment principles, but it wouldn't be as bad as the Ministry of Truth in "1984"!

Here's George Orwell's description of The Ministry of Truth:

Winston's greatest pleasure in life was in his work. Most of it was a tedious routine, but included in it there were also jobs so difficult and intricate that you could lose yourself in them as in the depths of a mathematical problem— delicate pieces of forgery in which you had nothing to guide you except your knowledge of the principles of Ingsoc and your estimate of what the Party wanted you to say. Winston was good at this kind of thing. On occasion he had even been entrusted with the rectification of the Times leading articles, which were written entirely in Newspeak. He unrolled the message that he had set aside earlier. It ran:
times 3.12.83 reporting bb dayorder doubleplusungood refs unpersons rewrite fullwise upsub antefiling   
In Oldspeak (or Standard English) this might be rendered:
The reporting of Big Brother's Order for the Day in the Times of December 3rd 1983 is extremely unsatisfactory and makes references to non-existent persons. Re-write it in full and submit your draft to higher authority before filing.   
Winston read through the offending article. Big Brother's Order for the Day, it seemed, had been chiefly devoted to praising the work of an organisation known as FFCC, which supplied cigarettes and other comforts to the sailors in the Floating Fortresses. A certain Comrade Withers, a prominent member of the Inner Party, had been singled out for special mention and awarded a decoration, the Order of Conspicuous Merit, Second Class.

Three months later FFCC had suddenly been dissolved with no reasons given. One could assume that Withers and his associates were now in disgrace, but there had been no report of the matter in the press or on the telescreen. That was to be expected, since it was unusual for political offenders to be put on trial or even publicly denounced. The great purges involving thousands of people, with public trials of traitors and thought-criminals who made abject confession of their crimes and were afterwards executed, were special show-pieces not occurring oftener than once in a couple of years. More commonly, people who had incurred the displeasure of the Party simply disappeared and were never heard of again. One never had the smallest clue as to what had happened to them. In some cases they might not even be dead. Perhaps thirty people personally known to Winston, not counting his parents, had disappeared at one time or another.

Winston stroked his nose gently with a paper-clip. In the cubicle across the way Comrade Tillotson was still crouching secretively over his speakwrite. He raised his head for a moment: again the hostile spectacle-flash. Winston wondered whether Comrade Tillotson was engaged on the same job as himself. It was perfectly possible. So tricky a piece of work would never be entrusted to a single person: on the other hand, to turn it over to a committee would be to admit openly that an act of fabrication was taking place. Very likely as many as a dozen people were now working away on rival versions of what Big Brother had actually said. And presently some master brain in the Inner Party would select this version or that, would re-edit it and set in motion the complex processes of cross-referencing that would be required, and then the chosen lie would pass into the permanent records and become truth.
Am I the first person to point out this blunder? I see the Washington Post editors called it "a deft allusion to George Orwell’s '1984.'" Is "deft" Newspeak for clumsy?!

54 comments:

Patrick said...

Daft, not deft.

MB said...

Not being an attorney, how is this different from claiming to be a doctor or lawyer? Is it permissible to claim to be one who practices those professions as long as one doesn't actually practice?

Could the law be written so that the person claiming to be a veteran cannot financially benefit from that claim directly or indirectly, such as travel expenses paid but no speaker's fee?

Pogo said...

Duffed.

Michael said...

The Washington Post writer does not mean to say "clumsy" he means to praise the brilliance of "alluding" to the book. The justice, of course, actually cited the book and did not "allude" to it.

And, yes, they both misunderstand The Ministry of Truth. Perhaps because one works for it and the other has colleagues who are as inventive as Winston.

Pogo said...

How stupid!

All SCOTUS had to do was make it a tax and not a penalty, and the law would not violate the right to freedom of speech.

edutcher said...

Talking about theoretical rights when they should be talking about fraud.

Scott said...

With Obama's propensity to tell bald-faced lies, he would probably benefit from a Ministry of Truth. Maybe he could call it the Department of Information and place it under Homeland Security. Lies within lies...

Eric said...

What Patrick said.

Rusty said...

Scott said...
With Obama's propensity to tell bald-faced lies, he would probably benefit from a Ministry of Truth. Maybe he could call it the Department of Information and place it under Homeland Security. Lies within lies...

You mean CBS,NBC,CNN, MSNBC, etc don't already fill that role?

Pragmatist said...

One of my favorite books. Thanks for pointing out an absolutely idiotic reference.

Gabriel Hanna said...

People don't read very many books any more, but they sure like to pretend they have.

Bogus and out-of-context quotes have been a bee in my bonnet for sometime. The most recent annoyance is the "vote themselves largess from the public treasury", which I have now seen attributed to everyone from Benjamin Franklin to Alexander de Tocqueville. If people had read any of these authors they'd know it wasn't real.

Scott said...

@Rusty: They're lapdogs. The government should just bring the entire operation in-house.

Nonapod said...

It's pretty depressing that these dummies have so much power.

McTriumph said...

1984, read it and it's one of my favorite movies...er I mean Brazil.

Gabriel Hanna said...

Orwell was always very interested in how governments used words. In 1984 the four ministries, Love, Peace, Plenty, Truth, were concerned with repression, war, economic mismanagement, and propaganda respectively.

From "Politics and the English Language":

When one watches some tired hack on the platform mechanically repeating the familiar phrases -- bestial atrocities, iron heel, bloodstained tyranny, free peoples of the world, stand shoulder to shoulder -- one often has a curious feeling that one is not watching a live human being but some kind of dummy: a feeling which suddenly becomes stronger at moments when the light catches the speaker's spectacles and turns them into blank discs which seem to have no eyes behind them. And this is not altogether fanciful. A speaker who uses that kind of phraseology has gone some distance toward turning himself into a machine. The appropriate noises are coming out of his larynx, but his brain is not involved as it would be if he were choosing his words for himself. If the speech he is making is one that he is accustomed to make over and over again, he may be almost unconscious of what he is saying, as one is when one utters the responses in church. And this reduced state of consciousness, if not indispensable, is at any rate favorable to political conformity.

In our time, political speech and writing are largely the defense of the indefensible. Things like the continuance of British rule in India, the Russian purges and deportations, the dropping of the atom bombs on Japan, can indeed be defended, but only by arguments which are too brutal for most people to face, and which do not square with the professed aims of the political parties. Thus political language has to consist largely of euphemism, question-begging and sheer cloudy vagueness. Defenseless villages are bombarded from the air, the inhabitants driven out into the countryside, the cattle machine-gunned, the huts set on fire with incendiary bullets: this is called pacification. Millions of peasants are robbed of their farms and sent trudging along the roads with no more than they can carry: this is called transfer of population or rectification of frontiers. People are imprisoned for years without trial, or shot in the back of the neck or sent to die of scurvy in Arctic lumber camps: this is called elimination of unreliable elements. Such phraseology is needed if one wants to name things without calling up mental pictures of them. Consider for instance some comfortable English professor defending Russian totalitarianism. He cannot say outright, "I believe in killing off your opponents when you can get good results by doing so." Probably, therefore, he will say something like this:

"While freely conceding that the Soviet regime exhibits certain features which the humanitarian may be inclined to deplore, we must, I think, agree that a certain curtailment of the right to political opposition is an unavoidable concomitant of transitional periods, and that the rigors which the Russian people have been called upon to undergo have been amply justified in the sphere of concrete achievement."

The inflated style itself is a kind of euphemism. A mass of Latin words falls upon the facts like soft snow, blurring the outline and covering up all the details. 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. I should expect to find -- this is a guess which I have not sufficient knowledge to verify -- that the German, Russian and Italian languages have all deteriorated in the last ten or fifteen years, as a result of dictatorship.

Pogo said...

Demanding the use of correct quotes is a ban on free speech.

As SCOTUS sez: "The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom."


Or as Dodgson might put it:
"When I use a quote, it means just what I choose it to mean -- neither more nor less."

McTriumph said...

Nonapod said...
It's pretty depressing that these dummies have so much power.

They're not dummies, that's why they're dangerous.

Pogo said...

Has SCOTUS quoted Fifty Shades of Gray yet?

Sam L. said...

Bad memory? I see MiniTru at work all over.

Synova said...

Libel and Slander are against the law, aren't they? Fraud is against the law, isn't it?

I don't know that we've got a free speech right to lie. If there has to be damages in order for lying to be against the law, isn't there damages and isn't there gain? People don't lie about being a military hero because it gets them nothing. And it's wrong to say that these liars don't steal something of value from military veterans.

It wouldn't be "free speech" if I applied to be a professor at a University and made up my curriculum vitae (or whatever the heck it's called) or lied on a job application, would it?

The law is always concerned about what is the truth or not.

ricpic said...

Confirmation that Kennedy is as much a blowhard as me!

jimbino said...

Kennedy also gets his sequence of tenses wrong:

"Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition."

You can't logically sustain a ban on speech that "was used." All you can do is punish it or ban future speech.

Gabriel Hanna said...

@Synova:It wouldn't be "free speech" if I applied to be a professor at a University and made up my curriculum vitae (or whatever the heck it's called) or lied on a job application, would it?

It is, but you'll get fired when they find out. Likewise you have a First Amendment right to tell your boss he is a warthog, but he'll fire you.

What will not happen, is that you will go to jail for either of those things.

Freedom of speech does not mean that there are no social consequences to what you say. Those consequences are other people's right to free expression.

Synova said...

Instead of a law then, whenever someone is caught pretending to be a war vet and lying about awards they should get a more organic comeuppance.

Sounds like a plan to me.

Left Bank of the Charles said...

If the misreference is material to the holding, can Kennedy be prosecuted under the Stolen Literature Act?

But the better question is, could the statute be saved if it had limiting clause, such as "for purposes of profit or obtaining a position of trust?"

Hagar said...

MB and Synova are wrong. If you claim to be something, or somebody, that you are not and profit by it, you have been engaging in fraud and can be prosecuted for fraud.

Thus you are free to call yourself Winthrop Rockefeller IV, but you had better not also offer any Arkansas real estate for sale cheap.

And I don't think Kennedy's allusion is that far out of line. Any government established list of "truths" are going to be just that. Process will take over and rule regardleess of any actual truthfulness in any of the "truths" on such a list.

AllenS said...

When you sell a house, you have to disclose problems that the house has. For instance: the roof leaks, the kitchen sink doesn't drain... You cannot use your free speech and proclaim: "There's nothing wrong with this house."

In other words: you cannot lie.

Synova said...

The fraud thing seems obvious to me, that it's a matter of fraud.

And if someone says that nothing was stolen or no gain is involved I can only figure that what is stolen and what is gained may not be valuable to YOU but it certainly has worth to ME.

"You" being supreme court justices, I suppose.

Carol said...

"The statements do not seem to have been made to secure employment or financial benefits or admission to privileges reserved for those who had earned the Medal."

That is the bottom line. The remedy for this kind of "fraud" is public humiliation.

It's actually kind of easy nowadays with Facebook and blogs and stuff. Laugh the liar right out of town.

Ann Althouse said...

"When you sell a house, you have to disclose problems that the house has. For instance: the roof leaks, the kitchen sink doesn't drain... You cannot use your free speech and proclaim: "There's nothing wrong with this house." In other words: you cannot lie."

Reread the passage and take special note of the phrase "absent any evidence that the speech was used to gain a material advantage."

Synova said...

"Admission to privileges" depends on how narrowly "privileges" is defined.

Consider a few of the more egregious examples of stolen valor and what privileges were gained. Take some fellow who washed out of boot camp (nothing particularly embarrassing or bad about that - pull a tendon and home you go) and he's trotted up in front of a political movement as someone with moral suasion as a combat hero and veteran. Someone who *knows*. Does he make money? No. Does he gain admission to privileges? Well, that depends on how that is defined. Does *someone* gain by the fraud? Oh, absolutely, and in relatively concrete ways or they wouldn't put him out there as a front man. Does someone lose? Yes. Someone loses something precious.

Maybe it's not possible (or even wise) to try to define that in a law so that there are consequences to the liar for lying.

No one particularly cares if some guy lies about being special forces to get laid, even if he gains sex from the deception, but we can start there for a minimum of what is gained and go up from there. And the guy lying to get laid does damage the reputation of those who legitimately own that reputation.

The assumption seems to be that nothing is actually *happening* here. Just some doofus spouting off because he likes to be thought brave in front of his friends. It's not true.

Bill, Republic of Texas said...

You expect a liberal to understand 1984? They view it as a how to manual.

Sigivald said...

For the most part, people should never "allude to" 1984, because from experience almost nobody - even among those who've actually read it - understands it.

The primary point was as a mockery and attack on internal Socialist party politics; that's why Winston is an apparatchik, and why the ruling party is IngSoc [notice the "Soc"], not something else.

(The rewriting and airbrushing? The control mechanisms all aimed at the party membership rather than the proles, who are mostly ignored?

It's aimed at Stalin and his ilk in the COMINTERN.)

Synova said...

Supposedly bikers are extremely careful about representing themselves and no one ever ever would wear a certain "rocker" they weren't entitled to because that would be *bad*.

Maybe that's the sort of extra-legal enforcement that is necessary here.

Maybe if someone says "I was in combat" and they never were, they ought to be, so they can learn what it's like.

Jim in St Louis said...

I am a Supreme Court Justice,
I don't claim any privileges or discounts at the gift shop- so nyah nyah you can't stop me.

We could all be Justices- sort of like the "I am Spartacus" thing.

'I am a Justice'
"No, I am a Justice"

Isn't that how To Tell the Truth used to start?

Robert Cook said...

Perhaps the reference was meant to disdain the move toward establishing legal sanctions--as a norm--against speech or claims of fact that do not meet pre-existing government standards of approval.

Yes, The Ministry of Truth was an agency of lies, but in the larger sense, it was the institution that established what what information was officially approved and permitted for promulgation. So, in a very broad sense, I can find sense in the Justice's remark.

Gabriel Hanna said...

@Robert Cook:established what what information was officially approved and permitted for promulgation.

I disagree. Minitrue's mission was to control what people thought, by controlling the factual record.

They didn't just approve/disapprove what people could print. They actually went into libraries and people's homes and changed what was in their books, magazines, and newspapers, as was actually done in the Soviet Union.

That way no one could ever point to a record that contradicted the Party's line this week. By every objective standard, you could never prove that it had been any different, thanks to Minitrue's tireless efforts.

Gabriel Hanna said...

For example (I am relying on memory here) it was announced that the chocolate ration this week had been raised to 25 grams. Last week the ration had been 30 grams, so it was actually a reduction, but Minitrue went around the country changing all the tables, reports, periodicals, and government records to make it so they said it had been 20 grams last week. And they did this sort of thing all the time.

Robert Cook said...

Gabriel,

Your interpretation--correct insofar as my memory of the book can confirm--does not contradict my remarks.

Mary Beth said...

Jim in St Louis said...

I am a Supreme Court Justice,
I don't claim any privileges or discounts at the gift shop- so nyah nyah you can't stop me.


That's just what I was thinking. It would probably be pretty easy...a bunch of famous people that most other people can't name or wouldn't recognize if they did see them. Probably extra easy if you look like Walter Matthau or Jill Clayburgh.

pauld said...

I guess the government cannot make it illegal to falsely claim to be of Native American heritage to benefit from affirmative action policies?

From Inwood said...

absent any evidence that the speech was used to gain a material advantage

Um, depends on the meaning of "marerial"

Many of these frauds have been looked up to in their work place & in bars where they cage free drinks.

But criminal prosecution is a bit far.

BTW, if you only knew that behind my hidden real life identity here, I am really ....

From Inwood said...

pauld

When Dem Politicians lie about their backgrounds it must be overlooked for the greater good.

When Republican politicans so lie, it is proof that they don't deserve to be elected.

You do not seem to understand this.

Smilin' Jack said...

"Does the Supreme Court understand Orwell's "1984"? No!

Don't worry, this is no cause for concern. Orwell used lots of fancy words and stuff. I'm sure the SC has no problem understanding the Constitution.

Levi Starks said...

If I believe a person is lying about his military service, and I use my "free speech" to call him out as a liar, I needn't worry about a defamation lawsuit?

McTriumph said...

Synova said...
Supposedly bikers are extremely careful about representing themselves and no one ever ever would wear a certain "rocker" they weren't entitled to because that would be *bad*.

I believe there is civil law concerning unauthorized rockers, but mostly violence. I'm not in a club or a "road pirate", but I've seen first hand some bad ass sanctions.

Hagar said...

OMG! Robert Cook and I agree on something!

But Orwell just shows us what the slippery slope might lead to; it starts with establishing an "official truth."

Gabriel Hanna said...

@Robert Cook: Your interpretation--correct insofar as my memory of the book can confirm--does not contradict my remarks.

It is a very large amount of stew to make from a very small oyster, to say that the good Justice meant what you meant, rather than what his words actually said.

Anyone who has read the book knows how active and intrusive Minitrue was. The law under discussion does not do anything but provide a penalty for making a particular type of false statement, and so anyone who has read and understood 1984 would not make the analogy. The Ministry of Truth was not an organization that checked facts and punished falsehood, and the Justice's statement implies he thought it was.

Gabriel Hanna said...

@Levi Starks:If I believe a person is lying about his military service, and I use my "free speech" to call him out as a liar, I needn't worry about a defamation lawsuit?

You always need to worry about a lawsuit, that's why there are anti-SLAPP laws now in some states, but truth always sued to be reckoned a defense against a suit for defamation.

Robert Cook said...

Gabriel,

I think you're being rather too literal. Inexact as the Justice's comparison may be, I can draw from his remarks a semblance of meaning that does not require that he be completely ignorant of the book. It is pedantic to insist, because the Ministry of Truth's intentions and actions were broader and more invasive than the matter before the court, that the Justice's reference is completely inapt.

Carl said...

I think you're wrong, Althouse. The soi disant mission of Minitru is to decide what is, and is not, permissible speech, based on some theoretical measure of its contribution to the greater good.

It was clearly Orwell's point that once you accepted the subjugation of what is to be heard, and what not, to the greater social good, it would become illogical and unlikely that you would restrict the practical implementation of this subjugation to choosing which true statements should be suppressed. Inevitably and easily (and correctly) you would conclude there is no ethical distinction between shaping perceptions by selective promulgation of factually true statements, and shaping perceptions by promulgation of statements that bear no necessary relationship to facts. In est, there is no serious moral distinction between lying by omission and lying by commission -- so why limit the scope of your means?

I suggest Kennedy understood both aspects, and was referring to them both -- namely, that the Constitution frowns on even a well-intentioned attempt by government to suppress speech it thinks (perhaps quite correctly!) harmful to the greater good -- and for exactly the reasons foreshadowed by Orwell, that this is one small easy step from subjecting the definition of truth itself to the test of the "greater good."

Gabriel Hanna said...

@Carl:It was clearly Orwell's point that once you accepted the subjugation of what is to be heard, and what not, to the greater social good, it would become illogical and unlikely that you would restrict the practical implementation of this subjugation to choosing which true statements should be suppressed.

No, he wasn't. He was not writing about creeping totalitarianism. He was writing about actual totalitarianism, and the perversion of language and history to serve politics.

The practices he described in 1984 were actually going on at that time. 1984 is not terrifically inventive. He had seen it first hand.

The government described in 1984 does not care at all what the truth is. It is not a story of a well-intentioned system gone wrong, or a slippery slope of any sort.

Communism in Orwell's day was not something that crept up on you by tightening up this and slipping down that and if only we'd thought of this other thing. It was sudden and violent and obvious.

"To us, everything is permitted, for we are the first to raise the sword not to oppress races and reduce them to slavery, but to liberate humanity from its shackles... Blood? Let blood flow like water! Let blood stain forever the black pirate’s flag flown by the bourgeoisie..."

Not subtle at all.

Hassell Anderson said...

Justice Kennedy has it exactly right, Ann. When government gets to choose between truths and lies, it gains the power to pronounce which lies become truths, and which truths become lies. That which the government embraces or remains silent upon is truth. That which the government opposes are lies.

The Benghazi attack is a case in point. Obama's lie that the attack was a spontaneous response to a YouTube video was supposed to become truth. And General Petraeus was supposed to be Winston, under duress for fear of having his affair exposed. We came very close to having this lie pass into the permanent record as truth.

Leland said...

Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable.

So the National Institute of Standards and Technology unconstitutional? What about the FDA?