It depends on what "the" means …

« previous post | next post »

Semantics in the John Edwards trial (James Hill and Beth Lloyd, "John Edwards Defense Relies on Definition of 'The'", Good Morning America 5/13/2012):

Not since Bill Clinton challenged the definition of "is" has so much hinged on a very short word.

John Edwards appears to basing much of his defense, which begins today in a North Carolina courtroom, on the legal interpretation of the word "the." [...]

The statute governing illegal receipt of campaign contributions "means any gift, subscription, loan, advance, or deposit of money… for the purpose of influencing any election for federal office."

The words "the purpose" suggests that in order for a conviction, the sole reason for the money would have to be to finance a presidential campaign.

Edwards' legal team has argued … that his main reason for hiding Hunter was to keep her secret from his wife, Elizabeth.

Prosecutors, however, are arguing the law should be interpreted to mean "a purpose," meaning use of the donations does not have to be solely for a political campaign.

Once during the anti-Vietnam war protests, when many of us at UCLA were restructuring courses to not be “business as usual”, I found this lovely book on language and the law: Bryant, Margaret M. 1962. English in the law courts; the part that articles, prepositions, and conjunctions play in legal decisions. New York,: F. Ungar. I used it in my semantics class for the rest of the semester, and realized what a fertile field language and the law could be (and it  indeed blossomed in subsequent decades.) It had a whole chapter on “the” (other chapters included "and", "or", and "of". I was in heaven!)  It’s been more than 40 years since I read it, but the main thing I remember is that for every position any semanticist or logician has taken on any of the little logical words in the language, some judicial decision can be cited as precedent for that position. (Larry Solan's first book, The Language of Judges (1993, University of Chicago Press) made the same point about potential parsing ambiguities — all possible ambiguity resolution principles are attested in judicial precedents.) And certainly the “uniqueness” condition on "the" is open to dispute.

There is now a whole research area devoted to “weak definites” — the term was coined, I believe, by Massimo Poesio in a 1994 paper, though the relevant phenomena had been observed much earlier. Sentences like “The kids had been writing with indelible markers on the wall of their grandmother’s living room” occur frequently, even though living rooms have four walls, and the meaning is the same as would be expressed by the (less natural sounding) “a wall”. A frequently cited sort of “weak definite” occurs in “My father was reading the newspaper and didn’t look up when Dick came in.” “Reading the newspaper” can just name an activity, much like “newspaper-reading”. Not every occurrence of a definite article can be so interpreted; one of the challenges is to explain why we can have a weak definite in “read the newspaper” but not in “read the book.” There will be a conference (not the first by any means) on weak definites in Florianopolis, Brazil in August. Perhaps the Edwards example will by then be a stock example.

I trust the prosecution team will have some linguists on call and/or some linguistically savvy lawyers. If the claim that "the purpose" in "for the purpose of" can only mean "the sole purpose" is the best defense Edwards has, I suspect he’s in trouble.

[Thanks to Jonathan Lighter via Ben Zimmer for the pointer to the Yahoo/Good Morning America article.]



31 Comments

  1. Jon Weinberg said,

    May 14, 2012 @ 7:48 pm

    I expect the court here to be swayed less by semantics than by considerations of legislative intent (is this the sort of gift the judge imagines Congress intended to treat as a "contribution" subject to the campaign finance laws?) and practicality (in what circumstances would it be sensible policy to label a gift a "contribution"? Are they present here?). Given that approach, another possible reading would be for the court to consider the gift a "contribution" if its primary purpose were campaign-related. It's plain, in any event, that the facts of this case aren't much like those surrounding an ordinary campaign contribution.

  2. Rubrick said,

    May 14, 2012 @ 8:11 pm

    If the defense's argument were taken at face value, it would imply that you could get around the law simply by using a buck or two out of every contribution to buy a flea collar for your dog.

  3. rootlesscosmo said,

    May 14, 2012 @ 8:23 pm

    Massimo Poesio strikes me as a really enviable name.

    [(myl) And here he is.]

  4. Mark Liberman said,

    May 14, 2012 @ 9:05 pm

    It may be worth noting that 2 U.S.C. § 431 : US Code – Section 431: Definitions, where the critical phrase comes from, contains several other instances of "for the purpose of" that are modified in ways reflecting the fact that a contribution, gift, or other action may have several purposes: "…solely for the purpose of ensuring compliance with this act"; "….primarily for the purpose of influencing the nomination for election, or election, of any individual to Federal office".

    The fact that the critical instance is not modified by "solely", "primarily", or the like, suggests that the law is intended to apply to contributions or expenditures that are made "for the purpose of influencing any election for Federal office", but not necessarily for that sole or even primary purpose.

    The more general notion that the legal meaning of "the" requires exclusivity is surely refuted by the interpretation of phrases like "possession of a controlled substance with the intent to distribute". Showing that you also had the intent to use the substance yourself is surely not an adequate defense.

    But I imagine, as Barbara suggests, that this sort of question has come up before, with respect to statutory wordings like "for the purpose of", "with the intent to", etc.?

    Checking my copy of Bryant's English in the Law Courts, I find that the section on the is indeed somewhat relevant, though none of the examples involve U.S. rather than state law. For example, she discusses a Louisiana case in which a judge decided that "An act providing for the manner of adopting children" should be taken to describe "the manner; not a manner, or one of the manners, or part of the manner; but the manner; that is, the exclusive manner". In another case, a judge ruled that sometimes the means "any", "just as Shakespeare meant any man when he said, 'The man that hath not music in his soul is fit for treason,' etc., and not one man only." But there are no clear examples of "weak definites", either in the statutes or in the case law that Bryant considers.

  5. AntC said,

    May 14, 2012 @ 9:16 pm

    I'm not sure, even with a protagonist named Massimo Poesio [cameo performance by a lugubrious Anthony Hopkins? "I'll have those weak definites with a side-serving of fava beans"], how I'm going to make a compelling Hollwood courtoom blockbuster out of a bunch of attorneys arguing over the meaning of "the".

  6. Carl said,

    May 14, 2012 @ 10:16 pm

    It seems like an easy way for the prosecutors to undermine this defense would be with a corpus search for "for a purpose of…" That sounds terribly unnatural to me. I doubt it was a live option for the legislators. If you can show that it basically never occurs in English, that would be a good defense. GoogleFight.com puts the ratio at 500-to-1.

  7. Glenn Bingham said,

    May 14, 2012 @ 10:35 pm

    So the question (not to be confused with the only question) is: Is the meaning (not to be confused with the only meaning) of "the" definite?

  8. LDavidH said,

    May 15, 2012 @ 2:38 am

    And I thought I knew English…

  9. M. Drach said,

    May 15, 2012 @ 6:22 am

    Huh.

    That newspaper example just led me to realise that in my native German, you can say

    "mein Vater las Zeitung"
    without any article for "my father was reading the newspaper [i.e. some newspaper]", but "mein Vater las ein Buch" requires an indefinite article just like English.

    Maybe it's to do with the fact that if you just said "my father was reading", the book would be implicit, and so explicitly stating that it was a book rather puts that component in focus, while "reading a/the newspaper" is a different general activity?
    But then why can't I say "was reading the magazine"/"las Zeitschrift"?

    Huh.

  10. Alan Gunn said,

    May 15, 2012 @ 7:26 am

    "It's plain, in any event, that the facts of this case aren't much like those surrounding an ordinary campaign contribution."

    Indeed. The Edwards case is a wonderful illustration of how far we have gone in the direction of making all conduct potentially criminal. When the government started investigating this incident, its suspicion was that Edwards had used ordinary campaign contributions for the personal purpose of keeping this affair quiet. They then learned that the money hadn’t come from the (labelled) contributions, but from Edwards’ friend, who gave it to him for this specific purpose. So it then charged him with what he’s on trial for, on the grounds that money he got to conceal an illicit activity was a campaign contribution after all. In short, the investigation started by treating the cover-up as a non-campaign activity, so that using campaign funds for it would have been a crime (diverting campaign funds to personal use). When it discovered the truth, it changed its mind and decided that the cover-up was a campaign activity, so the money in question should have been reported as a contribution.

    It is often said that ambiguities in criminal legislation should be resolved in favor of the defendant. As this case shows, that is not how we do it, though perhaps we should. It's an outrage that someone can be sent to jail for violating a law that no one could confidently have said in advance prohibited the conduct in question.

  11. marie-lucie said,

    May 15, 2012 @ 8:50 am

    reading the newspaper/*the book

    "The newspaper", whatever its name, is the type of daily paper that is delivered in millions of homes. Its content changes daily, so reading "the newspaper" is part of daily activity in those homes, like "answering the telephone", "putting the kids to bed", "taking out the garbage" or "walking the dog". But "reading the book" is not, unless by "the book" you mean the Bible, reading sections of which is a daily or at least regular activity for some people. For all others "reading the book", meaning a specific book, of particular significance, might indicate a strangely obsessive practice. Reading "a newspaper" would most likely be said of someone reading in a coffee shop, on the train, on a park bench, etc; in a home, it could only apply if the household was not getting a daily newspaper, or conversely, if it was getting more than one such paper.

    Similarly, even in a house you have never visited before, you can walk into "the kitchen", ask to use "the bathroom", etc: a kitchen, a bathroom are normal, expected features of any house. But you don't deliberately walk into "the sauna" unless you already know that the house, unlike most others in North America, has a sauna in it.

    I am reminded of a cartoon in the Peanuts series: Snoopy is on the sidewalk outside his house, and Lucy rings the bell. When the door opens she says "There is a dog here!" and Snoopy thinks "Not A dog, THE dog!" – the dog that shares the life of the household, as Lucy pretends not to know.

  12. Gav said,

    May 15, 2012 @ 10:35 am

    The children understood this when they were quite small, as a made-up excuse (if any were needed) for arguing in restaurants. "I'll have the duck" "No, I want the duck." "(Sigh) I'm sure they've enough ducks in the kitchen for you all" "NO I want THE duck!"

  13. Ran Ari-Gur said,

    May 15, 2012 @ 11:14 am

    Given that the exact phrase "for the purpose, among others, of" has been well attested for more than two hundred years, I don't think anyone could argue that "for the purpose of" necessarily means "for the sole purpose of". The article tries to imply that the prosecutors' case would require "for the purpose of" to mean "for a purpose of", but that's simply not how the words "the" and "a" work; it's obvious that "the purpose of ___" does not imply that no other purposes exist, just as "the tall man" does not imply that no other men exist. I think that the "the"/"a" question is really a red herring. The same question could be posed with an expression like "for fun": if a law forbade contributions that were made "for fun", would that imply that it only forbade contributions that were made "just for fun", or would it imply that it forbade any contributions where fun was a motivating factor? (As Jon Weinberg says, the real question is legislative intent.)

  14. Theophylact said,

    May 15, 2012 @ 12:40 pm

    But Justice Scalia sneers at legislative intent, and demands that we consider only the actual words of the statute.

  15. Jonathan said,

    May 15, 2012 @ 2:15 pm

    @Theophylact: For the obvious reason that people trying to figure out if they've done something wrong can't divine intent — all they can do is read the words. Plus, if the words are ambiguous then Congress can correct the wording. "Intent" can be an exercise in mind-reading which can make people fall afoul of the law unintentionally. If intent were enough, why would Congress need to write a statute at all?

  16. Andrew (not the same one) said,

    May 15, 2012 @ 2:22 pm

    I think 'the' does imply uniqueness, but not in the way the defence argues. 'The X' implies, normally, that there is only one X (not necessarily only one X in the world, but only one X that is salient in this context). So for instance in 'I saw the King of Ruritania yesterday', 'the' does imply that there is only one king of Ruritania. But it does not imply that he is the only king (in the world, in Europe…) , or even the only king I saw yesterday. Likewise, 'I did this for the purpose of influencing the election' may imply that 'the purpose of influencing the election' is a single purpose, but not that it is the only purpose I had.

    (Really, of course, 'for the purpose of' is an idiom, and we aren't really thinking of the purpose as a thing – purposes aren't the sort of things you can straightforwardly count. But if we did think of it as a thing, 'for the purpose of' still wouldn't imply that it was my only purpose.)

  17. Theo Vosse said,

    May 15, 2012 @ 3:52 pm

    To my understanding, "the" doesn't even imply uniqueness, it expresses that the audience can understand what is being meant, from the context. "The newspaper" provides enough information to resolve it, although it doesn't specify which news paper. "The book" on the other hand only says "the book that we talked about before". Since there isn't one in the direct context, the meaning dangles a bit in the void. I wouldn't star the sentence, though.

    "For the purpose of" is, IMO, another matter. To me, it looks like a fixed expression, nearly idiomatic. Compare *for a purpose of, *for the two purposes of or *for the purpose with.

    But to be honest, the whole matter sounds like something out of The Marx Brothers.
    – Did you fire the gun with the purpose of killing him?
    – No, your honour. I fired my fun with the purpose of ending our dispute. Killing him was just a way to do so.
    – Fair enough. Dismissed.

  18. Garrett Wollman said,

    May 15, 2012 @ 4:01 pm

    @Jonathan: No, Scalia's reasoning is that the actual words of the law are the only thing that Congress actually votes on and the President signs. The legislative history may allow us to infer intent — e.g., if there is a committee report or a colloquy on the floor that says what the drafters' intent was — but "the intent" was never approved by a majority of both houses. (This from the same fellow who espouses, AIUI, an "original public understanding" theory of constitutional interpretation, which isn't all that far from reading the Congressional Record.) I often think Scalia is completely wrong on all sorts of issues, but as a matter of the rule of law, he has a point. To attempt to divine "the intent of Congress" in drafting an ambiguous statute presupposes that there is in fact such a thing, whereas ambiguous language in the law often results from a multiplicity of intents among the members, none of which alone can gain the support of a majority.

    There is also a canon of interpretation that an ambiguous criminal law should be read to favor the defendant, so the question of whether, in fact, the law is ambiguous is likely to be an important point for Edwards's defense.

  19. Ken Brown said,

    May 15, 2012 @ 4:32 pm

    Theo Vosse – good Marx Brothers call. But as far as I understand our English law (I am not a lawyer etc. etc.) firing a gun for the purpose of killing someone and firing it for the purpose of ending a dispute might be the difference between murder and manslaughter. Or at least it could be argued to be.

  20. Jason said,

    May 15, 2012 @ 5:22 pm

    I strongly suspect this is Hill & Loyd's rather creative interpretation rather than the meat and potatoes of the actual Edwards defense. Most of the facts aren't contested by either party. The actual issue raised, which may well profitably employ a semanticist, is whether inducing a third party in Ms Mellon to pay large amounts of money, on the sly, and using such deceptive means as funnelling money through a campaign manager and the business accounts of an interior decorator, for the silence of a mistress constitutes a payment "for the purpose of influencing any election for public office."

    The prosecution argues yes, on the grounds that if Ms Hunter went public, this would have been extremely damaging to Edwards, and thus the payments certainly influenced the campaign. The additional hurdle is establishing that such actions were for the purpose of exercising said influence. The actual Edwards defense seems to concede this by arguing that such influence was epiphenomenal to the actual purpose — that of protecting Elizabeth Edwards from the knowledge of his affair. The problem with this theory is that the prosecution has managed to muster substantial evidence that Elizabeth Edwards knew full about the affair at the time of the payments, leaving influencing the public as the only possible motivation — (aside from the idea that Edwards was simply genuinely concerned for Ms Hunter's wellbeing with a baby on the way, which even Edwards team doesn't think meets the giggle test.)

    So I see three prongs of the defense: 1: "influencing the election" was an epiphenomenon of the actual purpose, that of keeping Ms Edwards in the dark 2) Some possible distinction between actively influencing an election, and passively influencing it merely by preventing some private act not currently public knowledge from coming to light 3) Arguing the whole language of the statute regarding "for the purpose of influencing.." is excessively vague, and should either be read down in line with argument 2, or thrown out entirely as unconstitutionally vague.

    Needless to say I don't think the argument that the use of the definite article means a payment must only have one purpose is terribly propitous, but I sincerely doubt Edward's defense is making such an argument. Since this is a jury trial, they possibly aren't trying to advance a logically consistent argument at all, but simply attempting to reframe the issue as Edwards trying to protect his dear dying wife, with his political career completely distant from his mind.

  21. Toby said,

    May 15, 2012 @ 7:44 pm

    Courts would not use linguists as expert witneses in a matter of statutory construction. They fail the test of when expert evidence is required.

  22. Mark said,

    May 15, 2012 @ 8:38 pm

    Criminal statutes are generally strictly interpreted to favor defendants. I don't know if the jury instructions have already been determined. However, it might be that they will take an Edward's position–the sole purpose, prime purpose or motivating purpose–or a government position–one purpose– and that will determine the outcome.

  23. C Thornett said,

    May 16, 2012 @ 1:15 am

    In everyday language 'for the purpose of' certainly can't be replaced by 'for a purpose of'. Is it significant legally that the statute omits words like 'sole' or 'main'–'for the sole/main purpose of'?

    No wonder it is so difficult for many NNES to learn the fine and not always consistent usages of a/the/null, even before different regional usages and specialist language such as this are taken into account. It certainly isn't as straightforward even in everyday language as the quick-and-dirty 'rule' that EFL textbooks often suggest, at least at lower levels.

  24. BenHemmens said,

    May 16, 2012 @ 3:02 am

    The curious thing about "my father was reading the newspaper" is that if you change it to "my father was reading a newspaper" you change the status of the newspaper slightly in a direction that is arguably more rather than less definite. "A newspaper" raises the idea of a particular newspaper and seems more conducive to the question "What newspaper?" , whereas "reading the newspaper" really means "reading newspaper", it's just that we for some reason need the article. Why do some nouns need the article while others don't? e.g. "Reading the newspaper" vs. "drinking beer".

  25. Mark Etherton said,

    May 16, 2012 @ 4:07 am

    @BenHemmens

    Interesting, because I would interpret the two sentences the other way round. 'My father was reading the newspaper' implies to me something about the newspaper, such as 'the newspaper he usually read', while 'reading a newspaper', to me, raises no questions about which newspaper.

  26. GeorgeW said,

    May 16, 2012 @ 5:27 am

    My interpretations of "my father was reading /the/ and /a/ newspaper" are similar to BenHemmens. However, /a/ seems to imply newspaper vs something; a book, a magazine, watching TV, etc. /The/ seems to imply a simple statement of information 'reading newspaper.'

  27. Zubon said,

    May 16, 2012 @ 8:35 am

    @Garrett Wollman : the technical term I have seen is "original meaning" (rather than "original public understanding"). The early chapters of Randy Barnett's Restoring the Lost Constitution explain the approach and how it differs from related concepts like "original intent."

  28. Jerry Friedman said,

    May 16, 2012 @ 11:54 am

    I don't see the problem with "the". Just look it up in the dictionary. :-)

  29. J.W. Brewer said,

    May 16, 2012 @ 10:12 pm

    BenHemmens, in AmEng one "watches baseball" anarthrously but in BrEng one apparently at least sometimes "watches the cricket" with the definite article inserted. If there's a logical/semantic distinction motivating the difference, I can't figure it out.

  30. Alan Gunn said,

    May 17, 2012 @ 7:00 am

    @ J.W. Brewer

    It's not just a difference between British and American English. We "watch television" and "listen to the radio."

  31. BenHemmens said,

    May 19, 2012 @ 11:42 am

    but we watch the telly and do the washing and the messages/the shopping (though we run errands).

    When I think of my childhood, it occurs to me that reading the newspaper and watching the cricket were somehow constitutional of my father's identity. I wonder if there's an (inconsistently operating) element of habituality lurking behind some of these thes.

RSS feed for comments on this post