Language Log

This is the allegedly libelous remark on Twitter that might cost Sally Bercow tens of thousands in damages:

How (you might ask) could it possibly be libelous simply to ask a question about why Lord McAlpine, after twenty years of living in retirement, was suddenly a hot topic on Twitter?

"Disney files to trademark Mexican holiday, Dia de Los Muertos", Stitchkingdom 5/6/2013; "Disney files to trademark 'Dia de Los Muertos' for movie-themed products", 89.3 KPCC 5/7/2013.

It is only fair to Andrew Mitchell M.P., formerly holder of the important political office known as government chief whip, that I should return briefly to the plebgate incident. When I last wrote about it (here) I said it was "morphing from one about a bad-tempered upper-class put-down into a case of a cabinet member telling lies about a law-enforcement matter, and slandering armed police officers who work for his government and may have to put their lives on the line protecting it from terrorist attack". Well, it has morphed more since then. It turns out that some police officers lied about the incident. Three have actually been arrested, and seven more are being investigated. And this morning Mitchell is reported as having filed a libel suit against the newspaper that broke the story.

Neal Goldfarb, "The Recess Appointments Clause (Part 1)", LAWnLINGUISTICS 2/19/2013:

The verdict: the Recess Appointments Clause is a lot less clear than the D.C. Circuit makes it out to be, and the court’s reasoning isn’t very good.

According to Article 2, Section 2, Clause 3 of the U.S. Constitution,

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

According to a recent decision of the U.S. Court of Appeals for the D.C. Circuit, "the term 'the Recess' in the Recess Appointments Clause refers to the intersession recess of the Senate", so that this option is not available "during intrasession 'recesses,' or breaks in the Senate’s business when it is otherwise in a continuing session". The court's argument is a linguistic one:

When interpreting a constitutional provision, we must look to the natural meaning of the text as it would have been understood at the time of the ratification of the Constitution. […] Then, as now, the word “the” was and is a definite article. See 2 Samuel Johnson, A Dictionary of the English Language 2041 (1755) (defining “the” as an “article noting a particular thing” (emphasis added)). Unlike “a” or “an,” that definite article suggests specificity. As a matter of cold, unadorned logic, it makes no sense to adopt the Board’s proposition that when the Framers said “the Recess,” what they really meant was “a recess.” This is not an insignificant distinction. In the end it makes all the difference.

[…]

It is universally accepted that “Session” here refers to the usually two or sometimes three sessions per Congress. Therefore, “the Recess” should be taken to mean only times when the Senate is not in one of those sessions.

The result is of some political consequence, since it invalidates decisions made by the National Labor Relations Board during 2012, on the grounds that several of its members in this period were intra-session recess appointments. (These were recess appointments because some members of the Senate, opposed to the NLRB on principle, have made it clear that they will use Senatorial privilege and/or filibuster techniques to block any in-session appointments to that board.)

Jeffrey Toobin, "So you think you know the second amendment?", The New Yorker 12/18/2012:

The text of the amendment is divided into two clauses and is, as a whole, ungrammatical: “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

Coming from The New Yorker's house legal analyst, this is shocking.

As always, the cover-up is worse than the crime. In the Andrew Mitchell story, the protagonist is still refusing to admit that he said plebs (the fucking stuff seems to have been conceded days ago: foul-mouthedness is not the issue, apparently; plebs and morons are the issue). He asserts, vaguely, that he did not use the words attributed to him. [Added September 25: As Polly Toynbee notes, his refusal to actually claim that he did not say plebs leads us to believe that he did say it: he daren't risk a perjury charge, which is why his apologies and denials are phrased with such extreme generality.] But that means the story is morphing from one about a bad-tempered upper-class put-down into a case of a cabinet member telling lies about a law-enforcement matter, and slandering armed police officers who work for his government and may have to put their lives on the line protecting it from terrorist attack (for that is why the police outside number 10 Downing Street, unusually for Britain, carry firearms).

Yesterday's SMBC undertakes to explain

A new book by Jeffrey Toobin, The Oath: The Obama White House and the Supreme Court, is published today. It opens with a prologue telling the story of the Obama inaugural oath flub, first told on Language Log in Ben Zimmer's piece "Adverbial placement in the oath flub" and the follow-up a day later in "Rectifying the oath flub." Toobin reveals two bits of information that I was not aware of. First, a complete script of the oath, showing exactly where the breaks would come so that Obama would know when to do his repetitions, was sent to Obama's staff as a PDF but never reached the president or anyone close to him, so when Chief Justice Roberts stood facing him to administer the oath, there was a script that Obama had not seen, but neither of the two men knew that. Second, although Roberts had worked over that script, he chose to rely on his famously prodigious memory: he waved away the card that was offered to him with the script on it, and the chance to do a rehearsal: "That's OK, I know the oath," he said. And thus it was that when two men met to perform their extraordinarily important ritual, they were both without scripts and had never rehearsed together. The rest is history.

RIchard Pérez-Peña, "Student Paper Editors Quit at University of Georgia", NYT 8/16/2012:

Much of the staff of the University of Georgia’s student newspaper, including the top editors, resigned Wednesday, claiming interference, even censorship, by the nonstudent managers hired to oversee it.

Polina Marinova, the editor in chief of the newspaper, The Red and Black, said in a statement that “recently, editors have felt pressure to assign stories they didn’t agree with” and “take ‘grip and grin’ photos.” […]

The walkout came after Ms. Marinova obtained a draft memo written by a board member that contained proposed guidelines for the newspaper. The memo listed, among “bad” news that was to be played down, “content that catches people or organizations doing bad things.”

The author, who was not identified, added, “I guess this is ‘journalism’ ”

I was shocked to read that Jonah Lehrer had quit his job at the New Yorker, after admitting that he fabricated some quotations from Bob Dylan in his recent book Imagine: How Creativity Works. I was shocked because what Lehrer did is consistent with the standard behavior of journalists, though perhaps not with the official story of what this behavior is supposed to be like. But the actual practice, in which journalists often put between quotation marks whatever representation of a source's opinions they feel that their narrative needs, was validated by judicial decision in a famous case involving another New Yorker writer 25 years ago — someone who is still on the magazine's staff.

Levi Montgomery writes to me:

I have read the question in this report (TSA Let 25 Illegal Aliens Attend Flight School Owned by Illegal Alien, CNS News, 18 July 2012) at least a dozen times now, and I'm not sure which answer means what (although I freely admit the intent is clear, both from the questioner and from the answerer). I thought you'd like to see it.

Stephen Lord, who is the GAO's director of Homeland Security and Justice Issues, testified about the matter Wednesday in Rogers' subcommittee. Rogers asked him: "Isn't it true that, based on your report, the Transportation Security Administration cannot assure the American people that foreign terrorists are not in this country learning how to fly airplanes, yes or no?"

Mr Lord responded: "At this time, no."

Ye gods, that sort of crazy multiple negation makes me afraid, very afraid, of having to take the witness stand.

Antonin Scalia and Bryan Garner have recently (June 19) published Reading Law: The Interpretation of Legal Texts, a 608-page work in which, according to the publisher's blurb, "all the most important principles of constitutional, statutory, and contractual interpretation are systematically explained".