ESSAYS ON CULTURE, ART AND AUTHORITY
by
ANDREW JENSEN KERR

A thesis submitted in partial fulfillment of therequirements for the degree ofDoctor of Juridical Science (S.J.D.)
at theGeorgetown University Law Center
2020

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Copyright byAndrew Jensen Kerr
2020
The Minnesota Law Review is the original publisher of “Aesthetic Play and Bad Intent.” Itappeared in Volume 103 of the Minnesota Law Review Headnotes. Its formal citation is 103
Minn. L. Rev. Headnotes 101 (2018). The version included here is pre-publication draft.
The UC Davis Law Review is the original publisher of “Defining Meat and Contesting
Tradition.” It appeared in Volume 52 of the UC Davis Law Review. Its formal citation is
52 UC Davis L. Rev. 1999 (2019). The version included here is a pre-publication draft.
The Washington University Jurisprudence Review is the original publisher of “The Perfect
Opinion.” It appeared in Volume 12 of the Washington University Jurisprudence Review.
The version included here is a pre-publication draft. The Washington University
Jurisprudence Review holds the copyright to the cover, arrangement, and layout of the
published work. I retain copyright of the work itself.
“Art Threats and First Amendment Disruption” is forthcoming in Volume 16 of the Duke
Journal of Constitutional Law and Public Policy. The version included here is a prepublication draft.

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ABSTRACT
Law is distinguished by its use of authority. A legal argument has credibility not justbecause of its logic or consequence, but because of who said it previously. To this extent
law is content-independent. Cultural assumptions about whom or what is citable inform theboundaries of what are valid forms of legal argumentation. But in this thesis I surface someof the novel fissures at these boundary points. When does a traditional practice merit special
protection? Which judges may cite to novel sources of authority? How can judges discern
what counts as art when we can no longer defer to cultural gatekeepers like music
publishers? I explore these questions in the sequence of essays on culture, art and authority
in this thesis.
Keywords: Legal Theory, Law and Culture, Constitutional Law, First Amendment, Citation

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ACKNOWLEDGMENTS
I thank my S.J.D. colleagues who have inspired and elevated the questions I ask inthis thesis, and who have challenged me to refine my own thinking. I am most grateful for
their spirit of collegiality. This has been fun for me, and I look forward to a lifetime offriendship. Professor Freeman, thank you for your work in shaping the culture of ourprogram. I also thank you for your generous guidance and support.
I thank Professors Sunder and Klass for their essential advice in helping me tocomplete this thesis. Your contributions not only manifest in the final chapter, but also
frame my thinking for the presentation of the project, and give it identity and shape.
I thank Professor West for her mentorship. Your confidence in my writing has beenformative to how I view my own scholarly identity, and given me the courage to write with
ambition and precision. I model my approach to scholarly writing after you: to discern thevariety of legal experience, and to write as one is inspired.
I thank my colleagues in the Graduate Writing Program, and in particular Professors
Hoffman and Ueland, for their support of this intellectual adventure. I hope that the “foxy”
ethos of my friend and interdisciplinarian, Almas Khan, permeates my own thesis.
I thank those who have provided special insight into the issues presented here. First,
I thank my S.J.D. cohort of Ahmed Elsisi, Luisa Ferreira-Peralta, Suhong Yang and, inparticular, Juthamas Thirawat. I also thank Xiangyu Zhang, Liron Shilo, Jomana Qaddour,
Sonya Bonneau, Lisa Heinzerling, Andrew Harding, Phattharaphong Saengkrai, Korrasut
Khopuangklang, Lucius Outlaw III, Bradley Girard, and, in particular, Rafi Reznik.
Finally, I thank my family for their patience over the past three years, and forreminding me of other parts of my identity during this project. I likely undersold the time
management involved with balancing the roles of teacher, student, husband and dad. You
are always my most important inspiration.

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TABLE OF CONTENTS
TITLE PAGE … 1
COPYRIGHT PAGE … 2
ABSTRACT … 3
ACKNOWLEDGMENTS … 4
TABLE OF CONTENTS … 5
I. CULTURAL AUTHORITY: AS FRAMING DEVICE AND CONCEPT … 6
II. AESTHETIC PLAY AND BAD INTENT … 23
III. DEFINING MEAT AND CONTESTING TRADITION … 46
IV. THE PERFECT OPINION … 84
V. ART THREATS AND FIRST AMENDMENT DISRUPTION … 134
BIBLIOGRAPHY … 190

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I. CULTURAL AUTHORITY: AS FRAMING DEVICE AND CONCEPTMy S.J.D. project is centered at the constellation of culture, art and authority. I
sequence my four papers in the order in which they were written over the past three years:“Aesthetic Play and Bad Intent,” “Defining Meat and Contesting Tradition,” “The Perfect
Opinion” and “Art Threats and First Amendment Disruption.” I first contextualize these
papers within different juxtapositions of law to culture. I then detail each paper and discern
shared themes and points of contact. Finally, I introduce the working concept of cultural
authority that surrounds this project, and consider the value and integrity of this term.

***This S.J.D. project considers how the cultural superstructure of the Internet reframes the relationship of law to culture, and thinks about how a culture-informed calculus
to legal decision-making can inform choices made in the interstices of formal channels. I
first comment on how the disruptive force of the Internet has destabilized consensus
notions of what counts as culture, art or authority in our legal tradition. In this project I
observe how the Art World previously served as an institutional gatekeeper to determine anddispose of conditional questions of what count as art as society. Museum curators, records
labels, film producers etc. made threshold decisions of what kind of aesthetic production
counted as “art” in society, and also performed the quality control work of editing raw
aesthetic product so that it met the internal standards of the Art World. This dual
vetting/editorial function of the Art World is increasingly absent in our new Internet world
where amateur artists can simply upload their aesthetic product to YouTube etc. for publicdissemination, bypassing the initial quality control work of the Art World.

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I make the descriptive contribution in this project of observing how these initial Art
World choices overlaid the work of judges and other legal officials. Courts could simply
ignore the many examples of a potentially criminal artwork by deferring to the economic
market of the creation and sale of the relevant song or film, and to the initial decision of themusic label or film producer to record and distribute the work. In the logic of Frederick
Schauer, these potentially difficult legal cases became “easy cases” to the extent they were
disposed of prior to litigation.1 We could outsource the question of what makes something“art speech” to institutional actors and art consumers.
This project thus discerns a category of constitutionally covered First Amendment
speech separate from our conventional category of political speech. The First Amendment
covers speech that is artful, even if it might convey a seemingly literal threat. My use of“artful” is intentional. This word connotes a threshold level of quality. Bad art is not“artful” – only good art is. Of course this brings in problems of aesthetic relativism. It also
inheres justice issues related to minority culture, and how the aesthetic product ofmarginalized communities might be misperceived as lacking aesthetic value. A contributionof this project is to unpack how the unique “language games” (Wittgenstein) of insularcommunities are interpreted by separate audiences. How can we respond to the problem of
the amateur rapper who crafts “rap-like” (but not necessarily artful) lyrics that are heard orread by an audience who is not part of the relevant language/rap community?
I do not necessarily take the normative position that this prior world where we coulddefer to the institutional choices of what counted as art, and was thus covered as First
Amendment art speech, was a good world. Record labels and film studios are motivated byprofit. The individuals who make up corporate management might harbor biases about who
1 Frederick Schauer, Easy Cases, 58 S. CAL. L. REV. 399 (1985).

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can make good art or what it should look or sound like. There is also something unseemly
about a corporate executive having the power to self-create a protected legal status for anotherwise threatening artwork simply by saying so. “Art speech” is a magic category in thelaw (just as “religion” is). We share a consensus position, a sort of institutional settlement,of how these decisions about what makes for “art” or “religion” can be fairly made at asociety-wide level. “Speech” and “religion” are undefined by the U.S. Constitution (like all
constitutional language), and so we look to social practice and the internal logic of the First
Amendment to determine the scope or degree of protection for a contested aesthetic
product or religious or religion-like practice. I identify in this project the novel problem ofwhat it means if individuals, including amateur artists, are permitted to make these “magical”
determinations that self-create legal coverage for bad-intentioned speech or art.
I thus move from the super-structural perspective to the individual choices made bylegal actors that inflect a law/culture calculus. We usually think about how law and culture
work explicitly in tandem: “law and culture”, “law or culture”, “law but also culture”, “law asculture”, “culture as law” etc. A contribution of this project is to discern the interstices ofthis relationship, and how legal actors and decision-makers can be informed by legal-cultural
intuitions while making decisions in the shadow of the law. This dialectical framing might
be read as “culture within law.” Courts might not want to cite to “culture” as authoritative,
but a culture-informed calculus can still inform the decisions of officials like lawmakers orprosecutors. Even our property regime provides a liminal space for tolerating contested
cultural practices, including those related to meat consumption. When we think about
explicit ways that culture is cited (e.g., baseball), then the reference to culture becomes reified8

by the law as meaningful and even exceptional.2 I point to ways that unarticulated cultural
intuitions can inform discretionary legal choices.
These individual choices go to gestalt decisions of who wins or loses, to thresholdchoices like whether to settle or prosecute a case at all, and to the subtle editorial choices wemake as legal writers about who or what should be cited to. Even a seemingly mundane
topic like citation is layered within our cultural conventions of what is citable authority.
What does it mean when a lawyer or judge cites to non-legal authority? Can there be such athing as a non-legal authority?
I expand on formative scholarship like “Social Authority: Obtaining, Evaluating, andEstablishing Social Science in Law”3 to unpack the citation to cultural authority and thepaired use of principled reasoning that lacks explicit authority. For example, what is thejurisprudential meaning of the famous Footnote 11 in Brown v. Board of Education to the “dollexperiments” of Dr. Kenneth and Mamie Clark? Is this mere social science authority in thevein of the storied Brandeis Brief? Is it a reflection of Philip Bobbitt’s modality of ethicalargument? Something else? What work does this citation do in moving Chief Justice Earl
Warren’s opinion forward to the conclusion that segregated public schools violate the Equal
Protection Clause?4

2 See, e.g., Naomi Mezey, Law as Culture, 13 YALE J.L. & HUMAN. 35, 35 (2001).

3 John Monahan & Laurens Walker, Social Authority: Obtaining, Evaluating, and Establishing Social Science in Law,

134 U. PA. L. REV. 477 (1986).
4 Philip Bobbitt, Methods of Constitutional Argument, 23 U. BRIT. COLUM. L. REV. 449, 454-55 (1989) (“In the U.S.
Supreme Court case of Brown v. Board of Education there is a footnote that refers to a study done by Kenneth
Clark. People might easily have read the opinion and never have noticed the footnote, or if they saw thefootnote they might not have known that this is what is referred to. It was a crucial part of the decision,
however, and as is sometimes the case with extremely important decisions, the holding in Brown is not at all
what the opinion says it is. The opinion talks about education and appears to be based on the premise that
fundamental rights must be distributed equally. However, on the basis of the holding in Brown the U.S.
Supreme Court issued per curiams desegregating golf courses and swimming pools - things that have nothing
to do with education or fundamental rights. These judgments, in my view, were based on a deeper perception
and reasoning.”).

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In this project my stance on culture is seemingly a conservative one. I assume thelegal canon to be what other important jurists have interpreted it to be, despite the privilege
and demographics of this select group. I seek ways to mirror the prior editorial work of the
Art World rather than celebrate its demise. I consider special exceptions for the secular
traditions of groups indigenous to the United States, but not necessarily those traditions that
contemporary Americans brought with them from other places.
I qualify my approach by drawing a distinction between the aspects of culture thatare reified into legal “things” as opposed to the use of a law/culture heuristic that informs
the decision-making of judges and officials.5 By citing to baseball as exceptional our national
pastime is reified as a form of precedent. The same is true of Good Friday, or the Makah
whale hunt. These traditions are discerned and distinguished. At the same time theytransmogrify as concepts, as mental categories that transcend the facticity of these eventsand how they are celebrated or performed by different individual actors. The Brown v. Boardof Education “doll experiment” is more difficult to characterize. It’s the data of a social
psychology experiment. But its legal value arguably comes from what it represents – achallenge to our collective sense that our legal institutions must not create a sense ofinferiority in black schoolchildren. It’s a barometer of our ethos, our vision of what our legal
system is meant to represent about us as a people.6
But this citable/non-citable or reified/dynamic distinction does not necessarily
exclude non-hegemonic cultural traditions or artifacts from having special legal significance.
I don’t argue for a rap canon that frames how amateur rap is perceived, or suggest that
performance art requires copyright protection. But my thinking in this project does suggestthat prosecutors should consider the different ways that amateur artists attempt to rap or
5 See Madhavi Sunder, Cultural Dissent, 54 STAN. L. REV. 495, 511-13 (2001) (“Culture as a ‘Thing’”).
6 See Bobbit, supra note 4, at 455.

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make performance art, and that this law/culture heuristic can inform the discretionary
choice of whether to prosecute a contested work or practice. A similar logic informs mythinking on how non-native food traditions like guinea pig consumption should beconsidered by prosecutors or legislatures, even if they don’t refer to guinea pig consumption
explicitly when narrating their decision process or crafting their legislation. Perhaps this kindof implicit use of culture is most consistent with these sorts of rebellious art forms orcontested traditions. Over-legalizing a rebel art might negate its vitality; it might turn aprocess or conceptual dynamic too much into a thing. Over-legitimizing a tradition might
offend members of the same community who don’t want their culture to be equated with acontested practice.
In many ways this project can be reduced to how the law valorizes or tolerates
especially meaningful activity. Many Americans define their lives by more establishedmeaning-making activities like participation in a theistic religion, or by enjoying
representational art and literary writing. I explore in this project some of the novel ways thathumans impose meaning on their worlds, and think about how judges and officials canconsider the underlying substance or value of a contested cultural practice, and if and how it
mirrors that of covered practices in our legal culture. Importantly, meaning making is as
much a backward-looking activity as a present one. Precedent case selection and citation is away for us to actively form a narrative arc of our shared legal story. Perhaps the mostinteresting aspects of this narrative are when judges don’t cite to anything at all, but instead
discern the values that we have assumed to have always been there.

***

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In my first paper, “Aesthetic Play and Bad Intent,” I unpack the problem ofreferential art in an Internet society. The core jurisprudential puzzle I broach: how can we
distinguish the aesthetic portrayal of a criminal threat from an actual threat if they each look
similar to a viewer? Arthur Danto is well known for his philosophical position that theinstitutional context of the Art World frames our reception of whether something is “aWarhol” or a mere soup can or Brillo pad. This same audience-centric approach explains
why courts have relied on experts to help resolve the threshold concern of whether an
unconventional piece counts as “art” for legal purposes. In 1926, sculptor Constantin
Brancusi cited expert testimony to avoid customs duties on his conceptual piece, “Bird inSpace.”7 In February 2020 the 2nd Circuit in Castillo v. G&M Realty L.P.8 validated the use of
Art World experts in holding that ephemeral forms of art like graffiti still have moral rightprotections against destruction per the Visual Artists Rights Act of 1990.
But the problem that I point to in “Aesthetic Play and Bad Intent” as well as in “ArtThreats and First Amendment Disruption” is that in criminal law we are concerned with theintent of a potentially threatening or inciting work – we can’t simply defer to audience
response. In “Aesthetic Play” I observe how novel media like rap and performance art
problematize our threats regime. The quality of a rap or a performance art piece eachdepend on benchmarks that are difficult to articulate in language, like if a work is performed
with charisma or if it makes poignant “meta” reference to the relevant corpus. Thisconnects to other problems I identify: that referential art can be easy to do, and so thismakes it quite difficult to discern whether e.g. the slangy, but potential scary, rap lyric is the

7 MaryKate Cleary, “But Is It Art?” Constantin Brancusi vs. the United States, INSIDE/OUT (July 24, 2014),
https://www.moma.org/explore/inside_out/2014/07/24/but-is-it-art-constantin-brancusi-vs-the-unitedstates/.
8 Castillo v. G&M Realty L.P., 950 F.3d 155 (2020).

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genuine work product of an amateur artist or instead the feigned effort of a bad-intentioned
author who simply wants to threaten an expected listener or viewer.
“Aesthetic Play” reflects my early thinking on art threats, and is more focused on
surfacing these meta problems in novel art media and how the Internet fosters the
production and dissemination of potentially threatening bad art/non-art. In this paper I first
noted the gatekeeper problem in the contexts of Internet rap as well as performance art thatis performed outside of a museum or curated space.9 But this paper does not think explicitly
about if and how the First Amendment informs the problem of art threats.
I take on these First Amendment issues in my fourth paper, “Art Threats and First
Amendment Disruption.” The Supreme Court has mostly ignored the problem of art
threats, despite repeated petitions for certiorari to resolve this issue. Only Justice Souter
seems willing to recognize the truth that an artwork can represent mixed motives of aesthetic
and bad intent (see his Elonis v. United States dissent). Here judicial avoidance reflects a First
Amendment regime that forces us to distinguish art from threat, and the epistemologicalissues involved in trying to tease out which parts of an artwork might be motivated by either
good or bad intent. The related problem of “the bad-intentioned artwork that we happen to
enjoy” informed the construction of my Category 4 matrix in my “Aesthetic Play” paper.
My “Art Threats and First Amendment Disruption” paper can be read as a more directconfrontation with this Category 4 problem.
My argument is based on our shared cultural assumptions that explain what the First
Amendment is meant to cover. In short, the First Amendment covers only good art. I

9 Andrew J. Kerr, Aesthetic Play and Bad Intent, 103 MINN. L. REV. HEADNOTES 83, 96 (2018) (“This samegatekeeping function applies to the production of art in society. We no longer enjoy the important quality
control work of record label A&R management, or literary agents, or gallery owners. Now bad art/non-art cansaturate the Internet marketplace of ideas, and judges must consider whether the aesthetic value of threatening
bad art/ non-art negates any bad intent in these works.”).

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expand on both the culture-based approach to discerning the boundaries of the First
Amendment associated with Frederick Schauer, as well as the modest amount of judicial
writing in this area that springs from Justice Souter’s passing reference in Hurley to theaesthetic product of Jackson Pollock, Arnold Schoenberg and Lewis Carroll.10 I focus on
rap in my “Art Threats” paper. In contrast to courts or other law and rap scholars who
seem to obsess over the lyrical content of drafted rap lyrics, I argue that the transcribed lyricsof many raps are not very relevant to their identity or value. Rather our aesthetic judgmentof the quality of a rap (or, indeed, the threshold question of whether something is a rap atall) depends on the sonic experience of the track for the listener, a gestalt test that echoesthat of whether visual art or performance art is received as such by a viewer.
I isolate here one particular thought from my “Art Threats” paper that underscores
my own strain of legal realism in this project: “In broad-brush strokes, the First Amendment
covers things that we like (good art), or it covers things that we usually don’t like (crude
political speech, ignorant speech), but we tolerate it because we want to serve other cultural
goals like having a vibrant democracy or protecting the free trade of ideas.”11 In my S.J.D.
project I make both implicit and explicit references to this question of likeability, and how it
is a proxy for heuristics of “quality” or “culture” that inform what the law decides to cover,ignore or make exception to. We like things because they are good. We might also “like”
things that we usually don’t like because they reflect a sense of shared tradition or broader
cultural values like tolerance. I first unpack the seemingly mundane observation that we likethings because they are good.

10 Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 569 (1995).

11 Andrew Jensen Kerr, Art Threats and First Amendment Disruption, 16 DUKE J. CONST. L. & PUB. POL'Y ___(forthcoming).

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In “The Perfect Opinion” I make the non-controversial claim that it’s worth
thinking about why we like our favorite judicial opinions, and to discern what they share incommon. Perhaps surprisingly, I uncover that our favorite opinions are often notauthoritative opinions, and even stranger, they sometimes cite to very little if any authority atall. As a sort of meta point, as lawyers we might assume that when we do cite to somethingas prior authority that this also means that we chose to select that e.g. prior case because welike it and recognize it to be especially literate or well-reasoned compared to other available
precedent. Our common law culture assumes (perhaps naively) that a case citation is not
simply an ornament to add an aesthetic of credibility to a legal document. Judges who
intentionally avoid citation to case law are thus conveying that the available precedent is not
the best or most accurate depiction of our actual law. What can this mean in a positivist
system? My empirical observations comport with the theorizing on legal principles
associated with Ronald Dworkin. Still, Dworkin’s principles are of a rarefied ilk and reflect apublic morality. In Levesque v. Anchor Motor Freight, Inc., Judge Bruce Selya writes a citationless opinion to dispose of a seemingly much more banal case. But perhaps Selya is instead
making a deeper point about the bureaucratization of decision-making and the role of judge
in society. It is an elliptic opinion.
I ask in my “Perfect Opinion” paper how a judge properly knows if a case involves
first principles, and if she or he has properly identified them. This seems to be a move that
relies on tacit knowledge and feel, and is informed by a judge’s personal history and sense ofwhen she may go beyond the conventional categories of authority (i.e. case law) to instead
reason from experience or logic. This move also reflects felt cultural expectations of what is
citable authority and for whom. Attitudes toward judicial reputation inform our sharedsense of judicial quality and what kinds of novel citation an individual judge can get away15

with. But once a judge makes a novel form of citation, and we as a “recognitional
community”12 don't contest its usage, then the novel cite gradually becomes a recognized
form of authority in its own right. I refer to Professor Schauer and Wise’s example of whenan English appeals court in Hannah v. Peel13 cited to a living legal scholar for the very firsttime.14 Eventually this novel move became a convention, i.e. a culturally accepted practice.
A question prompted by my S.J.D. project is which other novel forms of authority are or
should be used or cited to by judges and lawyers.
My second paper, “Defining Meat and Contesting Tradition,” looks at secular ritualin the context of traditional – yet contested – meats like whale, shark fin and guinea pig, andconsiders how a humanistic approach to property theory associated with Margaret Radinmight support the non-alienable, personal use of these meats. This is a paper about humanculture as much as the animals some of us eat, and is informed by quasi-legal determinationsof what sorts of secular practices are sufficiently religion-like. Importantly, there is not an
obvious Art World equivalent here to make these threshold determinations for us. This
makes conventional judicial analysis difficult. In outlier cases like Toolson v. New York Yankees
the Supreme Court has relied on a gestalt sense of the importance of baseball to American
culture.15 I argue that these sorts of culture-based decisions are better suited for legislatures,or should inform the discretionary choices that prosecutors face as to whether to e.g. try acase of sincere ritual eating. I articulated these thoughts about cultural authority more fully
in my “Art Threats” paper, where I made an explicit connection between the kinds of

12 See generally Matthew Adler, Popular Constitutionalism and the Rule of Recognition: Whose Practices Ground U.S. Law?,

100 NW. U. L. REV. 719, 750-65 (2006) (citing H.L.A. HART, THE CONCEPT OF LAW 107 (2d ed. 1994).
13 Hannah v. Peel, 1 K.B. 609 (1945).
14 See Frederick Schauer & Virginia J. Wise, Legal Positivism and Legal Information, 82 CORNELL L. REV. 1080, 1089
n.42 (1997).
15 Toolson v. N.Y. Yankees, 346 U.S. 356, 356 (1953).

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human activity we determine are covered by the First Amendment’s references to “religion”
and “speech.” I excerpt that section here:“Unfortunately ‘religion’ and ‘speech’ are each undefined by the Constitution,and so courts must look to social practice and the internal logic to the First
Amendment when deciding threshold questions of what counts as a religion or acategory of covered speech. We don’t have an ‘institutional gatekeeper’ who canconfirm what counts as a true religion (despite many humans’ best efforts,
God/gods have been reticent to answer this profound question!). Instead we deferto cultural authority. We (as social actors) employ a sort of Jacobellis v. Ohio ‘I know it
when I see it’16 test to distinguish a religion from e.g. a cult or mere social club basedon heuristics of organization, tradition, sincerity and spirituality.
“We assume that a religious group promotes a moral vision and a synthetic
view of the nature of reality, but per First Amendment principles of neutrality it does
not necessarily require theism. The neutral design of the establishment clause
explains why ‘ethical culture’ and ‘secular humanism’ have been cognizable as
religion-like groups for First Amendment purposes.17 We (again, as social actors)
look to abstracted values like whether the religious organization confers existential
solace18, or possesses institutional integrity. Our societal consensus informs thethreshold decision of whether the First Amendment covers a certain religion at all.
Only then does a judge ask if e.g., a specific practice of that religion is especiallyburdened by a neutral law etc.”
Of course this kind of analysis is not articulated by courts. It is not evenacknowledged by most scholars. This goes to my general thesis in “Art Threats” that thequestion of what the First Amendment covers is either forgotten or assumed, mostly
because it is wired into our cultural understandings of how the Constitution is meant to
work.

***

16 Jacobellis v. State of Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).

17 Torcaso v. Watkins, 367 U.S. 488, 496 n.11 (1961) (“Among religions in this country which do not teachwhat would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture,
Secular Humanism and others.”).
18 See generally BRIAN LEITER, WHY TOLERATE RELIGION? (2012) (distinguishing religions by their categoricity
of its commands, insulation from evidence and existential consolation)17

We can situate the use and citation of cultural forms of authority within broader
jurisprudential debates about the validity of a contested law or legal argument. H.L.A. Hart
is identified with his theorizing on a practice-based “rule of recognition,” which determines
whether a primary law is valid for a given society. Hart’s rough claim was that for his own
contemporary England that the rule of recognition was “[w]hat the Queen-in-Parliament
enacts is law.”19 Most American lawyers might share a similarly rough sense of “what ispassed by a legislature that comports with the Constitution.” But of course there are othersorts of rules and official statements that we feel obliged to obey, whether the suggestion ofa law enforcement officer to “move along now” or the contoured holding of a judicial
opinion. The positivist tradition now understands there to be plural “rules of recognition”
that account for the differing ways that officials make law or form legal arguments.20 The
positivist notion that law is a “social fact” also comports with conventionalist approaches tothinking about law as a system of mutual expectations and coordinated activity.21 I agree
that legal validity is best understood as our shared sense of what kinds of arguments or facts
can be marshaled to support an official statement. In this way the profound question ofwhat is valid law converges with the prosaic question of what kinds of information issearchable on Westlaw or perhaps even Google. The things we cite to reflect our sharednotions of what can be legal authority per our social practice of doing law in the UnitedStates.

19 Adler, supra note 12 at 731 (citing H.L.A. HART, THE CONCEPT OF LAW 107 (2d ed. 1994).

20 E.g., Richard H. Fallon, Jr, Constitutional Precedent Viewed Through the Lens of Hartian Positivist Jurisprudence, 86
N.C. L. REV. 1107 (“This phraseology suggests that there is a simple formula for discerning what the law is, orfor ascertaining which claims of legal right are true and which are false, when in fact many matters of legal
interpretation abound in complexity. Indeed, Hart himself so recognized and occasionally used the plural
formulation ‘rules of recognition.’”).
21 See, e.g., Richard H. Fallon, Jr., Reflections on Dworkin and the Two Faces of Law, 67 NOTRE DAME L. REV. 553,
580-81 (1992).

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I expand on Professor Schauer’s thinking about citation and authority in my “Perfect
Opinion” paper: “[c]itation is an aesthetic of legal writing, and we expect opinions to look acertain way. It is a semiotics of credibility and power. But debates about the use or value of
foreign authority, or traditionally non-legal materials like social science, dictionaries, orWikipedia, are not so much about citation, but about a rule of recognition as to what are valid
sources of authority in our legal culture.”22 In that paper I conclude by thinking intentionallyabout the use of “non-legal materials” more broadly. For example, Bezalel Stern identified
295 citations to conventional non-legal authorities such as academic articles from otherdisciplines, dictionaries, newspapers and Internet and video sources during the 2011-12 termat the Supreme Court.23 In this introduction to my S.J.D. project I focus precisely on culture
and cultural authorities.
In rare cases like Toolson v. New York Yankees judges have made exceptions forimportant traditions based on an intuitive understanding of American culture. This echoes
the Bobbitt modality of marshaling the ethos of our constitutional culture to form a holding.
Often these cultural assumptions might be so constitutive that their significance goes
without saying, and thus requires no citation. Other times judges might locate artifacts fromour cultural canon that can be cited as evidence of these implied fundamental truths (about
justice, legal maxims etc.). See, for example, the many ornamental or illustrative references
to literature compiled by John M. DeStefano III in “On Literature as Legal Authority.”24
When we cite to Shakespeare or Vonnegut for rhetorical emphasis we do so not because we

22 Andrew Jensen Kerr, The Perfect Opinion, 12 WASH. U. JUR. REV. ____ (2020) (citing Frederick Schauer,

Authority and Authorities, 94 VA. L. REV. 1931, 1959 (2008)).
23 Bezalel Stern, Nonlegal Citations and the Failure of Law: A Case Study of the Supreme Court 2010-11 Term, 35
WHITTIER L. REV. 79 (2011).
24 John M. DeStefano III, On Literature as Legal Authority, 49 ARIZ. L. REV. 521 (2007).

19

feel obliged to obey their thinking about criminal intent25 or equality26, but to merely makeour reasoning more vivid and resonant.
But citation to cultural authorities is more problematic when judges or lawyers do so
to suggest how a cultural text or artifact should frame our present legal analysis. In the
United States we share a conventional understanding that primary authority is limited to
official statements like statutes, regulations, executive orders, municipal rules or judicial
opinions. We might carve out a sui generis category like the Federalist Papers27, but ingeneral our cultural canon is not itself authoritative, in the way that Confucian Classics28 or
the Koran might be in another legal system. We also agree that we possess the ability tomake credibility determinations about the quality of an academic commentator, and give
weight to the argument of an important scholar because of their reputation in the field. We
are more hesitant to make this credibility judgment when referring to non-legal materials likesocial science or dictionaries. At least we can depend on the quality control work of apublisher in these spaces.
However, with the gatekeeper problem that I identify in my S.J.D. project judges are
no longer able to defer to the quality control work of an Art World. This has forced courts
like the recent 2nd Circuit panel in Castillo v. G&M Realty L.P. to justify its holding that thegraffiti art at 5 Pointz merited moral rights against destruction by reference to tastemakers
and influencers. World-famous street artist Banksy doesn't seem to have ever contributed to
the 5 Pointz graffiti space in Queens, but he gave his signature cryptic imprimatur on the

25 E.g., Jules Gleicher, The Bard at the Bar: Some Citations by Shakespeare by the United States Supreme Court, 26 OKLA.
CITY U. L. REV. 327, 335-36 (2001).
26 PGA Tour v. Martin, 532 U.S. 661, 705 (Scalia, J., dissenting).
27 See, e.g., Gregory E. Maggs, A Concise Guide to the Federalist Papers as a Source of the Original Meaning of the UnitedStates Constitution, 87 B.U. L. REV. 801 (2007).
28 E.g., Norman P. Ho, Literature as Law? The Confucian Classics as Ultimate Sources of Law in Traditional China, 31
LAW & LITERATURE 173 (2019).

20

space after completing his month-long October 2013 “residency” in New York City:“Thanks for your patience. It's been fun. Save 5pointz. Bye."29
But Judge Parker would cite to Bansky in Castillo v. G&M Realty L.P. to establish thegeneral credibility of graffiti as an artistic media for VARA purposes. More interesting, hepuffed the reputation of Banksy by situating him “alongside President Barack Obama andApple founder Steve Jobs on Time magazine’s list of the world’s 100 most influential
people.”30 We see a network of reputation-building here to make up for the easy logic of ourprior universe of a Bleistein Art World, in which we could simply to defer to the economic
market of the production and distribution of individual artworks. This same gatekeeper
problem permeates Internet rap, as I suggest in my two rap-centric papers in this S.J.D.
project.
But I contest the argumentative move made by the law and rap scholarly community
to situate the raps of Anthony Elonis, Taylor Bell and Jamal Knox within a pantheon of
professional rappers, and to draw lyrical comparisons between the use of violence in theseamateur raps and as by the professional rappers. This ignores the threshold concern that art
speech is covered because it is sufficiently aesthetic. It also seems to make these prior rap
songs legal authorities in their own right, in which we can make a precedent-based argument
by reference to antecedent authority (i.e. the published rap song). I applaud Paul Butler’screativity in his use of rap as a kind of folk jurisprudence in my “Art Threats” paper. I write:“Butler’s groundbreaking paper cites to rap as a form of cultural authority, as an index ofcommunity views about different theories of criminal jurisprudence.” But in his theorizing
professional rap is useful because it is a barometer of popular attitudes towards criminal

29 Chris Boyette, Banksy bids farewell to New York with balloons, CNN (Nov. 1., 2013),
https://www.cnn.com/2013/10/31/us/new-york-banksy-residency-ends/index.html.
30 Castillo, 950 F.3d at 168.

21

jurisprudence. Professional rap does not determine whether the output of an amateur
rapper is good or not, which is all that matters for the constitutional basis for art speech.

22II. AESTHETIC PLAY AND BAD INTENT*
A post-production version of this paper was published in the MINNESOTA LAW REVIEWHEADNOTES. Please see 103 MINN. L. REV. HEADNOTES 101 (2018).
Abstract
Threatening words or images are assumed by American courts to be non-art. But this threshold question ofart status is complicated by the evolution of rap and performance art. There is no articulable way to discern
art from non-art for these non-textual media, a problem compounded in the unique context of the Internet.
In civil litigation we can resort to institutionalist tests like audience reception. But mens rea matters incriminal prosecution. I favor judicial pragmatism in what I argue here is a very non-legal area of law.
I. Introduction
In March 2016 Compton rapper YG released the single, “FDT”, shorthand for “fuckDonald Trump,” as critical response to the then Republican primary challenger. The track
was recorded in about an hour,1 and eventually became a summer anthem because of its
political appeal.2 VICE Media’s Noisey publication celebrated it as the best track of 2016.
Some of the lyrics are rote and predictable. Still, it possesses a vital energy and contains
several clever lines, such as the couplet: “Reagan sold coke/ Obama sold hope.” Any rap
fan would recognize the song as a verbal spar in the genre tradition of the “battle.” But thedirectness of certain lyrics, e.g. wondering aloud why drug kingpin El Chapo hasn’t yet* I thank Robin West, Alexa Freeman, Sonya Bonneau, and Xiangyu Zhang for their helpful comments, as wellas the organizers and participants of the 2017 Law and Literature conference at Masaryk University for theirformative feedback on this project.
1 Adelle Platon, YG & Nipsey Hussle Discuss Their Anti-Donald Trump Track 'FDT' & Why 'Trump Is Not theAnswer', BILLBOARD (Apr. 1, 2016), https://www.billboard.com/articles/columns/hip-hop/7318769/ygnipsey-fdt-fuck-donald-trump-2016-election.
2 Christopher R. Weingarten, YG Talks Summer Protest Anthem 'FDT (F--k Donald Trump)', ROLLING STONE(Sept. 1, 2016), https://www.rollingstone.com/music/features/yg-talks-summer-protest-anthem-fdt-f--kdonald-trump-w437360.

23

“sniped” Trump and the suggestive coda (“and if your ass do win, you gon’ prolly get
smoked”) put YG on the radar of the Secret Service.3“FDT” was published prior to Trump’s election, and so the song is not captured by
18 U.S.C.A. § 871 (“Threats against President and successors to the Presidency”). But even
if the track had been released after November 8, 2016, a court would recognize the lyrics toonly be predictive – not prescriptive – and to channel a collective attitude towards Trump’s
divisive candidacy. YG could rightly claim that he did not sincerely want to harm President
Trump (a true threat), nor incite others to harm the president (criminal incitement).
Lurking here are assumptions of what counts as art, and who counts as an artist.
Having to answer “what is art?” is a rare issue for American courts, and judges have
improvised indirect ways to resolve this riddling question. Professor Christine Haight Farleycataloged various “doctrines of avoidance” (displacement, emphasis on weight of evidence,framing as a linked issue) in her 2005 article “Judging Art.”4 Other scholars have strategizedways judges can distinguish art from non-art, or determine whether blended categories likeindustrial design earn copyright protection.5 Copyright is indeed the center of gravity in this
discussion of how courts should define and evaluate art. Only the exceptional case – like
Robert Mapplethorpe’s hyper-sexualized photography in Cincinnati v. Barrie – requires acriminal jury to consider whether a contested art object is obscenity or craft.6
Barton Beebe’s article, “Bleistein, The Problem of Aesthetic Progress, and the Makingof American Copyright Law” (2017) is the most recent contribution to this discussion. His

3 Adelle Platon, YG Says Secret Service Reached Out Following Release of Anti-Trump Song, May Try to Take His AlbumOff Shelves, BILLBOARD (Apr. 27, 2016), https://www.billboard.com/articles/columns/hip-hop/7348438/ygsecret-service-donald-trump-fdt.
4 Christine Haight Farley, Judging Art, 79 TUL. L. REV. 805, 836-39 (2005).
5 E.g., Glen Cheng, The Aesthetics of Copyright Adjudication, 19 UCLA ENT. L. REV. 113, 126 (describing
conceptual separability test as applied to artful bicycle rack in Brandir International) (2012).
6 E.g., Alex Palmer, When Art Fought the Law and the Art Won, SMITHSONIAN.COM (Oct. 2, 2015),
https://www.smithsonianmag.com/history/when-art-fought-law-and-art-won-180956810/.

24

article encourages us to think about these issues at first principles and to move beyond theindividual object. Rather the object is the problem for Beebe. He instead emphasizes thecreator and process of “aesthetic play” over the idle fetishization of the end product.7 Beebe
expands on the pragmatist tradition of John Dewey and Richard Shusterman. For thesethinkers, quotidian events like “the fire-engine rushing by” are part of the lived experience ofart.8 Beebe argues our “post-scarcity” Internet society uniquely allows us to achieve the kindof “poeticized culture” anticipated by Richard Rorty.9 We all can and should be free totinker with our shared artistic heritage.
I agree with Professor Beebe’s reading of Bleistein (1903). In this case the Supreme
Court was prompted to determine if a set of ordinary circus posters were sufficiently artistic
to earn copyright protection.10 Justice Holmes made the “fateful”11 choice to base hisholding on an interlocking test: 1) an artwork is original if it is uncopied and contains theartist’s personality, and 2) an artwork promotes progress if it has commercial value.12 Since
then judges have elided the “personality” prong of Holmes’ opinion, and reduced the“progress” test to the facile equation of uncopied commercial value = copyrightable.13
Beebe’s history is an elegant corrective. But in this paper I point out the limits of his
prescriptions: that we ignore the art status of the shared object, that we focus on authorial
personality, and that we trust in the poetic capacity of an Internet society. Beebe cites to rap,
in particular, as a medium representative of his vision. The rap group 2 Live Crew’s sampleof Roy Orbison’s “Oh, Pretty Woman” was the very inspiration for transformative use

7 Barton Beebe, Bleistein, The Problem of Aesthetic Progress, and the Making of American Copyright Law, 117 Colum. L.
Rev. 319, 346, 351 (2017).
8 Id. at 344.
9 Id. at 347, 389.
10 Bleistein v. Donaldson Lithographing Co., 23 S.Ct. 298 (1903).
11 Id. at 330.
12 Id. at 378.
13 Id.

25

doctrine.14 Beebe applauds the “creative virtuosity” of sample-based rap music, and alludes
to the availability of open source beat-making software.15
In this paper I explore how the silent question of “what is art” intersects withcriminal law, and why novel media like rap and performance art are each particularly 1)
difficult to evaluate as art and 2) capable of threatening or inciting violence. In civil
litigation, the question of whether something is bad art or art at all generally collapses on
itself.16 If someone is willing to purchase an object as “art” then we don’t need to worry
much about its quality. In outlier cases like Brancusi, in which a customs court questioned
whether an abstracted, non-representational sculpture was art or “mere industrial pipe” fortax duty purposes, judges have been required to make the threshold determination of art
status.17 More often we can simply ignore the overwhelming amount of bad art/non-art thatnever enters the marketplace: “a visit to the dumpster behind an art school would provide
ample evidence of putatively worthless ‘fine art.’”18 The blurry bad art/non-art distinction isalready resolved by the art school professor, museum curator, gallery owner, tastemaker, etc.
In the rare case like Brancusi, judges can employ institutionalist or reader-response
tests to determine an object’s art status. Critic-scholar Arthur Danto famously argued an
object’s acceptance by the Art World is the touchstone in a post-modern universe of pop art
and conceptual art.19 Importantly, this institutionalist approach focuses on audience, whether
it is an elite cadre of aesthetes or generic consumer market.
In contrast, the criminal law focuses on the speaker or artist. Mens rea is core to ourunderstanding of the criminal law. A criminal defendant must have bad intent, or have been
14 Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).
15 Beebe, supra note 7, at 344, 394.
16 Cf. Farley, supra note 4, at 820.

17 E.g., Cheng, supra note 5, at 133.

18 Ben Depoorter & Robert Kirk Walker, Unavoidable Aesthetic Judgments in Copyright Law: A Community of PracticeStandard, 9 NW. U. L. REV. 343, 352 (2015).
19 Arthur Danto, The Artworld, 61(19) THE JOURNAL OF PHILOSOPHY 571(1964).

26

so careless as to not realize the obvious consequences of her actions, to receive criminal
punishment. This requires us to look into the interiority of the defendant’s mind and ferretout expectations. There are a few problems here that I address in the rest of this paper.
How do we triangulate bad intent if it is impossible to separate art from non-art whenreviewing written lyrics (rap) or the surface event (performance art)? How should courts
manage “meta” problems in art where the value and status of an art object depends on its
commentary or referential value? If we are to look at expected audience reactions as anindex of criminality, is this inquiry problematized in the unique context of the Internet?
Justice Alito in his recent Elonis dissent questioned whether aesthetic intent should
always negate bad intent in criminal prosecution.20 In that case, defendant uploaded violent
amateur “rap” lyrics to his Facebook page, which was read by only a small group of
acquaintances, including his threatened ex-wife. I expand here on whether judges canseparate the mere written or spoken word from Rap-as-Art, a task made more difficult withthe aesthetic turn to “mumble rappers” like Lil Yachty and Young Thug. I also analyze two
arguable pieces of performance art: comedienne Kathy Griffin’s decapitated Trump head
and the 2014 “Boston Marathon Bombing Hoax” of amateur artist Kevin Edson. I
conclude by reaffirming the merits of the Supreme Court’s contested jurisprudence in this
doctrinal space.

II. Aesthetic Play as Commentary
Professor Beebe argues that the motivating purpose of the “Progress” language inthe copyright clause of the Constitution is to promote individual “aesthetic play.”21 This is a
supple term, but one that does important work in unifying the conceptual moves in his
20 Elonis v. United States, 135 S.Ct. 2001, 2016 (Alito, J., dissenting) (2015).
21 Beebe, supra note 7, at 346-48.

27

article. My own first reading of the Progress clause was to assume the Framers either
wanted 1) better art or 2) more art. The first choice is subjective; the second choice is
prosaic. Beebe avoids this schema by re-centering the inquiry on the individual. The actual
function of the Progress clause is to ensure that more Americans are able to engage with art,to scribble, to fiddle and tinker, even if this creative process “does not ultimately result in the
production of aesthetic work.”22 This is an intrinsic, very human value. In addition, becauseof the benefits of living in an increasingly “post-scarcity” Internet society, we can each haveaccess to the raw materials of making art, and no longer have to be mere passive consumersof art. Aesthetic play connects the textual and policy arguments in the article.
I like this reading of the Progress clause. However, I expand on Beebe’s discussion
of “aesthetic play” to identify a second connotation to his term. For Beebe, “aesthetic play”
means the process of making art. For the wordsmith rapper, or the jocular conceptual artist,“to play” might instead be understood as “to pun,” to joke, to make ironic, to reinvent, todeconstruct, to subvert. This is the proverbial “play on words.” Importantly, this kind of
aesthetic play requires a reference to some other work or thing (or the “meta” reference tooneself, e.g. Kanye West’s “I Love Kanye” from The Life of Pablo).
In “FDT”, YG assumes we are familiar with Donald Trump. Otherwise his songlacks critical value and registers as obscure and petty. Why bother to write an entire rap
diatribe about some guy named Donald you happen to be acquainted with in your immediate
personal life? Indeed, the fact that many of us know YG, and all of us know Donald Trump,is why we understand “FDT” to be an actual rap song (“rap-as-Art”). Even the more
violent suggestions (e.g. the El Chapo solicitation23) are heard as passing whims, as

22 Beebe, supra note 7, at 346-47.

23 Interestingly, YG was pressured by the Secret Service to omit this lyric for the album version of the track.
Weingarten, supra note 2.

28

sublimated frustrations, as the kind of ephemeral half-thoughts many of us occasionally haveabout different stripes of politicians. It makes sense to have a higher standard for whatcounts as a criminal threat when targeting public figures.24 They are a shared reference point
for broader critique.
In the recent Elonis Supreme Court case, defendant riffs on a sketch from comedy
troupe “The Whitest Kids You Know” by substituting the word “wife” (Elonis was recently
divorced) for the word “president.”25 His Facebook “rap” begins: “Did you know that it's
illegal for me to say I want to kill my wife? / It's one of the only sentences that I'm notallowed to say.”26 Other lines are more graphic, e.g., “Fold up your [protection-from-abuse
order] and put it in your pocket / Is it thick enough to stop a bullet?”27 However, Elonis
also contrives an alter-ego persona “Tone Dougie” and inserts a level of self-awareness(“Um, but what's interesting is that it's very illegal to say I really, really think someone out
there should kill my wife”) to complicate any bad intent.28 After reviewing the entire
Facebook screed the reader is left with a few competing impressions: these lyrics are not
artful, and probably do not deserve to be described as art at all; he is riffing on a comedy
troupe, but one not very well known; he might think he is writing for a broad swath ofimagined fans, but his ex-wife would interpret his posts as targeting her.

III. Valuing Rap When Talk is Cheap

24 See generally Michael Pierce, Prosecuting Online Threats After Elonis, 110 NW. U. L. REV. 995 (2016).
25 Aarti Shahani, Is A Threat On Facebook Real? Supreme Court Will Weigh In, NPR (June 20, 2014),

https://www.npr.org/sections/alltechconsidered/2014/06/20/323723127/supreme-court-facebook-delveinto-threatening-language.
26 Elonis v. United States, 135 S.Ct. 2001, 2005 (2015).
27 Id. at 2006.
28 Id. at 2005.

29

Does all of this make Elonis’ posting a rap? Chief Justice Roberts seemed to use
skeptical “scare quotes” in referring to Elonis’ “self-styled ‘rap’ lyrics.’”29 He also avoided
the question of whether this is constitutionally protected art. Instead the analysis depended
on the subjective intent of Elonis. Because the posts were “often interspersed withdisclaimers that the lyrics were ‘fictitious,’ with no intentional ‘resemblance to real persons,’”
the scienter requirement for making a criminal threat was not satisfied here.30 We can ask
only in the hypothetical if the outcome would have been different if Elonis did not include
these disclaimers, or if the Court would have then engaged the question of whether
artfulness is relevant to First Amendment protection. In the December 2017 edition of
Columbia News, Professor Tim Wu described the First Amendment as becoming “obsolete:”in our “era of cheap speech … it’s easy to have a Facebook or Twitter account.”31 Elonis’words seem to add nothing to the quality of human discourse or the marketplace of ideas. Is
this the kind of aesthetic play we want to promote?
The true threat remains a silent, lurking problem because it cannot even beconceptualized as value-adding speech, let alone art. Criminal threats are outside thepurview of the First Amendment.32 Professor Steven Gey instead argues that a threat
functions as a form of physical violence,33 and so a true threat analysis is most always
orthogonal to an object’s art status.
Justice Alito in his Elonis dissent did, however, consider these combined issues ofartistic and criminal intent. First, he rejected Elonis’ argument that a “therapeutic or

29 Id. at 2004 (emphasis added).
30 Id. at 2005, 2012.

31 5 Questions: Law Prof. Tim Wu on the First Amendment, Social Media and Net Neutrality, COLUMBIA NEWS (Dec.

20, 2017), http://news.columbia.edu/content/5Q-Law-Prof-Tim-Wu-on-the-First-Amendment-Social-Mediaand-Net-Neutrality.
32 E.g., Kenneth Karst, Threats and Meanings: How the Facts Govern First Amendment Doctrine, 58 STAN. L. REV.
1337, 1347 (2006).
33 Steven G. Gey, The Nuremberg Files and the First Amendment Value of Threats, 78 TEX. L. REV. 541, 593 (2000).

30

cathartic benefit” to the threatening speaker creates First Amendment protection.34 He also
raised the problematic case of the social media user who “dress[es] up a real threat in theguise of rap lyrics, a parody, or something similar.”35 Alito settles on a recklessness mens rea
as the correct standard, but it remains unclear to me whether he thinks a speaker/writer cansimultaneous have an aesthetic and bad intent. If we are using a recklessness standard as arough proxy to remind the amateur of her limited audience, does this privilege the known
over the unknown artist? In the democratized Internet, a pervasive store of information, can
we really predict who our sum audience will be?
A relevant inquiry is whether to distinguish the committed amateur from thenewcomer. The Third Circuit majority noted that defendant Elonis had little history oflistening to or writing raps, but did not base its holding on this fact.36 Other scholars haverecommended looking at the prior history of the defendant to assess the credibility of aclaim that a threat is constitutionally protected art.37 Communications law scholar Brooks
Fuller further suggests that we consider a defendant’s “breadth of online followers” and“past history of consummated criminal acts arising out of prior threats” on the Internet.38
Does this go to modus operandi or prior bad acts? Either way these tests are easy tomanipulate for the deceptive social media user – I can lay a predicate of sharing my “art” on
the Internet for pretextual purposes; I can curate an obnoxious web personality who
threatens indiscriminately but does not follow through, to make me appear as a mere
blowhard and drown out my actual intended threats.

34 Elonis v. United States, 135 S.Ct. 2001, 2016 (Alito, J., dissenting) (2015).
35 Id. at 2016 (Alito, J., dissenting) (2015).

36 P. Brooks Fuller, Evaluating Intent in True Threats Cases: The Importance of Context in Analyzing Threatening Internet

Messages, 37 HASTINGS COMM. & ENT L.J. 37, 56 (2015).
37 John Villasenor, Technology and the Role of Intent in Constitutionally Protected Expression, 39 HARV. J.L. & PUB.
POL'Y 631, 670-71 (2016).
38 Fuller, supra note 36, at 75.

31

IV. Rap as Sound / Law as Text
I appreciate Beebe’s respect for rap. He cites to Richard Shusterman’s language of“creative virtuosity” to describe rappers, and his prescription that we each be empowered totinker with our shared artistic heritage seems informed by common rap pastiches like theremix or sample.39 Indeed, Richard Shusterman’s Pragmatist Aesthetics (1992) was situated in a“golden age” of sample-based rap music, including iconic albums like the Beastie Boys’ Paul’s
Boutique and A Tribe Called Quest’s The Low End Theory. Of course sample-based musicremains important in rap, as typified by Kanye West or “mashup” artists like Girl Talk.
However, one aspect of rap that has certainly evolved since the political, gangster orconscious rapping of the 1980s and 1990s is an emphasis on sound and atmosphere overlyrical intelligibility. Today so-called “mumble rappers” like Lil Yachty and Young Thugdominate streaming charts and YouTube views. In his epic write-up on Young Thug for GQ
magazine, Devin Friedman describes the Atlanta rapper as “literally … famous for being
unintelligible” and “the most successful lyricist in the history of the world whose thing is thatyou can't understand what the fuck he's talking about.”40 His lyrics feel ad hoc, adlibbed,
absurdist, Dadaist, insular, indulgent and often, well, mumbled. He is likely the only rapper inrecent memory to open an album with the country exclamation “Yeehaw!” Wired magazine
summarized the genius of Young Thug in its October 2015 article title: “Young Thug Isn’t
Rapping Gibberish, He’s Evolving Language.”41
All this said, Young Thug – and many other contemporary, language-evolving
rappers – are not rapping lyrics to be read and unpacked as text. Rap music is meant to be heard,
danced to, inspired by, meditated on, enjoyed, etc. but not necessarily studied using the
39 Beebe, supra note 7, at 344.

40 Devin Friedman, Young Thug is an ATLien (and the Best Rapper Alive), GQ (Feb. 16, 2016),
https://www.gq.com/story/young-thug-best-rapper-alive-interview.
41 Charley Locke, Young Thug Isn’t Rapping Gibberish, He’s Evolving Language, WIRED (Oct. 15, 2015).

32

traditional tools of legal interpretation. This is a problem for courts. Law is eminently
textual. The “Rule of Law” is, by definition, written. Judges use conventional hermeneuticalmoves when interpreting statutes, case law or other sources of authority. Lawyers aretrained to write with clarity and precision. Contracts reduce the terms of negotiation to a
document – we don’t look to extrinsic evidence. The written word is the beginning and endof legal practice.
For many rappers, a lyric sheet is at best a rough blueprint (or perhaps just a“footprint” – many rappers improvise or only “write” their lyrics in their head before
entering the recording booth). But when judges encounter rap lyrics – whether the amateur,or the professional42 – they do so in text form. Most judges are not very literate in visual arts
like painting or film, see, e.g., the Supreme Court’s review of police chase footage in Scott v.
Harris.43 Still, it feels nonsensical to imagine a tax judge deciding whether the nonrepresentational sculpture in Brancusi is art based on a written description of its appearance.
It is similarly difficult to determine whether an anonymized Young Thug lyric is gibberish or
next-level art-rap by only reading it, and without having the additional context of hearing it
rapped or knowing that Young Thug is its author. See the below couplet from “Riding
Around” (2014) with Yung La & D.K.:
I just seen my dope come up out the baby’s nose
Aaliyah, Imma rock the baby’s boat
Like many song lyrics from all sorts of genres, this lyric could not possibly beinterpreted literally. But its suggestions of drug use and sexual performance, and themeasure word/namedrop to deceased r&b singer Aaliyah do enough to capture the absurd,

42 See, e.g., Charis E. Kubrin and Eric Nielson, Rap on Trial, 4(3) RACE AND JUSTICE 185, 186 (2014) (describing
criminal court use of lyrics by professional rappers Lil Boosie and B.G.).
43 See generally Naomi Mezey, The Image Cannot Speak for Itself: Film, Summary Judgment, and Visual Literacy, 48
VALPARAISO UNIVERSITY LAW REVIEW 1 (2013).

33

grandiose street lifestyle that Young Thug wants to project and perhaps comment on. Your
guess is as good as mine, but my guess is still probably better than most federal judges. I
now share two other rap lyrics side-by-side for comparative purposes:

Olutosin Oduwole / Desiigner
glock to the head of
SEND $2 to. ... paypal account
if this account doesn’t reach $50,000 in
the next
7 days then a murderous rampage
similar to the
VT shooting will occur at anotherprestigious
highly populated university. THIS IS
NOT A JOKE!

Panda, Panda
Panda, Panda, Panda, Panda, Panda
I got broads in Atlanta
Twistin' dope, lean, and the Fanta
Credit cards and the scammers
Hittin' off licks in the bando
Black X6, Phantom
White X6 look like a panda
Goin' out like I’m Montana
Hundred killas, hundred hammers
Black X6, Phantom
White X6, panda
Pockets swole, Danny

The “rap” by Olutosin Oduwole was found on handwritten scratch paper during an
inventory check of Oduwole’s apparently abandoned car on a Southern Illinois University
campus.44 He was charged with making terrorist threats, and – based solely on this written
lyric – sentenced by a jury to five years in prison.45 The scratch out of “prestigious” should
be enough to suggest this is a rough draft of some kind of personal poem or rap.
Interestingly, in direct contrast to the Elonis Facebook lyrics, here the defendant specifies
that this is “not a joke” and creates his own mens rea problem. Fortunately, in 2013 an
Illinois appellate court would agree “that bad lyrics are not a crime” and instead
characterized the lyric sheet as “mere thoughts,” reversing Oduwole’s conviction.46 These

44 Justin Peters, Illinois Appeals Court Finds That Bad Rap Lyrics Are Not a Crime, SLATE (Mar. 12, 2013),

http://www.slate.com/blogs/crime/2013/03/12/olutosin_oduwole_illinois_appeals_court_finds_that_bad_ra
p_lyrics_are_not.html.
45 Id.
46 Id.

34

thoughts are surely alarming, and read as a very clunky lyric.47 But this draft lyric at least
possesses an inner logic and narrative, and is intelligible to the common reader.
The right-side lyric is excerpted from Brooklyn rapper Desiigner’s 2016 hit song
“Panda.” As a written text, it is opaque to most readers. Some readers might rightly guessthat Desiigner is obsessed with the white BMW X6’s resemblance to a panda bear, but thisdoes not necessarily make it worthy of Danto’s Art World. But to the listener of Desiigner’s
breakout song, it has an addictive earworm quality and, indeed, reflects the rapper’s vision ofa crafting a “new English”.48 The track has been streamed on Spotify over 700 million times
at the time of writing of this paper. It is art, but only when heard.
An essential point here is that rap becomes art only when rapped by a rapper. The
heuristic of “delivery” is used to evaluate and distinguish the flow of rap artists. Rappers
modulate the texture and tempo of their delivery for listener effect. See, for example,
evolutions in Drake’s flow from Nothing Was the Same to If You’re Reading This It’s Too Late.49
Rappers also often “play” on their own identity to contour the meaning of a rap song (e.g. as
mentioned in an earlier parenthetical, Kanye West’s “I Love Kanye”). This all goes to two
related overarching points: 1) the potential art value of a rap song depends on hearing its
audio recording and is informed by the identity of the rapper and 2) we cannot discern
whether a rap lyric is art or bad art/non-art simply by reading it.

V. Art and Identity

47 Id.

48 New English is the title of Desiigner’s 2016 mixtape.

49 E.g., Jayson Greene, Evolve with the Flow: How Drake and Kendrick Found their Voices, PITCHFORK (Apr. 8, 2015),
http://pitchfork.com/features/overtones/9623-evolve-with-the-flow-how-drake-and-kendrick-found-theirvoices/.

35

The starting point for Arthor Danto and his institutionalist theory of art was theiconic “Brillo Box” of Andy Warhol. Pop Art was an epistemic and existential crisis for theart community: how to distinguish the celebrated Warhol Brillo Boxes from the actual
package of dish scrubbing pads when it’s impossible to articulate any difference in color,shape or form?50 The two are identical for all material purposes – why is one transcendent?
Danto constructed his thesis of the Art World and community acceptance to explain how
readymade art like Duchump’s “Fountain” (a regular urinal) or the Brillo Box could beunderstood as art masterworks, despite their seeming congruence to everyday items in
consumer society.
This commentary value of the Brillo Box relates to the “meta” nature of a rap song
like “I Love Kanye.” If Kanye West was not a rapper, and Kanye West did not rap theselyrics, then the written lyric of the track would simply be an endearing curio. The same iscertainly true of Warhol if the “actual” steel wool Brillo pad did not exist. The art value of
Warhol’s boxes is their playful, yet critical look at consumer society and how marketers use
kitschy design etc. to reinvent domestic work or obscure the facticity of modern capitalism.
There are certainly other wide-open interpretive directions, but the referential value to thereal steel wool is core to any analysis.
I now point out another lurking obstacle to Beebe’s analysis about a post-scarcity
Internet society: referential art is not hard to do. My friend Dan opined on a recent road trip
to Palm Springs that referential humor is the lowest form of comedy. I certainly agree it iseasy. And if done with a deadpan neutral delivery, it is up to the audience to interpret thepunch line and evaluate the quality of the humor.
50 See, e.g., Arthur Danto, The End of Art: A Philosophical Defense, 37(4) HISTORY AND THEORY 127, 141 (“I needhardly emphasize the impact on my philosophy of art of Andy Warhol's 1964 Brillo Box, which for all relevant
purposes was indiscernible from the Brillo boxes of warehouses and storerooms.”) (1998).

36

Enter the problem of aesthetic play in making rap, pop art, performance art andother referential art in our post-scarcity Internet society. Historically, rap could at least be
distinguished as “fast rhythmic vocals.” Now it doesn’t have to be any of these things. It
can be slow (chopped & screwed); it can feel like one’s “speaking” voice (Common, Drake);
it can be ululating blips or guttural goops (Young Thug).51 Only a rarefied few can do rap
well, but seemingly anyone can do it. Today rapping is as easy as talking. Other musicians atleast have to position their instrument or sit at a piano etc. to signal they are in “artist”
mode. How can we separate when rappers are performing for us or instead simply being
their everyday selves? See, for example, Tyler the Creator’s recent appearance on Jimmy
Kimmel dressed as Dr. Seuss’ Cat-in-the-Hat and “rapping” a children’s story.52 Is he rapping,
being Tyler the Creator, or being something else? Other rappers deny any such separation ispossible in their “life-as-art” universe, as Kanye West quipped for Vanity Fair about his
marriage with Kim Kardashian: “Our life is walking performance art.”53
The Internet has brought the disintermediation of “artists” and audiences. Any of
us would-be or wannabe artists can share our aesthetic play for public consumption, even if
our playful ideas are still half-baked or simply not very good. Kathleen Sullivan was thinking
about traditional print journalism when she wrote in 1998 “the decentralization of speaking
and listening over the Internet eliminates a host of familiar middlemen.”54 This samegatekeeping function applies to the production of art in society. We no longer enjoy theimportant quality control work of record label A&R management, or literary agents, or

51 A Linguist Breaks Down The Emotion Behind Young Thug’s Vocal Style, GENIUS (Aug. 17, 2017),
https://genius.com/a/a-linguist-breaks-down-the-emotion-behind-young-thug-s-vocal-style.
52 Tyler, the Creator Raps the Dr. Seuss Book, YOUTUBE, https://www.youtube.com/watch?v=JPkcmn_9RX8 (lastvisited Feb. 7, 2018).
53 Dirk Standen, Exclusive: Kanye West on His “Famous” Video, Which Might Be His Most Thought-Provoking Work Yet,
VANITY FAIR (June 24, 2016), http://www.vanityfair.com/culture/2016/06/kanye-famous-video-interview.
54 Kathleen M. Sullivan, First Amendment Intermediaries in the Age of Cyberspace, 45 UCLA L. REV. 1653, 1670
(1998).

37

gallery owners. Now bad art/non-art can saturate the Internet marketplace of ideas, andjudges must consider whether the aesthetic value of threatening bad art/non-art negates any
bad intent in these works.
I quickly refer back to the Kanye quip of “our life is walking performance art” tocomplete the thread of my argument in this section. Because authorial presence and sonicquality is core to rap music, I argue this makes it a performed, rather than written, art. But
because rap lacks definition (it is no longer simply fast rhythmic vocals), this makes
evaluating and interpreting rap problematic in the same ways as performance art. Performance
art is “distinguished by its transience, decay, spontaneity, conceptuality and non-verbal
orientation.”55 Its anti-fixed nature makes it impossible for courts to award copyright, atension made manifest “last decade when Marina Abramovic curated a sort of ‘greatest hits’of performance pieces from the last half-century.”56 For my purposes here I merely pointout the quotidian quality of some performance art. Marina Abramovic is well known forengaging in marathon staring contests.57 If I engaged in a staring contest with you, it would
probably feel mundane and juvenile, but also fortunately end quickly. I am not Marina
Abramovic. But, as a counter to Justice Holmes’ emphasis on romantic personality in
Bleistein,58 my own identity would still be discernable in my lousy attempt at performance art.
Like rap, in performance art the personality of the author is core to audience reception, and

55 Andrew Jensen Kerr, Rap Exegesis: Interpreting the Rapper in an Internet Society, 7 COLUM. J. RACE & L. 341, 360(2017).
56 Id. at 360. See also David Bollier, Performance Art as Property, ON THE COMMONS (Nov. 11, 2015),
http://www.onthecommons.org/performance-art-property.
57 E.g., Michael Zhang, Sitting, Staring, and Crying with Marina Abramovic at MoMA, PETAPIXEL (Apr. 23, 2010),
https://petapixel.com/2010/04/23/sitting-staring-and-crying-with-marina-abramovic-at-moma/.
58 Bleistein v. Donaldson Lithographing Co., 23 S.Ct. 298, 300 (“Personality always contains something unique.
It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible,
which is one man's alone. That something he may copyright unless there is a restriction in the words of theact.”) (1903).

38

we cannot articulate in written language what distinguishes Marina’s art from my own nonart (me staring at you). We come up against the epistemological limits of human language.
Consider two recent events: the Kathy Griffin Trump head, and the “Boston
Marathon Bombing Hoax” of Kevin Edson. In May 2017 comedienne Kathy Griffin
uploaded a photo to the Internet of her holding a bloodied, decapitated President Trump
mask. Griffin’s Twitter caption referred to the Trump “blood coming out of her wherever”
quote regarding journalist Megyn Kelly. It was also shot by known photographer Tyler
Shields. However, despite these background facts, most viewers found the photo to be
offensive, adolescent and obvious. It was not very good art, if art at all. Not only did
Griffin lose her CNN New Year’s Eve gig, but she would also be interrogated by the Secret
Service, and in her words, “put under a federal investigation by the Department of Justicefor two months at the taxpayer dollars [sic] expense.”59 By the end of July she had been
exonerated for any crime related to the potentially threatening image.60
In April 2014 self-described “performance artist” Kevin Edson left a backpack filledwith confetti glitter and a rice cooker near the finish line of the Boston Marathon on the
one-year anniversary of the tragic bombing. Edson was documented shouting “Boston
Strong,” walking barefoot and dressed in black veiled clothing. When stopped by police heconfirmed that a non-explosive rice cooker was inside the bag, but as a precautionary
measure, “special units from the [police] department’s bomb squad were called in, along with

59 Carson Griffith, Photographer Tyler Shields Is Finally Ready to Talk About That Famous Trump Photo He Snapped of
Kathy Griffin, ARCHITECTURAL DIGEST (Oct. 27, 2017),
https://www.architecturaldigest.com/story/photographer-tyler-shields-is-finally-ready-to-talk-about-thatfamous-photo-he-snapped-of-kathy-griffin.
60 Maxwell Strachan, Kathy Griffin ‘Completely Exonerated’ After Secret Service Investigation, HUFFINGTON POST (July28, 2017), https://www.huffingtonpost.com/entry/kathy-griffin-investigation
exonerated_us_597b9bace4b0da64e8793241.

39

a robot to inspect the items, and the bags were detonated.”61 If the backpack had not been
immediately seized, it would have caused panic and likely triggered traumatic memories for
those connected to the original terror event. Perhaps the “Boston Strong!” shouting is
Edson’s own commentary on whether terror should be a unifying theme.62 But even if weallow ourselves to view this as a performance art piece, it feels unimaginative and amateur.
This is not the work of a front-rank street artist like Banksy. So would our reaction bedifferent if this had worked as an agitprop, subversive kind of art in the vein of Black Mirror?
Or is the referent event (a terror bombing) so odious that this kind of commentary cannever be legitimate art? Leslie Kendrick in her 2014 article, “Guilty Minds,” considered thepossibility of the “unknowing inciter” who wears clothing with triggering references
unknown to the person (e.g., the patriot or tourist wearing a “MAGA” hat in certain
spaces).63 Edson obviously was aware of what he was doing – the whole point of his
performance was to comment on the Boston terror event. Still, the “false threat” charge
against Edson would eventually be dropped, as he did not communicate an “overt threat thatan incendiary device would be detonated.”64 What can “overt” mean in a universe of nonverbal meta communication?

VI. Manifesting Intent on the Internet
I recite the broad brush strokes of my argument: courts use written language, butthere is no articulable way to discern a Warhol from steel wool, rap from non-rap, or
61 Steve Annear, Kayvon Edson: Suspect Will Appear in Court After Marathon Finish Line ‘Hoax’, BOSTON
MAGAZINE (April 16, 2014), http://www.bostonmagazine.com/news/2014/04/16/kevin-kayvon-edsonarrested-marathon-finish-line/.
62 Kayvon Edson is a bad performance artist, but should he go to prison?, INCIDENT MAGAZINE,
https://incidentmag.com/2014/04/17/kayvon-edson-is-a-bad-performance-artist-but-should-he-go-toprison/.
63 Leslie Kendrick, Guilty Minds, 114 COLUM. L. REV. 1255, 1295 (2014).
64 Leigh Remizowski, False threat charge against man accused of Boston bomb hoax dropped, CNN (June 4, 2014),
http://www.cnn.com/2014/06/04/justice/boston-marathon-hoax/index.html.

40performance art from non-art, and now that we can all upload our aesthetic play to a public
Internet forum bypassing traditional gatekeeping devices, we need some kind of test to
separate lawful art from the pretextual threat. In civil litigation we can ignore all of this, or
employ institutionalist tests like audience reception. But in a criminal context mens rea
matters. The expansion of strict liability crimes has been limited to public welfare offenses
like food adulteration or liquor law violations.65 These kinds of cases are separate from
communications and digital technology.66 So how should we read in mens rea? Is it possible
to separate bad art from non-art for purposes of threats analysis? Below is an attempt at aschema to think through how subjective intent and audience reception intersect.

Audience Reception

Subjective Intent(Aesthetic)(“Thunderclap”/ Threatening)(Enjoy)(Don’t Enjoy)(1) Good Art(2) Bad Art(3) Serendipitous Art/ (4) ???

(5) Non-Art

I quickly explain my schema. Per subjective intent, an author can have theinstrumental aesthetic intent to create art, or the author can have a) non-instrumental
serendipity (the “thunderclap”) and create art in the moment or b) the bad intent to threaten
or incite imminent harm. Per audience reception, our target audience can enjoy it as art ornot. I recognize there are other reasons to celebrate art besides pure hedonic fun, and so I
here use “enjoy” in the broadest possible sense to capture all of the ways that art works
successfully.

65 Villasenor, supra note 37, at 646.
66 Id. at 651.

41

Category (1) is not a problem for us. I echo the Tim Wu argument that in ourInternet society of cheap speech we should no longer defer to category (5). Non-art may beprosecuted as a true threat. But how to separate (5) non-art from other intermediate
categories?
I agree with Beebe that we should move beyond our doctrinal focus on category (3)of accidental art.67 Alfred Bell is cited for the “thunderclap theory” that many great art works
are created in the instant, and without instrumental intent.68 Judge Easterbook refers toother grand instants of serendipity, including Arthur Laffer’s Tax-Income-Revenue curve
scribbled on a restaurant napkin “in a minute.”69 I estimate that many important rap songs
were similarly inspired and produced in the relative moment; for example, YG’s “FDT” waswritten and recorded in an hour.
One problem presented by the schema is that categories (2) and (5) look the same toan audience, such as a judge. How can we then distinguish (2) bad art from (5) non-art in acourtroom? Again, this would be a very rare concern in civil litigation, because much of ourbad art ends up in e.g. the art school dumpster. But I think that the Kathy Griffin Trump
head likely fits this category (2). A useful proxy to distinguish this case from category (5) is
personal investment. Consider a cult movie like The Room, as memorialized in the 2018
Golden Globe-winning The Disaster Artist, which leaves the viewer wondering whether
auteur Tommy Wiseau is a genius deconstructionist or simply maker of “the worst movie
ever.”70 Still, the fact that Wiseau reportedly spent $6 million to make The Room is evidence

67 Beebe, supra note 7, at 381-83.

68 Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99, 105 (2d Cir. 1951).
69 Beebe, supra note 7, at 346-47.

70 E.g., Cory Casciato, The Room: Three theories to explain this movie, WESTWORD (Aug. 8, 2013),
http://www.westword.com/arts/the-room-three-theories-to-explain-this-movie-5808473.

42

that he was likely trying to produce a profitable film, a work of “art.”71 Similar, Kathy
Griffin enlisted the help of the edgy, high art photographer Tyler Shields to shoot her
provocative image. These “bad” attempts at art should still be constitutionally protected.
I recommend that judges use proxies of investment in labor or money to help themdistinguish categories (2) from (5). For traditional art media like novel writing or painting
this investment is self-evident. It takes so much time to complete a novel (whether the“Great American”, or the dud) that we can trust that the author has aesthetic intentions.
Painting requires some material investment in paint and canvas. Each of these media also
possesses a form: when we are participating in novel writing or painting, there is a sharedtemplate or expectation of what these are and how they differ from e.g. crafting a grocery list
or writing in cursive. Maybe this same gestalt informed why the court in U.S. v. Hanna(2002) held that defendant threatened President Clinton per 18 U.S.C.A. § 871. Hanna
distributed leaflets of stick figure representations and photographs of the Clintons, plasteredwith death threats and haunting biblical references.72 A “stick figure” is simply too easy todraw, and does not signal investment in time or labor. It does not meet minimal
requirements for participating in the media forms of drawing or collage.
Rap and performance art each lack a definite form, and it is unclear when we are
actually doing the “art” or instead simply e.g. talking or staring. My recommendation here ispragmatic and builds on Professor Rothman’s prescription to simply “be careful” andconsider audience reception.73 There are available means for the unknown rapper or
performance artist to signal aesthetic intent: to pair your lyrics to music (beats, samples, etc.)
and rap them aloud for an audio recording, or to situate your performance piece in a space

71 E.g., id.

72 United States v. Hanna, 293 F.3d 1080 (9th Cir. 2002).

73 Jennifer E. Rothman, Freedom of Speech and True Threats, 25 HARV. J.L. & PUB. POL'Y 283, 367 (2001).

43

where its aesthetic nature is more obvious. Written thoughts are not necessarily raps. The
performance artist who causes criminal panic is doing so because she has already come toterms with the criminal punishment. The sentence is itself part of the artistic statement.

VII. Persistent Ambiguity and the Need for an Indefinite Mens Rea
I never broached my category (4) of the bad intent author who ends up creating
good art. We cannot be sure how often this happens, but this kind of persistent ambiguity,
as well as the continued evolution of novel art forms or spaces requires that courts have a
discretionary mens rea standard. Chief Justice Roberts never uses the word “Internet” inthis Elonis majority opinion74, even though this singular context directly informs how the“lyrics” became public and were interpreted. Literature from communications theory
emphasizes the unique “semiotic and linguistic components” of the Internet, and reminds usthat Internet speech often “reaches targets without reference to the message source, thus
obscuring a significant contextual element.”75 The Internet is both pervasive andimpersonal; it is permanent yet we post on the Internet with unthinking spontaneity; it is aplace for private journaling and public announcement. These contradictions require judicial
flexibility.
I hope that my schema is a useful for thinking through questions of art status thatsurround criminal law. But in closing I retreat to the same contested standards of Justice
O’Connor in Virginia v. Black and Chief Justice Roberts in Elonis. Professor Gey dismissed
the O’Connor test of “a serious expression of [threatening] intent” as “incoherent.”76

74 Jin Xun Quek, Elonis v. United States: The Next Twelve Years, 31 BERKELEY TECH. L.J. 1109, 1126 (2016).
75 Fuller, supra note 36, at 50.

76 Steven G. Gey, A Few Questions About Cross Burning, Intimidation, and Free Speech, 80 NOTRE DAME L. REV.
1287, 1287-88 (2005).

44

Roberts’ broad “scienter” language is derided as causing confusion among circuits.77 I am
sure the Supreme Court recognizes epistemic problems in discerning intent. I also think thatgiven the meta nature of certain art forms and the layered context of the Internet, that theSisyphean task of crafting a more precise articulation of what courts should do will only leadto bad outcomes in this very non-legal area of law.

77 Elizabeth M. Jaffe, Swatting: The New Cyberbullying Frontier After Elonis v. United States, 64 DRAKE L. REV. 476(2016).

45

III. DEFINING MEAT AND CONTESTING TRADITION
A post-production version of this paper was published in the UC DAVIS LAW REVIEW.
Please see 52 UC DAVIS L. REV. 1999 (2019).
Abstract
I argue in this paper that we should rethink the significance of secular ritual in U.S. jurisprudence, and thatthe cultural question of “what is meat?” is an illustrative way to think through the relationship of culture to
tradition. Animals are legal property in the United States. I expand on the work of property theorist
Margaret Radin to explain why the meats of certain threatened or common companion species should be
decommodified. My analysis is limited to animals that are native to the United States and adjacent waters or
are already ubiquitous in American households.

Introduction
In July 2017 a gray whale was killed and butchered in the Kuskokwim River regionof Southwest Alaska. This is an uncommon event, as suggested by the improvised characterof the hunt. One participant’s graphic description: “It felt like I was covered in slime andblood.”1 Indeed, the gray whale is not properly considered a meat animal per U.S. law.
Alaskan native communities enjoy a carve-out to consume a limited number of bowhead
whales each year. However, the NOAA has not yet permitted the taking of gray whales for
any American Indian tribe. This de facto moratorium on gray whale hunting is in effectdespite the 1,500-year history of Makah whaling.2 For the Makah, whaling remains an
integral part of the tribe’s traditions and identity, despite having given up its whaling practicevoluntarily over a century ago. As the California gray whale has returned to carrying capacity
the Makah have made a litigation push to whale lawfully. It is unclear whether the Makahmeet the “subsistence” test prescribed by the International Whaling Commission (IWC).
1 Teresa Cotsirilos, Gray whale harvest on the Kuskokwim stirs up controversy, ALASKA PUBLIC MEDIA (July 31, 2017),
https://www.alaskapublic.org/2017/07/31/gray-whale-harvest-on-the-kuskokwim-stirs-up-controversy/.
2 Carol B. Koppelman, Anderson v. Evans: The Ninth Circuit Harmonizes Treaty Rights and the Marine Mammal
Protection Act, 16 HASTINGS W.-N.W. J. ENVTL. L. & POL'Y 353, 354 (2010).

46

However, the embeddedness of whaling in the Makah worldview and the rigorous
procedures of the whale hunt evidence this as a profound secular ritual for the community.
I argue in this paper that we should rethink the legal significance of secular ritual in U.S.
jurisprudence, and that the cultural question of “what is meat?” is an illustrative way to think
through this relationship of culture to tradition.
The Kuskokwim kill coincides with the latest iteration of ongoing Makah litigation.
In October 2017 the Ninth Circuit held in Makah Indian Tribe v. Quileute Indian Tribe that awhale is indeed a “fish” per the 1855 Treaty of Olympia, and therefore the Makah may
lawfully take gray whales for meat consumption. However, the Ninth Circuit has continued
to struggle with the factual question of the scope of these Makah fishing waters, and how
many gray whales the Makah may take annually. This litigation has created a strange
dynamic of competing interest groups, where the hunting rite of the Makah is pitted against
the individual whale’s existence value for conservation groups and “whale watchers.”3 In
this October 2017 Makah Indian Tribe decision, Judge McKeown instructed the lower court
to re-draw “boundaries that are fair and consistent” with the Ninth Circuit’s understandingof the Treaties of Olympia (1855). This boundary question is a rich, substantive one, as thecharacterization of the relevant whale population can turn this from a carrying capacity
problem to an aesthetic problem. If the relevant focus is the entire population of California
gray whales, then surely a limited Makah kill will not effect the whale’s survival as a species.
But if the relevant focus is the number of California grays that visit the Strait of Juan deFuca, then even a limited kill might affect the likelihood a paying consumer on a whale
watching vessel spots a cetacean.

3 Robert J. Miller, Exercising Cultural Self-Determination: The Makah Indian Tribes Goes Whaling, 25 AM. INDIAN L.
REV. 165, 242-46 (2001) (describing these tensions in Section III(2): “Hunting Cultures or Animal Preservation
Groups - Who Gets to Decide?”).

47

The modern history of Makah whaling began in 1995 when the tribe turned to the
U.S. government to petition the IWC to obtain an aboriginal subsistence quota.4 In Metcalf v.
Daley, the court agreed with conservation groups that the NOAA failed to take a “hard look”
at the environmental impact of whaling in the area. In 2004, the court in Anderson v. Evansfurther required that the NOAA must submit an environmental impact statement incompliance with the Marine Mammal Protection Act (MMPA). Worse for the Makah, theAnderson court appended the “Fryberg Test,” which subjects Indian treaties to conservation
statutes. Included in the court’s analysis was the difficult question of how the IWC’s
subsistence test could be applied to a community that had deliberately not whaled since1915.5 There is an obvious paradox in arguing that a certain hunt is necessary when you
have foregone it for decades.
However, one way to square this tension is by re-framing the whale hunt as
necessary to the symbolic structures of the Makah community, if not its literal economic/caloric
survival. In Law as Culture, the Princeton academic Lawrence Rosen criticizes the“functionalist theory” testimony of anthropologist John Hostetler in Wisconsin v. Yoder (1972)
as per whether the Amish could “survive” if Amish adolescents were required to attend
public high school. In that case, the Supreme Court’s majority opinion tracked the “uncontradicted” and “unchallenged” testimony of Hostetler, and his theorizing that the Amishcommunity would simply cease to exist if Amish youth were exposed to the value systems of
the American high school. In dissent, Justice Douglas cited to Hostetler’s own statistics ofcommunities who did lose more than half their members, yet obviously survived. Lawrence
Rosen expands on this point by noting that if the anthropological frame was not a “highly
4 Metcalf v. Daley, 214 F.3d 1135, 1139 (9th Cir. 2000).

5 Emily Brand, The Struggle to Exercise a Treaty Right: An Analysis of the Makah Tribe’s Path to Whale, 32-SPG
ENVIRONS ENVTL. L. & POL'Y J. 287, 297-303 (2009). See also Russell C. D’Costa, Reparations as a Basis for the
Makah’s Right to Whale, 12 ANIMAL L. 71, 79 (2005).

48

questionable functionalist theory” but instead “a theory based on culture as a set ofcontested symbols” that the expert testimony would have looked quite different.6 Rosen’s“thick” view of law as culture echoes the work of Clifford Geertz, who wrote perhaps themost important narrative paper on animals and ritual of the twentieth century, on themetaphysical violence of the Balinese cockfight in “Deep Play” (1973).7
The symbolic importance of whaling to the Makah is manifested in its community
members’ attempts to whale despite its illegality. In 2007, “out of frustration over the lengthy[litigation] process and virtual abrogation of the Tribe's treaty right, five members of the
Makah nation whaled in protest.”8 The modest coterie headed to sea with whaling
equipment, firearms and two small boats. They did succeed in shooting a whale at least
sixteen times,9 but the Coast Guard interrupted their hunt before they were able to complete
the kill. The whale died shortly after and sank to the bottom of the Strait of Juan de Fuca.
These five men in U.S. v. Gonzales were charged with conspiracy to take a whale inviolation of the Marine Mammal Protection Act (MMPA). This trial put the tribal council in
the awkward position of having to empathize with the legitimate grievances of theircommunity members while not jeopardizing the ongoing administrative process.10 The
council issued a formal statement denouncing this illegal action and distinguishing it fromlaw-abiding whaling. Also present here were elder concerns that the five hunters did not go
through the ritual discipline and preparation of the traditional hunt.11
Still, this cultural element seems to cut both ways in this example. The group was
expected to take a plea bargain to have the charge reduced to misdemeanor violation of the
6 LAWRENCE ROSEN, LAW AS CULTURE: AN INVITATION 120-21 (2006).

7 See CLIFFORD GEERTZ, THE INTERPRETATION OF CULTURES 412- 454 (1973).
8 Brand, supra note 5, at 306.

9 Carol B. Koppelman, Anderson v. Evans: The Ninth Circuit Harmonizes Treaty Rights and the Marine Mammal
Protection Act, 16 HASTINGS W.-N.W. J. ENVTL. L. & POL'Y 382 (2010).
10 Brand, supra note 5, at 306 (2009).
11 Id.

49

MMPA and two years probation, but turned down the offer “because the government had
the option of preventing them from whaling while they were on probation.”12 Defendant
Wayne Johnson described this qualification as “a deal-killer.”13 This same stubborn
persistence is an index of whaling’s elemental value to the Makah community, even if not all
members have fully internalized the ritual aspects of the hunt.
My descriptive claim here that whales are not a “meat animal” thus requires some
implication. The Ninth Circuit and the NOAA have each agreed that the Makah have aright to eat whale meat. But it has also been decades since this litigation began, and the
Makah can still not lawfully take a whale for the community’s private consumption. Gray
whales are simply illegal to possess. The deliberate pace of courts on this issue reflects its
situatedness within layered legal milieu. The U.S. is a member of the IWC and theConvention on International Trade in Endangered Species of Wild Fauna and Flora (theCITES, which restricts all cetaceans from international trade).14 The MMPA of course also
applies here.15 There is thus a maze of litigation moves to make and withstand for the
Makah.
However, we can also fairly posit that the minority position of the Makah and theconventional intuition of whale as “not meat” play a casual role in this two-decade delay.16
In part this “non-meat” intuition comes from the relative recent status of California gray

12 Federal Plea Deal with Makah Whalers Falls Apart, SEATTLE TIMES, available athttps://turtletalk.wordpress.com/2008/03/25/federal-plea-deal-with-makah-whalers-falls-apart/ (last visited
Apr. 2, 2018).
13 Id.
14 See THE CITES SPECIES – CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES OF WILDFAUNA AND FLORA, https://cites.org/eng/disc/species.php (last visited April 26, 2018).
15 See MARINE MAMMAL COMMISSION – MARINE MAMMAL PROTECTION ACT, https://www.mmc.gov/aboutthe-commission/our-mission/marine-mammal-protection-act/ (last visited April 26, 2018).
16 Cf. Lisa Heinzerling, Hearing on "The Effects of the President's Regulatory Reform and Rollback Efforts on Small
Businesses” (Mar. 7, 2018),
http://progressivereform.org/articles/Heinzerling_Testimony_House_SmBiz_030718.pdf (implying
problematic delay techniques of Trump administrative).

50

whales as endangered. Per the preamble to the MMPA, its October 1972 enactment was inresponse to concerns “that certain species and populations of marine mammals were indanger of extinction or depletion as a result of human activities.”17 I understand why there ishesitance or fear that re-opening the whale hunt for the Makah could be a slippery slope tocommercial whaling.18 But consider the counter-factual of a hypothetical pandemic disease
that nearly wipes out our domestic pig species.19 It seems highly unlikely that if aconventional meat animal like the pig was temporarily endangered, and then returned tocarrying stock levels, that we would bother to wait another 20+ years to make them lawful topossess and eat. Another relevant data point here is the plight of the Bluefin Tuna, which isthought to be at only 3% of its carrying stock20 and is already determined by nongovernmental organizations like the World Wildlife Fund to be endangered. But yet the
Trump Administration – like each previous U.S. presidency – refuses to list Bluefin as anendangered species under the ESA.21 This reflects the Veblen good status of Bluefin Tuna(or “o-toro” on sushi menus) as a prized food, associated with the most chic, gourmet andexclusive restaurants of Tokyo, San Francisco and New York City. Simply referring to“culture” as the independent variable here that distinguishes a hypothetical pig pandemic orcurrent Bluefin Tuna threat from whale meat doesn’t do much explanatory work. Still, I
think that it is our own (hegemonic/group) biases and preferences that maintain thisincoherent standard of whale v. tuna.
17 MARINE MAMMAL COMMISSION – MARINE MAMMAL PROTECTION ACT, https://www.mmc.gov/about-the-commission/our-mission/marine-mammal-protection-act/ (last visited April 26, 2018).
18 Miller, supra note 3, at 168.
19 Cf. Emily Porter, Swine flu doesn’t just pass from pigs to people – it goes both ways, THE CONVERSATION (Sept. 7,2016), http://theconversation.com/swine-flu-doesnt-just-pass-from-pigs-to-people-it-goes-both-ways-63958.
20 Alastair Bland, Should Pacific Bluefin Tuna Be Listed As An Endangered Species?, NPR (June 29, 2016),
https://www.npr.org/sections/thesalt/2016/06/29/483835875/should-pacific-bluefin-tuna-be-listed-as-anendangered-species.
21 Paul Rogers, Tuna won’t be listed as endangered, Trump administration says, THE MERCURY NEWS,https://www.mercurynews.com/2017/08/07/trump-administration-refuses-to-list-pacific-bluefin-tuna-asendangered-disappointing-environmentalists/ (Aug. 7, 2017).

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The saga of the Makah and the gray whale is illustrative of the tensions andparadoxes embedded in our food law. American courts employ a functional approach todefining food. See, e.g., Nutrilab, Inc. v. Schweiker (1983).22 But implicit to "common sense"
notions of food are assumptions of what kinds of animals may be eaten. To the extent that
American courts represent hegemonic views of “what white people eat,” traditional meats ofmarginalized (or perhaps simply forgotten) communities are made subaltern within the law.
For example, in People v. Voelker (1997), defendant was convicted under the New York state
animal cruelty statute for cutting off the heads of three live iguanas while preparing them as
food. Obviously this a very raw and inhumane way to slaughter an animal, but we mightalso ask if there would be a criminal trial at all if someone disposed of a fish or poultry insimilar fashion. In that case the court was informed by “the moral standards of thecommunity.”23 This reference begs the question of which community. An intuition that
iguana (a not uncommon meat in Central America) is not an American food animal likely
influenced the posture of this case.24
Whales are of course a more challenging ethical problem than iguanas or tuna.
Whales are a particularly evolved form of marine mammal life. Whales have large limbic
systems, which are thought to be the part of the brain that informs our capacity for forming
emotions and managing memories. Whales also possess “spindle neurons” associated withthe ability to “recognize, remember, reason, communicate, perceive, adapt to change,
problem solve and understand,” or capacities typified as “uniquely” human.25 Indeed,cetaceans (whales, dolphins, porpoises) are now understood to use advanced form of
22 Nutrilab, Inc. v. Schweiker, 713 F.2d 335 (1983).

23 People v. Voelker, 658 N.Y.S.2d 180, 183 (1997).

24 Andrew Jensen Kerr, Pedagogy in Translation: Teaching Animal Law in China, 1 ASIAN J. LEGAL EDUC. 33, 38(2014).
25 Madison Montgomery, Still Think Humans Are the Most Intelligent Animals? Here’s Why Whales and Dolphins Have
Us Beat, ONE GREEN PLANET (July 8, 2017), http://www.onegreenplanet.org/animalsandnature/humanintelligence-versus-whales-and-dolphins/.

52

communication. But – in part because of their enormous size and expansive, marine habitat– whales not very amenable to human study. Their size and range make the practice ofcognitive ethology difficult. Still, there is evidence that the songs of humpback whales aretransmitted culturally. Whales have a way of life, just like us.
Marine mammals are also very alien to us: they swim, live mostly underwater andhave bodies and likely forms of intelligence much different from our own. That they happen
to be mammals perhaps makes them more foreign – how can a similar animal seems so
profoundly different? This same intellectual posture informed philosopher Thomas Nagel’s
important 1974 essay, “What is it like to be a bat?”26 The experience of being such a
qualitatively different, yet advanced, form of animal life seems beyond the ken of the humanmind. Does this same alien quality make it okay for us to eat them?
Eminent jurist Richard Posner holds that we treat animals nicely if we find themadorable.27 Kant and Bentham don't inform our food choices - our hard-wired humanbiases do. This does potentially explain why most Americans eat the gregarious, intelligent
pig, but not the similarly evolved dog. Still, this test of cuteness is decidedly subjective. I
agree with the literature on “food as culture” from the kin field of anthropology.28 Shared
traditions and mores inform how we think about animals, and notions of meat animals
become naturalized over time, despite hierarchies in sentience or intelligence among theanimals we choose to eat or not. It is difficult to draw an ethically coherent line to separate
whales from other evolved food (“meat”) mammals, or other intelligent food animals likeoctopi or bees.

26 Thomas Nagel, What is it like to be a bat?, 83 THE PHILOSOPHICAL REVIEW 435 (1974).

27 Richard Posner, Animal Rights: Legal, Philosophical, and Pragmatic Perspectives, in ANIMAL RIGHTS: CURRENT
DEBATES AND NEW DIRECTIONS 51, 62-63 (Cass R. Sunstein & Martha C. Nussbaum eds., 2004).
28 See, e.g., Marie Boyd, Cricket Soup: A Critical Examination of the Regulation of Insects as Food, 36 YALE L. & POL’Y
REV. 17, 75-80 (2008) (exploring the notion of “food law as culture”).

53However, I point out here that the limits of Posner’s adorability thesis. The Yulin
Dog Meat Festival in Guangxi Province, China is one very public example of dog eating(though it is also a marginal and very contested event within China). It might be surprising
to learn that dog meat consumption is also potentially lawful in 43 U.S. states.29 The same istrue of other common companion animals like the horse (a food animal in neighboring
Quebec). However, although neither dog nor horse meat is illegal under federal law, it iseffectively removed from the market because American slaughterhouses may not butcher
either animal. Indeed, the ban on horse slaughterhouses received a last-minute extension in
March 2018.30 This means that dog or horsemeat cannot be commoditized or sold as a meat
within the United States; however, it could theoretically be “gifted” locally. It exists outsideof the market. Or in the lexicon of property theorist Margaret Radin, it is not alienable.31
Professor Radin’s scholarship on the association of personhood to property, andhow we think of bodily goods (sex work, surrogacy) as alienable, is a useful heuristic formapping out meat and non-meat animals in American law. Radin argues that certain items
should remain outside of the market (e.g. babies/adoption) because of deontological notionsof “the good” or self-actualization. Similar, dogs and horses are formative to many
Americans’ notions of self, and helped forge our (contested) identity as a settler nation.
Dogs and horses are our friends, and inherent to notions of friendship is special treatment. I
contend here that their placement in this diverse space of “non-commodity” is justified by
the unique value of horses and dogs to American life, but that the same ambiguous terrain of

29 E.g., Mike Clark, It’s Still Legal To Eat Dogs In The United States–And Yes, It Happens, DOGTIME.COM (lastvisited Apr. 26, 2018), http://dogtime.com/advocacy/49933-still-legal-eat-dogs-united-states-yes-happens.
30 Erin Kelly, Ban on slaughtering horses for meat gets last-minute renewal in spending law Trump signed, USA TODAY (Mar.
26, 2018), https://www.usatoday.com/story/news/politics/2018/03/26/ban-slaughtering-horses-meat-getslast-minute-renewal-spending-law-trump-signed/459076002/.
31 See generally Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienablity: One View of
the Cathedral, 85 HARV. L. REV. 1089 (1972).

54this space allows The Law to defer from forming a wholly coherent mapping of meat v. nonmeat animals.
I make several novel points in this paper. First, I draw on the Makah whaling
example to limn how the First Amendment might give limited weight to secular ritual. For
an arguably non-theistic group like the Makah, whaling has similar spiritual import to kosheror halal slaughter, or pursuing animal sacrifice a la the Santeria rituals of Church of the Lukumi
Babalu Aye. I build on the recent theorizing of legal philosopher Brian Leiter, and make softcomparisons to possible secular rituals for other diasporas, such as eating foie gras for the
French-American or shark fin for the Chinese-American.
I make the alternative argument that secular ritual is an index of “property essential
to personhood” in the Radin schema, and that evidence of secular ritual can instruct if we
privilege certain goods because they inform our sense of identity. Radin points to more
overt ways that the law already protects these items (such as the home), e.g. tenant rights
against an impatient or predatory landlord. I suggest here that this notion of secular ritualalready functions in our law in less obvious ways, e.g. the insulation of violence in sport, andspecial exceptions for “national pastimes” like baseball. Indeed, this paper is likely only
concretizing shared intuitions that already guide legislatures when deciding which kinds ofsecular traditions should be insulated from legal regulation. The contribution of this paper isthat it moors this rough political calculus to an articulable jurisprudence, and at the sametime thinks about how species intelligence and sentience can be thoughtfully balanced with
culture and ethical farming or hunting. My paper could be critiqued as a compromise
position, but it is one that provides a reasoned basis for weighing the interests of animal
rights-based activists, conservationists, animal welfarists, omnivores and ritual eaters.

55

Interestingly, this cultural mapping of meat v. non-meat animal has been reified by
the potentially problematic California penal statute § 598b, which crystalizes certain animals
as either companion or meat. I hope that my analysis in this paper exposes the “legitimation
costs”32 of distinguishing a select group of animals as non-meat and how this validates thebrutality of industrial agriculture. The paired corollary of my argument is that we should betreating our food pigs and other evolved meat animals more kindly.
I write from an animal welfarist position, and so here I’m a bit uncomfortable withmy contention that the Makah whale hunt ritual deserves reconsideration. I offer acorrective hedge based on my theorizing on secular ritual and identity: if a community argues
that eating a contested agricultural animal is formative to its collective identity, this same
metaphysical approach to food and ritual should take the meat from outside the purelytransactional domain of the market, and place it into a revised property model based instewardship and care. Individual states also enjoy broad authority to use their police powers(Jones v. City of Opelika) to draw valid, neutral laws (Oregon v. Smith) to limit ritual killing ofanimals. I expect that the material consequence of my decommodification thesis is that wewill have fewer sorts of meat animals sold in the market, and that far fewer individual
animals will be consumed.
Conventional deontological and utilitarian arguments for animal rights break downwhen applied to these sorts of ethereal cases involving human tradition.33 I instead argue
that a conception of welfarism informed by notions of ritual eating can reduce aggregate
meat consumption while maintaining important – if ineffable – aspects of the humanexperience. Soylent creator Robert Rhinehart seems right when he argues that most of our
32 Cf. Robin West, From Choice to Reproductive Justice: De-Constitutionalizing Abortion Rights, 118 YALE L.J. 1394,
1406-12 (2009).
33 Cf. Luis E. Chiesa, Animal Rights Unraveled: Why Abolitionism Collapses into Welfarism and What it Means for
Animal Ethics, 28 Georgetown Envt’l L. Rev. 557 (2016).

56

meals are forgettable34, and for those an open-sourced genetically engineered aminocomplete protein drink (or clean meat, or plant-based meat) should work just as well as
foods found in nature. But perhaps for the special meal there should still be protections tolawfully eat certain traditional – even if contested – American meats.

Food as Ritual
Food is a particularly useful vehicle to think through notions of ritual in society.
Casual viewers of Downton Abbey might guess that Anglo-American rules of etiquettedeveloped in pair with the rigorous procedures of the manorial dining hall. Readers of
mythology remember the story of Prometheus and fire, and how the very fact of cooking theflesh we eat is what first separated humans from other animal life. Michael Pollan’s Netflix
series Cooked emphasizes the evolutionary aspects of our current food practices. There is aprimordial aspect of food that we carry with us today, and perhaps all human culturespossess traditions of both feasting and abstinence, and eating certain prized foods tocelebrate important rites. Tasting food and consuming its nutrients is a paradigmaticallyindividual process, but the social fact of preparation, dining, sharing food, conversing aboutfood etc. makes food a uniquely shared experience. The communal performance of foodpreparation and eating makes it a ritual exercise.
The notion of “secular ritual” has a contested provenance. In the edited anthology
Secular Ritual (1977), lawyer-anthropologist Sally Falk Moore brings together academic
commentators to debate the usefulness and applicability of this heuristic to describe non-

34 Dan Stone, The End of Food?, NATIONAL GEOGRAPHIC – ONWARD (May 20, 2014) (“For all the initial

discomfort about drinking your dinner, there’s veracity to founder Rob Rhinehart’s claim that as much as we all
enjoy food, not every meal is unique or even memorable. A product like Soylent isn’t coming after fun dinners
and potlucks with friends, it’s trying to replace forgettable meals like frozen, unhealthy food eaten forconvenience, often alone. “)57religious experience.35 In the chapter, “Against ‘Ritual’: Loosely Structured Thoughts on a
Loosely Defined Topic,” Jack Goody derides the concept of “secular ritual” as both an
example of hyper-categorization and lack of categorization, and being over-inclusive as towhat is ritual. I agree that the modifier “religious” in “religious ritual” does important workin delimiting this category. To refer back to Robert Rhinehart and his Soylent, there might
be just as much repetitive procedure in opening and downing a bottle of Soylent Cacao as
there is in roasting a Thanksgiving turkey, though even Rhinehart would agree that removing
the bottle cap from the Cacao hardly makes for an actualizing experience.

Re-conceptualizing Secular Ritual
Still, I posit that there might still be some forms of secular ritual that merit special
tolerance, especially for individuals or communities that don’t have other opportunities topractice theistic or institutional forms of spiritual practice. In his pithy Why Tolerate Religion?,
legal philosopher Brian Leiter asks if there are principled reasons to tolerate (or put up withsomething that we don’t like) religious practices but not analogous secular practices. For
example, at page 96, Leiter asks “why not give the vegan prisoner, with bona fide
involvements in the animal liberation ‘movement,’ legal standing to claim exemption fromdietary and/or prison work regimens that would violate her conscientious objection to the
exploitation of nonhuman animals?”36 The core of our anti-discrimination norm is that wetreat like cases in like ways. The strength of obligation of the secular vegan seems
comparable to a prisoner who wants to keep kosher (though in fifteen states the prison

35 SALLY FALK MOORE & BARBARA MEYERHOFF, SECULAR RITUAL (1977).
36 BRIAN LEITER, WHY TOLERATE RELIGION? 96 (2012).

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systems don’t provide a full kosher diet37) or has other religious dietary obligations. Leiterseems right to question what makes the distinguishing traits of religion (categoricity of its
commands, insulation from evidence, existential consolation) so important or useful that thelaw should uniquely insulate religious practices from scrutiny.38
The question for the Supreme Court in Church of the Lukumi Babalu Aye was whether
the local Hialeah, Florida statute criminalizing animal sacrifice unfairly targeted Santeria
religious practice.39 Santeria is a syncretic religion of Roman Catholicism and West African
Yoruba. Orishas, a sort of life force or spiritual manifestation of the supreme Yoruba
divinity, are thought to subsist off the blood of the relevant animal sacrifice.40 The relative
obscurity of this practice certainly motivated the Hialeah’s city council choice to target it.41
But Santeria still seems to possess a binomial worldview of the secular and sacred, where wecan separate religious rituals from the quotidian events of daily life. The thought experimentthat first inspired this paper is this wrinkle to the Church of the Lukumi Babalu Aye fact pattern:what if the relevant group was not Santeria practitioners, but a group of Cuban émigrés who
killed these animals in similar ways for non-religious reasons?
Black-letter constitutional law provides no support for the secular group that feels
obligated to do something not permitted by the law. Indeed, the fact Christmas has become
secularized with popular images of Santa Claus and Black Friday shopping sprees is the very
reason that public observance of Christmas does not violate the Establishment Clause. Even
more curious here is that some states justify closing public schools on Good Friday because

37 Lizette Alvarez, You Don’t Have to Be Jewish to Love a Kosher Prison Meal, THE NEW YORK TIMES (Jan. 20, 2014),

https://www.nytimes.com/2014/01/21/us/you-dont-have-to-be-jewish-to-love-a-kosher-prison-meal.html.
38 LEITER, supra note 36, at 52 (2012).
39 Church of the Lukumi Babalu Aye v. Hialeah, 508 U.S. 520 (1993).
40 Id. at 524.
41 Id. at 534.

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of its secularity.42 Brian Leiter writes without hesitation that the rural youth who comesfrom a family tradition of wearing a knife “is out of luck” if he wants to bring it to school,
whereas judges might allow the Sikh youth to wear a kirpan (dagger) on campus.43
In part the reason for this secular/religion distinction is pragmatic. First, as noted byscholars like Jack Goody, it is difficult to place limits on the boundaries of secular ritual.
Second, there is the evidentiary problem of discerning the sincerity of belief of the secularconscience (Leiter). For the Sikh student we need to only ask the conditional question ofwhether an individual is or is not Sikh. If yes, then we can end our judicial inquiry, as we canmake the working assumption that a religious person agrees with most all tenants of theirfaith. However, for the secular student, we have to make the additional inquiry of whether
the knife-wearing obligation is sincere or instead pretextual or contrived. This gets to theepistemological problem of mind-reading, something beyond judicial ken. Perhaps a similar
logic motivates why courts protect religious belief, but not necessarily religious action.44
Despite our increasingly Big Brother society we could not police thoughts even if we wanted
to.
Anyway, this detour exposes some of the important practical considerations about
opening up secular ritual to legal protection. But I am not convinced that the supposed
black-letter secular/religious distinction is consistent with the underlying principles of
constitutional law. The First Amendment is now understood to put theism and atheism onan equal plane, and protect the rights of non-believers. For example, in footnote 11 ofTorcaso v. Watkins, Justice Black suggests that “ethical culture” and “secular humanism” areSupreme Court rejects challenge to Good Friday holiday, ASSOCIATED PRESS (Mar. 7, 2000),
http://www.nwitimes.com/uncategorized/supreme-court-rejects-challenge-to-good-fridayholiday/article_43c181a7-d5b8-5b3d-8524-1bced6a9ee5d.html. But see Metzl v. Leininger, 57 F.3d 618 (1995).
43 LEITER, supra note 36, at 3 (2012). See also Ban on Sikh kirpan overturned by Supreme Court, CBC (Mar. 2, 2006),
http://www.cbc.ca/news/canada/ban-on-sikh-kirpan-overturned-by-supreme-court-1.618238.
44 Ignatius Michael Ingles, Regulating Religious Robots: Free Exercise and RFRA in the Time of Superintelligent Artificial
Intelligence, 105 GEO. L.J. 507, 513 (2017).
42

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cognizable as religions.45 In U.S. v. Seeger, Justice Clark protected “a given belief that issincere and meaningful [if it] occupies a place in the life of its possessor parallel to that filledby the orthodox belief in God of one who clearly qualifies for the [conscientious objector]
exemption.”46 These data points point to a reframed and expanded notion of how we might
think about belief, obligation and praxis in a modern society. A 1994 Pew Research Survey
confirmed that 22% of Americans self-identify as being atheist, agnostic or having no
particular religion.47
There is of course an important distinction between the freedom of belief and thefreedom to act on that belief.48 This secular humanism thread in Supreme Court precedentgoes to the negative freedom from being compelled to do something. In this paper I am
considering the converse problem – of whether secular ritual justifies the Makah whale hunt.
I make two arguments for why we should consider expanding this positive freedom of
secular ritual: 1) some individuals have less opportunity to “opt out” of religion, and 2) somesecular rituals are sufficiently communitarian, traditional and regimented that we don’t need
to worry about the Jack Goody vagueness problem or the Brian Leiter evidentiary problem.
The Cuba émigrés thought experiment is an insightful one because of the common
secular nature of Communist society. I qualify again this exercise as a construct fortheorizing, and acknowledge the variety and nuance of communist cultures, and also retreat
from making any normative or descriptive claims about animal sacrifice. But perhaps one
working assumption we can make is that individuals from certain countries don’t have thesame ability to “opt out” of an Abrahamic or comparable religious tradition with a
45 Torcaso v. Watkins, 367 U.S. 488, 495 n.11 (1961) (“Among religions in this country which do not teachwhat would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture,
Secular Humanism and others.”)
46 U.S. v. Seeger, 380 U.S. 163, 165 (1965).
47 Religious Landscape Study, PEW RESEARCH CENTER: RELIGION & PUBLIC LIFE (last visited Apr. 27, 2018),
http://www.pewforum.org/religious-landscape-study/.
48 Ingles, supra note 44, at 513.

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religious/secular binary worldview. Cuba is an atheist state. France is the archetypal
secularized European state (Laïcité). China formally recognizes five religions, but most of its
people are irreligious. This might place e.g. the Makah in a different ethical posture frome.g. the White American who made the deliberate decision to quit attending Mass or
Synagogue etc. The younger version of me made the decision to not attend church even if
I’d get to lawfully drink wine underage. Does the Makah youth have the same decisionmaking calculus? Should this matter?
The Makah whaling tradition also possesses the kind of lineage and rigor thatcompares it to an organized religion. In Smith v. Oregon, Justice Scalia’s opinion seemed
motivated by the concern of creating a legal regime “in which each conscience is a law unto
itself,” or where each individual can express an independent morality that allows her to avoid
state punishment or regulation.49 But the community tradition of the Makah whale hunt andthe necessarily group effort involved in taking a behemoth animal like a whale make this asocial ritual.

Makah Whaling as Symbolic Structure
The real debate here is where the Makah whaling tradition fits on a spectrum ofsecularity to religion. James G. Swan (1818-1900) worked on behalf of the Smithsonian as
an Indian artifact collector and wrote the first ethnography of the Makah people. Today hisapparent finding that there was not “an official tribal religion or an outward form of
religion” has been challenged as ethnocentric.50 But it still seems accurate that Makah
express spirituality and find existential solace (Leiter) in ways fundamentally different than

49 Oregon v. Smith, 494 U.S. 872, 890 (1990).
50 Miller, supra note 3, at 174.

62

binary secular/religious communities. Instead whaling is embedded into Makah culture andfunctions as a kind of totem that connects most all aspects of traditional Makah life.
Perhaps this interconnectedness reflects the language in relevant internationalcovenants like the UN Declaration of the Rights of Indigenous Peoples. Its preambulatory
language recognizes the need to protect the inherent rights of indigenous peoples that derive“from their cultures, spiritual traditions, histories and philosophies.”51 The conjunctive useof “and” to combine these seemingly disparate concepts into a unified constellation admits
the integrated worldviews of indigenous communities. It is of course impossible togeneralize across communities, and I myself am not an expert on or personally familiar with
Makah life, but this general integration of culture, economy and spirituality seems to capture
the practice of whaling to the Makah. I below synthesize previous literature on whales andwhaling in the Makah community:

The whale is integral to the symbolic structures of the Makah (Rosen).
Constellations are named after whales.52 Many months and moons are named after whale
events, “including the arrival of the gray whale in their waters.”53 Songs and legends are
devoted to whales and whaling.54 Traditionally the whale hunt was a way that children
learned important hunting and teamwork skills.55 Being a successful whaler “was the highest
social status and prestige a Makah could attain.”56 Whaling was “primarily a chiefly
prerogative and prestige was gained by distributing great quantities of whale meat and oil.”57

51 UNITED NATIONS DECLARATION OF THE RIGHTS OF INDIGENOUS PEOPLES – ANNEX (last visited Apr. 27,2018), http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf.
52 D’Costa, supra note 5, at 78.
53 Miller, supra note 3, at 181.
54 D’Costa, supra note 5, at 78.
55 Id. at 79.
56 Miller, supra note 3, at 175.
57 Id. at 180-81.

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The Makah feasted on whale meat at important ceremonies, holidays and celebrations.58
They “used whale oil like butter or gravy and poured copious amounts of it on all theirfood.”59 Makah art and architecture made use of decorative whalebones.60
Before setting off a whaling trip, “members of the tribe would undergo intense ritual
preparation, including abstaining from contact with family members and sexual
abstinence.”61 Upon harpooning the whale, the Makah “would pray to the whale and singto it, begging its spirit to turn toward the shore.”62 Upon return to the village the felledwhale was treated as a distinguished guest.63

This description of whales and whaling seems to subvert common Westernperceptions of the human-animal relationship. There is an obvious respect for the whale,
but this respect is also manifested in how the Makah kill the whale. In addition, this hunt is
not a vehicle or conduit for some other metaphysical purpose (i.e. to nourish an Orisha), but
is parcel to the sensual experience of eating the whale’s flesh. It is not a representational act,
but it is still one that connects the integrated worldview of the Makah. So should we argue
this a religious or a secular ritual?

Litigating Tradition
For the purposes of this paper I assume that this hunt is conceptualized as a secularact, and now compare it to other arguable secular rituals. In his 2017 article, “Food,
Animals, and the Constitution: California Bans on Pork, Foie Gras, Shark Fins, and Eggs,”
58 Id. at 181.
59 Id.

60 Id. at 181-82.

61 D’Costa, supra note 5, at 78.
62 Miller, supra note 3, at 186.
63 Id.

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Professor Ernesto Hernández-López explores the relationship of culture to foods and foodproduction processes that have been proscribed in California.64 I analyze the foie gras sales
ban and shark fin possession ban specifically.
In 2012, the California ban on the sale of foie gras, or liver from force-fed ducks,
went into effect.65 Professor Hernández-López elegantly explains the relevant dormant
commerce clause and federal preemption challenges, and makes the intriguing point that in
Association des Éleveurs de Canards et D’Oies du Québec v. Harris (2013) the Ninth Circuit’s
characterization of foie gras as a “niche” product helped California avoid a Commerce
Clause conflict.66 Other national courts have equated the gastronomic use of foie gras as amere delicacy and unlike other foods we eat for nutrition or sustenance. In the Israeli
Supreme Court Foie Gras case the court described foie as a “luxury” item as it concomitantly
phased out the local production of foie gras.67 However, I have asked previously whether“there is a corollary argument that only via these more sublime culinary experiences that we
as humans can tap into the apotheosis of e.g. Maslow's peak experience?”68 Food sociologist
Michaela DeSoucey describes how eating foie actualizes the individual French person’s senseof national identity.69 Is sustenance the only purpose of eating food? Is it the highest
purpose? Another thought: does foie’s non-alienable status as only lawful for personal use
and giftable best reflect this existential nature of foie gras?

64 Ernesto Hernández-López, Food, Animals, and the Constitution: California Bans on Pork, Foie Gras, Shark Fins, andEggs, 7 UC IRVINE L. REV. 347 (2017).
65 Lawrence Hurley, Supreme Court leaves California foie gras ban intact, REUTERS (Oct. 14, 2014),
https://www.reuters.com/article/us-usa-court-food/supreme-court-leaves-california-foie-gras-ban-intactidUSKCN0I31NH20141014.
66 Hernández-López, supra note 64, at 370.
67 See Noah v. Att'y Gen., HCJ 9232/01 (Isr. 2003), http://perma.cc/CK9W-QPAB (last visited Apr. 27, 2018).
68 Andrew Jensen Kerr & Yu Dan, Tradition as Precedent: Articulating Animal Law Reform in China, 11 J. ANIMAL &NAT. RESOURCE L. 71, 84 (2015).
69 Michaela DeSoucey, Gastronationalism: Food Traditions and Authenticity Politics in the European Union, 75 AM. SOC.
REV. 432, 446 (2010).

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Still, an important rejoinder is that foie gras is capable of being produced without
cruelty. Eduardo Sousa and Diego Labourdette have gained deserved attention for the“ethical foie gras” they produce at their Spanish farm, in which the geese “fatten themselves
up naturally — doubling their body weight in just a few weeks to prepare for their annual
migration.”70 Sousa and Labordette allow the geese to wander and forage so they sense theirnatural migration instincts. The geese are then slaughtered while their livers are enlarged. If
the hypothetical French-American claims that foie consumption is a secular ritual, then thissame metaphysical approach should take the meat from outside the purely transactional
domain of the market, and place it into a revised property model based in stewardship andcare. If the duck is truly valued as something beyond nutritive, then there should be acorollary ethic of reciprocity and respect for the duck. This echoes the “cosmic holism” ofmoral philosopher Gary Steiner.71
In California, as in ten other U.S. states72, it is illegal to possess shark fin.73 Most
shark species are considered “vulnerable,” in large part because of how sharks are hunted fortheir fins. Because the fin is the most valuable part of the shark for fishermen, and fishingboats have space and weight limitations, fishermen often keep the fin and throw the rest of
the shark carcass overboard.74 This is a cruel death for the shark, a species that does “notreproduce frequently, mature[s] slowly, and ha[s] few pups when they do give birth.”75

70 Lauren Frayer, This Spanish Farm Makes Foie Gras Without Force-Feeding, NPR (Aug. 1, 2016),
https://www.npr.org/sections/thesalt/2016/08/01/487088946/this-spanish-farm-makes-foie-gras-withoutforce-feeding.
71 See, e.g., Gary Steiner, Cosmic Holism and Obligations Toward Animals: A Challenge to Classical Liberalism, 2 J.
ANIMAL L. & ETHICS 1 (2007).
72 Max Bonem, Everything You Need to Know About Eating Shark in the U.S., FOOD & WINE (July 27, 2017),
http://www.foodandwine.com/seafood/fish/everything-to-know-about-eating-shark-us.
73 Hernández-López, supra note 64, at 352 (citing CAL. FISH & GAME CODE § 2021(b) (West 2013)).
74 Hernández-López, supra note 64, at 374.
75 Id. at 374-75.

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China’s long history of shark fin soup consumption “dates back to the Ming Dynasty(AD 1368-1644), when it was served in royal ceremonies as something expensive and exotic,
since sharks were difficult to catch.”76 It continues as a popular banquet food throughout
China and Asia, and also among some Chinese-American concentrations in the UnitedStates. The celebratory nature of shark fin soup provides it an arguably secular ritual value
akin to Makah whale consumption. However, an important distinction with foie gras andwhale meat is that shark fin itself is often described as “tasteless”77 (though I have heard it
described as having a delightful texture). The traditional and historically rare nature of thesoup provides the dish its Veblen status as a vehicle to toast to future success.
Again, we adumbrate the difficult question of: what is food? How can we distinguishbetween taste, nutrition and the other sorts of utility we gain from consuming animals?
American courts have struggled with this question, particularly in the context of unpacking
food from food additive in processed foods. In United States v. Forty Barrels and Twenty Kegs ofCoca-Cola (1916), the Supreme Court was presented with the question of whether a Coke isadulterated by the addition of caffeine per 21 U.S.C. § 321 of the Food, Drug, andCosmetics Act.78 We certainly drink Coke for its taste, and hopefully not for its nutrition,
but also surely in part because of its caffeine content. Since this 1916 case courts have largely
avoided this complex question of why we consume food or drink. But it manifests here inthese contested – though cultural – food items like whale meat, foie gras and shark fin. How
can we articulate a legal test that acknowledges the actualizing sense of tradition or ritual we
get from eating certain animal products?

76 Id. at 371-72.

77 Matthew Kassel, Here's What Happens When You Order A $65 Bowl Of Shark Fin Soup, BUSINESS INSIDER (Mar.
19, 2012), http://www.businessinsider.com/new-york-could-ban-shark-fin-trade-2012-3.
78 United States v. Forty Barrels and Twenty Kegs of Coca-Cola, 241 U.S. 265 (1916).

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Another important distinction here is that for both foie gras and shark fin the
California legislature seems to be targeting a practice (the cruelty of gavage force-feeding, or
finning a shark) rather than a certain animal. Perhaps one could make the same argumentthat because of the enormous size of a whale it is simply impossible to kill one painlessly(this is indeed an argument for banning horse slaughter in the United States).79 Still, shark
fin is distinguished from foie gras in that not only is shark fin not alienable but it is illegal topossess.

Animals as Property
A background point that informs meat consumption in the United States is that, withthe exception of wildlife still in nature, animals are property. There is a rich academic
literature on the merits and problems of this property system for animals generally, but here
I focus on the particular aspects of animals’ status as property that implicate the legalities of
their food status. First, animals – unlike all other forms of property – enjoy some level ofsentience. Because of this, we have institutionalized a criminal law regime that forbids
unnecessary cruelty to companion or wild animals (see, e.g., infra note 23 Voelker). The
Animal Welfare Act promoted by the USDA regulates the transport and slaughter of many
farm animals.80 The fundamental sentience of animal life distinguishes Professor David
Favre’s construct of “living property” to explain and argue for “a new status for animals
within the legal system.”81

79 See, e.g., The Facts about Horse Slaughter, THE HUMANE SOCIETY OF THE UNITED STATES (last visited Apr. 30),

http://www.humanesociety.org/issues/horse_slaughter/facts/facts_horse_slaughter.html.
80 Animal Welfare Act, UNITED STATES DEPARTMENT OF AGRICULTURE – NATIONAL AGRICULTURAL LIBRARY(last visited Apr. 30, 2018), https://www.nal.usda.gov/awic/animal-welfare-act.
81 See generally David Favre, Living Property: A New Status for Animals Within the Legal System, 93 MARQ. L. REV.
1021 (2010).

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Because animals are a unique and especially actualizing form of human property, we
can frame this discussion of meat, animals and tradition within the intellectual framework ofproperty theorist Margaret Radin. In her masterful “Property and Personhood” (1982),
Professor Radin argues for an intuitive view of property informed by a shared sense of how
property is inherent to our construction of human identity.82 Radin builds on the noncommodity examples of our blood (when inside of us) or organs, to then argue that we feelsimilarly possessive about the property of our skin or “shirt on our back.”83 She offers anuanced, welcome view of how we can avoid the problem of object fetishizing, while still
being able to celebrate things that exist outside of our bodily person yet inform our identity.
Radin explores the notion of the home, in particular, as an illustrative example of how thelaw might already implicitly recognize this relationship of property to personhood. We don’tallow the predatory landlord to immediately seize someone’s apartment if they are a day latewith the rent. Similar, we have the federal Animal Welfare Act and state animal cruelty
statutes that regulate how we interact with our animals. Living things surely inform ouridentities, see, e.g., the millions of Americans who present themselves as “dog people” or “catpeople” to the world.
In her 1987 article, “Market-Inalienability,” Professor Radin outlines some of theinconsistencies in the category of market-inalienable goods, and argues for a humanflourishing lens to better explain why certain things should or should not be saleable.84 Her
central descriptive claim is “that market-inalienability is grounded in noncommodification ofthings important to personhood.”85 Still, there is an important slippage here between her
examples of babies or sex and my core examples of horses, dogs and whales. We always like
82 Margaret Radin, Property and Personhood, 34 STAN. L. REV. 957 (1982).
83 Id. at 966.
84 Id.

85 Radin, supra note 82, at 1904.

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babies; we usually like sex. But here I am not just writing about whales in living form, but asmeat. The Radin articulation is not simply: because I like whales (and babies and sex), that(living) whales should be giftable, but not saleable. Instead the articulation is: because whale
meat is core to my identity, I should be able to possess it or gift it, but not debase the purityof whale meat by selling it as a commodity in the marketplace.
I agree this important distinction makes animal meat not purely analogous tobaby/child adoption or sex work. But I still think that the general heuristic of saleability/
giftability/ illegal to possess is a useful one for mapping out how the law distinguishes meatfrom non-meat animals. Below is a schema of the lawfulness of meats of certain animals
native to the United States and adjacent waters or already ubiquitous in Americanhouseholds:

Alienable

Not alienable Illegal to possess

Threatened/ Recently Endangered Shark

Shark fin*Gray Whale

Human Companion

RabbitHorse

Guinea Pig

Guinea Pig* (?)* = in California

I first comment on the idiosyncratic position of shark and shark fin. An interestingtension is that I can eat shark meat in California, but yet I cannot possess its removed fin.
Shark meat is offered at a limited number of California restaurants86, and it is certainly legal

86 MARKET BOILER RESTAURANTS – MARKET BOILER MENU (last visited Apr. 30, 2018),
https://www.marketbroiler.com/menu.

70to fish for it, filet it and grill it on your own.87 This strange posture (you can possess a shark
as meat, and you can do what you want with it, so long as you don’t chop off the fin andmake a soup) colored the litigation context of Chinatown Neighborhood Ass’n v. Harris88 and thenegative reaction that the shark fin legislation was “racist, targeting Chinese cuisine andculture.”89 Why can some people go deep-sea fishing and eat a shark steak for the thrill andconquest, but others can’t eat a food with a millennium-long tradition of celebration andgoodwill? The distinction is striking. But the distinction is justified in part because secularritual lacks legal traction in American constitutional culture.

Rights to Rites
Or does it? I argue in this paper that The Law already does make carve-outs for corerituals and traditions to American identity. In Federal Baseball Club of Baltimore (1922), JusticeHolmes contrived a not very convincing argument as to why the travel of baseball teams is
only “incidental” to the business of a national baseball league, thus exempting the National
League of Professional Baseball Clubs from the Sherman Antitrust Act.90 The Supreme
Court affirmed the special status of baseball in Toolson v. New York Yankees in 1953.91 In
Justice Burton’s dissenting opinion he expressly speculated that the underlying rationale forthe short per curium decision was “the high place [baseball] enjoys in the hearts of ourpeople.”92 Baseball is special for many Americans; its ritual nature is underlined by our useof the word “pastime.” We also insulate the institutionalized violence of sports like
American Football, boxing, mixed martial arts or ice hockey. Sports crimes are rarely
87 See, e.g., CALIFORNIA SHARK FISHING (last visited Apr. 30, 2018), https://californiasharkfishing.com/.
88 Chinatown Neighborhood Ass’n v. Harris, 794 F.3d 1136 (9th Cir. 2015).
89 Hernández-López, supra note 64, at 372.

90 Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs, 42 S.Ct. 465 (1922).
91 Toolson v. New York Yankees, 74 S.Ct. 78 (1953).
92 Id. at 82-83 (1953) (Burton, J., dissenting).

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investigated by police. For example, despite violent stickwork in ice hockey that has caused
serious and permanent injury, “to this day, no player in the NHL or its minor league
affiliates has been sent to jail for conduct in an athletic event that occurred on U.S. soil.”93
Sporting events are formative secular rituals in modern America, and because of this we
immunize and ignore malicious injuries and concussions, etc.
My secular ritual thesis echoes the theorizing of constitutional law scholar Philip
Bobbitt. In Constitutional Fate, Bobbitt outlines his typology of constitutional reasoning in
the Supreme Court.94 Of particular note for this paper is the Bobbitt modality of “ethicalreasoning,” in which the Court bases its holding not on text, precedent or constitutional
structure, but instead on our American ethos of democratic government and national identity.
For example, Bobbitt cites to the famous Dr. Kenneth and Mamie Clark “doll experiment”
cited at footnote 11 of Brown v. Board of Education as “an appeal to the American ethos: notnecessarily what we are, but perhaps what we think we are, and thus how we think about
ourselves and our society; that is, what we would like to be, or in some cases what we know
we are and what we are no longer willing to abide.”95 There is an aspirational value to thelaw that reflects our self-perception as Americans, and the law as written text – in its ambition
for generality and intelligibility – can also be too rigid and unaware of manifest truths that
underlie the American experience. The 14th Amendment might not provide clear andconsistent textual support for Brown v. Board of Education96, but the American soul requires us
to banish the kind of odious segregation that existed in the time of Plessy, Jim Crow and theearly Civil Rights Era.

93 Sports Violence, USLEGAL.COM (last visited May 1, 2018), https://sportslaw.uslegal.com/sports-violence/.
94 PHILIP BOBBIT, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION (1982).

95 Philip Bobbitt, Methods of Constitutional Argument, 23 U. BRIT. COLUM. L. REV. 449, 455 (1989).

96 But see Charles Black, The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421, 421(I960) (arguing the neutralprinciple underlying Brown is awkwardly simple).

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Ethos and Animal Friends
The history of dogs and cats as companion animals in the United States arguably
makes them unique from other evolved food animals. Dogs are working animals; domestic
cats have been bred to provide us individual attention, care and comfort. They are “our bestfriend[s], and inherent to friendship are notions of special treatment.”97 And so we should
not eat them.98 Indeed, U.S. Representative Alcee Hastings is currently sponsoring H.R.
1406, or the “Dog and Cat Meat Trade Prohibition Act of 2017,” which makes it amisdemeanor crime to slaughter any dog or cat, or to “sell” (alienate) or “donate” (gift) the
carcasses of these animals.99 The bill’s added value is that personal slaughter and gifting dog
and cat meat would be criminalized in the many states where it currently occupies a Radin
liminal space as “not alienable, yet legal to possess.”
I agree criminalizing dog and cat meat possession is within the authority of thefederal congress. As an animal welfarist and friend of dogs and cats, this certainly seems likea wonderful, well-intentioned idea. However, an abolitionist response to the animal property
regime might point out a core tension here – how do we promote dog and cat ownership,
yet at the same time surveil what individual owners do with their personal property (i.e. theirpets)? Property regimes create private zones of autonomy that are difficult to police. A
separate issue is the problem of consistency – at what point can we delimit animals as purely
companions, and not as meat as well? Do different sorts of Americans have different sorts
of animal friends? Or different sorts of animal friendships?

97 Kerr & Dan, supra note 68, 82.
98 Id.

99 See, e.g., H.R.1406 - Dog and Cat Meat Trade Prohibition Act of 2017, CONGRESS.GOV (last visited Apr. 30, 2018),
https://www.congress.gov/bill/115th-congress/house-bill/1406.

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Guinea Pigs – Literally and Figuratively
Professor Hernández-López is more concerned with the litigation strategies andoutcomes at the intersection of food production and culture, and so it makes sense that he
excludes California Penal Code § 598b from his analysis. § 598b has not been tested incourt, and has a short paper trail. Indeed, I found it only because of my research on guinea
pig consumption, or for the Andean-American – cuy. Perhaps the guinea pig will be the firsttest case as to the constitutionality of § 598b. I cite to Modern Farmer:
Some restaurants in Los Angeles, California, another pocket of heavy SouthAmerican immigration, are serving cuy as well. Although California Law prevents any
person from selling, buying, giving away, or accepting “any carcass of any animal
traditionally or commonly kept as a pet or companion with the intent of using or having
another person use any part of that carcass for food,” the law seems yet to be tested
when it comes to guinea pig.100
So how would a California judge respond to the case of cuy? This statute isinteresting for several reasons. First, a previous version of it (1989 Cal. Legis. Serv. 490)
targeted only dogs and cats, rather than this broader – seemingly more inclusive language –of “pets.” Second, it includes the modifier “traditionally,” which feels intuitively suspect to acontemporary legal reader and intersects with my previous discussion of secular ritual.
Third, this proscription quoted in Modern Farmer is negated by the broad disclaimer in section(c) of this statute: “This section shall not be construed to interfere with the production,marketing, or disposal of any livestock, poultry, fish, shellfish, or any other agriculturalcommodity produced in this state. Nor shall this section be construed to interfere with thelawful killing of wildlife, or the lawful killing of any other animal under the laws of this state
pertaining to game animals.” This California legislation is problematic in two competing
ways. Section (a) makes it a misdemeanor to “sell,” “give away” (gift) or “possess” the100 Angela Drake, Is America Ready for Farm-to-Table Guinea Pig?, MODERN FARMER (Dec. 8, 2015) (emphases
added), https://modernfarmer.com/2015/12/cuy/.

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carcass of a traditional pet, and thus perhaps subjects the Andean-American to the criminal
law simply for eating cuy. Section (c) reifies California agricultural animals as meat (including
diverse animals such as emu101, ostriches102, rabbits103, bison104) and thus excludes them fromthe compass of animal cruelty statues. It’s a catch-22. Once meat, you’re always meat. If
you’ve never been meat, you can’t become meat.
I am of course mostly happy about this exclusionary function of § 598b (preventing
non-meat animals from becoming meat animals). I also argue we should keep as non-meatin the United States all ESA endangered species as well as non-native CITES-listed species
even into the future if these non-native animals one day return to sustainable population levels,
e.g. tropical birds, “bushmeats” including big cats and other megafauna, sundry reptiles andamphibians I’ve never heard of etc. Indeed, possession of these animal carcasses may becriminalized. These animals are not indigenous to the United States or adjacent waters.
They are also often associated with the transmission of zoonotic diseases and other sorts ofpublic health or animal welfare problems. The federal government should be more
restrictive in limiting the import of these sorts of exotic species. After the traumatic
October 2011 incident in which Terry Thompson “committed suicide by gunshot after
cutting open the cages of fifty-six exotic animals on his farm in Zanesville, Ohio,” the Ohio
legislature passed Ohio Rev. Code Ann. § 935.04 to increase individual responsibility for“dangerous wild animals.”105 Other states should follow this model.

101 See, e.g., Mollie Bloudoff-Indelicato, What Ever Happened to Emu, the Next Red Meat?, NATIONALGEOGRAPHIC: THE PLATE (Dec. 30, 2015), http://theplate.nationalgeographic.com/2015/12/30/what-everhappened-to-emu-the-next-red-meat/ (“Texas has the largest emu population, followed by California andWisconsin.”).
102 E.g., OSTRICHLAND USA (last visited Apr. 30, 2018), https://www.ostrichlandusa.com/.
103 E.g., JONES RABBIT FARM (last visited Apr. 30, 2018), http://jonesrabbitfarm.com/.
104 E.g., STAR B RANCH AND HOP FARM (last visited Apr. 30, 2018),
http://www.starbranchandhopfarm.com/about-us.html.
105 Matt Ampleman & Douglas A. Kysar, Living with Owning, 92 INDIANA L. J. 327, 327, 331 (2016).

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Individual states also enjoy broad authority to use their police powers (Jones v. City of
Opelika) to draw valid, neutral laws (Oregon v. Smith) to limit ritual killing of animals. For
example, in Lawson v. Commonwealth, the Kentucky Supreme Court upheld the snake-handlingstatute that fines worshippers who use snakes in religious gatherings, as the regulation “isnecessary for the safeguarding of the health, good order and comfort of the community.”106
There are likely all sorts of animal rituals performed all over the world that involve animal
consumption, sacrifice or fighting. Courts and legislatures can ban such rituals on U.S. soilfor varied reasons, including animal welfare, species conservation or human health andsafety.
However, the guinea pig is a more challenging example because of its ubiquity in
American homes, pet stores and rescue/adoption centers. The guinea pig seems to meet thetest of § 598b(a) in that it is “traditionally or commonly kept as a pet or companion” in
California. The American Veterinary Medical Association estimated in 2012 that 847,000
U.S. households kept guinea pigs as pets.107 A large percentage of these households are likely
in California. Guinea pigs also have a long history of human domestication. They were first
domesticated around 5000 BCE in the Andean region of South America, and traders
introduced guinea pigs as pets to Europeans in the 16th century.108 Guinea pigs arrived in
the United States in the early 1900s.109 Many Americans first think of guinea pigs ascompanions.
My claim that we should rethink the legal weight of secular ritual is limited to only
those traditions that have been long practiced in the United States. But my alternative
106 Danny Cevallos, Snakes and church vs. state, CNN.COM (May 28, 2014),
https://www.cnn.com/2014/02/26/opinion/cevallos-snake-handling-law/index.html.
107 U.S. Pet Ownership Statistics, AVMA.COM (last visited May 1, 2018),
https://www.avma.org/KB/Resources/Statistics/Pages/Market-research-statistics-US-pet-ownership.aspx.
108 E.g., Guinea pig, WIKIPEDIA (last visited May 1, 2018), https://en.wikipedia.org/wiki/Guinea_pig.
109 E.g., Marylou Zarbock, American Guinea Pig Breed, LAFEBER (Dec. 9, 2017),
https://lafeber.com/mammals/american-guinea-pig-breed/#American_Guinea_Pig_History.

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Radin-inspired test of whether a certain animal is formative to collective personhood seems
relevant to the Andean peoples of South America. In Peru, in particular, “the guinea pig
also has symbolic and social significance above and beyond its nutritional value, especially inrural areas, where it serves to strengthen social and family ties and enhance prestige, andeven offers medicinal qualities, in addition to being kept as a pet.”110 Indeed, Andean
peoples often think of guinea pigs as both family member and food. Traditionally guinea
pigs were raised in the same mud homes of Andean peoples, but as cuy has become a foodie
item for Americans or coastal Peruvians, and become more known as a climate changeconscious form of meat, guinea pigs are now raised in cages as well for market
consumption.111 For Peruvians in coastal cities like Lima, there is less history of guinea pigs
as either meat or pet.112 And, in California, there seem to be no guinea pig farms (thus not
qualifying for the § 598b(c) exception).
So, yes, guinea pigs are adorable, but there are other adorable animals eaten by
California consumers. “Demand for rabbit meat is so high right now that farmers”113 arehaving trouble supplying area restaurants. Befuddled European chefs are said to ask,
“Where's the rabbit?" when entering California kitchens.114 But what happens when a
Peruvian-American chef – or a Peruvian-American home cook – wants to slaughter, eat orgift her own guinea pig? Should she be guilty of a misdemeanor crime per § 598b?

Reimagining Radin
110 Milagros Salazar, PERU: Guinea Pigs Spell Independence for Women, IPS NEWS AGENCY (Oct. 2, 2009),
http://www.ipsnews.net/2009/10/peru-guinea-pigs-spell-independence-for-women/.
111 Arni Fernandez, Raising Cuys (Guinea Pigs) in Cuzco, CUSCO EATS (Aug. 30, 2014),
http://cuzcoeats.com/raising-cuys-guinea-pigs-in-cuzco/.
112 Jane Chambers, Guinea pigs: A popular Peruvian delicacy, BBC NEWS (Feb. 15, 2017),
http://www.bbc.com/news/business-38857881.
113 Michelle Lanz & Jacob Margolis, California farmers struggle to keep up with demand for rabbit meat, SCPR.ORG(June 3, 2013) (referring to demand in 2013).
114 Id.

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The dual status of guinea pig as pet and meat is difficult to unpack and seemingly
irreconcilable. But, as noted by animal rights theorist Gary Francione, this same“schizophrenia” is omnipresent in the complicated relationship of humans to animals. The
orca Keiko, better known as “Willy” from Free Willy, received $20 million of private
donations to be released from captivity.115 But, until quite recently, Americans paid far moremoney to enjoy the same captive orcas at SeaWorld. We cherish dogs, yet we eat pigs. We
keep rabbits as pets, but we also eat rabbits as well. Remember the candid interview fromMichael Moore’s documentary Roger and Me (1989), in which an impoverished Flint resident
selling roadside rabbits asks Moore whether he wants one as a pet or for food.116
I argue that the Radin category of “not alienable, yet legal to possess” is a useful way
to distinguish lawful from unlawful meat consumption, especially where these toughquestions of tradition and habit manifest. I agree with the State of California that there areimportant reasons why don’t want our children seeing guinea pigs on menus, and encourageother states to consider decommodifying the meat of guinea pigs and other common
companion animals. But it also feels wrong to criminalize habitual behavior like eating cuy,
especially if we employ an ethic of husbandry to raise them.117 California § 598b would be
more sensitive to the self-actualizing tradition of cuy husbandry if its language of criminal
possession was deleted, or if individual prosecutors elected to not enforce this language indifficult cases like those of guinea pig consumption. I understand why the State ofCalifornia might fear that the continued “gifting” of cuy could create an exploitable loopholethat mimics a black market for guinea pig meat. My own sense is that the selling price of
115 Sandi Doughton, The $20M lessons of “freeing” Keiko the whale, SEATTLE TIMES (May 13, 2009),
https://www.seattletimes.com/seattle-news/the-20m-lessons-of-freeing-keiko-the-whale/.
116 Frank H. Wu, The Best “Chink” Food: Dog Eating and the Dilemma of Diversity, 2(2) THE GASTRONOMIC
READER 218, 228 (2002).
117 Cf. Christopher Brennan, Police called after man from Ecuador is spotted roasting a guinea pig for breakfast in New Yorkpark, DAILYMAIL.COM (June 14, 2015), http://www.dailymail.co.uk/news/article-3124101/Man-Ecuadorroasted-guinea-pig-breakfast-New-York-park-police-called-torture.html.

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guinea pig meat on a black market would not be worth the criminal risk, especially when
lawful substitute meats are readily available.
This paper provides a legal valence for the sorts of political considerations that go to
the discretionary choices of whether to punish someone for eating whale or guinea pig etc.,
and to this extent it targets lawmakers and prosecutors rather than judges who mustnecessarily articulate a more internally consistent position. Alexander Bickel argued in THE
LEAST DANGEROUS BRANCH that prudential concerns can fairly guide the decision of whether
to make a legal judgment at all on a sensitive issue. Legislatures and prosecutors alreadypossess a rough moral calculus that guides intuitions of what to keep as secular traditions
outside of the law (e.g. your office March Madness betting pool, Spring Break, boxing) fromcontested practices (ivory art, opium dens, bareknuckle fighting118). A wait-and-see approachshould work well in the context of Makah whaling and guinea pig consumption, as we canstand back and let these contested meats be shared in a localized de-commoditized setting
without fear of diffuse consumption.
Other scholars have justified Makah whale meat consumption for varied otherreasons, including reparative reasons based in historic injustice.119 The IWC indigenous
whaling exception likely considers the many important reasons why we might want toprivilege these whaling traditions, and also assumes that these traditions might not easily map
onto a Western religious/secular binary. My broader argument for this paper is that thisintermediate Radin category of “not alienable, yet legal to possess” captures sundry kinds ofanimal meats that we don’t want either 1) commodified or 2) criminalized for different – andoften contrasting – reasons. Margaret Radin offered a more precise description of this118 But see Legal bare-knuckle fighting makes bloody debut in Wyoming, USA TODAY (June 2, 2018),
https://www.usatoday.com/story/sports/boxing/2018/06/02/legal-bare-knuckle-fighting-makes-bloodydebut-in-wyoming/35647889/.
119 D’Costa, supra note 5.

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inalienability category based on human actualization. We can reimagine this same constructin an animal law context as a liminal space where we may balance the competing ethical andcultural factors that weigh how we determine if there is an American tradition of eating acertain meat, or whether certain Americans have an ingrained cultural habit of eating acertain meat.
Horses are charismatic and intelligent companion animals, but – in addition to being
widely eaten in Central Asia and Europe – the U.S. has a “marginal, always unsteady” butpersistent history of consuming this “poor man’s beef.”120 Whales are likely even more
intelligent than we now realize, yet for some indigenous communities they are a totem thatbinds tradition to daily life. Sharks are cruelly fished for their fins, but they are also a sport
fish for American anglers. I thus offer an idealized model for how the law should categorize
the meats of certain animals either native to the U.S. or adjacent waters or already ubiquitousin American life:

Alienable
Threatened/ Recently Endangered

Not alienable Illegal to possess
Shark
Whale*

Human Companion

RabbitHorse
Guinea Pig[Dogs and Cats
(proposed bill H.R.
1406)]* = making whale meat legal to possess only for Makah and other American
Indian or Native Alaskan tribes with an embedded tradition of a whale hunt
120 Susanna Forest, The Troubled History of Horse Meat in America, THE ATLANTIC (June 8, 2017),
https://www.theatlantic.com/technology/archive/2017/06/horse-meat/529665/.

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In this revised schema, shark, whale and guinea pig meats are grouped withhorsemeat in the “not alienable, yet legal to possess” matrix. There are several benefits tothis move (de-commoditizing shark and guinea pig, while making whale meat legal topossess for certain American Indian or Native Alaskan tribes). First, the ambiguous terrainof this liminal space allows The Law to retain its aspirational value (its ethos) so that it neither
condones this sort of meat consumption, nor enters the consistency problem of treating
seemingly “like” products differently, e.g. dogs and cats versus other common companion
animals. Second, this category allows tradition-seekers to consume difficult-to-catch foods
like whale meat or shark fin, but also requires these eaters to fell the animal themselves, or toknow someone who will gift the animal meat outside of the market. The decommodification of the shark and whale should facilitate the animals’ return to carrying
capacity, while at the same time functioning as an incentive or test for the tradition-seeker to“prove” the ritual value of this food. For the Makah, the fact they are willing to go throughthe difficult labor of a whale hunt is evidence of the legitimacy of their claims for secularritual. We will see if shark fin eaters maintain this as a celebratory tradition if they are forced
to sport fish for shark on their own.
Finally, I note that this analysis implicates the core dilemma in animal law: thatanimals are human property, and we conceptualize property according to the use status of
the animal. For now, it seems quixotic to ban rabbit meat from restaurants. But there are
not very good reasons to distinguish rabbits from other adorable companion animals like theguinea pig. A renewed vision of “living property” that provides special husbandry rules for
agricultural animals is one way we can reconcile our cultural schizophrenia in how we81consume and care for animals, and to bridge differences in tradition in an increasingly multicultural America.
I qualify that I encourage readers to pursue a vegetarian or mostly vegetarian diet.
My own hope is that we will see the de-commodification of more sorts of animal meats, andthat barter models based in notions of ethical hunting or husbandry might replace mass
markets for conventional meat products. Consumers can instead expect the continued
evolution of plant-based meats like the delicious Beyond Burger ™.121 An intriguingquestion moving forward is how U.S. regulatory agencies will define “meat” writ large,
beyond the traditional understanding of animal flesh. A hotly litigated issue is whether
producers of alternative plant-based milks (almond, cashew, rice etc.) can lawfully label theirproduct as being a kind of “milk.”122 For many reasons I think that they should be able to. I
also think we should expand our social definition of meat to include plant-based meats and“animals” that have previously existed outside our regulatory system, i.e. insects. Professor
Marie Boyd just published a fascinating article on insect consumption and the need forregulatory reform in the United States. Insects are protein-rich123, can be raised efficiently
and don’t produce methane or other climate change agents associated with mammal andpoultry husbandry. But insects can also be vectors for disease, and – for many/most
Americans – are intuitively gross to eat. Both the dual disease/grossness problems combine
to inform the FDA’s treatment of insects as “filth” or a “defect” in food production.
In this paper I was forced to acknowledge difficult facts of intelligence and sentience
when thinking about the lawfulness of things like whale meat. Lawyer-activist Stephen Wise
121 BEYOND MEAT – THE BEYOND BURGER (last visited May 2, 2018),

http://beyondmeat.com/products/view/beyond-burger.
122 See, e.g., Anahad O’Connor, Got Almond Milk? Dairy Farms Protest Milk Label on Nondairy Drinks, THE N.Y.
TIMES (Feb. 13, 2017), https://www.nytimes.com/2017/02/13/well/eat/got-almond-milk-dairy-farmsprotest-milk-label-on-nondairy-drinks.html.
123 See, e.g., CRIK CRICKET PROTEIN POWDER, https://criknutrition.com/.

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and his Nonhuman Rights Project argue that since whales possess a high level of intelligenceand self-awareness they should be cognized as legal persons with “rights to life.”124 Still,
Stephen Wise is surely being pragmatic as well, and electing to not include the intelligent pig
within his cohort of super-evolved species, because he is aware of the political blowbacksuch a move would create. In this particular paper I do argue that we should give some legal
weight to the embedded traditions of whale hunting of certain American Indian and Native
Alaskan tribes, but I am not against making highly intelligent animals universally off-limits asmeat. I have deliberately limited my matrix of animal species in this paper to a few animals(that other legislatures or commentators have already specified), to hopefully provide it someconsistency, and to make my thinking about collective identity and de-commodification
more explicit. I understand the Makah whaling example is a special case because of its
unique history and American setting. I don’t expect – or want – any other animals to movefrom the “illegal to possess” to my “not alienable” category. I am happy if any readers want
to argue more animal meats should move in the reverse direction from market commodity to
not alienable.
It is a common move for animal law theorists to consider the most evolved animal
species when forming a normative argument. But rarely do we think about what separates
the lower tranches of animal life from things like plants. It will be interesting to see how
American consumers respond to the continued development of CRIK cricket protein
powder and other insect-based foodstuffs. Will these be considered meats, or part of avegetarian diet, or both? This seems like it will be a cultural question, and one whose answer
will continue to evolve with our increased sensitivity to climate change and animal sentienceand our improved access to plant-based meats.
124 NONHUMAN RIGHTS PROJECT, https://www.nonhumanrights.org/litigation/ (last visited July 16, 2018).

83IV. THE PERFECT OPINION
A post-production version of this paper was published in the WASHINGTON UNIVERSITYJURISPRUDENCE REVIEW. Please see 12 WASH. U. JUR. REV. 221 (2020).
Abstract
In this paper, "The Perfect Opinion," I collate favorite judicial opinions to inductively derive an archetype of
perfection. The question of which opinions we like the most is decidedly subjective, but it also reveals implied
preferences for creative judging that might not register on citation counts or be prioritized when editing
casebooks. Importantly, our choice of a favorite reflects something about us. So why do judges often selectnon-authoritative opinions (alternative concurrences or dissents) or no-citation opinions (that don’t cite to priorcase law) when asked of their favorite opinion? We might predict that most judges would select, for example,
a Justice Cardozo majority opinion that deftly marshals a wide swath of precedent to justify a remarkable
turn in the doctrine.
Instead, it seems that at least some judges share a critical perspective that citation is a masking device, andregard over-citation with caution. Despite innovative thinking from academics like Frederick Schauer on thenature and use of authority, this topic remains under-theorized. I contribute to this literature by making anovel observation about implicit authority. Judges who rely on principled reasoning are making both anempirical claim that these principles inform our positive law, and a normative claim that these principles arein fact a better reflection of our law than the “ordinary legal materials” (case law, etc.) we typically work with.
This intellectual move requires tacit knowledge and feel, and so it’s not surprising these opinions write soeffortlessly. These above-great opinions together limn an archetype of perfection that we can use as an ideal
form. Not surprisingly, this theorizing echoes the work of Ronald Dworkin, who built his own normative
theory of perfection in the construct of Hercules. None of us can be him. But perhaps one of our own has
enjoyed the herculean moment. This paper searches for it.

“It is strange, indeed, that a law containing such important principles, should be the only one
that has never appeared in print. Under these circumstances, to infer a law, as is proposed,
would seem to me to savor too much of giving a forced construction to sustain a favorite
and preconceived opinion, or to enable us to get over a hard case.”*The Heirs of Israel Ludlow v. C. and A. Johnston (1828)* The Heirs of Israel Ludlow v. C. and A. Johnston, 3 Ohio 553, 558 (1828).

I thank Robin West, Greg Klass, Liron Shilo and Rafi Reznik for their help with this paper. I am also gratefulfor the feedback that I received at the Law, Culture and the Humanities 2019 Annual Conference and from thefaculty workshop at Thammasat University, especially from commentators Andrew Harding, Phattharaphong
Saengkrai and Korrasut Khopuangklang.

84Introduction
This paper searches for the perfect judicial opinion. Other writers have had similar
ambitions: to catalog the best opinions1, to discern the most important opinions2, or to rank
judges by quality.3 These determinations inhere a measure of subjectivity, and perhaps
involve difficult epistemological questions of aesthetics and taste. Judicial writing is certainly
a craft, and our favorite opinions are written with a style that makes them impactful beyond
the mere reasoning and logic they contain.4
To avoid these subjective aesthetic judgments, other greatness-seeking authors haveused objective data like casebook content or citation counts to quantify notions of canon or
import. For example, Professors Cross and Spriggs employed sophisticated quantitative andnetwork analyses of citations in their 2010 study, “The Most Important (and Best) Supreme
Court Opinions and Justices.”5 Judge Posner also considered citation counts in his elegant
work on connections between judicial quality and reputation, Cardozo: A Study of Reputation.6
It makes sense to use citation as evidence of greatness, especially in a common law system
like the United States where the value of a case reference depends in part on the credibilityof its judge-author. Implied preferences in judicial quality and impactful writing are eachrevealed in the decision to cite. We also see citations; we can count them. This makes
citation a very useful heuristic for comparing judicial opinions, whereas aesthetic criteria arenotoriously difficult to articulate and measure.

1 E.g., ROSS GUBERMAN, POINT TAKEN: HOW TO WRITE LIKE THE WORLD’S BEST JUDGES (2015).

2 E.g., Frank B. Cross & James F. Spriggs II, The Most Important (and Best) Supreme Court Opinions and Justices, 60
EMORY L.J. 407 (2010).
3 E.g., Robert Anderson, Distinguishing Judges: An Empirical Ranking of Judicial Quality in the United States Court ofAppeals, 76 MO. L. REV. 315 (2011).
4 See, e.g., Richard Posner, Judges’ Writing Styles (And Do They Matter?, 62 U. CHI. L. REV. 1421, 1422 (1995)(taking a “stab” at defining style as “what is left out by paraphrase”).
5 Cross & Spriggs, supra note 2.
6 RICHARD POSNER, CARDOZO: A STUDY IN REPUTATION 69-70 (1993).

85

This paper does not contest the sensitive use of citation as a measure for quality.
And it does not even disagree with the usual lists of great judges, or the usual advice on whatmakes for great judicial writing. Instead I remind the reader that there is another layer ofquality above the merely great opinion. First, I disclaim that I fully understand why mostjudges should aim for competence. Scarce administrative resources, docket management,
fear of overrule – these are just a few of the very reasonable concerns which might motivate
a judge to craft the competent, if occasionally great opinion, marked by careful use ofcitation and a reasoned, effable basis for its holding.7
But exploring and unpacking this beyond-great tranche of opinion is not simply an
indulgent, academic exercise. I argue there are important jurisprudential insights that comewith searching for perfection, insights which seem to subvert our most core beliefs about
judicial writing in a common law system. These opinions are often non-authoritative
concurrences and dissents, and even stranger, they sometimes don’t cite to authority at all.
What are judges doing when they don’t resort to authority? And what does it mean for our
profession if our favorite opinions, the ones we like the most, are crafted in a way that
deliberately ignores the rudiments of legal writing? Does this mean that all judges should
write with perfection in mind? If not, who and when?
This paper collates favorite opinions to inductively derive an archetype of perfection.
The question of which opinions we like most is decidedly subjective and personal, but it also
captures implied preferences for creative and erudite judging that might not register on

7 Cf. Bruce Selya, Publish and Perish: The Fate of the Federal Appeals Judge in the Information Age, 55 OHIO ST. L.J. 405,
406-07 (1994) [hereinafter Publish and Perish] (commenting on how increased writing burdens have transformed
judges “from thinkers to managers”); see also Chad Oldfather, Of Umpires, Judges and Metaphors: Adjudication in
Aesthetic Sports and its Implications for Law, 25 MARQ. SPORTS L. REV. 271, 294 (2014) [hereinafter Adjudication in
Aesthetic Sports] (“Ours is a world that tends to discount that which cannot be easily identified, and one in whichjudges were long ago deprived of the ability to engage in the sort of leisurely consideration of their cases thatthe notion of judge-as-craftsperson suggests. Yet while the circumstances in which judges operate havechanged, the need to rely on tacit knowledge to do the job has not.”).

86

aggregative citation counts or be prioritized when editing didactic casebooks that are meant
to prepare students for the work of lawyering. I limit my search by looking mainly at ourfavorite judges, but I also catalog a handful of favorite scholars and stylists. And as it will
become clear soon enough, my data set is further limited by the fact that the question offavorites is rarely asked by commentators or answered directly by judges or academics. One
wonderful exception is Blackie the Talking Cat: And other favorite judicial opinions8, which should
already be on your bookshelf or coffee table. But it is also made up disproportionately of“fun” opinions.9 I have delimited those, and other similarly fun opinions, as outside thescope of this project. At is core this is not an empirical contribution, but an analysis of thesurprising correlation of favorite opinions with non-authoritative/no-citation opinions.
Favorite opinions are non-authoritative/no-citation opinions often enough to be significant.
And this is also a topical project. Youngstown Steel is again relevant as the U.S.
Congress voted this spring to express disapproval of President Trump’s plan to shift federal
money to constructing the southern border wall.10 If the U.S. Supreme Court ever considers
the constitutionality11 of this decision, President Trump will hope his appointment JusticeKavanaugh affirms his executive power to declare a national emergency. But on
Kavanaugh’s mind will be the Youngstown Steel precedent he declared during his confirmation
proceedings to be one of “the four greatest Supreme Court cases in history.”12 Kavanaugh
8 BLACKIE THE TALKING CAT: AND OTHER FAVORITE JUDICIAL OPINIONS (Ed. West Publishing) (1996).

9 But see Kent C. Olson, Those Who Play With Cats, 1 GREEN BAG 2D 217, 218 (1998) (“But focusing simply on

humor, or the deficiency thereof, sells Blackie short. The preface indicates that there is more here than wit.”).
10 E.g., Jay Michaelson, It’s Up to Chief Justice John Roberts to Stop Trump’s Border Wall, THE DAILY BEAST (Feb. 16,2019), https://www.thedailybeast.com/its-up-to-chief-justice-john-roberts-to-stop-trumps-border-wall.
11 Just last week the U.S. Supreme Court voted 5-4 to permit President Trump to move forward with theconstruction of the border wall using Defense Department funds. The summary decision seems more
responsive to the identities of the plaintiff organizations (the ACLU, Sierra Club, and Southern Border
Communities Coalition) and the possibility of irreparable environmental harm. Trump v. Sierra Club, 588 U. S.
___ (2019); see also Jessica Greko, Supreme Court: Trump can use Pentagon funds for border wall, ASSOCIATED PRESS(July 27, 2019).
12 E.g., Brenda J. Linert, Local steel case important to Kavanaugh, TRIBUNE CHRONICLE (Oct. 14, 2018) (citing to
Senator Susan Collins: “Judge Kavanaugh has been unequivocal in his belief that no president is above the law.

87

did not specify whether he was referring to the Black majority opinion or Jackson
concurrence. Black’s opinion might be critiqued as unimaginative and reductive.13 But hesuccessfully defended America’s coordinate system of government and affirmed Congress’
lawmaking powers under Article I. This holding – and the courage to make it during the
Korean War effort – make it an important decision.
But Kavanaugh was likely thinking of the iconic concurrence from Robert Jackson.14
Jackson drew on his unique political pedigree to craft a supremely learned and elegant
opinion on the nature of executive power in an evolving world. Jackson outlined a now
famous three-tiered matrix to identify how the President’s Article II powers might combine
or compete with Congressional authority. With Congress’ vote of disapproval of the borderwall, Trump is at his “lowest ebb” of power, at least according to Justice Jackson, andperhaps for Justice Kavanaugh as well.
Justice Jackson’s opinion reflects his mastery of constitutional design. But forProfessor Sanford Levinson, the Jackson concurrence is more special for its authorial
approach than its substantive content. For Professor Levinson, the Youngstown concurrence
is not just a great opinion, but is his favorite opinion, because it represents the “best example”
of a “self-consciously postrealist encounter with the nature of legal argument,” and during
this reflective process, Jackson accurately assessed “the [in]sufficiency of ordinary legal
materials” to manage President Truman’s steel seizure plans, and so Jackson instead relied

He has stated that Marbury v. Madison; Youngstown Steel v. Sawyer; and United States v. Nixon are three of the four
greatest Supreme Court cases in history,” Collins said on the Senate floor. “What do they have in common?
Each of them is a case where the Court served as a check on presidential power.”)
13 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 589 (1952) (Frankfurter, J., concurring) (suggestingthat the separation of powers issues in this case are “more complicated and flexible” than portrayed by JusticeBlack’s majority opinion).
14 Further evidence that Jackson’s concurrence is the likely “greatest” opinion from Youngstown is the space
he dedicates to it in his 2008 article, Brett M. Kavanaugh, Separation of Powers During the Forty-Fourth Presidency and
Beyond, 93 MINN. L. REV. 1454 (2009).

88

on “logic” and “experience” in forming his opinion.15 The Jackson concurrence is a favorite
opinion because of Jackson’s ability to look under the surface data points of case law andrecognize the first principles of American law. It is a brilliant meditation informed by yearsof legal work in national security.16 This first principles approach is evidenced by its lack of
citation to conventional authority. The Jackson concurrence includes zero in-text citations.
He includes footnotes containing case law support for the scholarly reader. But “above theline” the only precedent-like cases are European nations’ recent experience with martial
law.17This lead example illustrates the insight and limits of this paper. First, I might
unfairly categorize these beyond-great opinions by clustering “greatest” and “favorite”
opinions together as a uniform grouping. To Kavanaugh, his greatest opinion might insteadmean something separate from his favorite. It is also unclear how candid he is being – orcan be – in the context of a politics-saturated confirmation hearing. Announcing a personalfavorite/great is a way to curate a public identity, as illustrated by the billions of social media
users who choose to define themselves by their discerning taste in food, fashion, sport,
music or art etc. We might not always be our most honest selves when we are showing off
for others.
But this paper also offers provocative insights. Our choice of favorite reflects
something about us.18 So why do judges often select non-authoritative opinions (alternative
concurrences, or dissents) or no-citation opinions (that don’t cite to prior case law) when
asked of their favorite opinion? We might predict that most judges would select, for
15 Sanford Levinson, Introduction: Why Select a Favorite Case?, 74 TEX. L. REV. 1196, 1197 (1996).

16 RICHARD POSNER, CARDOZO: A STUDY IN REPUTATION 140 (1993) [hereinafter A STUDY IN REPUTATION](“His experience in the upper echelons of government lend a resonance to his public-law opinions.”).
17 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 651-62 (1952) (Kennedy, J., concurring).
18 Indeed, this is likely why prospective federal judges have been asked to supply a list of their favorite opinions
as part of their “ideological vetting.” Sheldon Goldman, Unpicking Pickering in 2002: Some Thoughts on the Politics ofLower Court Selection and Confirmation, 36 U.C. DAVIS L. REV. 695, 702 (2003).

89example, a Cardozo majority opinion that deftly marshals a wide swath of precedent tojustify a remarkable turn in the doctrine.19 Instead it seems that at least some judges share a
critical perspective that citation is a “mask hiding other considerations”20, and regard overcitation with caution.21 Despite innovative thinking from Professor Schauer and, mostrecently, Amy Griffin on the nature and use of authority, this topic remains under-theorized.
I contribute to this literature by making a novel observation about implicit authority. Judges
who rely on first principles reasoning are making both an empirical claim that theseprinciples inform our positive law, and a normative claim that these principles are in fact a
better reflection of our law than the “ordinary legal materials”22 (case law, etc.) we have towork with. This intellectual move requires tacit knowledge and feel, and so it’s not
surprising these opinions write so effortlessly. These above-great opinions together limn anarchetype of perfection that we can use as an ideal form. Not surprisingly, this theorizing
echoes the work of Ronald Dworkin, who built his own normative theory of perfection in
the construct of Hercules. None of us can be him. But perhaps one of our own has enjoyed
the herculean moment. This paper searches for it.
I first consider favorite opinions in the context of other judicial superlatives, andchart our favorite opinions in progressively archetypal categories. I quickly discountconvention or fun as a model of perfection. Instead I focus on opinions that reason from19 Frank B. Cross, James F. Spriggs II, Timothy R. Johnson & Paul J. Wahlbeck, Citations in the U.S. Supreme
Court: An Empirical Study of Their Use and Significance, 2010 U. ILL. L. REV. 489, 556-57 (2010) (“One early
historical study found that Justice Cardozo ‘cited far more authority in his opinions’ than did his contemporary
judges.”) (citing William H. Manz, Cardozo's Use of Authority: An Empirical Study, 32 CAL. W. L. REV. 31, 31(1995)).
20 Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 COLUM. L. REV. 723, 743 (1988).
21 See, e.g., Frank B. Cross, et al., supra note 19, at 528 (“If citations are a mask, a Justice might choose to employ
a large number of citations so as to better hide the true basis for the decision behind a blizzard of precedent.”).
See also Frederick Schauer, Authority and Authorities, 94 VA. L. REV. 1931, 1932 (2008) (“Legal sophisticates thesedays worry little about the ins and outs of citation, tending instead to cast their lot with the legal realists inbelieving that the citation of legal authorities in briefs, arguments, and opinions is scarcely more than adecoration.”).
22 Levinson, supra note 15, at 1197.

90

first principles, and contextualize my thinking within broader debates about the meaning ofauthority and why judges explain their decisions. I consider several potentially perfectopinions in detail, including the overlooked Levesque v Anchor Motor Freight, Inc.. I conclude
by questioning the value of perfection in a culture that increasingly permits citation toforeign and non-legal authorities.

Likeability, Quality and CanonMy working definition for a favorite is something that we like the most. To likesomething means we enjoy it, and we can enjoy things for myriad sorts of reasons. In thisway it is a broad, open-textured word, and might be criticized as lacking the nicety ofdefinition we generally prefer when dealing with jurisprudential problems like discerning theplatonic manifestation of an ideally formed opinion. But “like” is also a very appropriate
word because of this same core meaning of enjoyment, and its connotations of sincerity andnon-instrumentality. We like something not because we are told to, or because someone else
happens to think it’s important. We like it for the thing-in-itself. In a study of superlative
judicial opinions this kind of contained analysis is essential. Being asked of our favorite
encourages us to select an opinion because of its content separate from its consequence. We
don’t think about what it stands for, but what it is. A favorite judicial opinion is not reduced
to its holding, or made a non-literal representation of an adjunct principle that future lawyers
or judges have equated it with. Choosing a favorite requires us to think about the opinion inits materiality, its embodiment and with regard for its craftwork. It's a particularizing
inquiry.
I focus on judges’ favorites. We can assume that judges have read very many judicial
opinions and have special insight into the constraints on decision-making. These constraints

91

include the workaday concerns of collegiality and compromise in forming an opinion of thecourt23, or the gravity of crafting a text that imbues the coercive force of the state. A judge
selects a favorite from shared experience.
This question of a favorite opinion is adjacent to debates on canonicity in the legal
academy. We can think of the legal canon as the core group of legal texts that areconsidered essential reading for law students, lawyers, judges and/or legal academics. The
first rigorous look at the legal canon was Professors Balkin and Levinson’s “The Canons ofConstitutional Law” for the Harvard Law Review.24 An important insight from this article isthe institutional differences that distinguish the legal academy from the humanities. Legalacademics compete with judges and the bar in forming the canon, and law instructors mightfind it pedagogically important to teach both inspiring as well as odious cases. Many
constitutional law professors include Dred Scott v. Sandford in their syllabi for historicalreasons. Few, if any, English professors would bother to include pulp fiction or a novel with
Fabio on the cover as an example of what not to do. Rather “the question of what one
should teach in English departments is very much connected to the questions of … what the‘best’ literature is (including what literature has the best effects on its readers).”25
The necessary equation of exemplar and teaching device in literature is absent in thecontext of legal education. Casebook editors instead make curatorial decisions to include
judicial opinions that reflect a doctrinal point in a particularly accessible or memorable way,
perhaps even because there is something about the judge’s reasoning that appears droll or isotherwise amenable to critique for the podium instructor. Constitutional law is a bit
distinctive as compared to the traditional first-year common law subject, and many opinions
23 See generally Harry T. Edwards, The Effects of Collegiality on Judicial Decision Making, 151 U. PA. L. REV. 1639
(2003).
24 Jack M. Balkin & Sanford Levinson, The Canons of Constitutional Law, 111 HARV. L. REV. 963 (1998).
25 Id. at 981 (1998) (emphasis added).

92

included in a constitutional law text might have special pedagogic import beyond the mere
doctrinal point they make, if we can even meaningfully reduce constitutional law doctrine inthis way. But constitutional law is perhaps also the most contextual of the first-year subjects,
and the historical or evolutive value of the selected constitutional case has no necessaryconnection to its quality or likeability.
Of course part of our legal canon is still reserved for superlative opinions. Anita
Krishnakumar observed that the “lionization” of the iconic Holmes dissent in Lochner was
not concurrent to the constructive overrule of the Lochner doctrine in 1938.26 Rather the firstjudicial citations to Holmes's dissent “did not surface until the late 1940s.”27 This delaysuggests the later historical construction of how Holmes’ Lochner dissent became a foil to theeponymous Lochner doctrine.28 If there is more than one available judicial opinion toillustrate a doctrinal point (that “liberty” in the Fourteenth Amendment does not include
substantive freedom to contract), and we select a dissent as authority long after it became
potentially authoritative, we can fairly guess that this canonization process depends on thestyle and quality of the selected original dissent. It becomes canonic because it is liked forreasons separate from its doctrinal argument. To this extent the Krishnakumar historicalclaim helps my own cause. After all, Holmes’ Lochner dissent is a favorite jurist’s favorite
opinion: Judge Posner celebrated it as a “rhetorical masterpiece” in Law and Literature: A
Misunderstood Relation.29

Your Favorite Judge’s Favorite Opinion (Is Not Perfect)

26 Anita Krishnakumar, On the Evolution of the Canonical Dissent, 52 RUTGERS L. REV. 781, 789-90 (2000).
27 Id. at 789.

28 Richard Primus, Canon, Anti-Canon, and Judicial Dissent, 48 DUKE L.J. 243, 248 (1998).

29 RICHARD POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION 347 (1988). See also Primus, id. at
286 (“perhaps Holmes’ most canonical opinion: the Lochner dissent).

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The Conventionally Great Opinion
I identify four categories of favorite opinions, of which my third and fourthcategories (non-authoritative opinions, and majority opinions that don't cite to authority) aremost important to this paper. The first kind of favorite opinion is the conventionally great
majority opinion – it can be transformative, it can be courageous, and it does cite to case law
in justifying its argumentative moves. It is perfectly admirable if this sort of favorite is yourown! You are in the same company as other favorite judges including Chief Justice John
Roberts and late Justice John Paul Stevens. But it is not enough for an opinion to possess
moral imagination, have rhetorical might and marshal relevant case law to support its
conclusions. This makes for a great, even very great, opinion, but not one that chases
perfection.
Favorite Judge

Favorite Opinion

Superlative language

CitationsChief Justice
Roberts

Grubart, Inc. v. Great Lakes Dredge &Dock Co., 513 U.S. 527 (1995)(Justice Souter)“one of his favorite
opinions” (hearsay)30

many

Justice Stevens

Tennessee Valley Authority v. Hiram
Hill et al., 437 U.S. 153 (1978) (Chief
Justice Burger) (the “Snail Darter”
case)
Gaffney v. Cummings, 412 U.S. 735(1973) (Justice White)

Multiple references to it
being “one of his
favorites”31

many“one of my favorite
cases”32

many

Justice White(self-citation)

30 Joseph Blocher, Roberts’ Rules: The Assertiveness of Rule-Based Jurisprudence, 46 TULSA L. REV. 431, 432 n.14
(2011) (citing Crawford Greenburg, The Gift That Keeps on Giving, Life, Politics and the Law (March 31, 2008, 3:51
PM), http://blogs.abcnews.com/legalities/2008/03/the-gift-that-k.html (“Roberts has said the case is one of
his favorite opinions because of what the Court said.”)).
31 Justice Stevens has identified several favorites, but Tennessee Valley Authority v. Hill seems to be the only repeat
favorite. E.g., Nancy S. Marder, A Dignified, Inside Look at the Supreme Court – and More Than a Few Surprises, 95
JUDICATURE 196 (2012); Stuart Taylor, Jr., Supreme Court; Recalling Favorite Decisions, N.Y. TIMES, Dec. 3, 1985, at
B8, https://www.nytimes.com/1985/12/03/us/supreme-court-recalling-favorite-decisions.html.; see also
Justice John Paul Stevens, Random Recollections, 42 SAN DIEGO L. REV. 269, 273 (2005) (referring to his “twofavorites” authored by Chief Justice Warren Burger as TVA v. Hill and Reed v. Reed). But see Justice John Paul
Stevens (Ret.), Gerald R. Ford Presidential Foundation 2011 William E. Simon Lecture in Public Affairs, 2012 MICH. ST.
L. REV. 1, 6 (2012) (referring to “one of his favorites” being Whitney v. California, 274 U.S. 357, 375 (1927)(Brandeis, J., concurring)).
32 Taylor, id.

94Justice Stewart(self-citation)

Rideau v. Louisiana, 373 U.S. 723(1963) (Justice Stewart)“my favorite case”33

many

Fun Opinions
The second category of favorite opinion is the fun opinion. It can possess charm or
whimsy. Or be a case where the judge is handed a remarkable fact pattern, “such as a man
suing the devil, or himself.”34 It is Blackie the Talking Cat35 and its ilk. I also include here
opinions selected by our favorite judges because the substance of the case was uniquely
suited to the idiosyncratic preferences of the judge-author. For example, Justice Blackmun
loved baseball (Flood v. Kuhn), and Justice Rehnquist loved trains (Leo Sheep).36 These were
fun to write, and this enthusiasm often manifests in the quality of the opinion. These are
great in all sorts of varied ways, but they don’t chase perfection.

Favorite Judge

Favorite Opinion

Superlative language

Citations

Justice Blackmun(self-citation)

Flood v. Kuhn, 407 U.S. 258 (1972)(Justice Blackmun; majority)“favorite”37

many

Justice Rehnquist(self-citation)

Leo Sheep Company v. United States,
440 U.S. 668 (1979) (JusticeRehnquist; opinion of the court)
Florida Dept. of State v. Treasure
Salvors, Inc., 458 U.S. 670 (1982)(joined Justice White’s partial
concurrence/partial dissent)“a case I enjoyed writing
as much as any”38

many“particularly fond of” this“most unusual andinteresting” case39

many

Justice O’Connor

33 Id.

34 Olson, supra note 9, at 218 (comma inserted).

35 Miles v. City Council of Augusta, Georgia, 710 F.2d 1542 (11th Cir. 1983).

36 E.g., Anita S. Krishnakumar, The Hidden Legacy of Holy Trinity Church: The Unique National Institution Canon, 51
WM. & MARY L. REV. 1053, 1107 (2009).
37 Major Emily C. Schiffer, Book Review: Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey, 187
MIL. L. REV. 174, 179-80 (2006) (citing Transcript of the Justice Harry A. Blackmun Oral History Project: Interviews with
Justice Blackmun, Conducted by Professor Harold Hongju Koh, YALE LAW SCHOOL at 18 (July 6, 1994-Dec. 13, 1995).
38 Taylor, supra note 31.
39 Id.

95

Judge Robert
Brown (sundry
self-citations)

Favorited many of his own “colorful
opinions,” including Productos Carnic,
S.A. v. Cent. Am. Beef & Seafood
Trading Co., 621 F.2d 683, 685 (5thCir. 1980)“I received a batch of his
favorite opinions”(hearsay, but from aformer clerk)40

many

Judge Gerald
Lebovits

Robinson v. Bayerque, 5 Cal. 460, 1855
WL 814 (Cal.) (Justice Heydenfeldt)“a California classic”41

Zero

N/A (Judge
Lebovits derides)

Denny v. Radar Industries, 28Mich.App. 294 (1970) (Judge Gillis)

N/A. “But brevity is vice
if it leads to inadequate
explanation.”42

One

Distinguishing Authority
The third and fourth sorts of favorites are most provocative, and inform thetheorizing in this paper. These are respectively non-authoritative opinions (alternative
concurrences, and dissents) and majority opinions that don’t cite to authority. I first bringsome clarity to this notion of authority in legal argumentation. A common pedagogicalmove is to distinguish the “binding” case as authoritative from the merely “persuasive” caseor academic article etc., which we cite to because of its quality of thought and relevance incontent. What makes a case binding is its vertical hierarchy within our own jurisdiction, or,in certain contexts, the horizontal force of the same court of appeal within that same
jurisdiction (what we refer to as stare decicis).43 If a legal text is authoritative, this means weare bound by it for content-independent reasons.44 These include institutional values ofpredictability and consistency, Burkean prudence, or even ancestral ideas of respect for the

40 Robert Klonoff, Memories of a Law Clerk, 47 HOUS. L. REV. 573, 576-77 (2010).

41 Gerald Lebovits, Short Judicial Opinions: The Weight of Authority, 76-SEP N.Y. ST. B.J. 64, at 60 (2004).
42 Id.

43 E.g., Jeffrey C. Dobbins, Structure and Precedent, 108 MICH. L. REV. 1453, 1455 (2010). See, e.g., GERALDGUNTHER, LEARNED HAND: THE MAN AND THE JUDGE 259 (1994) (“Repeatedly, Hand regretted the injusticeof certain laws even while he felt bound to apply them.”).
44 Professor Merryman cataloged many of these reasons – including ancestor worship – with notable pith inJohn Henry Merryman, The Authority of Authorities, 6 STAN. L. REV. 613, 621-626 (1954).

96

past associated with Anthony Kronman.45 We don’t care if the prior case law is normatively
good or bad, well reasoned or sophistic, efficient or archaic, etc. We are indifferent to thesubstance of the opinion; we cite it because we feel obliged to.46
If this is what defines authoritativeness, then our separate universe of persuasive
materials must instead be cited only for their quality of thought. They are instructive for the
court because they contain good ideas and are apposite to the present case. This everexpanding universe of non-authoritative materials includes things like case law from outside
our home jurisdiction, foreign case law from another national court47, legal scholarship, yourdictionary48, social science49 and other “modern authority” including the famous Dr.
Kenneth and Mamie Clark doll experiment from Brown v. Board of Education50, unpublishedauthority51, and, maybe most controversially, Wikipedia.52 Alternative concurrences anddissents that have not yet “ripened” into doctrine also fall into this universe. However
useful this is as an introductory teaching lens for the young lawyer, Frederick Schauer has
convincingly shown this binary of binding/persuasiveness to be conceptually flawed.53 In
practice this kaleidoscope54 of persuasive materials is not cited to simply for their ideas, but

45 E.g., Anthony T. Kronman, Precedent and Tradition, 99 YALE. L.J. 1029 (1990).

46 Cf. The Heirs of Israel Ludlow v. C. and A. Johnston, 3 Ohio 553, 567 (1828); Milor v. Farrelly, 25 Ark. 353,
363 (1869) (“it ought never to be distorted in order to sustain a favorite opinion.”). See also McKibbin v. Kline,
64 Pa. 352, 361 (1870) (“a judge has no right to adhere to his own favorite opinions…”).
47 See, e.g., Stephen Yeazell, When and How U.S. Courts Should Cite Foreign Law, 26 CONST. COMMENT. 59 (2009).
48 See, e.g., Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States
Supreme Court's Use of Dictionaries, 47 BUFF. L. REV. 227 (1999).
49 John Monahan & Laurens Walker, Social Authority: Obtaining, Evaluating, and Establishing Social Science in Law,
134 U. PA. L. REV. 477, 488-95 (1986).
50 Brown v. Board of Education of Topeka, 347 U.S. 483, 494 n.11 (1954).
51 Amy Griffin, Dethroning the Hierarchy of Authority, 97 OR. L. REV. 51, 78-79 (2018).
52 Lee F. Peoples, The Citation of Wikipedia in Judicial Opinions, 12 YALE J.L. & TECH. 1, 36 (2009). See also
Michael Whiteman, The Death of Twentieth-Century Authority, 58 UCLA L. REV. DISCOURSE 27, 48-53 (2010);
Ellie Margolis, Authority Without Borders: The World Wide Web and the Delegalization of Law, 41 SETON HALL L.
REV. 909, 920 (2011).
53 Schauer, Authority and Authorities, supra note 21, at 1941 (2008) (“For once we understand that genuine
authority is content-independent, we are in a position to see that persuasion and acceptance (whether voluntaryor not) of authority are fundamentally opposed notions.”).
54 Robert C. Berring, Legal Information and the Search for Cognitive Authority, 88 CALIF. L. REV. 1673, 1690 (2000)(referring to our new “kaleidoscope of sources”).

97because these materials possess a weight attached to the credibility of the author. Lawyers
and judges cite them not just because of what they say, but because of who said it. Thesematerials function as cognitive authority to the extent we trust the author to be a valid
source.55 These mislabeled “persuasive” materials are thus cited to for content-independent
reasons as well, and blur with our conventionally authoritative case law (on-point priormajority opinions from within our jurisdiction).
Instead Schauer uses the lexicon of mandatory authority and optional authority to
distinguish required citation from elective citation (that is cited for content-independent
reasons).56 Amy Griffin uses this same prism in her contextual approach to teaching legal
argument.57 Still, whatever we call it, there is an assumption here that legal writers need tocite some kind of authority to justify the main argumentative moves they make. Citing tooptional authority like dissents might be a suboptimal choice for a judge, but refusing all
authority is just puzzling. We might question if a judge is even intelligibly doing what we
think of as “legal reasoning” when she avoids use of citation altogether – is there a source oflaw for a decision without citation? Even Justice Breyer writing at the U.S. Supreme Court,
where indeterminacy claims of legal realism “are at their acme”58, sensed an obligation toreach for optional foreign authority from Zimbabwe59 to justify his dissent from denial ofcertiorari in Knight v. Florida: “I want to do this thing; I have to think of some reason for it. I
have to write something that–you know, that sounds like a lawyer. I have to cite something. .
. . what am I going to use?”60 Is “nothing” a valid response to Justice Breyer?

55 Id. at 1676 (“By ‘cognitive authority’ I mean the act by which one confers trust upon a source.”)56 Schauer, Authority and Authorities, supra note 21, at 1952.
57 Griffin, supra note 51.

58 Frederick Schauer, Giving Reasons, 47 STAN. L. REV. 633, 646 (1995).
59 Knight v. Florida, 120 S.Ct. 459, 463 (Breyer, J., dissenting).

60 The Relevance of Foreign Legal Materials in U.S. Constitutional Cases: A Conversation Between Justice Antonin Scalia andJustice Stephen Breyer, 3 INT’L J. CONST. L. 519, 528 (2005).

98

Contrary Authority and Why We Like It
I thus turn to my third category of favorite opinion: the concurring or dissenting
opinion. I distinguish non-majority from majority opinions (including, of course, opinions
for the court) in this paper given the different discourse contexts and generic expectations ofeach text. Jurists disproportionately select non-majority opinions as their favorites. At first
blush, this is curious. In our colloquial sense of the word it feels anti-authority for an
institutional actor like a judge to select these “subversive opinions.”61 We would expect
judges and academics to select opinions that were consequential, and non-governing
concurrences and dissents are by definition not, at least not until they ripen as prior reasoning
for a turn in the doctrine. But from a discursive perspective it’s not surprising that nonmajority opinions are favorited. They are written with a vital purpose and for a future
audience.
Concurrences and dissents are written to expand and critique, and not necessarily tojustify or explain. This structural posture allows the author to write by implicit reference,and to ignore points of argument that are rote (procedure, syllogistic reasoning) or to retreat
from gaps or vulnerabilities in her own argument. The concurring or dissenting author canbe selective in what she includes, and this allows for a level of improvisation or dialectic thatwould be problematic in the context of a majority opinion. The concurring or dissenting
author can take a surgical approach to critiquing only those points where her argument is

Between Justice Antonin Scalia and Justice Stephen Breyer, 3 INT’L J. CONST. L. 519, 531 (2005). See also Emily
Bazelon, What Would Zimbabwe Do?, THE ATLANTIC, Nov. 2005,
http://www.theatlantic.com/magazine/archive/2005/11/what-would-zimbabwe-do/304298/.
61 Robert Bendiner, The Law And Potter Stewart: An Interview With Justice Potter Stewart, 35 AMERICAN HERITAGE 1(Dec. 1983), https://www.americanheritage.com/law-and-potter-stewart-interview-justice-potter-stewart (citing
to his own law professor who used this language of “subversive opinions”, but not contesting it either).

99most compelling.62 This allows her to write with pith. Nor does she have to provide a fully
reasoned basis for her decision. She can avoid the expository style of a majority opinion,
because she does not have the managerial burden of providing instructive guidance to lower
court judges, or the bar, or other readers who might be basing their counsel or behavior on
the contours of the majority holding. It is the personal appeal. These elements would seemto make this genre of opinion much more likeable, but of course I suffer from selection bias.
Richard Primus reminds us that “part of the reason why we think of dissents as being well
written is that we only read the good ones.”63 We have little reason to remember a stale
opinion.
We can make a broad distinction between these institutional and personal voices inopinion writing. First, I remind the reader that the institutional voice is not all bad. JusticeScalia, himself a vivid dissenter, remarked that although writing the dissent might be more
fun to author “because it’s yours”, that he would much rather be part of the majority.64 Of
course the majority author “wins”, for lack of a better verb. But she can also make use ofwriting strategies as majority author that empower her voice and provide it an institutional
gravity that shapes reader perceptions of her judicial opinion – and our legal method – asneutral and objective. Robert Ferguson first outlined the generic (genre-based) requirementsof the judicial opinion.65 Two genre elements of the majority opinion that are particularly
useful to the majority author are what Ferguson described as the “monologic voice” and the“rhetoric of inevitability.” These pair to create an atmosphere in which the author’s
reasoning is ineluctably sound and correct. The majority author can frame the legal question
62 Cf. Merryman, supra note 44, at 665 (“[A] dissent or concurring opinion is usually limited to discussion of

only some of the points considered in the majority opinion.”).
63 Primus, supra note 28, at 267.
64 Supreme Court Justice Scalia, C-SPAN (June 19, 2009) (at 26:30), https://www.c-span.org/video/?2860791/supreme-court-justice-scalia.
65 Robert A. Ferguson, The Judicial Opinion as Literary Genre, 2 YALE J.L. & HUMAN. (1990).

100to suit her own analysis, and construct an argument that anticipates counter-responses in a
way that she can easily manage. The feint is that the counter is acknowledged, but it’s neverdamning. The majority author remains in control of the outcome.
Catherine Langford extends this academic discussion of judicial genre to the context
of dissents.66 In contrast to majority opinions, dissents possess an “individualistic tone” anduse an “advocacy medium.”67 They are written not to explain or justify, but to persuade. To
persuade the future. The unique audience of the dissent (and I argue concurring opinions canbe included here as well) provides it a transcendental context that encourages the author to
tap into the first principles of our legal system. In this expanded horizon the case law
reference transforms from the authoritative text-in-itself to a data point reflection of more
fundamental currents in the law. This echoes the historical debate of the persuasive
precedential opinion versus the binding “custom” in our Anglo-American legal tradition.68 It
suggests the amorphous space where black-letter doctrine transmogrifies into generalprinciple.
For all of these reasons – its surgical approach to critique; lack of need for expository
writing; transcendental context – the concurring or dissenting opinion often includes fewer
citations to case law. It might be that our favorite jurists select these opinions for reasonsthat are separate from the discrete fact they lack citation, and so our favorite jurists would
not necessarily be validating this intuitive approach to legal argument. But it also seems truethat they don’t mind their lack of citation either. Certainly they have many great candidate
opinions to choose from, and sparse citation is an easy way to ding one and facilitate the66 Catherine L. Langford, Toward a Genre of Judicial Dissent: Lochner and Casey as Exemplars, 9 COMMUNICATION

L. REV. 2 (2009).
67 Id. at 1 (2009).
68 E.g., A.W.B. Simpson, The Common Law and Legal Theory in OXFORD ESSAYS IN JURISPRUDENCE 119, 131-34(1973).

101

process of elimination. But they are favorited anyway, despite an intuitive approach toargument construction that could be derided as lacking rigor or respect for the integrity of
our legal system and common law method.

Dissenting From First Principles

Favorite Jurist

Favorite Opinion

Superlative language

Citations

Justice Scalia

Korematsu v. United States, 323 U.S.
214 (1944) (Jackson Jackson;
dissent)
Plessy v. Ferguson, 163 U.S. 537 (1896)(Justice Harlan; dissent)70“favorite” (hearsay)69

One“masterful dissent”

Justice
Kavanaugh; andSanford Levinson

Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579 (1952) (JusticeJackson; concurrence)“one of the four greatest
opinions” (Kavanaugh)“my favorite” (Levinson)

Judge Posner

Lochner v. New York, 198 U.S. 45(1905) (Justice Holmes; dissent)“a rhetorical masterpiece”

Judge Lebovits

Abrams v. United States, 250 U.S. 616(1919) (Justice Holmes; dissent)“his greatest dissent”

Several, but
it’s a longer
opinionZero “above
the line”, butmanyfootnotes
Several, andit's a shortopinionZero, butmaybe four

Judge Justice

Griswold v. Connecticut, 381 U.S. 479(1965) (Justice Goldberg;
concurrence)“my favorite opinion”71

Justice Brennan

Many, butstill a novel
meditationon the 9th
Amendment

69 Bob Egelko, Scalia’s favorite opinion? You might be surprised, SFGATE (Oct. 30, 2015),

http://blog.sfgate.com/politics/2015/10/30/scalias-favorite-opinion-you-might-be-surprised/. But see Robert
P. Mosteller, Confrontation in Children’s Cases: The Dimensions of Limited Coverage, 20 J.L. & POL'Y 393, 396 n.7(2012) (citing to JEFFREY TOOBIN, THE NINE: INSIDE THE SECRET WORLD OF THE SUPREME COURT 317(2007) as evidence that Scalia has described Crawford v. Washington as his favorite opinion).
70 But see Justice John Paul Stevens, Random Recollections, 42 SAN DIEGO L. REV. 269, 275 (2005) (Justice Stevens
tells us: “Bill's contribution to the work of the Court is legendary. I think I remember him saying that Goldberg v.
Kelly was his favorite opinion.”). I include this contrary point here for reference, but I note this is technicallyhearsay, even if coming from an icon like Justice Stevens. Justice Brennan preferred to be a bit opaque on the
topic of his favorites. An 1987 ABA profile suggests he often deflected with a charming analogy: “He refuses
to name the Court decision of which he is most product, or his favorite opinion, using a standard line: ‘You
might as well ask which of my children I prefer.’” Justice Brennan at 80, 73-JAN A.B.A. J. 61, 63 (1987). See also
Margaret Meriwether Cordray & Richard Cordray, The Philosophy of Certiorari: Jurisprudential Considerations in
Supreme Court Case Selection, 82 WASH. U. L.Q. 389, 445 n.266 (2004).
71 William Wayne Justice, Recognizing the Ninth Amendment’s Role in Constitutional Interpretation, 74 TEX. L. REV. 124(1996).

102

N/A (still unfavorited)

People v. Chessman, 35 Cal.2d 455, 218
P.2d 769 (1950); Weber v. Superior Ct.,
35 Cal.2d 68, 216 P.2d 871 (1950);
Central Contra Costa Sanitary Dist. v.
Superior Ct., 34 Cal.2d 845, 215 P.2d462 (1950) (all dissents authored by
Justice Jesse W. Carter of theSupreme Court of California (19391950))

N/A. Professor
Merryman is unsure how
to interpret this lack of
citation. He supposes
Justice Carter agreed withthe majority’s selection ofcited authority, but not its
application of citedauthority to the facts indispute.72

Zero

I begin with Abrams. The prolific Judge Gerald Lebovits of the Supreme Court of
New York has instructed legal writing courses at seemingly every New York-area law school,
and has authored literally hundreds of publications on legal writing. In footnote 24 of“Short Judicial Opinions: The Weight of Authority” he tell us:
Justice Holmes once wrote an opinion that cited not a single case. See Springfield Gas& Elec. Co. v. City of Springfield, 257 U.S. 66 (1921). In Abrams v. United States, 250 U.S.
616, 624 (1919), his greatest dissent, he again cited no case.73
Today we remember Abrams as the first articulation of a “marketplace of ideas”
approach to freedom of expression. It is a brilliant metaphor that embeds fundamental
truths about modern life (we’re all fallible, truth is relative, let’s listen to each other, etc.) into
the text of the First Amendment.74 There is no prior case law for this position, but Holmes
reassures us that the free trade of ideas is “at any rate is the theory of our Constitution.”75
He does not need to justify his framing of the problem here in Abrams, or detail reasons that72 Merryman, supra note 44, at 665 (1954).

73 Lebovits, Short Judicial Opinions: The Weight of Authority, supra note 41, at 60 n.24 (2004) (emphasis added).

Oliver Wendell Holmes, Jr. also shares the title of the Great Dissenter, and so there is an exponent of greatness
here. E.g., Oliver Wendell Holmes, Jr., ENCYCLOPAEDIA BRITTANICA (last visited June 22, 2019) (“byname The
Great Dissenter”), https://www.britannica.com/biography/Oliver-Wendell-Holmes-Jr. The first Harlan is theother titleholder. E.g., Eric Schepard, The Great Dissenter's Greatest Dissents: The First Justice Harlan, the "ColorBlind" Constitution and the Meaning of His Dissents in the "Insular Cases" for the War on Terror, 48 AM. J. OF LEGALHISTORY 119 (2006).
74 See Andrew Cohen, The Most Powerful Dissent in American History, THE ATLANTIC (Aug. 10, 2013),
https://www.theatlantic.com/national/archive/2013/08/the-most-powerful-dissent-in-americanhistory/278503/.
75 Abrams v. United States, 250 U.S. 616, 630 (dissenting, J., Holmes).

103

explain why his theory is indeed the only valid theory of the Constitution on this point.
Because of his reputation and his personal approach to writing we trust him, and don’t ask
for additional justification to test the validity of his claims or the accuracy of his perspective.
Holmes’ next argumentative move is equally brilliant, as he steps outside his role as
judge and comments as a participant-observer on the special challenges of freedom of
expression in the context of democratic self-government:
It [our Constitution] is an experiment, as all life is an experiment. Every year if not
every day we have to wager our salvation upon some prophecy based upon imperfectknowledge. While that experiment is part of our system I think that we should beeternally vigilant against attempts to check the expression of opinions that we loatheand believe to be fraught with death . . .76
Holmes nears the proverbial fourth wall as a writer and has his own “postrealist
encounter” with the nature legal argument (Levinson). He transcends his Olympian
detachment77, and he transcends the text of the First Amendment, to form a general theoryof freedom of expression based in the very real truth that judges – like those they judge –have limited knowledge and are engaged in a social project78 (constitutional construction)that lacks a model or blueprint. This reader-aware, exploratory approach makes it aparadigm example of the “impure” style of opinion writing described by Judge Posner in“Judges’ Writing Styles (And Do They Matter?)”. The impure style aims to beconversational, accessible, concise and – this is the hardest part – effortless.79 Importantly, the76 Id.

77 E.g., GUNTHER, supra note 43, at 294 (1994) (“While Holmes read widely and engaged fully in the intellectual
life of his times, his was an attitude of remote, Olympian detachment: he was rarely interested in contemporary
political battles or concerned about their outcome.”).
78 E.g., Larry Kramer, We the People, BOSTON REVIEW (Feb./March 2004); see also Paul W. Kahn & Kiel
Brennan-Marquez, Statutes and Democratic Self-Authorship, 56 WM. & MARY L. REV. 115 (2014).
79 Posner, supra note 4, at 1430-31 (“Paradoxically, the impure judicial stylists generally take more pains overstyle than the pure stylists do. Unless one is a particularly gifted writer, it takes much effort to make an opinion
seem effortless!”).

104

impure stylist considers the layperson.80 This provides a conceptual link for us to connect
the reasoning with the aesthetics of first principles opinion writing: the impure stylist must
generalize core truths, rather than obscure her reasoning with jargon or insider referencessuch as case citations. Indeed, in a separate article, Judge Lebovits specifically warns thewould-be impure stylist against under-citing her opinions: “[i]mpurists tend not to cite
enough authority.”81 Though Holmes, of course, does not need to follow the prescriptions
for a newbie judge (or clerk). And certainly not when writing in dissent.
Another interesting choice from Judge Lebovits is to label this as a no-citation
opinion. Per my count the Abrams dissent contains four case law references. However,these function as illustrative asides, as a sort of namedrop. For example, Holmes mentions
in passing Swift & Co., in which he previously articulated his theory of criminal intent.82 We
can make the semantic distinction that here this cited “authority” does not exert contentindependent force on his own thinking. It does not directly persuade or inform, but isinstead a mere illustration of a principle that stands apart from the cited case. The otherthree cited cases (Schenck, Frohwerk and Debs) were also authored by Holmes and suggest the
impression of a string citation, or the shared assumption that this doctrinal point is settled
law, and “not a big deal” worth fussing over with actual deliberation. The cited authority in
Abrams does not frame or inspire Holmes’ own response to the presented legal conflict. But
these citations still leave footprints so that readers can situate Holmes’ dissent within abroader network of case law. The prior cases help identify what sort of opinion this is, even
if the identity of this opinion (as the theory of the marketplace of ideas) has little to do withthe cited case law.

80 Id. at 1431.

81 Gerald Lebovits, Ethical Judicial Opinion Writing, 21 GEO. J. LEGAL ETHICS 237 (2008).

82 Abrams, 250 U.S. at 628 (dissenting, J., Holmes) (citing Swift & Co. v. U.S., 196 U.S. 375 (1905)).

105

We see a similar use of authority in the favorited opinion of Justice Scalia. In his
Korematsu dissent, the only case that Justice Jackson refers to is the Japanese-American
curfew case, Hirabayashi, and not as a model of reasoning, but to instead cabin its relevanceand suggest the Supreme Court should not repeat its earlier mistake of affirming thistargeted curfew.83 A comparable move is made by Jackson in his Youngstown Steelconcurrence. His intentional choice to maroon all case law citations subjacent the actual
text of the opinion to the footnotes suggests that they illustrate his thinking, but that thesecases should not be confused as the reasoned basis for his standalone concurrence.
In Justice William Brennan’s “In Defense of Dissents,” Brennan spends most of his
essay honoring one dissent in particular, “the first Justice Harlan’s remarkable dissent in
Plessy v. Ferguson [which] is at once prophetic and expressive of the Justice’s constitutional
vision, and, at the same time, a careful and methodical refutation on the majority’s legal
analysis in that case.”84 For Brennan this is a “masterful dissent,” but it also a dissent that
relies on sparse case law. Indeed, in the second section of the opinion on racial equality,
Harlan includes only an efficient string citation to the line of jury cases after Strauder, and aquotation to Gibson v. State of Mississippi for the broad principle of equality before the law.85
The only citation over the next seven pages is to an anti-canonic case to avoid comparison to:
Dred Scott.86 According to Brennan:
In his appeal to the future, Justice Harlan transcended, without slighting, mechanicallegal analysis; he sought to announce fundamental constitutional truths as well. He
spoke not only to his peers, but to his society, and, more important, across time tolater generations. He was, in this sense, a secular prophet, and we continue, long

83 Korematsu v. United States, 323 U.S. 214, 246 (1944) (dissenting; J., Jackson).

84 William J. Brennan, Jr., In Defense of Dissents, 37 HASTINGS L.J. 427, 431 (1986).

85 Plessy v. Ferguson, 163 U.S. 537, 555-64 (1896) (Harlan, J., dissenting). But see Gabriel Chin, The Plessy Myth:
Justice Harlan and the Chinese Cases, 82 IOWA L. REV. 151 (1996) (for an exploration of Harlan’s own prejudice toChinese-Americans as reflected in Plessy and United States v. Wong Kim Ark).
86 E.g., Jamal Greene, The Anticanon, 125 HARV. L. REV. 379 (2011).

106

after Plessy and long even after Brown v. Board of Education, to benefit from his wisdomand courage.87
Justice Harlan writes from a transcendental purview for a future audience. In
Brennan’s words, he is writing as a “secular prophet”: not from the contextualized
perspective of a doctrinalist, but with the core values and spirit of the Reconstruction
Amendments, in particular, and the Constitution, more generally, in mind. It is written fromfirst principles.

Reasons and Their Limits
Despite our conditioning as common law lawyers, it is not surprising that these nocitation or low-citation opinions are our favorites. They simply write better – they arelighter, crisper, more vibrant, more natural. Footnoting is skullduggery88, but in-text
references can clutter. They complicate. They obscure the actual thinking of the writer by
substituting a contextual event for a proposition it is supposed to reflect. They pull theauthor away from the opinion she would otherwise craft. The quip, “it won’t write,” is usedby judges to express the frustration of when their vision of an opinion does not have thecase law to support it.89 Precedent is an obstacle for the writer. Sure, it is an obstacle thatjudges are used to confronting. And the wise and strategic use of case law can be its own
kind of craft, as best seen in the elevated “pure” style of Cardozo. But in this paper I am

87 Brennan, supra note 84, at 432.

88 Arthur Austin, Footnote Skulduggery and Other Bad Habits, 44 U. MIAMI L. REV. 1009 (1990).

89 E.g., Schauer, Authority and Authorities, supra note 21, at 1951 (2008); Chad M. Oldfather, Writing, Cognition and
the Nature of the Judicial Function, 96 GEO. L.J. 1283, 1284-85 (2008); Posner, supra note 4, at 1447.

107

focused on the above-great tranche of opinion. I am chasing the perfect opinion. It can’t beinterrupted with a distracting reference, or distorted to maintain doctrinal integrity.90
At a more threshold level we can ask when we should bother to write a judicial
opinion at all, let alone cite something. Certain kinds of legal thinking evade articulation, andthe quality of our judicial opinions might be lessened if judges are forced to wrestle withthese tensions between human cognition and language. In “Writing, Cognition, and the
Nature of the Judicial Process,” Chad Oldfather introduces the concept of verbal
overshadowing, or our tendency to cite to articulable reasons to explain our decisions, evenwhen they are instead based on less effable reactions.91 We can posit that it’s sometimes
worse to provide a false reason, or distort our thinking to contrive an articulable reason, thanto simply avoid the bothersome problem of explaining these sorts of gestalt decisions at all;for example, the kind of complex, contextual decisions that typify factual determinations.92
Fortunately our legal institutions comport fairly well with our needs for either written or
unwritten decision-making. Juries try facts, but they don’t narrate their reasoning. The
bench decisions made by trial judges (regarding witness credibility, probity value of
potentially prejudicial evidence etc.) do not generally require a recorded opinion, or even oral
justification. But we can expand to question whether judges are being asked to construct
doctrine around similar kinds of gestalt intuitions, or expected to rationalize framing
decisions that rely on tacit knowledge.

90 Cf. Oldfather, Writing, Cognition, and the Nature of the Judicial Process, id. at 1331 (“We might be willing to tolerate
suboptimal assessments of the appropriate content of doctrine in order to promote certainty and to facilitate astable regime of precedent.”).
91 Id. at 1310-11.
92 Id. at 1286-87 (2008). (“Sometimes, in other words, requiring an opinion would lead to a worse decision.
Primarily these will be decisions that turn largely on the assessment of complex, fact-intensive situations inwhich largely inarticulable, context-based judgments matter more than precision and technical analysis, thesorts of decisions, in other words, as to which judges often do not issue opinions.”).

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One doctrinal example might be our Fourth Amendment jurisprudence on searchand seizure. In a candid C-SPAN interview Justice Scalia poked fun at his earlier
disagreements with Justice Rehnquist as to whether a constitutional search case was a “plumassignment” or instead a “dog”.93 Scalia argues that the typical Fourth Amendment casedoes not present a discrete legal question, but is instead an iterative factual permutation(“variation three thousand five hundred and forty-two” to quote Scalia94) best suited for ajury to evaluate and dispose of. Even if gifted judges like Scalia can articulate a reasoned
justification to resolve such cases based on gestalt, they are unlikely to be natural oreffortless (i.e. perfect).
In part this is because of the tension between doing and explaining. As Michael
Polanyi famously observed, “we know more than we can tell.”95 Or we have “tacitknowledge” that is difficult to precisely articulate. Polanyi used the example of bicycle riding
to capture the truth that we have difficulty explaining many quotidian activities that we are
seemingly very competent at.
Our very best judges have this same tacit knowledge in regards to case framing. By
framing I mean the threshold determination of deciding what sort of case it is.96 What wesometimes refer to as issue diagnosis. Or what Karl Llewellyn referred to as a kind of“situation sense” or “horse sense.”97 To continue our metaphor, Dan Kahan employed theremarkable example of the chick sexer to analogize the work of lawyers.98 Sadly, male chicks

93 Supreme Court Justice Scalia, supra note 64, at 23:30, https://www.c-span.org/video/?286079-1/supreme-courtjustice-scalia.
94 Id.
95 Adjudication in Aesthetic Sports, supra note 7, at 278.
96 Chad M. Oldfather, Error Correction, 85 IND. L.J. 49, 53 (2010) (“The exercise of judgment pervades thecreation and application of legal standards in a way that is not true of math. There are indisputably correct
answers in math, but not (or at least not always) in law.”).
97 KARL N. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 214 (1960).
98 Adjudication in Aesthetic Sports, supra note 7, at 292; see also Dan M. Kahan, Yale Law School Commencement
Remarks, ADDRESS AT THE YALE UNIVERSITY LAW SCHOOL COMMENCEMENT, at http://109

are not very useful to egg farmers, and it’s apparently economical for farmers to pay chicksexers a fairly handsome income to immediately identify and separate them. In their infancy
male chicks are effectively indistinguishable from female chicks, but the professional chicksexer develops techniques of pattern recognition so that she can efficiently identify the malechick, even if she cannot readily explain what she is doing or how she does it. To abstract,
she is distinguishing cases, but is unable to explain the reasons that justify her choices.
Fortunately for the chick sexer, she is not paid to provide reasons for why she
identifies the chick. However, for lawyers and judges this is a core part of the job
description.99 James Boyd White asked us to speculate on a world without judicial opinions,and how it might resemble the direct democracy of Classical Athens whose legal system wasessentially the unexplained votes of its citizenry on sundry matters.100 It would certainly be
different from our own common law system, where the reasons in support of a holding haveas much as precedential effect as the decision itself. Professor Schauer observed that thereasons judges cite to justify their decisions don’t necessarily have to be convincing or wellformed, but they have to be there. There has to be something that would follow the word
“because” in a sentence.101 There are many good reasons to require reasons. It is a check onjudges to make sure they are rigorous and thorough in their resolution of a case.102 It serves
a public legitimacy function of providing some level of accountability to an otherwise
undemocratic institution, and ensures that their work is in good faith. As a more generalwww.law.yale.edu/documents/pdf/kahanREVISED.pdf (last amended May 25, 2006). See also David Beckett,Learning to Be – At Work, in “BECOMING” A PROFESSIONAL: AN INTERDISCIPLINARY ANALYSIS OF
PROFESSIONAL LEARNING 57, 63-64 (referring to literature on chick sexing, apprenticeship and tacitknowledge).
99 E.g., Michael P. Allen, A Limited Defense of (at Least Some of) the Umpire Analogy, 32 SEATTLE U. L. REV. 525,
527 (2009) (“Judges also generally explain their decisions…”).
100 James Boyd White, What’s an Opinion for?, 62 U. CHI. L. REV. 1363, 1364 (1995). See also Mark Edwin Burge,
Without Precedent: Legal Analysis in the Age of Non-Judicial Dispute Resolution, 15 CARDOZO J. CONFLICT RESOL. 143,
150 (asking us to “imagine a system without stare decisis or precedent.”).
101 Schauer, Giving Reasons, supra note 58, at 636.
102 E.g., Lebovits, Ethical Judicial Opinion Writing, supra note 81.

110legitimation move, reason giving suggests to the world that law is an intelligible thing, andthat legal reasoning is separate from the mere act of calling heads or tails, red or black, winor lose. Legal reasoning can’t be conclusory.
The tension here is that the reasons judges cite to explain or justify their holding
might often be separate from the actual reasons that motivated the decision (now a realist
platitude). The quip of a judge’s breakfast being the etiological cause of her decision could
very well be true in the rare case, but no judge has yet been so candid as to detail this as thereason for her holding.103 Even our most culinary judges might not realize that an insipid
omelet is what triggered their response to a case. This is all to say that a judge might notknow precisely what informed her decision, or she might know that it’s based in part on
reasons that are not considered sufficiently legal, and thus cite to other reasons that are
accepted by our legal culture. In most all cases this is fine. What we generally care about isthat the judge can justify her decision with an accepted reason, and that lawyers or judges
can then cite these same reasons to in resolving future similar cases. The actual etiology ofdecision-making might not matter if the judge can harness good “legal” reasons (i.e. based inlegal precedent or employing other accepted modalities of legal thinking) that maintain theperceived integrity of our legal system and common law method.104
I don’t deride reason giving, but I do remind the reader that we are hunting for
perfection. We can posit to the extent there is a tension between reason giving and reason
making, and that some causal reasons remain unknown to the judge-author or are otherwise

103 Cf. Frederick Schauer, Easy Cases, 58 S. CAL. L. REV. 399, 410 (1985) (“In its more extreme versions, Realism
would maintain that sufficient precedents, some conflicting and many intersecting at various angles, exist sothat an appellate judge can rationalize from precedent or written law a result conceived prior to consultation ofthat precedent or law. Under this view, a judge's own moral, political, psychological, Oedipal, or intestinal
predilections determine the result.”).
104 Schauer, Giving Reasons, supra note 58, at 652-53 (1995); Oldfather, Writing, Cognition, and the Nature of the
Judicial Process, supra note 89, at 1299-1300 (citing Martin P. Golding, A Note on Discovery and Justification in Scienceand Law, in JUSTIFICATION 124, 128 (J. Roland Pennock & John H. Chapman eds., 1986).

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un-articulable, that by forcing the judge to explain her decision we lose some of thecultivated zen that characterizes the effortless opinion.

The Epistemology of Effortlessness
The threshold problem of situating a case without reference to case law is morechallenging. This is the under-theorized problem of how to identify an unexplained opinion,rather than the Schauer concern of providing reasons that justify a decisional outcome. A
distinguishing trait of the no-citation opinion is its effortless construction and its narrative
approach to case framing. But the corollary epistemological problem is how do we knowwhat kind of case this is, and how can we test or validate its outcome if it lacks any citations
to calibrate its reasoning. Judge Posner has commented on the difficulty of today evaluating
a case as “good” or “bad.”105 Professor Oldfather agrees that in our post-realist world that
so long as a judge can justify her outcome by reference to legitimate forms of judicial
reasoning (e.g., case law support) that it is difficult to deride it as “wrong.”106 It has thearithmetic responsiveness we see in a math problem. We can check it against itself. The
question presented in a judicial opinion justifies its own existence.
So although the no-citation opinion can potentially meet our perfection litmus ofcontaining effortless writing and unstrained thinking, it is subject to the corollary problem ofconfirming how we can really know if its reasoning is sound, or even relevant. I earlier
mentioned the footprints in the Abrams dissent, where Holmes refers to a network of caselaw that functions to contextualize and frame it as a political speech First Amendment case,even if the prior case law is not directly relied on. A threshold explanatory move made by ajudge is to reduce the case to a precise legal question so as to frame it for her analysis. This
105 RICHARD A. POSNER, HOW JUDGES THINK 3 (2008).
106 Oldfather, Error Correction, supra note 96, at 50-51.

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characterization situates the “monologic voice” (Ferguson) that the author can then utilize toabstract and decontextualize the textured facts of the case into a pure question of law. It is acontrivance to distance the judge as objective arbiter and create the ineluctable sense of there
being only one possible answer.
This initial framing move doesn’t read as a justification because it is a convention of
opinion writing, but it is still a strategic move on the part of the author to situate the caseand frame her responsive analysis.107 It echoes discussion about the common metaphor ofjudges as umpires, and debates as to whether they are simply “calling balls and strikes,” orconstructing the strike zone, or doing something altogether different (like serving as acommissioner108, or being an aesthetic judge109 as in figure skating, diving, etc.). But therealist perspective has a threshold critique: there are no balls or strikes until the umpire calls
them. They are a judicial construction. The question I am curious about here is not how ajudge discerns a ball from a strike, or constructs the strike zone, but the conditional questionof how a no-citation or exploratory opinion can adequately explain to us what game weshould even be playing – what sort of opinion is this, and what is its goal?
Sometimes we celebrate the inventive framing of a case. No judge can control thefacts of the particular case they receive, and most judges have little control over theirpersonal docket (as cases are commonly assigned by a chief judge, or distributed by animpersonal bureaucratic formula). This is what makes the Cardozo oeuvre so compelling.
We lionize him for his ability to transform Scalia’s “dog” into a “plum,” as in his famous

107 Oldfather, Writing, Cognition, and the Nature of the Judicial Process, supra note 89, at 1315 (2008) (discussing
psychology of how initial framing or presentation of information informs audience reception).
108 Aaron S.J. Zelinsky, The Justice as Commissioner: Benching the Judge-Umpire, 119 YALE L.J. ONLINE 113 (2009).
109 See generally Adjudication in Aesthetic Sports, supra note 7.

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Palsgraf decision.110 This judicial alchemy makes Cardozo an icon, but also subject to critiquefrom those like Judge Noonan who argued Cardozo lacked empathy and prioritized his own
reputation as a judge over the parties to his cases.111 That he chose doctrinal evolution overfactual integrity.
In any event, here we come across a core contradiction in this survey: what we do if
the aspirational conventions of the perfect opinion and the merely great opinion are
diametric. This is not a question of scale or emphasis, but polarity. The great opinion
includes careful citation and shepherds the reader through the opinion by including acontextual fact and procedure section that prompts a discernable legal question, and thencites to articulable reasons to justify its outcome. The perfect opinion is instead a firstdescent into the first principles of our law, an adventure for reader and writer without themap of prior case law. What if the judge-author fails in this attempt for perfection? A
future contribution to this literature on judicial perfection might be to chart the remotecorners of Westlaw for the ambitious judge who simply failed in this mission for perfection.
What do these opinions look like? Where do they go? Do these judges, or the law, suffer?
We can fairly ask who should aim for perfection, and consider the cultural question of what
informs judicial reputation and how the individual credibility of a judge frames our
expectations of what sorts of legal (or non-legal) arguments she is allowed to make: how can
we separate the judges who Posner suggests may go “beyond the conventional categories of

110 See, e.g., JOHN T. NOONAN, JR., PERSONS AND MASKS OF THE LAW 23 (1976) (“Judges like Holmes andCardozo remain hidden as they transmute the tawdry materials of life into aesthetic masterpieces.”). Judge
Noonan later refers to Palsgraf as “the most famous tort case of modern times.” But, importantly, it’s not his
favorite. Id. at 111.
111 See generally id. at 111-51.

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legal thinking [and employ] a style equal to the range of considerations that they consider
relevant”?112
We can assume that Posner includes himself in this category of the “beyond” judge.
Indeed, Judge Wilkinson suggested that Posner’s style of judging works very well for him,
but that the majority of judges lack the intellect and panache to effectively pull off his
pragmatic approach to dispute resolution.113 Posner, of course, does not need my advice on
writing. But we can certainly learn from him, and his own choice of favorites. As
mentioned, one of them is Justice Holmes’ canonic dissent from Lochner v. New York, 198
U.S. 45 (1905).
Holmes dives into the opinion. He doesn’t reframe it with a question prompt orwrite from authorial distance. Rather he comments directly on the ulterior intellectual
approach of the majority, and considers a study plan for how he might form his own
opinion on economic theory. But then he reminds us this doesn’t really matter. It is awindow into his interior monologue. It is unconscious thought.114 This begins hismasterstroke:“This case is decided upon an economic theory which a large part of the country
does not entertain. If it were a question whether I agreed with that theory, I should
desire to study it further and long before making up my mind. But I do not conceivethat to be my duty, because I strongly believe that my agreement or disagreement has
nothing to do with the right of a majority to embody their opinions in law.”115
It is so natural as to feel like we’ve come across a diary entry or his personalcorrespondence. The references are so fresh that they are almost startling. No one will ever

112 Posner, supra note 4, at 1449.

113 J. HARVIE WILKINSON, III, COSMIC CONSTITUTIONAL THEORY 80-103 (2012).

114 Indeed, there is some evidence for Unconscious Thought Theory, or the claim that unmediated,spontaneous writing can represent our best thinking. See, e.g., Oldfather, Writing, Cognition, and the Nature of the
Judicial Process, supra note 89, at 1326 (2008).
115 Lochner v. New York, 198 U.S. 45, 75 (1905) (dissenting, J. Holmes).

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forget Herbert Spencer and his Social Statics after reading Holmes’ dissent, even if Holmes
never tells us what Spencer’s book is about. We know that it’s an ideology of one sort oranother, and that ideologies are orthogonal to the concrete practice or interpreting a
constitution. His points about the police power, the Fourteenth Amendment, and judicial
process each resonate, even if he doesn’t explicitly frame his analysis with a question
presented, or move deductively through his opinion. It is cultivated spontaneity. It’sthought in action. It’s effortless – it’s zen.
However, it is also a dissenting opinion. And so although it meets many of our tests
for the perfect opinion (written from first principles; effortless style; a zen sense of framingin which the author does not distort his actual thinking by explaining his instinctive sense ofnarrative argument to his audience), it also relies on implied reference to the facts andreasoning in the majority opinion. But the more concerning problem is that Holmes “lost”
this case. I am unsure if we can have a theory of law (here: that a perfect opinion exists, thatat least some judges should aim for it, and that all of this is very good) that celebrates a nonmajority opinion. A threshold test for any model of jurisprudence would seem to be if itcreates law. This is basic quality control for a theorist. And Holmes’ dissent, at least not
until its constructive overrule in 1938, was not “good law.” It wasn’t mandatory authority
anywhere, for anything.
And so I include one final qualification for the perfect opinion: It must be
herculean. Ronald Dworkin famously created an ideal judge, Hercules, as a means to suggest
the implicit normativity of our legal method.116 In Dworkin’s words, “I have invented, for

116 One of Ronald Dworkin’s favorite examples of a “hard case” is of course Riggs v. Palmer, 115 N.Y. 506(1889). Cf. Understanding the Model of Rules: Toward a Reconciliation of Dworkin and Positivism, 81 YALE L.J. 912, 919
n.12 (1972) (“To leave the analysis at this may seem to elide almost all of the important questions about judicial
decisionmaking-those involving the institutional responsibilities of judges which are implicated in all decisions
regarding the applicability and use of rules, and others concerning the appropriate ranking of values for various

116this purpose, a lawyer of superhuman skill, learning, patience and acumen.”117 It makes
perfect sense to measure our potentially perfect opinions against Dworkin’s vision, because
his theory is after all one of perfection.118 Hercules is able to survey our expanse of available
legal materials to channel the very best of the most relevant principles underlying our priorcase law to form a majority opinion that is consistent with the integrity of the common law
system.119 Importantly, identifying these synthetic principles does not require precise citation
to the cases they are manifested in. Rather Dworkin articulated a “concept of principles that
‘underlie’ or are ‘embedded in’ the positive rules of law.”120 And so it is that if our own
human judge “is lucky, he may find, when he digs beneath the verbal surface of legal
doctrine, the deep springs of the law.”121 Has one of our own ever enjoyed this apotheosis
into Hercules?

Herculean Opinions“Grant for the sake of argument that what Hercules does is perfect.”122
Favorite Jurist

Favorite Opinion

Superlative language

Citationscases. But there is no answering these questions here; complex cases are the favorites of legal scholars, who will
devote an entire essay to the dissection of just one.”) (emphasis added). Per my count Riggs cited four cases – amodest number, but more than zero. In Riggs – and his other favorite hard case Henningsen v. Bloomfield Motors,
32 N.J. 358 (1960) – “Dworkin sees courts interpreting the law in light of background principles as well as
black-letter rules.” David O. Brink, The Forum of Principle, 15 APA NEWSLETTER ON PHILOSOPHY AND LAW 1,
at 2 (2015). Each judicial opinion has been previously analyzed for its use of principled argument, and I havelittle more to add here at the moment. More importantly, they each rely on case law. And so perhaps
surprisingly, these Hercules-inspiring judicial opinions are themselves not perfect given my inductively-arrived
criteria. They are not truly Herculean.
117 Ronald Dworkin, Hard Cases, 88 HARV. L. REV. 1057, 1083 (1975).
118 E.g., Sarah M. R. Cravens, Involved Appellate Judging, 88 MARQ. L. REV. 251, 283-85 (2004) (describing
Dworkin’s “aspirations of perfection”).
119 E.g., Dworkin, supra note 117, at 1092.
120 Id. at 1082-83.
121 Posner, supra note 4, at 1447.
122 Don Herzog, Cute Prickly Critter with Presbyopia, 110 MICH. L. REV. 953, 962 n.18 (2012).

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Bryan Garner;
andCharles FriedWest Virginia State Board of Education
v. Barnette, 319 U.S. 624 (1943)(Justice Jackson)

Judge Selya (selfcitation)

Levesque v. Anchor Motor Freight, Inc.,
832 F.2d 702 (1987) (Judge Selya)

N/A (still unfavorited)

Springfield Gas & Elec. Co. v. City of
Springfield, 257 U.S. 66 (1921)(Justice Holmes)“a thing of beauty”(Garner)a favorite, or at least his
favorite Jackson opinion(who he thinks is one of
the three best writers on
the SCOTUS)123 (Fried)“my favorite”124

Two, butmaybe three

N/A.

Zero

Zero

We have two herculean candidates. West Virginia State Board of Education v. Barnette isa favorite first principles majority opinion authored by Justice Jackson; the overlooked
Levesque v. Anchor Motor Freight, Inc. is from Judge Bruce Selya of the First Circuit. Judge
Lebovits noted Holmes’ own no-citation majority opinion in Springfield Gas, but
unfortunately it has not (yet) been favorited, and so it can’t be a perfect opinion (at least
presently).
Justice Jackson is an icon, and has a deserved reputation as being a wonderful writer.
Indeed, Jackson is cited by a majority of the current U.S. Supreme Court justices to be “theirfavorite writer ever to serve on the court.”125 In his 2017 contribution to the Stanford Law
Review, former Solicitor General Gregory G. Garre observed that “some of [Jackson’s]
opinions are regarded as among the finest writings of the Supreme Court.”126 For Garre,“much of the force of his opinions comes from his focus on first principles and aversion to

123 Charles Fried, Balls and Strikes, 61 EMORY L.J. 641, 647 (2011) (“Justice Jackson made some of the best andboldest decisions in the whole of our constitutional jurisprudence--my particular favorite is West Virginia State
Board of Education v. Barnette…”).
124 Bruce A. Selya, In Search of Less, 74 TEX. L. REV. 1277, 1277 (1996).
125 Bryan A. Garner, Celebrating the powerful eloquence of Justice Robert Jackson, ABA JOURNAL (Oct. 2016),
http://www.abajournal.com/magazine/article/powerful_eloquence_justice_robert_jackson (“Doubtless
because Jackson was so unusually eloquent, a majority of the current justices name him as their favorite writer
ever to serve on the court.”).
126 Gregory G. Garre, Lessons from “America’s Advocate”, 69 STAN. L. REV. 1795, 1807 (2017).

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‘legalese.’”127 Posner agrees that Jackson “cultivated a plain style with great success.”128 But
here we should understand “plain” in the distinct sense of effortless and candid. Jackson
was an aesthete in the total sense, and “surely the only Justice to be named best dressed man
in America by the Custom Tailors Guild.”129
Solicitor Garre’s reference to first principles echoes my theorizing in this paper, but I
want to unpack a connection between writing theory and psychology that might explain thiscore trait of Jackson’s writing. Unconscious Thought Theory suggests that in certain
contexts unmediated, spontaneous thinking might be our best thinking, and that deliberation
can obscure or wooden the zen vitality of our original idea. We probably all shareexperiences where our “first take” was our best, but as academics we are aware of the Robert
Graves aphorism, “there is no good writing, only good rewriting.” However, there isevidence that in certain limited contexts our zen thoughts are our best thoughts: “theUnconscious Thought Theory literature suggests that the benefits of unconscious thought
are achieved after the information necessary to a decision is carefully absorbed.”130 Or forus, the judge with accreted wisdom that comes from years of work in the law (tacitknowledge) might craft the effortless masterstroke from first principles, whereas the judicial
novice lacks this same cultivated instinct, and must labor from conventional sources of law.
Justice Jackson’s varied experience (including as solicitor general, attorney general,
chief prosecutor in the Nuremberg trials) provides an especially robust base of tacitknowledge from which to operate. This “situation sense” (Llewellyn) manifests in his ability
to re-contextualize the Korean War steel seizure facts into a first principles meditation on
the fluid nature of comparing presidential v. congressional powers in the special terrain of
127 Id.

128 A STUDY IN REPUTATION, supra note 16, at 140.
129 Fried, supra note 123, at 649.

130 Oldfather, Writing, Cognition, and the Nature of the Judicial Process, supra note 89, at 1326.

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national security law. In West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943),
Jackson masterly connects the precise factual prompt of whether public school students canbe required to salute the American flag to a synthetic look at the nature of symbols and theirfunction in society:
There is no doubt that, in connection with the pledges, the flag salute is a form ofutterance. Symbolism is a primitive but effective way of communicating ideas. The
use of an emblem or flag to symbolize some system, idea, institution, or personality,
is a short cut from mind to mind. Causes and nations, political parties, lodges andecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, acolor or design.131
But Justice Jackson then reflects on how this social value can compete with theindividual freedom to determine her own thoughts and beliefs. This is first principles
theorizing on the nature of personality and the reserved right of the individual to construct
her own identity. This does not require citation, and perhaps does not even have discrete
case law to cite to. This is embedded into our Constitution’s design as a document that
preserves individual autonomy separate from the reach of the state, and perhaps manifests inthe penumbras of the First Amendment, notions of substantive due process and theoverlooked text of the Ninth Amendment.132 Jackson writes:
It is also to be noted that the compulsory flag salute and pledge requires affirmationof a belief and an attitude of mind … To sustain the compulsory flag salute we are
required to say that a Bill of Rights which guards the individual's right to speak his
own mind, left it open to public authorities to compel him to utter what is not in his
mind.133
Of course we cannot let public officials dictate the contents of our minds. This isitself a very important thought, and thus must be made in the best judicial prose. As
131 West Virginia State Board of Education v. Barnette, 319 U.S. 624, 632 (1943).

132 See Justice, supra note 71 for discussion of his favorite opinion, Justice Goldberg’s concurrence in Griswold v.
Connecticut, because “of its frank discussion of the role of the Ninth Amendment in constitutional
interpretation.” Justice, at 1241.
133 Barnette, 319 U.S. at 633-34.

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confirmed by premier stylist Bryan Garner, Barnette is a “a thing of beauty.”134 Garner also
notes that for an “eight-page opinion, Jackson quotes very little and cites only two cases.”135
I count three cases, but either way, Jackson is concerned with general principles more thandata points, and writes with a purview that transcends the immediate details of the case. It is
an incomparable majority opinion, and it might be perfect. However, I do point out
Garner’s own reservation! That Jackson uses the clunky word choice of “therein” threetimes in Barnette.136 “No one is perfect,”137 even if our rare opinion might be.
I quickly remark on how Justice Jackson’s favorited opinions seem to synthesize histhinking on constitutional design with embedded principles of American democracy.
Holmes’ reference to our “experiment” with self-government in Abrams is a similarargumentative move. This citation to our identity as a democracy and our vision of a freepeople can be interpreted as a form of ethical argument put forward by Philip Bobbitt. In
Constitutional Fate, Professor Bobbitt outlines his typology of constitutional reasoning in the
U.S. Supreme Court.138 Of particular note for this paper is the Bobbitt modality of “ethicalreasoning,” in which the Court reasons from our American ethos of national identity; forexample, as in the description of Manifest Destiny in McCulloch v. Maryland139, or by reference
to the Dr. Kenneth and Mamie Clark “doll experiment” in Brown v. Board of Education, and its
implied sense that we – as a nation – cannot tolerate a segregated existence that fosters asense of inferiority among black schoolchildren.140

134 Garner, supra note 125.
135 Id.
136 Id.

137 Garre, supra note 126, at 1807 n.76 (2017) (“No one is perfect—Jackson ‘liked the word therein.’”) (quoting

Garner, supra note 125),
http://www.abajournal.com/magazine/article/powerful_eloquence_justice_robert_jackson).
138 See PHILIP BOBBITT, CONSTITUTIONAL FATE: THEORY OF THE CONSTITUTION 3 (1982).
139 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 408 (1819).
140 Philip Bobbitt, Methods of Constitutional Argument, 23 U. BRIT. COLUM. L. REV. 449, 455 (1989).

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Of course neither the concept of Manifest Destiny nor social psychology areconventional forms of legal authority. However, the doll experiment’s implied value as abarometer of the Fourteenth Amendment and our constitutional core principle of equality
before the law gives it a legal valence that is not true of Manifest Destiny, or the purely
instrumental argument based in economic thinking.141 I make this clarification to provide
some content to our definition of what sorts of legal materials the herculean judge may fairly
refer to when discerning the general principles in our law; to distinguish the principles
integral to our positive law from other values or forms of reasoning which are separate.

Revisioning LevesqueJudge Bruce Selya’s majority opinion in Levesque v. Anchor Motor Freight, Inc., 832 F.2d
702 (1987) blurs the “fun” with the “herculean” opinion. It transcends itself by seeming topoke fun at the genre of the judicial opinion and its usual conventions. I am unsure if it’s
great, but yet it might indeed be perfect.
For those unfamiliar with this lexophile senior judge from the First Circuit, I
introduce him by his most identifiable gift – his incredible vocabulary. Here is a 1992 New
York Times write-up:
In Judge Selya's linguistic armamentarium, various entities may be described as
exiguous (meager), struthious (ostrich-like), neoteric (modern, recent) orinconcinnate (unsuitable, awkward). His world is populated with people who are
forever repastinating (digging again), resupinating (turning upside down), prescinding(withdrawing attention from), perfricating (rubbing thoroughly) or vaticinating(prophesizing).142

141 But see Harry T. Edwards, The Growing Disjunction Between the Legal Education and the Legal Profession, 91 Mich. L.

Rev. 34, 48 n.40 (“Another former law clerk mused: ‘Law & economics is to some degree helpful in practice,especially if you're arguing in the 7th Circuit. Otherwise I don't see much direct benefit to practice.’”).
142 David Margolick, At the Bar; Sustained By Dictionaries, a Judge Rules That No Word, Or Word Play, Is Inadmissible.,
THE NEW YORK TIMES (Mar. 27, 1992), https://www.nytimes.com/1992/03/27/news/bar-sustaineddictionaries-judge-rules-that-no-word-word-play-inadmissible.html.

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Judge Selya is idiosyncratic, but is he an icon? It appears that other federal judges
think he might be. According to one empirical study from Professors Stephen Choi and
Mitu Gulati, Selya was the fourth most-cited federal appellate judge outside her home circuitfrom 1998-2000 (behind only Richard Posner, Frank Easterbrook and Sandra Lynch).143
Selya would not be surprised by his inclusion in this rarefied list. He is his own favorite
judge.
In a 1996 Texas Law Review symposium issue on favorite judicial opinions (Volume
74, Issue 6), the Honorable Bruce Selya selected his own opinion for the court in Levesque v.
Anchor Motor Freight, Inc.144 Most judges at least feign humility. It is rare for a judge toindulge in this personal sort of hagiography in the pages of a law review. But given my own
theory of perfection, I can’t disagree with the reason for his self-citation:“There is one thing--and one thing only--that redeems Levesque and distinguishes itfrom the mine-run of opinions which crowd the pages of the Federal Reports: it is
the only full-dress, published appellate opinion of which I am aware that contains nocitations . . . not a case, not a treatise, not a statute, not a law review article.”145
There is a reflexive move in Selya citing his own no-citation opinion as a favorite.
The first principles judge signals to the legal reader that she possesses the transcendent senseof the inner workings of the common law.146 At the same time the legal reader trusts that if
a judge writes with this sort of effortless confidence, then she must necessarily be a gifted

143 Stephen J. Choi & G. Mitu Gulati, Mr. Justice Posner? Unpacking the Statistics, 61 NYU ANNUAL SURVEY OF

AMERICAN LAW 19, 28 (2005) (more precisely, the fourth most-cited federal appellate judge by other federal
judges from outside the judge’s home circuit from 1998-2000).
144 Levesque v. Anchor Motor Freight, Inc., 832 F.2d 702 (1987).
145 Selya, In Search of Less, note 124, at 1278 (though of course he misses Springfield Gas & Elec. Co. v. City of
Springfield as a second no-citation majority opinion).
146 Cf. Primus, supra note 28, at 258-59 (“The great Justice hypothesis has initial plausibility. Harlan, Holmes,
and Brandeis were great Justices, and, in their opinions, authorship often seems to become authority. A
question immediately arises, however, as to why those Justices are considered great in the first place. Is it not atleast partly because they wrote great opinions, including, and perhaps especially, great dissents? If that is so, as
it surely is, then the great Justice theory risks circularity.”).

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judge. The first principles judge does not write from anxiety, but the wisdom of tacitknowledge.147
And so Judge Selya begins his own masterstroke:“In this personal injury suit, David A. Levesque, plaintiff-appellant, sought torecover damages from Anchor Motor Freight, Inc. (Anchor) and Joseph Tobin,
defendants-appellees. The controversy arose in consequence of an accident which
took place on March 14, 1984. Briefly stated, on that day Tobin (an employee of
Anchor) drove a multi-level car carrier, fully loaded, to a dealership in Cranston,
Rhode Island. After parking in the dealership's lot, he began unloading the nine
spanking new chariots which comprised this shipment.”148
There are two notable takeaways from this excerpted section. First, this is a run-ofthe-mill negligence case. It does not involve existential threat, moral conflict or the “hardcase” of conflicting authority in equipoise. But Selya still aims to reason from first principles
embedded in negligence doctrine. Torts professors now have evidence for theirConstitutional Law colleagues that their subject area transcends itself.
The other takeaway is that Selya is having some fun with this opinion, as reflected in
the hyperbole of “nine spanking new chariots.”149 This language is not an outlier. Rather
Selya then writes that plaintiff sued to “assuage his hurts”150, that defendant’s testimony was“less than exquisitely revelatory”151, is sprinkled with platitudes like “but life is not sosimple”152 and repartees such as “it beggars credulity.”153 This language is consciously
baroque and didactic, and would probably be perceived by most readers (especially parties toa case) as condescending. But perhaps Judge Selya is empathic of these parties, and isinstead reflecting on the nature of his occupation. He also inserts turgid language and jargon
147 See Shane Tintle, Citing the Elite: The Burden of Authorial Anxiety, 57 DUKE L.J. 487, 500-01 (2007) (describing
citation as reflective of a semiotics of anxiety, and the need to compensate for lack of confidence).
148 Levesque, 832 F.2d at 702-03.
149 Id. at 703.
150 Id.
151 Id. at 703.
152 Id. at 704.
153 Id.

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that could be read as commentary on the usual affectations of lawyerly writing; for example,
his use of “ergo”154, “nisi prius roll”155, “no rational venireman”156, “idiocratic”157, or “thejury verdict should [not] be jettisoned.”158 Perhaps this opinion is instead a sort of postmodern critique on bureaucracy and court process. It is sphinxlike.
Indeed, other times Judge Selya seems to write with elegance on deep questions ofepistemology in fact determination, the exact same sort of problem we struggled with earlier
when thinking about cognition and reason-giving. Selya reminds us of the basic
inscrutability of life and the limits of technology:“There is no computer printout which can tell us the precise number of seconds that
one must look before he leaps. Jurors, using common sense and collective
experience assess credibility and probability, and proceed to make evaluative
judgments, case by case: challenged behavior is or is not negligent. Indeed, this is thequintessential stuff of which jury questions are fashioned.”159

Is this how Judge Selya portrays modesty? He again argues for judicial restraint: “the‘perhapses’ which dot this cryptic record are for factfinders to resolve—not for judges
imperiously to dictate.”160 But just as we think we might be able to discern an identity forthis curious opinion, to distinguish it as either self-indulgent or instead a first principles
meditation on the nature of judging, it ends (but with poetic use of space):
We need go no further. The district court properly submitted the negligence issue forjury consideration and acted within its discretion in denying plaintiff's posttrial
motion to upset the verdict. The judgment below must be
Affirmed.161
154 Id. at 703.
155 Id.

156 Id. at 704.
157 Id.
158 Id.
159 Id.
160 Id.

161 Id. at 705.

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And so Selya concludes his opinion in the elliptic manner that he must. This is not
the only time Judge Selya has observed the bureaucratization of judicial work. In “Publish
and Perish: The Fate of the Federal Appeals Judge in the Information Age,” Selya wrote
persuasively on how increased workload has transformed judges “from thinkers tomanagers.”162 In short, that the ideal of the sage-judge is being corroded by the busywork ofwriting facile opinions like Levesque. The many “easy cases” that Frederick Schauer reminded
us of (e.g., no thirty-four year old will ever be inaugurated as president163) are meant to bedisposed of before they enter the courtroom. They are not meant to be written about on
appeal.
In some ways Levesque reads as an inside joke, written only for himself (though it has
been cited at least twelve times by future courts164, even if several of these are selfcitations165). It also could be read as dismissive of the work of prior judges who thought
hard about these same questions of law and fact, and whose work should be cited as acourtesy. Judges are socialized to the norm of stare decisis166, and the habit of citation
becomes hard-wired into their thinking.167 So when a judge ignores prior case law we canread this as an intentional choice. The judge is not making a mistake, but instead the implied
162 Publish and Perish, supra note 7, at 406-07.

163 See, e.g., Frederick Schauer, Easy Cases, 58 S. CAL. L. REV. 399, 420 (1985).

164 Other judges have cited Levesque in: MacQuarrie v. Howard Johnson Co., 877 F.2d 126, 131 (1989);
Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 558 (1989); Bezanson v. Fleet Bank of New Hampshire, 45
F.3d 423, *423 (1995) (unpublished per curiam opinion); Smith & Nephew Dyonics v. Smith & Nephew
Dyonics, 62 F.3d 8, 14 (1995); Violette v. Smith & Nephew Dyonics, Inc., 62 F.3d 8, 24 (1995); Astro-Med,
Inc. v. Nihon Kohden America, Inc. 591 F.3d 1, 13 (2009); Kenney v. Head, 670 F.3d 354, 360 (1st Cir. 2012);
Guzman v. Boeing Company, 366 F.Supp.3d 219, 246-47 (2019).
165 Judge Selya has cited Levesque in: Kassel v. Gannet Co. Inc., 875 F.2d 935, 943-44 (1989); La Amiga delPueblo, Inc. v. Robles, 937 F.2d 689, 691 (1991); Caaa Marie Hogar Geriatrico, Inc. v. Rivera-Santos, 38 F.3d615, 619 n.3 (1994); Blinzler v. Marriott Intern., Inc. 81 F.3d 1148, 1153 (1996);
166 Madeline Fleisher, Judicial Decision Making Under the Microscope: Moving Beyond Politics Versus Precedent, 60
RUTGERS L. REV. 919, 954 (2008); Frank B. Cross et al., Citations in the U.S. Supreme Court: An Empirical Study of
Their Use and Significance, 2010 U. ILL. L. REV. 489, 497 (2010).
167 Stephen R. Barnett, From Anastasoff to Hart to West's Federal Appendix: The Ground Shifts Under No Citation
Rules, 4 J. APP. PRAC. & PROCESS 1, 11 (2002).

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point that what others conventionally do (cite; reason from discernable authority) issomehow worthy of critique. The no-citation judge is bringing attention to herself, perhaps
to suggest that citation is (at least sometimes) silly, pedantic, trivial or enervating. But thisdoes not mean it is necessarily “bad form”168 for Selya to avoid citation. Maybe this opinion
itself is a play on the genre, and is meant to help his colleagues by reminding all of the legal
community how bureaucratic pressures are competing with our envisioned role of judges asthinkers and writers.
Selya of course knows he is doing something unconventional by avoiding all citation.
Just in case his playful approach is not obvious to all readers, he includes a final clarificationfootnote:“It is no accident that this opinion is bereft of a single explicit citation to any statute,rule, or reported decision. The matter is a fact-intensive one. The only principles of
law implicated in the case are so well settled as not to require citation of authority.
Rather than exhibiting any lack of scholarship on our part, we view the pristinenature of these pages as a testament to our steadfast unwillingness to confer
epicurean status on the bland and undistinguished fare which appellant has served up
for our consideration.”169
Selya echoes the purist position on citation to case law and our earlier distinctions
between citing authority as illustrative reference as opposed to reasoned basis. We should
not cite to authority simply because it’s there and it’s relevant. Instead, we should only do sowhen that cited authority somehow informed our thinking – because it educated us or
because the cited authority unexpectedly bound us. We should not cite to it simply as an
ornament or an illustration of a mundane point of law. As someone writing on the value
and use of citation, I find his thinking in this footnote to be provocative. But as someone

168 Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001) (“[W]e would consider it bad form to ignore contrary
authority by failing even to acknowledge its existence…”).
169 Levesque, 832 F.2d at 705 n.5.

127chasing the perfect opinion, this clarification might lack the intrepidness required ofperfection. The perfect opinion justifies itself without explanation. It is beyond ourepistemologies of self-validation, either that of citation or discursive footnote. It is anexistential leap of faith.170
Selya addresses these epistemological concerns in his Texas Law Review symposium
article by confirming that his reasoning in Levesque depended on “legal propositions [that are]… well-settled.”171 Again, our broader framing question: how does Selya know that a
proposition is well settled and that he has accurately identified it? Selya avoids citation toauthority for prosaic points about black-letter negligence doctrine, but he does write withvivid metaphor (our hypothetical supercomputer that quantifies fine distinctions incarelessness) to limn the general principles that inform his decision, i.e. jury verdict stands.
Our negligence heuristic is a rough proxy for shared notions of causality and practicalmorality, and our standards of review reflect broader ideas about triers of fact and court
hierarchy. These are big ideas. And they are referred to elliptically, and by example. This
makes Selya’s opinion literary, but not necessarily subject to external validation.
Because of the epistemological problems involved in evaluating the unexplained firstprinciples opinion, I argue that perfection can only be determined by the future audience.
Levesque has since been cited by twelve cases, and has not yet been overturned. In thelanguage of citation studies, this “counts” for something. Levesque also remains a charming
opinion; it has a jocular spirit, and it marshals this same wit to articulate insightful truths

170 Holmes’ concludes his no-citation Springfiled Gas is relatively effortless, but still a bit self-aware.

Springfield
Gas & Elec. Co. v. City of Springfield, 257 U.S. 66, 71 (1921) (“It is unnecessary to refer to the numerous cases
upon classification by state laws in order to show that the distinction in question here is very far from being so
arbitrary that we can pronounce it bad.”).
171 Selya, In Search of Less, supra note 124, at 1278.

128about the role of judge. Still, it is too self-aware to meet our test of effortless zen. It
comments on its own use of language in a way that makes it feel strained.
Time is our best judge of what endures. The first principles approach of the favorite
opinion allows it to transcend doctrine. Similar, “the sparkling, vivid, memorable opinion is
not so chained to the immediate context of its creation.”172 Because of its literary quality it“wears best over time.”173 The novel metaphor does not have a provenance, and this helps
to explain why Abrams is sparsely cited. The “marketplace of ideas” imagery continues toinspire productive thinking about the meaning of the First Amendment. But with hindsight
we can also unpack certain imperfections in this metaphor. Courts that “invoke themarketplace model of the first amendment justify free expression because of the aggregate
benefits to society,” despite a plain reading that would suggest it is an individual right.174 We
lose some precision in the contours of the First Amendment in this shift to group benefit.
Favorite opinions are literary, but there remain core differences between legal and literarymodalities of explaining our world. With time the limits of metaphor can manifest.175

Future Favorites and The Problem of Perfection
It will be interesting to observe which opinions from today become the favorited
opinions of tomorrow. Will Justice Kennedy’s transcendental reflections on dignity, loveand selfhood be canonized?176 Or will the “mad genius”177 of his first principles approach in

172 A STUDY IN REPUTATION, supra note 16, at 143.
173 Id.

174 Chad M. Oldfather, The Hidden Ball: A Substantive Critique of Baseball Metaphors in Judicial Opinions, 27 CONN. L.

REV. 17, 27 (1994) (citing Stanley Ingber, The Marketplace of Ideas: A Legitimizing Myth, 1984 DUKE L.J. 1, 4
(1984)).
175 E.g., Pierre N. Leval, Judicial Opinions as Literature, in LAW’S STORIES: NARRATIVE AND RHETORIC IN THE
LAW, 206, at 211 (1996).
176 Lawrence vs. Texas, 539 U.S. 558 (2003).

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Windsor be derided as specious?178 Will Judge Posner’s photographic reference to an ostrich
in Gonzalez-Servin179 make it a fun opinion in West Publishing’s next iteration of Blackie the
Talking Cat, or will it instead be remembered as a petty move to embarrass counsel for
ignoring on-point precedent? These questions will depend on the identity of future
audiences. As the demographics of our judges evolve to reflect the diversity of those judged,
perhaps there will be corollary changes to our catalog of favorites. Our first principles
depend on the tacit knowledge of the individual judge, which is of course informed bypersonal history.
But a more troubling jurisprudential question is how foreign authority and non-legal
authority will be used and valued. Citation is an aesthetic of legal writing, and we expect
opinions to look a certain way. It is a semiotics of credibility and power. But debates about
the use or value of foreign authority, or traditionally non-legal materials like social science,
dictionaries, or Wikipedia, are not so much about citation, but about a rule of recognition as
to what are valid sources of authority in our legal culture.180 In contrast to the H.L.A. Hart
position that there is a singular rule of recognition that determines binding authority181, I
argue that given the contextual nature of source-based arguments from authority, that thissingular rule is better conceived as a set of operating rules that give credibility to varied kindsof sources.182 These rules are socially constructed and reflect an interplay of novel references
177 See, e.g., Heather K. Gerken, Windsor’s Mad Genius: The Interlocking Gears of Rights and Structure, 95 B.U. L REV.
587, 588 (2015) (“The genius of the opinion is that it recognizes that rights and structure are like twointerlocking gears, moving the grand constitutional project of integration forward.”).
178 United States v. Windsor, 570 U.S. 744 (2013).
179 Gonzalez-Servin v. Ford Motor Co., No. 11-1665, at 5 (7th Cir. 2011) (“The ostrich is a noble animal, but
not a proper model for an appellate advocate.”),180 E.g., Schauer, Authority and Authorities, supra note 21, at 1959 (2008).
181 H.L.A. HART, THE CONCEPT OF LAW 91-94 (2d ed. 1994). See also Scott
Shapiro, What is the Rule of Recognition (and Does it Exist)?, in THE RULE OF RECOGNITION AND THE U.S.
CONSTITUTION 237 (Matthew Adler & Kenneth Himma eds., 2009) (“Legal systems address
the problem of uncertainty by providing a rule which determines which rules are binding.”).
182 E.g., JOSEPH RAZ, THE AUTHORITY OF THE LAW 97 (“[E]very legal system rests on its laws, which
commonly means on a set of ultimate laws of recognition and discretion.”) (emphasis added).

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and perceived receptions to them (they are “Wittgensteinian” in this way).183 A court withpedigree can claim a new source of authority simply by citing to it. Frederick Schauer andVirginia Wise share the example of how it had been traditionally unacceptable for English
courts to cite to a living scholar.184 But once the first English appeals court cited Arthur
Goodhart, Professor of Jurisprudence at Oxford, in Hannah v. Peel (1945), the practice of
citing living secondary authority gradually became a convention.185 Still, our assumption isthat when a judge cites to this kind of novel secondary authority, or foreign or non-legal
authority, that she is making the limited claim that these sources are useful commentary, or
fodder for good ideas.186 Not that they are law.
But when our favorite judges discern the first principles of our law they are making
an empirical claim that these principles underlie, and are integral to, our positive law. The
first principles judge is not channeling an indiscernible “brooding omnipresence in thesky”187, but drawing on something autochthonic to our legal culture. It is Montesquieu.
This empirical claim can be a profound one about the meanings of equality(Korematsu), freedom of speech (Abrams), freedom of personality (Barnette) or executive power(Youngstown Steel) embedded in the spirit or design of our Constitution. Or it can be themore modest empirical claim of black-letter doctrine (Levesque), where facile use of a string
citation would only exacerbate the perception that our judges are just purveyors in pincites,

183 See Frederick Schauer & Virginia J. Wise, Legal Positivism and Legal Information, 82 CORNELL L. REV. 1080,

1089 n.42 (1997).
184 Id. at 1088.
185 Id.
186 See, e.g., Justice Ruth Bader Ginsburg, Speech at the American University International
Academy of Comparative Law: “A Decent Respect to the Opinions of [Human]kind”: The Value of aComparative Perspective in Constitutional Adjudication (July 30, 2010), https://www.supremecourt.
gov/publicinfo/speeches/viewspeech/sp_08-02-10 (describing exchange during Justice Kagan’s nomination
hearing when she confirmed she is “in favor of good ideas coming from wherever you can get them,” including
by reading the decision of a foreign court).
187 Southern Pacific Company v. Jensen, 244 U.S. 205, 222 (1917) (dissenting, J., Holmes).

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our “principle asset” of the law.188 The aesthetic choice then becomes not to cite. Selya also
steps outside of his Levesque opinion as a participant-observer, and speaks first principles
aphorisms (however banal) to announce this is a special case. For Selya, the very
mundaneness of Levesque indicates the profundity of the problem: why am I required to write
this? To defer to case law would not be wise, but a rote exercise to achieve the look of
judicial writing that we have come to expect.
The problem is how to cabin off which “deep springs” we can refer to. The
positivist’s claim is essentially a limited domain thesis.189 That there is a contained universeof valid sources of legal information, and that we cannot look to things that aren’t there
when making legal decisions. There must be palpable, verifiable law. Those like Judge
Posner who instead argue that the law is not an autonomous domain permit themselves togo beyond these conventional categories.190 But again we can fairly ask: who is allowed to go
beyond, and how far can they go? Lon Fuller’s innovation was to construct a natural law
theory within our internal morality of procedural norms, rather than look to extra-legal
values like religion or the “good life” etc.191 But as our legal culture evolves to consider new
sources of authority192, and our world of legal information expands with the sprawl of ourInternet search engines193, it becomes difficult to distinguish legitimate unarticulated law
from illegitimate unarticulated law. It is the epistemological problem of defining something
we can’t see. It’s our old trope of “where do we draw the line.”

188 Frank B. Cross, et al., supra note 19, at 493.

189 Schauer & Wise, supra note 183, at 1088-93.
190 Id. at 1098.

191 LON FULLER, THE MORALITY OF LAW (1964).

192 See, e.g., Bezalel Stern, Nonlegal Citations and the Failure of Law: A Case Study of the Supreme Court 2010-11 Term,

35 WHITTIER L. REV. 79 (2011) (identifying 295 citations to conventionally non-legal authorities such as
academic articles from other disciplines, dictionaries, newspapers and Internet and video sources).
193 E.g., Robert C. Berring, Legal Research and the World of Thinkable Thoughts, 2 J. APP. PRAC. & PROCESS 305, 313(2000).

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One conclusion of this paper would seem to be that judges should cite less. But weshould also worry that as our universe of citable authority expands to include new sources,that the sparsely cited opinion might not rely on grounded principles that are sufficiently
legal. Justice Breyer tells the story of the congressperson who tolerated Breyer’s study offoreign materials so long as he did not disclose this inspiration in his opinions.194 If Breyer
can still rationalize his argumentative move with reasons based in our own set of citable legal
authorities, then he can at least maintain the perceived integrity of our legal system. But if
no prior case has been decided on this same foreign principle, then the congressperson’s
suggestion of an un-cited opinion is the more dangerous one, as we lose our grasp on ourinternalized set of first principles. At least in opinion writing, it seems that perfection isindeed the enemy of the good. This should make each judge pause before authoring an
opinion without citation, even our very best ones.

194 The Relevance of Foreign Legal Materials in U.S. Constitutional Cases: A Conversation Between Justice Antonin Scalia andJustice Stephen Breyer, 3 INT’L J. CONST. L. 519, 522-23 (2005).

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V. ART THREATS AND FIRST AMENDMENT DISRUPTION*
This paper has been accepted for publication in Volume 16 of the DUKE JOURNAL OF
CONSTITUTIONAL LAW & PUBLIC POLICY (forthcoming 2021).
Abstract
The novel problem of art threats, typified by threatening rap lyrics, has destabilized our First Amendment
regime. We traditionally relied on industry gatekeepers like music labels or museum curators to determine
what counts as art. However, with the advent of the Internet, amateur artists can share their aesthetic output
with a public audience, bypassing the threshold quality control work of the Art World. This has forced U.S.
courts to acknowledge foundational questions about what kind of art is covered by the First Amendment.
In brief, the First Amendment covers good art. But judges don’t want to make qualitative judgments, andlaw and rap scholars don’t want to admit that most individuals who attempt to rap simply aren’t very skilled
at it. In this paper I offer a synthetic conception of the First Amendment that contextualizes this aesthetic
gatekeeper problem within a freedom of speech doctrine that is forced to distinguish art from threat. I consider
some pragmatic solutions for how either civil society or the state can mirror the essential quality control work
done by prior institutional actors. My thinking is informed by a noble understanding of rap and the cultural
assumptions that explain the boundaries of our First Amendment.
I. How we frame art
Recently rapper Yasiin Bey (better known as Mos Def) debuted an immersive exhibit
at the Brooklyn Museum for his newest album, Negus.1 It was a novel move as compared tothe industry trend of “bundling” music with apparel or other merchandise to improve album
sales or streaming numbers.2 Whereas many recording artists are experimenting withmarketing strategies to make their fans purchase (or at least listen to) their music when they
otherwise might not want to, Bey intentionally chose to limit initial access to his newest
release. He is instead relying on values of exclusivity, critical reputation and aesthetic
experience to distinguish his album among the increasingly non-finite amount of new music* I thank Robin West, Madhavi Sunder, Greg Klass, Lexi Freeman, Sonya Bonneau, Lucius Outlaw III, Almas

Khan, Rafi Reznik, Jomana Qaddour and Bradley Girard for their help with this submission.
1 yasiin bey: Negus, BROOKLYN MUSEUM (last visited Feb. 17, 2019),
https://www.brooklynmuseum.org/exhibitions/yasiin_bey_negus.
2 Anne Steele, Want an Album With That T-Shirt? Billboard Tightens Rules on Bundling Music and Merchandise, THE
WALL STREET JOURNAL (Nov. 26, 2019), https://www.wsj.com/articles/want-an-album-with-that-t-shirtbillboard-tightens-rules-on-bundling-music-and-merchandise-11574776800.

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constantly uploaded to the Internet. There is also an explicit nod here to the notion that rap
is art, and that like visual media and other conventional forms of installed art, that his music
is best appreciated in a museum context.
It is no longer avant-garde to observe how the institutional processes of the Art
World frame our understanding of whether something is received as “art” rather than mere
craft or kitsch. For example, Bey’s experimental brand of rap music registers as aesthetic to
us in part because of the initial decision of museum curators to present it, or record labels to
distribute it. Bey’s reputation is established in the community of music critics and rap fans.
He is a bona fide rapper, and so audiences are framed to hear his innovative musical gestures
as raps. We discern a qualitative boundary separating his aesthetic output from the amateur
attempt at rap because of these background facts related to the production anddissemination of art in society. For most of the twentieth century courts were able todelegate this question of “what is art?” to market players.3 Once someone purchased a
sculpture, or visual painting, or ticket for a play, or musical recording etc. then a judge could
rely on these economic decisions as evidence of the artfulness of a given work. This allowed
judges to avoid difficult problems of aesthetic relativism first identified by Justice Holmes inBleistein4 and later echoed by Justice Scalia in Pope v. Illinois.5 Judges could defer to ourinstitutional gatekeepers and the context of an artwork to determine whether an
unconventional piece had aesthetic value, and as I argue, First Amendment status.6

3 Cf. Christine Haight Farley, Judging Art, 79 TUL. L. REV. 805, 836–39(2005) (outlining various “doctrines of avoidance” to not have to make threshold decisions about artfulness).
4 Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251-52 (1903).
5 Pope v. Illinois, 481 U.S. 497, 504-05 (Scalia, J., dissenting) (1987).
6 Robert Post, Recuperating First Amendment Doctrine, 47 STAN. L. REV. 1249, 1253-54 (1995) (observing how theinstitutional context of an art exhibition like Marcel Duchamp’s readymade sculpture, Fountain, gave it First
Amendment coverage).

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And so it didn’t matter if e.g., many of us thought our six-year old was capable ofproducing the action painting of Jackson Pollock.7 The Art World loved him, and thisinstitutional pedigree made his artwork something separate and unique from the haphazard
paint splatters of the kindergartener. Indeed, in Hurley v. Irish-American, Justice Souterremarked that the First Amendment “unquestionably shielded … [the] painting of Jackson
Pollock, music of Arnold Schoenberg, [and] Jabberwocky verse of Lewis Carroll.”8 This is asoothing thought for fans. But as free speech doctrine is commonly understood to protect
the transmission of ideas, what does it mean for the First Amendment to protect aesthetic
items that intentionally resist having meaning?9
It is challenging to identify a factual hypothetical for when the legality of a Jackson
Pollock painting might be at play. His 160-square foot canvas “Mural” (1943) could be
distracting as a public art installation for passing motorists, but to my knowledge there are
no Pollocks visible from our roadways.10 Maybe the eggshell viewer might find his
inscrutable paintings to be so degenerate that they border on obscene or threatening of themoral universe. But like much of modern or contemporary art, the very fact that Pollock’s
art is non-representational and does not convey a “particularized message” makes it
7 But see Ellen Winner, Could Your Child Really Paint That?, THE WALL STREET JOURNAL (Oct. 19, 2018),
https://www.wsj.com/articles/could-your-child-really-paint-that-1539959482 (referring to recent academic
studies that show that even the untrained eye can detect quality differences in abstract artwork).
8 Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 569 (1995). JusticeSouter’s passing reference suggests that this is a shared presumption of the legal community, and does not
require logical explication. However, prior to opinion in Hurley it was unclear if art had First Amendment
Status. Professor Marci Hamilton wrote in her 1996 article, “Art Speech,” that the Supreme Court “should
consciously elevate art to the top of the First Amendment's pyramid of protection, alongside political speech,”suggesting that at the time of writing it was not part of the normative hierarchy. Marci A. Hamilton, Art Speech,
49 VAND. L. REV. 73, 111 (1996). See also Sheldon H. Nahmod, Artistic Expression and Aesthetic Theory: The
Beautiful, the Sublime, and the First Amendment, 1987 WIS. L. REV. 221, 222 (1987) (“most commentators consider
artistic expression as subservient to, and derivative of, political expression; they determine the first amendment
value of artistic expression primarily, if not solely, by its resemblance to political expression.”).
9 See, e.g., Amy Adler, A Decision for the Ages: A Symposium Marking the Centenary of Masses Publishing Co. v.
Patten, 50 ARIZ. ST. L.J. 687, 711 (2018) (“The difficulty of reducing art works to “ideas” or “messages” hasbeen a recurrent problem in free speech law and theory.”).
10 See, e.g., Mark Tushnet, “Art and the First Amendment” in FREE SPEECH BEYOND WORDS 72-72 (MarkTushnet et al. eds.) (2017).

136criminally harmless. Rather we can read Justice Souter’s line in Hurley as reflecting the facile
logic of “Why not?” We assume there to be little damage done to First Amendment
doctrine by name-checking Pollock’s work, and it helps to reassure Americans of theprestige value of the First Amendment. We all agree the First Amendment is special, and so
it should of course protect special forms of expression like the painting of Jackson Pollock
and the nonsense poetry of Lewis Carroll that are part of our cultural canon.11 What is there
to lose?
Outside of outlier cases like Robert Mapplethorpe’s photography being contested as
obscene in Cincinnati v. Barrie,12 it was difficult to imagine a fact pattern in which the First
Amendment might not cover a serious attempt at art.13 This reflected our constructed highvalue/low-value speech regime that made it impossible for a speaker or artist to have bothaesthetic and threatening intent. As recently as 2008 Professor Edward J. Eberle wrote: “it ishard to imagine art speech constituting incitement, threats or fighting words. Instances ofart speech almost never involve violence or threatened violence germane to these categories
of unprotected speech.”14 The possibility of an “art threat” is hard to square within a freespeech doctrine that does not cognize threats as speech, or within an Art World where
aesthetic expression is assumed to be polysemic and have a general audience.
User-generated Internet content by definition bypasses the quality control work of
our Art World gatekeepers. Prior scholarship has identified this gatekeeper problem in thecontext of fake news or defamatory or hostile speech.15 Here I focus on the precise issue of

11 See, e.g., Frederick Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional
Salience, 117 HARV. L. REV. 1765, 1787-1800 (2004) (considering “the magnetism of the First Amendment”).
12 Alex Palmer, When Art Fought the Law and the Art Won, SMITHSONIAN (Oct. 2, 2015),
https://www.smithsonianmag.com/history/when-art-fought-law -and-art-won-180956810/.
13 See Miller v. California, 413 U.S. 15, 24 (1973).
14 Edward J. Eberle, Art as Speech, 11 U. PA. J. L. & SOC. CHANGE 1 (2007-08).
15 Kate Klonick, Facebook v. Sullivan: Public Figures and Newsworthiness in Online Speech, 93 S. CAL. L. REV. 37, 76(2019) (“In the new speech ecosystem brought about in part by platforms like Facebook, people can be thrust137

who makes threshold decisions about whether something is art at all. This has direct First
Amendment resonance as conventional First Amendment doctrine assumes that “art”
cannot simultaneously be a true threat. My core claim in this paper is that the Art World’s
threshold decision to present an artwork or publish a music album effectively gave it First
constitutional coverage from a true threats analysis, as courts deferred to the aesthetic
judgment of these gatekeepers. Courts did not need to cite to these institutional gatekeepers
in their opinions, because the judicial opinions never needed to be written. There were
simply no court cases, because the assumption that professional art could not be threatening
was so pervasive.
The advent of Internet rap and performance art has disrupted this First Amendment
regime. These novel artistic media are distinguished from traditional art forms in their
unmediated presentation and surface literality, which facilitate them being viewed as
threatening to audiences. The ubiquity of the Internet and disappearance of the gatekeeper
reify this problem. When Marina Abramovic stares at us in the MoMA we sense heraesthetic aura and recognize the intentionality of this curated experience.16 It is not simply“staring” in the mundane sense. Rather the preternatural ability of Abramovic transforms
this otherwise quotidian event into a very present, artful moment. But what if I simply
recorded a video of me staring into my iPhone camera lens and uploaded it to YouTube andreferred to it as “art” in my thumbnail description? Would my saying it’s art make it so? Or
what if I uploaded a selfie video in which I blithely repeat the line “I will kill the person I
don’t like,” and refer to it as a “rap” in the thumbnail. Has it become a rap? I hope not, but
into the public sphere and bypass the gatekeeping function of the traditional press.”); Erin Carroll, Making
News: Balancing Newsworthiness and Privacy in the Age of Algorithms, 106 GEO. L.J. 69, 71 (2017) (“As the role ofinformation gatekeeper starts to pass from journalists at legacy news organizations to engineers, coders, anddesigners, the very nature of the Fourth Estate and the news it produces is changing.”).
16 See, e.g., Michael Zhang, Sitting, Staring, and Crying with Marina Abramović at MoMA, PETAPIXEL (Apr. 23,
2010), https://petapixel.com/2010/04/23/sitting-staring-and-crying-with-marina-abramovic-at-moma/.

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there might not be an articulable way to distinguish my seemingly literal threat from, e.g. a
congruent lyric from an established rapper. We can cite to the sonic quality and flow of theactual rapper, and contextualize the line as part of a song and how it is used to reflect acollective voice woven within a textured album narrative etc. Still, these are reasons separate
from the surface language of the line in itself: “I will kill the person I don’t like.”

II. What art is, and what art does
I argue that rap is received by audiences similarly to other gestalt art forms like pop
art or abstract expressionism given its emphasis on audience reaction over content. The Pop
Art movement inspired Arthur Danto and his institutionalist approach to the philosophy ofart.17 Danto unpacked how the institutional context of an artwork, and its valorization by
the so-called Art World, transmogrifies a material object into “art;” for example, how the
work of Andy Warhol transcends its consumer references.18 A Warhol Campbell’s Soup canand the actual foodstuff might be so congruent in appearance that it is impossible for the
average viewer to articulate any surface-level differences. But the iterated presentation of the
Warhol images inspires a deeper sort of mentation among viewers, and allows for playful
critique of notions of art and advertisement. Importantly, if I (an awful artist) exhibited myown painted soup cans an audience member would suffer a much more prosaic, un-aesthetic
experience. Still, it might be impossible for the viewer to articulate what, if anything,
distinguishes the surface materiality of these competing images (“the coloring is similar, eachsay Campbell’s and refer to a soup flavor, they are cylinders, etc.”).

17 See, e.g., Arthur Danto, The Artworld, 61 J. PHIL. 571 (1964).

18 E.g., Arthur Danto, The End of Art: A Philosophical Defense, 37 HIST. & THEORY 127, 141 (1998) (observing
paradigm-shifting impact of Warhol’s Brillo Box).

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Rap shares this same core dilemma. Song lyrics, including rap lyrics, very rarely work
as poetry.19 If you were to share the lyric sheet of your favorite song with a friend and tellher it is a “poem,” she would likely deride it as either oblique or heavy-handed, andcategorize it as “bad”. This transcription problem is compounded in the context of judges
reviewing the text of a rap lyric for purposes of a threats analysis. The brilliant rap and thegenuinely awful attempt at rap might each be read as wooden and mundane, making it
impossible for a judge to discern what, if anything, makes for rap-as-art. They each “look”
the same to a reader to the extent that neither reads as literary or artful. We only know if a
rap is good, or even a rap, by hearing it.
Rap lyrics – like most all song lyrics – are better understood as vocalizations that aremeant to inform the sonic texture and listening experience of the song. And so – like most allsong lyrics – these vocalizations might be nonsensical, auto-written or improvised, and are
not necessarily intended to convey meaning. I agree with the law and rap community thatmuch of rap should be interpreted as non-literal, but I also remind this academic communityof the aesthetic turn to ambient rap and mumble rap and of a renewed emphasis on sonicatmosphere over intelligibility or didacticism in rap lyrics. We no longer care about whatrappers say, but how they sound.20 Contemporary rap echoes the Dadaist ethos of separatingwords from meaning. Tyler the Creator, the 2020 Grammy award winner for Best Rap
Album, has argued against a superficial interpretation of his own lyrics, lamenting that “mostpeople just read the surface.”21 We are told since preschool to not judge books by their cover, or

19 See, e.g., Sadie Dupuis’ Twitter feed @sad13, TWITTER (Aug. 7, 2019) (referring to David Berman from Silver Jews
when she tweeted “songwriting is NOT poetry, it's crazy one person was so good at both”),
https://twitter.com/sad13/status/1159248479694147584.
20 See, e.g., Kathy Iandoli, The Rise of 'Mumble Rap': Did Lyricism Take a Hit in 2016?, BILLBOARD (Dec. 21, 2016),
https://www.billboard.com/articles/columns/hip-hop/7625631/rise-of-mumble-rap-lyricism-2016.
21 Tyler, the Creator Reveals Range of Anti-Homophobia Merchandise, NME (May 8, 2015),
http://www.nme.com/news/tyler-the-creator--3/85233 [https://perma.cc/FSB5-6UQ8] (“I'm legit one of theleast homophobic guys to walk this earth but most people just read the surface.”).(emphasis added).

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people by their appearance, but what does it mean to look beneath the surface texture of a
spoken word? It is unusual for us to think of spoken language as a mere container or vehicle
for some kind of alternative or hidden meaning, or lack of meaning.
I argue that all of this is problematic because there is an implicit qualitative judgmentthat informs our understanding of when the First Amendment covers aesthetic output. I
build on the work of prior scholars like Jed Rubenfeld22 and Genevieve Lakier to suggest thefragility of the high-value and low-value speech categories created as part of modern First
Amendment doctrine.23 Categories of law-value speech (such as inciting or threatening
speech) have permitted us to make content-based judgments about the kinds of speech thatcan be lawfully regulated. We might not often think about true threats doctrine explicitly inthese terms, but a statute that criminalizes threatening speech is equivalent to a form ofcontent-based discrimination in which the government favors non-threatening speech overthreatening speech.
Professor Lakier has shown in her recent article, “The Invention of Low-Value
Speech,” how we lack the supposed historical basis for making this high-value/low-value
distinction. Rather these content-based restrictions are informed by broader cultural
intuitions of what the First Amendment is meant to cover. In realist terms, the First
Amendment covers what we think it should. This explains why the First Amendment has
been interpreted to protect not just core speech rights like political speech but the aesthetic
output of Jackson Pollock and Lewis Carroll. Implicit evaluative determinations about ourcultural canon are essential here. In Kleinman v. City of San Marcos (2010), the Fifth Circuit
22 Jed Rubenfeld, The First Amendment's Purpose, 53 STAN. L. REV. 767, 823 (2001) (“The freedom of speech, as

we actually know it and have it in this country, is irreconcilable with high-value/low-value thinking.”).
23 Genevieve Lakier, The Invention of Low-Value Speech, 128 HARV. L. REV. 2166 (2015). By the “modern First
Amendment doctrine” I refer to the First Amendment as interpreted after Justice Holmes’ iconic dissent in
Abrams v. United States. See, e.g., Frederick Schauer, Towards an Institutional First Amendment, 89 MINN. L. REV.
1256, 1278 n.97 (2005).

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held that the First Amendment did not cover all attempts at art (e.g., a painted jalopy toadvertise a novelty store); instead Judge Edith Jones confirmed that “Hurley refers solely togreat works of art.”24 The First Amendment makes quality distinctions.
I don’t attempt to define art in this paper. But I do account for what the label of art
does for First Amendment analysis: applying the label of art to a speech or expressive act 1)
makes it potentially non-literal as well as 2) culturally significant.25 “Art” is truly a magic
word in the law, as it functions to physically move what would otherwise be uncovered or
low-value speech into a privileged category of covered, high-value speech. When JuneauDouglas High School senior, Joseph Frederick, unveiled his “BONG HiTS 4 JESUS”
banner at a 2002 Olympic Torch relay it was deemed mere nonsense of the prosaic kind(Morse v. Frederick).26 But if this had been a direct quotation to a Lewis Carroll line of poetry,
perhaps the same banner would have then been interpreted as artful, and been recognized as
movable to a covered category of speech for the Supreme Court.
Although Lewis Carroll’s stories have been read against an opium culture27, never did
Carroll argue for drug use in public schools or e.g. make direct threats of violence in his
works. Indeed, the contained universe of most any fictional literary work makes it difficultfor e.g. a given novel’s narrative depiction of violence to feel like a genuine threat to a living
person. The obvious truth of this observation feels platitudinous. This same assumption ofan art v. threat binary is what informed Professor Eberle’s comment that “it is hard to
imagine art speech constituting incitement, threats or fighting words.”28 This was hard to

24 Kleinman v. City of San Marcos, 597 F.3d 323, 326 (5th Cir. 2010) (emphasis added).

25 See Post, Recuperating First Amendment Doctrine, supra note 6 at 1256 (1995) (Dean Post constructs his own

graphical table of how communication medium and First Amendment interests intersect).
26 Morse v. Frederick, 551 U.S. 393, 402 (2007).
27 Is Alice in Wonderland really about drugs?, BBC (Aug. 20, 2012), https://www.bbc.com/news/magazine19254839.
28 Eberle, supra note 14.

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imagine for Eberle because there simply were no recorded court cases involving art threats
prior to this decade.
In “Rap on Trial,” the foundational 2014 paper on the use of rap lyrics in American
courts, Professors Charis Kubrin and Erik Nielson recorded no instances of a published rap
song being charged as a threat.29 They did refer to how professional rapper Lil Boosie’s(now Boosie Badazz) lyrics were entered in evidence for a separate murder charge.30 And ina recent Boston Review write-up for their book of the same name (Rap on Trial: Race, Lyrics,
Guilt in America, Andrea Dennis and Erik Nielson mention the same case of Boosie Badazzas well as how rapper/family members Mac and C-Murder had their rap lyrics entered incourt for separate murder changes they each faced.31 Still, I don't know of any cases inwhich a published rap lyric itself was criminalized as a threat.32
However, in the last half-decade the Supreme Court has been prompted three times
to consider this problem of art threats. In Elonis v. United States (2015), Chief Justice Roberts
retreated from the question of whether the aesthetic quality of a posted Facebook “rap”
might be relevant to threats analysis, and instead decided the case based on the subjective
intent and posed insincerity of defendant Elonis.33 In Bell v. Itawamba (2016), the Supreme
Court denied certiorari of a case in which a high school student was suspended for a violent
rap about his two gym teachers who were accused of lewd behavior.34 And just last year, in

29 Charis E. Kubrin & Erik Nielson, Rap on Trial, 4 RACE & JUST. 185 (2014).
30 Id. at 186.

31 Erik Nielson & Andrea L. Dennis, Rap on Trial, BOSTON REVIEW (Nov. 8, 2019),
http://bostonreview.net/arts-society/erik-nielson-andrea-l-dennis-rap-trial.
32 The closest analogue is when Tyler the Creator was banned from entering the U.K. for 3-years because his
lyrics were themselves cognized as encouraging “terrorist acts.” Julianne Escobedo Shepherd, Tyler, the Creatoron being banned from the UK: ‘I’m being treated like a terrorist’, THE GUARDIAN (Sept. 1, 2015),
https://www.theguardian.com/music/musicblog/2015/sep/01/tyler-the-creator-comments-banned-ukfreedom-of-speech. Interestingly, very few rappers or rap scholars came to Tyler’s defense.
33 Elonis v. United States, 135 S.Ct. 2001 (2015).
34 Bell v. Itawamba County School Bd., 799 F.3d 379 (5th Cir. 2015). Cert. denied in Bell v.Itawamba County
School Bd., 136 S.Ct. 1166 (2016).

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Knox v. Pennsylvania (2019), the Supreme Court denied certiorari of a case in which adefendant amateur rapper argued that even though he referred by name to the law
enforcement officers who arrested him, that his violent lyrics should have been interpreted
non-literally.35
The facts of Knox v. Pennsylvania prompt my thinking in this paper on the relationshipof aesthetic quality to First Amendment coverage. The core question for courts in cases like
Knox is when should seemingly literal speech acts be interpreted non-literally. The implicit
move by prior legal actors has been to assume that certain kinds of non-literal speech or
expressive acts are “art” and thus imbue the magic of constitutional coverage. I explain how
we have traditionally been able to defer to the judgment of institutional gatekeepers to makethese threshold decisions of what count as art. But with the disappearance of thesegatekeepers (and the advent of an unmediated Internet) this question has become
increasingly urgent for courts to answer. A well intentioned, but confused, response fromthe law and rap academic community has been to argue for blanket First Amendment
coverage of rap (or attempted rap) lyrics and their insulation from use as courtroom
evidence.36 However, this is not how the First Amendment is meant to work. I expand on
the Frederick Schauer distinction of coverage/protection to explain the relevance of
freedom of speech doctrine to rap-as-art, and tentatively argue for coverage of rap lyrics
based on the quality of the rap or rapper, or on membership to a sort of rap guild.

35 Commonwealth v. Knox, 647 Pa. 593 (2018).

Cert denied in Knox v. Pennsylvania, 139 S.Ct. 1547 (2019).

36 E.g., Erik Nielson, ‘Rap on Trial’: Why Lyrics Should Be Off-Limits, ROLLING STONE (May 3, 2017),

https://www.rollingstone.com/culture/culture-news/rap-on-trial-why-lyrics-should-be-off-limits-116368/. See
also Knox, 647 Pa. at 618 (“More generally, if this Court were to rule that Appellant's decision to use a stage
persona and couch his threatening speech as ‘gangsta rap’ categorically prevented the song from being
construed as an expression of a genuine intent to inflict harm, we would in effect be interpreting theConstitution to provide blanket protection for threats, however severe, so long as they are expressed withinthat musical style. We are not aware of any First Amendment doctrine that insulates an entire genre ofcommunication from a legislative determination that certain types of harms should be regulated in the interestof public safety, health, and welfare.”).

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Unfortunately rap is a shape-shifting sort of language game that defies easy categorization,and one that depends on fickle notions of reputation and public perception. Rap has also
been traditionally characterized as a transgressive art form, and to make First Amendment
coverage based on group membership might be inconsistent with the very ethos of thismusical genre.
My thinking in this paper also suggests how rap might be a wedge issue that disrupts
the constructed balance of our First Amendment regime. I offer some tentative
prescriptions for how we might rethink what the First Amendment is meant to cover, andsuggest an active role for the state in a fundamentally new market of “cheap speech”37 thatno longer benefits from the quality control work of institutional gatekeepers.

III. Re-introducing the gatekeeper
I first remind the reader of the role of the institutional gatekeeper in determining
what counted as “art” in our prior First Amendment regime, and suggest how this thresholddetermination overlaid true threats analysis. The modern First Amendment developed in amarket of scarce public speech. There was a limited supply of newspapers and broadcastingoutlets, and courts feared the potential of government to either censor or crowd out thedissemination of disfavored ideas.38 Content norms of neutrality and non-discrimination
helped ensure the communication of unpopular ideas, and protected the author or speakeragainst liability for crude or even hateful speech acts, so long as she did not incite violence or
panic. This was a world of the soapbox and heckler’s veto, when sharing a contrarian
thought might have required the courage to make a public statement in actual view of

37 E.g., Eugene Volokh, Cheap Speech and What It Will Do, 104 YALE L.J. 1805 (1995).

38 E.g., Tim Wu, Is the First Amendment Obsolete?, KNIGHT FIRST AMENDMENT INSTITUTE (Sept. 1, 2017),
https://knightcolumbia.org/content/tim-wu-first-amendment-obsolete.

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neighbors and friends, etc. This context informs both why Kent Greenawalt identified
forms of “public communication” as being core to First Amendment coverage,39 and thecommon understanding of freedom of speech doctrine as being most concerned with
political speech. Indeed, Alexander Meiklejohn assumed political speech to be protected
given the very structure of the U.S. Constitution.40
Kathleen Sullivan41 and Larry Lessig42 each foresaw how the gradual disappearanceof these institutional gatekeepers might inform the production and distribution of public
speech in an Internet world. But the main concern among courts and lawmakers was how toprotect the economic viability of a nascent service provider industry and insulate thecorporate entity from potentially defamatory or hostile speech acts of other users. Section
230 of the Communications Decency Act (1996) was thus passed to immunize service
providers from such liability and explicitly distinguished providers as not the “publisher orauthor” of uploaded content. This is understandable given the normative ethic of the First
Amendment allowing for a free marketplace of ideas, one that is agnostic as to the quality or
correctness of the expressed idea. Occasional scholars have questioned the integrity of thisregime; for example, Professor Gey argued against First Amendment protection for sociallyworthless, knowingly false speech.43 But in general our shared understanding is that theadvance of science, collective wisdom etc. will filter out good ideas from bad.
Scholars like Kate Klonick have surfaced how threshold choices about“newsworthiness” (i.e. what counts as news) made by institutional publishers informed who

39 Kent Greenawalt, Speech and Crime, 1980 AM. B. FOUND. RES. J. 645, 742-756 (1989).

40 Alexander Meiklejohn, The First Amendment Is an Absolute, 1961 S. CT. REV. 245, 253-54 (1961).

41 Kathleen M. Sullivan, First Amendment Intermediaries in the Age of Cyberspace, 45 UCLA L. REV. 1653, 1670

(1998).
42 LAWRENCE LESSIG, CODE 2.0, at 19 (2006).
43 Steven G. Gey, The First Amendment and the Dissemination of Socially Worthless Untruths, 36 FLA. ST. U. L. REV. 1,
20-21 (2008) (arguing that an “individual-rights interpretation of the First Amendment do[es] not logically leadto the protection of expression containing obviously false facts.”).

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can be a “public figure” for harmful speech purposes.44 Courts broadly deferred to news
publishers’ judgments as to whether a news bit was relevant or significant etc.45 Of course
this has become complicated in a world of blogs and Facebook posts. Still, we have always
agreed that harmful speech is problematic – the doctrinal question has just been whether weprotect potentially defamatory speech from lawsuit if it was done only negligently, as opposed
to recklessly or knowingly. But the Art World decided the first principles question ofwhether art speech is covered by freedom of speech doctrine at all.
The threshold determinations of artfulness made by institutional gatekeepers directly
informs whether a given speech or expressive act may be scrutinized as a threat. In our priorera gallery owners, museum curators, record label A & R execs, literary agents, Hollywood
producers and film festival committees had broad control in deciding which artists were seenor heard. With the Internet these barriers to entry have eroded. Now the tyro or theuntalented can upload their attempts at art, or music, or film, or literary writing directly to
the Internet for unlimited, perhaps permanent distribution. These amateur artists are ofcourse competing in an attention economy of cheap speech, and it is unclear whether anyone
will listen to their music or read their prose. But they may still bypass the critical judgmentof editors or financial calculi of marketers. The amateur artist’s work product is now
available for immediate consumption, and, in many ways, this is a very good thing. The
Internet has democratized access to distribution channels for compelling artists who might
not otherwise have been able to marshal the financial investment, or the kind of privilege or
networking opportunity, that permitted prior amateur artists to break through to acommercial market. This is also culturally transformative. Barton Beebe described how
44 Klonick, supra note 15.

45 Id. at 54 2019 (citing Cox Broad. Corp. v. Cohn, 420 U.S. 469, 496-97 (1975) (in which the court emphasizedthat “the Court stressed that “reliance must rest upon the judgment of those who decide what to publish or
broadcast.”).

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broadened access to the materials for creating art, or remixing and mashing up art in novel
ways, now permits the kind of aesthetic play envisioned by the artistic progress ethos of the
copyright clause.46
Again, this democratized access is mostly great, but this also means that courts canno longer defer to the aesthetic judgments of institutional gatekeepers. The preliminary
quality control work of separating art from non-art is simply not done. So far the Supreme
Court has avoided the issue of art threats, as seen most recently in e.g., the denial ofcertiorari in Knox v. Pennsylvania. But the institutionalist problem of how to distinguish rapas-art from non-rap that I identified in my recent paper, “Aesthetic Play and Bad Intent,”
still lurks.47 My contribution in this paper is to analyze the connection between the loss of
the institutional gatekeeper to threshold questions about art and First Amendment coverage.
This is a profound issue given the prior quasi-legal work done by Art World gatekeepers.
Until now the legal overlay of this quality control work has been overlooked. This overlay
reflects the rigidity of the current high-value/low-value speech regime maintained by theSupreme Court.

IV. Deconstructing and reconstructing art threats
The Art World historically made threshold decisions of what can be distinguished as
art versus non-art, a difficult task for non-specialists like judges who lack the sophisticationor confidence to make judgment calls of what separates the action painting of Jackson
Pollock, the pop art of Andy Warhol, the metaphysical drama of performance artists like
Marina Abramovic, or the violence-tinged lyrics of established artist-rappers whose raps are

46 Barton Beebe, Bleistein, The Problem of Aesthetic Progress, and the Making of American Copyright Law, 117 COLUM.
L. REV. 319, 346 (2017) (introducing concept of aesthetic play).
47 Andrew J. Kerr, Aesthetic Play and Bad Intent, 103 MINN. L. REV. HEADNOTES 83 (2018).

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understood to reflect and comment on collective experience for sonic effect. When the Art
World made these sorts of threshold judgments they effectively determined which speech or
expressive acts were covered by the First Amendment. If the Art World validates acontested speech act as aesthetic then it cannot be seen as threatening. A speech act that is
cognizable as a personalized threat cannot simultaneously possess aesthetic intent. For theSupreme Court, this is a binary reduction. Either you can have violent intent behind yourvocalization or you can have aesthetic intent, but you can’t have both.48
The conceptual justification for this binary reduction is that the true threat is noteven regarded as a speech act for First Amendment purposes. Rather the Supreme Court
employs a functional approach to true threats analysis that asks if given the content, context
and expected audience reaction to a potential threat if an audience member would
reasonably feel in danger for her personal safety (Watts v. United States49).50 We don’t care if
an audience member has hurt feelings or is made more ignorant etc. This is not about
corrupting the marketplace of ideas. Rather the true threat puts the listener in danger of lifeand limb. It is uncovered by freedom of speech doctrine, because it isn’t really speech at all.
The true threat is a violation of bodily integrity. This logic provides the normative basis forgovernment to make content-based regulations that deny constitutional coverage of
threatening speech or expression. It’s criminalized as the verbal manifestation of a physicalthreat.

48 See Kenneth L. Karst, Threats and Meanings: How the Facts Govern First Amendment Doctrine, 58 STAN. L. REV.
1337, 1347 (2006). See also Steven G. Gey, The Nuremberg Files and the First Amendment Value of Threats, 78 TEX.
L. REV. 541, 593 (2000).
49 Watts v. United States, 394 U.S. 705 (1969).
50 Dean Post recognized context as core to other sorts of First Amendment problems as well. See, e.g., Post,
Recuperating First Amendment Doctrine, supra note 6 at 1252 (1995) (“The examples we have been considering[such as Spence v. Washington], however, suggest that the constitutional recognition of communication as possibly
protected speech also depends heavily on the social context within which this triadic relationship is situated.”).

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The problem with this binary move is that it ignores the real likelihood that very
many speech acts have blended intent. A rapper – like many artists – might first be inspired
to write a song out of emotions like rage or vengeance. Our hope is these primal energies
are then sublimated into a song or art piece that reflects the intensity of this original
emotion, but transcends and refines this inspiration into a more polished finished productthat is accessible to a broader community of critics and fans. Many artists might employ bad
intent at some point in their creative process. But professional artists are also socialized to
an Art World in which audiences expect a piece to stand on its own, to be a thing into itself,
to exist for reasons separate from merely documenting e.g. the pains of a break-up. In any
event, this generic posture is not very difficult to achieve for a visual artist. When you don’t
use words it’s hard for any single audience member to assume a violence-tinged piece isaimed at them; for example, the recent gun-centric installations of celebrated sculptor
Michael Murphy.51
Musicians of course use words as part of the aesthetic materials that go into theconstruction of their songs. I acknowledge that many musicians want their words to convey
meaning. Even so, it is difficult for most song lyrics to be heard as a personalized threat to aunique audience member. The singer-songwriter tradition relies on a sort of royal “you” (orperhaps a substitute name i.e. Layla52) when a lyricist is describing her feelings about aspecific person. The identity of e.g. a past lover is made opaque and general by substituting
a pronoun for the antecedent. Any of us could be this “you” if we as listeners wish to be,

51 E.g., Alice Yoo, 130 Suspended Toy Guns Form a Map of the USA, MYMODERNMET (Oct. 1, 2014),
https://mymodernmet.com/michael-murphy-gun-country/.
52 The Real 'Layla' Talks About George Harrison and Eric Clapton, ABC NEWS (Dec. 20, 2007),https://abcnews.go.com/GMA/SummerConcert/story?id=3546199&page=1.

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but none of us must be this “you” (or have to admit to being the “you”53) if the lyricist
derides the song’s object. The de-contextualization of the typical song lyric gives it auniversal aspect that facilitates connection with and among listeners.
However, much of contemporary rap comes from a storytelling tradition in which
the rapper interweaves narrative description with structural moves like repetition or outro
commentary. This narrative might rely on elements of creative nonfiction and collective
experience, and it occasionally might include graphic description of the actual fantasies of
the rapper. Notable instances of the seemingly literal rap threat are heard in important rap
songs like Tupac Shakur’s “Hit ‘Em Up”54 (disclaiming that “this ain’t no freestyle battle”55
prior to lyrically attacking Biggie Smalls and other rivals) as well as Eminem’s repeat
references to his ex-wife Kim Mathers in peak-career albums like The Slim Shady LP and The
Marshall Mathers LP.56 This kind of violence-tinged storytelling is not exclusive to rap. Bob
Dylan seemed to fantasize about the death of General McNamara in “Masters of War”.57
Johnny Cash is illustrative of a brand of “outlaw country” music that depicted criminality insong lyrics.
Still, Tupac, Eminem, Bob Dylan and Johnny Cash are each considered front-rank intheir respective genres. Threshold quality control decisions to produce and distribute theirmusic inform the legal reception of their potentially threatening lyrics. These are “easycases” to the extent that they are disposed of prior to litigation. But what if we were not

53 Cf. Elyse Dupre, Alanis Morissette Addresses Rumors "You Oughta Know" Is About Ex Dave Coulier, EONLINE(Dec. 6, 2019), https://www.eonline.com/news/1100258/alanis-morissette-addresses-rumors-you-oughtaknow-is-about-ex-dave-coulier.
54 Stereo Williams, Tupac’s ‘Hit ‘Em Up’: The Most Savage Diss Track Ever Turns 20, THE DAILY BEAST (July 12,2017), https://www.thedailybeast.com/tupacs-hit-em-up-the-most-savage-diss-track-ever-turns-20.
55 See Hit ‘Em Up (2Pac), GENIUS.COM (last visited February 21, 2020), https://genius.com/2pac-hit-em-uplyrics.
56 E.g., Kim (song), WIKIPEDIA (last visited February 21, 2020), https://en.wikipedia.org/wiki/Kim_(song).
57 See, e.g., Tom Robbins, Robert S. McNamara: Master of War, THE VILLAGE VOICE (July 7, 2009),
https://www.villagevoice.com/2009/07/07/robert-s-mcnamara-master-of-war/.

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able to delegate this work of scrutinizing aesthetic intent to institutional gatekeepers?58 Herethe Art World (i.e. record labels, critics and fans) was effectively tasked with the true threatsanalysis of determining whether the aesthetic value of these e.g., Tupac or Eminem tracks
outweighed the potential threatening nature of their lyrics. This is a nexus of the Watts
factors of context, content and audience reception. The Art World can rightly think of itself
as the intended audience for a rap. It also possesses the expertise to make evaluativedecisions about content. And once the Art World has made this threshold quality control
decision as to artfulness, legal actors can defer to the context of an economic market forthese albums (Bleistein v. Donaldson Lithographic Co.59) and trust that a minimum level ofaesthetic intent went into their creation. We all acknowledge that there is blended
aesthetic/bad intent in the construction of some songs that enter our musical canon. Courts
rely on the evaluations of market actors both 1) to dispose of these fact-laden analyses and2) to maintain the conceptual integrity of a freedom of speech doctrine that is forced to
distinguish art from threat.

V. What counts as a rap?
I don’t attempt to resolve the perennial philosophical debate surrounding aesthetic
intent in this paper.60 The creative process necessarily involves some degree of serendipity.
And artists themselves might not be able to discern the motivations behind their own
artwork or song lyric. Rappers rely on a kind of muscle memory that allows them to riff on
tropes in the corpus and layer the internal meaning of their songs. They are acculturated to
58 See generally Frederick Schauer, Easy Cases, 58 S. CAL. L. REV. 399 (1985).

59 Bleistein, 188 U.S. at 252 (1903) (famously discerning commercial value as an index of artistic progress).

60 Brian Soucek, Aesthetic Judgment in Law, 69 ALA. L. REV. 381, 423 (2017) (“Answering that question byreference to the intentions of the work’s creator makes sense only if one adopts a substantive, and deeply
contested, view about how intentions, meaning, and value interact in the context of art.”) (referring generally to
PAISLEY LIVINGSTON, ART AND INTENTION: A PHILOSOPHICAL STUDY (2005)).

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the “language game” of rap (Wittgenstein), in which they both internalize the conventions of
the genre, but also play at these same rules and boundaries to distinguish their own flow andtend an element of improvisation and surprise.61 We look for the novel gesture that feels
effortless. You don't win the #rapgame by trying too hard, or by telling the listener that you
are a real rapper and rapping a rap about what you will do to the listener etc. That isn’t
playing today’s rap game – it’s an amateur attempt to play the game by including some overt
signposts to a dated form of the genre.
The problem for the law and rap community is that literality in rap lyrics is inversely
related to the quality of the (aspiring) rapper. It is most always the novice who chooses to
rap with such specificity that her lyric can be conceived as a personalized threat. Our bestrappers (at least since Tupac and Eminem) just don’t rap like this much anymore. Kendrick
Lamar’s Good Kid M.A.A.D. City (2012) is a remarkable album that builds a cinematic
experience for the listener. But its violent references are backward looking and internal to
the narrative logic of the album. It does not speak directly to a present listener. Most
rappers aim to create atmosphere or make critical commentary rather than to makeindividualized statements about a particular listener. Insularity reflects a limited audience.
It’s not who real rappers are rapping for.
I uncover this linked quality-literality problem as it frames the recent line of cases
submitted to the Supreme Court (Elonis, Bell, Knox). In each of these cases the posted orrapped lyric is so specific in its object that it could threaten an intended audience member.
It is also unclear whether these attempted raps meet our threshold evaluative standard of rapas-art, or if they are even raps at all.

61 See Joseph Blocher, “Nonsense and the Freedom of Speech” in FREE SPEECH BEYOND WORDS 116-18(Mark Tushnet et al. eds.) (2017) (introducing concept of a language game in the context of nonsense speech).

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Do Elonis’s posts count as “raps”?
Elonis v. United States was the first rap threat case reviewed by the Supreme Court(2015).62 In this case Anthony Elonis uploaded violent lyrics to his Facebook page about his
soon-to-be ex-wife and a federal investigator, among others. His posted lyrics made directreference to actual events in his personal life. For example, after a state judge granted hiswife a three-year restraining order, Elonis wrote: “Fold up your [protection-from-abuse
order] and put it in your pocket/ Is it thick enough to stop a bullet?”63 And after a female
FBI agent visited his home Elonis wrote: “You know your s***'s ridiculous/ when you havethe FBI knockin' at yo' door/ Little Agent lady stood so close/ Took all the strength I had
not to turn the b**** ghost/ Pull my knife, flick my wrist, and slit her throat/ Leave her
bleedin' from her jugular in the arms of her partner.”64 These shared posts were only written(not vocalized), and are constructed with a coarse directness that makes them feel like aliteral reflection of Elonis’ violent intentions. The lack of artfulness frames why we receive
them as sincere.
The Third Circuit noted that Elonis had little personal history of rapping.65 And
Chief Justice Roberts employed the interesting use of quotation when referring to Elonis’
Facebook posts, observing that after Elonis’ wife left him that he began “posting self-styled‘rap’ lyrics.”66 It is unclear whether Roberts is merely quoting from the record, or if he isexpressing skepticism if this aesthetic label – “rap” – can rightfully be applied to the written
product of Elonis. But even if his posted words feel crude and boorish, they are also
inflected by common tropes in rap and parody music. Elonis assumes the alternative
62 Elonis, 135 S.Ct. 2001.
63 Id. at 2006.
64 Id.

65 United States v. Elonis, 730 F.3d 321, 325 (3rd Cir. 2013) (“Ms. Elonis further testified that Elonis rarely
listened to rap music, and that she had never seen Elonis write rap lyrics during their seven years of marriage.”).
66 Elonis 135 S.Ct. at 2004.

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moniker “Tone Dougie” as his rap name and disclaims that his lyrics are “fictitious” andbear no “intentional resemblance to real persons.”67 His posts include meta commentary on
the nature of his posting: “Me thinks the Judge needs an education/ on true threat
jurisprudence.”68 He lets his readership know that (although they are publicly shared) his
posting is “for me. My writing is therapeutic.”69 This is certainly a plausible reading, and it’strue that many of us over-share personal thoughts on the Internet. It’s diaristic in a way that
fantasies are.
Chief Justice Roberts avoided the precise questions of whether these posts had
genuine aesthetic intent or if the posts were sufficiently artful to be recognized as raps.
Instead Roberts read a scienter requirement into true threats doctrine, and argued that
because of Elonis’ direct references to the fictitious and cathartic nature of these raps, that
Elonis did not have the necessary mens rea to make a true threat with these posts.70 We canread this omission to artfulness as reflecting a broader concern about the conceptual
integrity of true threats doctrine. If Roberts described them as art or actual raps, we mightquestion his judgment. If Roberts derided them as non-art, it would be difficult for him totell Elonis’ ex-wife or investigating agent that they should each interpret his statements nonliterally.
In dissent, however, Justice Alito dismissed the cathartic value of a potentiallythreatening post. He also questioned if the aesthetic intention of a posted lyric necessarily
shields it from true threats analysis, worrying that “would grant a license to anyone who is

67 Id. at 2005.
68 Id. at 2006.
69 Id. at 2005.

70 Elonis 135 S.Ct. at 2016 (Alito, J., dissenting).

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clever enough to dress up a real threat in the guise of rap lyrics, a parody, or somethingsimilar.”71

VI. Art as cover? Or covering art?
Implicit in Justice Alito’s analysis is the concern that a bad-intentioned speaker cansimply declare her own speech as “art” and receive First Amendment coverage. That bypretextually checking off certain signifiers of rap or parody music that a bad-intentioned
speaker can self-create the magic legal status of “art speech” and shield her actually
threatening speech from a true threats analysis. There is a dangerous alchemy here. A
private actor can marshal the force of the law simply by inserting some slangy language or
making familiar references. This conflicts with our core constitutional principle that wecannot “permit every citizen to become a law unto himself”72 (Reynolds v. United States) byempowering him to determine that his own speech act receives special constitutional
protection. It just can’t be this easy to avoid the criminal law.
This echoes my points about barriers to entry and the gestalt nature of contemporary
art. We share an expectation of the time and effort that goes into a novel, or the
instrumentation that goes into a rock album, or vocal refinement that makes something R&B
or operatic. But rap (along with performance art, and pop art) relies on a sort of gestalt
sense of quality that is internal to the genre itself. Critics and record label A&R executives
possess a sensibility as to what counts as rap and who does it well. But the Arthur Danto
congruence problem becomes pressing when these institutional gatekeepers fade. It might
not matter much if I scribble a Campbell’s Soup can and announce it as “art” to the world.
This won’t do much instrumentally for me. But if I parrot the cadence and word usage of a
71 Id.

72 Reynolds v. United States, 98 U.S. 145, 167 (1878).

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popular rap song in my threatening diatribe I can potentially be covered by the First
Amendment and endowed certain positive entitlements against the state and otherindividuals. Rap music is not easy to fake, but rap lyrics might be. To this extent academic
commenters are correct that Elonis might merit reconsideration so the Supreme Court canmake explicit the aesthetic requirements for potentially threatening speech to receive First
Amendment coverage.
The Reynolds reference to religious practice suggests a deeper interpretive modalitythat spans the text of the First Amendment. In Oregon v. Smith, Justice Scalia drew on thissame core principle when he held that “each conscience [cannot be] a law unto itself.”73 The
concern here is that if we allow each individual to determine for herself what counts as areligion, then by corollary we permit her certain special freedoms; for example, the freedom
to eat peyote74, to not pay certain taxes75, to drink wine underage76, to bring knives toschool77 etc. This mirrors the unique freedom attached to art speech, i.e. to threaten
publically when others cannot.
Unfortunately “religion” and “speech” are each undefined by the Constitution, andso courts must look to social practice and the internal logic to the First Amendment when
deciding threshold questions of what counts as a religion or a category of covered speech.
We don’t have an “institutional gatekeeper” who can confirm what counts as a true religion(despite many humans’ best efforts, God/gods have been reticent to answer this profound73 Employment Div., Dept. of Human Resources of v. Smith, 494 U.S. 872, 890 (1990).

74 E.g., John Horgan, Tripping on Peyote in Navajo Nation, SCIENTIFIC AMERICAN (July 5, 2017),
https://blogs.scientificamerican.com/cross-check/tripping-on-peyote-in-navajo-nation/.
75 See, e.g., Christine Emba, Tax exemptions and religious institutions, WASHINGTON POST (Sept. 14, 2015),
https://www.washingtonpost.com/news/in-theory/wp/2015/09/14/primer-tax-exemptions-for-religiousinstitutions/.
76 See, e.g., Nebraska Bill Would Curtail Religious Freedom, CATHOLIC LEAGUE (Jan. 16, 2007) (discussing rare effort
to make illegal communion wine for minors).
77 E.g., Erik Wilkinson, Student allowed to bring religious knife to class, USA TODAY (Oct. 23, 2014),
https://www.usatoday.com/story/news/nation/2014/10/23/student-allowed-bring-religious-knifeschool/17763379/.

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question!). Instead we defer to cultural authority. We (as social actors) employ a sort of
Jacobellis v. Ohio “I know it when I see it”78 test to distinguish a religion from e.g. a cult ormere social club based on heuristics of organization, tradition, sincerity and spirituality.
We assume that a religious group promotes a moral vision and a synthetic view of the natureof reality, but per First Amendment principles of neutrality it does not necessarily require
theism. The neutral design of the establishment clause explains why “ethical culture” and“secular humanism” have been cognizable as religion-like groups for First Amendment
purposes.79 We (again, as social actors) look to abstracted values like whether the religiousorganization confers existential solace80, or possesses institutional integrity. Our societal
consensus informs the threshold decision of whether the First Amendment covers a certain
religion at all. Only then does a judge ask if e.g., a specific practice of that religion isespecially burdened by a neutral law etc.
We must also look to constitutional principles to determine which forms of “speech”
are covered by the First Amendment. “Speech” is a pervasive and defining aspect of humanexistence. And so, in lawyerly terms, this word choice presents vagueness problems. It’s
implausible that the First Amendment could cover all of the myriad ways that humanvocalize.81 We know from childhood that we can’t shout fire in a crowded theater. We also
know that we can’t share insider information about a stock price with a friend, or chat withan industry colleague about fixing prices. This sort of talk is simply assumed to not be

78 Jacobellis v. State of Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).

79 Torcaso v. Watkins, 367 U.S. 488, 496 n.11 (1961) (“Among religions in this country which do not teachwhat would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture,
Secular Humanism and others.”).
80 See generally BRIAN LEITER, WHY TOLERATE RELIGION? (2012) (distinguishing religions by their categoricity
of its commands, insulation from evidence and existential consolation)
81 Frederick Schauer, Categories and the First Amendment: A Play in Three Acts, 34 VAND. L. REV. 265, 273 (1981)(observing that “the constitutional definition of the word ‘speech’ carves out a category that is not coextensivewith the ordinary language meaning of the word ‘speech.”’).

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covered by the Constitution.82 In 1983 the important Wall Street lawyer James Goodale
posited that securities law and free speech were headed for a “collision course,”83 which has
since never realized.84 Professor Schauer writes that “[t]he story of the First Amendment
and antitrust is similar but less overt.”85 But this stealth work goes to my overall thesis: that
cultural assumptions about what the First Amendment covers explains the very absence ofcases we see here.
At the same time the literal meaning of “speech” as spoken language feels underinclusive. We assume text is covered. And the Supreme Court has also expanded “speech”
to refer to other sorts of speech-like or expressive kinds of conduct. Notably, in Citizens
United we were reminded that we speak with our wallets.86 We also speak when we wear a
black armband in school87, when we tape a peace sign on to an American flag88, when we
make decisions about who may or may not march in a parade89, and even when we design awedding cake (but, importantly, only if it is a beautiful wedding cake).90 What is the doctrinalboundary for this kind of expressive conduct? The First Amendment cannot cover all of theways we express ourselves. Jed Rubenfeld hypothesized how breaking the speed limit could
be a profound form of expression for the sports car-loving libertarian.91 Still, a judge would

82 See, e.g., Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, supranote 11 at 1778-81.
83 Id. at 1781 (citing James C. Goodale, The First Amendment and Securities Act: A Collision Course?, N.Y.L.J., Apr. 8,
1983, at 1).
84 Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, supra note 11 at
1780.
85 Id. at 1781.
86 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).
87 Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
88 Spence v. State of Washington, 418 U.S. 405 (1974).
89 Hurley, 515 U.S. at 569.
90 Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Com'n, 138 S.Ct. 1719, 1723 (2018) (“The free speech
aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought ofits creation as an exercise of protected speech.”).
91 Rubenfeld, supra note 22 at 771-75.

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certainly toss out a First Amendment defense to a speeding ticket as frivolous. We need tolook to jurisprudential values to discern the boundaries of the First Amendment.
I first unpack my use of a coverage/protection distinction. Professor Schauer first
reminded us of the usual constitutional two-step we go through when deciding whether agovernment action comports with the Constitution.92 First, we look to the Constitution tocheck off if a certain kind of action is covered by its text (e.g., if a particular class ofgovernment investigations counts as a “search” or “seizure” per the Fourth Amendment,such as looking up my phone number in the Yellow Pages). And only then do we ask
whether a specific search is protected given our standards of reasonable suspicion or probablecause etc. (e.g., does a police officer meet the probable cause standard to rifle through myPrius dashboard if my parking meter just expired).
We commonly ignore this threshold question in First Amendment analysis. In part
because of the vagueness issue I identified. “Seizure” is fairly precise word.93 “Speech” isnot. It’s so difficult to chart the boundaries of constitutional speech that most of us would
rather assume coverage.
In part this is because the First Amendment covers things that are special to us. It
feels awkward for a judge to announce that a young person’s inartful spoken word “slam”
poetry is not covered by the First Amendment or that a community spirituality group is notin fact a religion. Instead an inventive judge might contrive an additional reason to
scrutinize a particular slam poem or suggest e.g., a time, place or manner restriction.94 We

92 Schauer, Categories and the First Amendment: A Play in Three Acts, supra note 81 at 267-82 (introducing thecoverage question).
93 Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, supra note 11 at
1772-73.
94 See, e.g., Piarowski v. Illinois Community College District 515, 759 F.2d 625, 630-32 (7th Cir. 1985) (holdingthat controversial artwork should have been curated in less public site on campus).

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prefer complication on the protection side of the analysis to blunt determinations on the
coverage side.
And in part this reflects our assumptions about the institutional context of public
communication, and how formal vetting channels like publishers or curators used to makethreshold decisions about aesthetic quality for us. We could fairly ignore the coveragequestion concerning “art speech” because the Art World already managed it for us. We
outsourced the coverage question.
The law and rap community is thus certainly not unique in conflating coveragequestions about art speech with normative questions about courtroom use of rap lyrics.
Scholars like Charis Kubrin, Andrea Dennis and Erik Nielson have produced important
academic research on the overuse of rap in courtroom litigation. Professors Dennis andNielson’s recent Rap on Trial (2019) is a comprehensive look at the unwise, and sometimes
unscrupulous, ways that prosecutors have entered drafted lyrics or recorded rap songs ascourtroom evidence, e.g. to indicate confession of having committed a crime, or as being a
motive for having committed a crime.95 Dennis and Nielson rightly connect the black
cultural history of rap music to racial justice issues in American courts and prisons. I echo
Dennis and Nielson’s broad conclusion that rap is problematically targeted by prosecutors ascourtroom evidence as compared to other musical genres like or punk or folk etc. There are
two problems here. First, rap should only rarely be used in court given its weak probativevalue. Second, if it is going to be used, we shouldn't be under-inclusive. Singling out rap asa criminalized musical genre has obvious racial implications given the strong associations
between rap and black culture.

95 Erik Nielson & Andrea L. Dennis, Rap on Trial, BOSTON REVIEW (Nov. 8, 2019) (summarizing coreargument), http://bostonreview.net/arts-society/erik-nielson-andrea-l-dennis-rap-trial.

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Critical traditions in legal scholarship help to situate this overuse of rap in court, andunpack how the state functions to decenter rap as an integral black musical tradition andmake it instead criminally tinged. This is well documented by criminologists like Professor
Kubrin. I argue that rap lyrics, whether those of the amateur or professional, should bepresumed to be non-literal, as attempted art, as mere fantasizing or fictional storytelling.
Prosecutors and judges should know of the non-literal nature of rap lyrics. And they should
also know that a jury of laypersons might not share this same contextual understanding of
the genre characteristics of rap, and how rappers commonly make use of first person
narrative, literary devices like hyperbole or fantasy, or detail violence in society as a form ofcommentary.
These genre elements are also layered by background problems of race in society,and the prejudices we still harbor about young black men and criminality. This conflation ofproblems related to both the weak probative value of rap lyrics (being presumably nonliteral, just like all attempts at art) and their strong prejudicial value (as a layperson jury might
be unfamiliar with the genre conventions of rap, or harbor prejudices about black
criminality) should make prosecutors much more hesitant to enter rap lyrics as evidence, andjudges to accept it in court. This is an important socio-legal problem, but it is not a First
Amendment problem.
In short, the First Amendment does not cover evidence law – it simply does not careabout it.96 In the same way that we assume that antitrust problems of collusive speech areoutside the boundaries of freedom of speech coverage, so are evidence problems related tospeech acts that indicate motive, intent or modus operandi etc. The First Amendment does
96 Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, supra note 11 at
1783-84 (“Less visibly still, much the same degree of First Amendment irrelevance holds true for the contentbased regulation of … virtually the entirety of the law of evidence … and that vast domain of criminal law that deals
with conspiracy and criminal solicitation”) (emphasis added).

162not insulate either non-literal or artful speech from courtroom use. We make privilege
exceptions in evidence law for things like doctor-patient or spousal communication because
we value trust and candor in these specified relationships. But First Amendment values aremostly irrelevant to evidence law. If I write and publish a song about killing a man in Reno
“just to watch him die”, and then a corpse is discovered near my hotel during mydocumented stay there, then my lyric can surely be entered as evidence to my motive or as aconfession.97 It doesn’t matter if my song is rollicking or penetrating or a chart-topper. Its
Art World status is independent to its status as potential courtroom evidence. Of course myown defense attorneys would contest the lyric’s probative value by suggesting it is mere
fiction that reflects my broader oeuvre as a singer-songwriter. A jury could then weigh thesecompeting considerations as to the sincerity of my song and its status as a genuine
confession, and discern whether this is a fabrication of my constructed persona as a working
musician, or instead my truthful journaling as a real, everyday human separate from my stage
personality. We don’t like having to specify with nicety if or how much art represents reality,
and so we delegate this difficult, perhaps un-articulable, decision to the factfinder.
What the law and rap community seems to confuse here is how the First
Amendment treats art speech in a true threats analysis as compared to in an evidentiary
context. In my alluded Johnny Cash reference above, the song “Folsom Prison Blues” issurely covered as art speech by the First Amendment. It is validated by the Art World and has
been received by fans and critics as a wonderful example of song craft. Ex ante we allow
this speech act to be part of our public sphere because it does not strike fear in any particular
listener. The reference to a Reno murder is internal to the song’s narrative logic. Ex poste

97 But see the amicus brief submitted by ACLU of New Jersey in Skinner v. New Jersey Dept. of Corrections, 2016 WL
3063727 (2013) (suggesting that Johnny Cash’s “Folsom Prison Blues” should not even be admitted as
evidence), https://www.aclu-nj.org/cases/state-v-skinner.

163we might discover how this lyric was confessional of an actual killing etc. But it retains its
First Amendment coverage even if it is later marshaled as evidence. This speech act does
not still target anyone today.
This backward looking orientation of the song makes it difficult for it to feelthreatening for a listener in the present. We can hypothesize extreme examples of how the
lyric could be threatening; e.g., if I was back in Reno, and I played this song for a captive
audience member to suggest “I’ve killed before in Reno, and I can kill here again!” But ingeneral the past-oriented narrative of musical storytelling makes it both 1) potentiallyconfessional while 2) very unlikely to be a true threat to a present audience.
Rap evidence and rap threats are in the same socio-legal constellation of problems
for critical theorists of law given how the state exploits the surface qualities of this non-literalart form to put (aspiring) rappers in jail. But doctrinally these are very separate issues. Truethreats doctrine presents the First Amendment problem of whether a potentially threatening
speech act can be vocalized at all. It frames whether the speech act may be part of ourpublic sphere, or if it can instead be criminalized or censored. The First Amendment covers
art speech and political speech. A regulation that captures these kinds of speech mustwithstand exacting scrutiny.98 Both of these categories are relevant to the production of rap
in society. However, my core contribution in this paper is to remind us that a potentiallythreatening rap lyric can only be covered as “art speech” if it meets a First Amendment
threshold of artfulness. The non-literal nature of attempted rap lyrics is generally sufficientto put prosecutors or judges on notice of the weak probative value of rap as evidence. But
non-literality is a necessary but not sufficient condition for art speech. The song or rap must98 E.g., Lakier, supra note 23 at 2171 (2015).

164also be good for the First Amendment to cover the potentially threatening lyric from a true
threats analysis. Elonis, Bell and Knox each involve this precise issue of true threats.

Section VII. Rap in political and aesthetic context
We can unpack the most recent rap case petitioned for Supreme Court review, Knox
v. Pennsylvania, as both a political speech case and an art speech case. Before analyzing the
precise lyrical issue prompted in Knox, I first contextualize this case within the framing
moves made by the law and rap community in the form of repeat amicus briefs. In each of
Elonis, Bell and Knox the law and rap community (a mix of legal scholars, sociologists,
criminologists and pedigree rappers) have submitted amicus briefs to argue on behalf of the(feigned/aspiring) rapper facing a true threats prosecution or school suspension.99 Despitesome stylistic distinctions in these briefs, they use shared brush strokes to paint the broadarguments they make. Their main points are echoed by amicus submissions from kin
advocacy groups and art scholars in these cases.
In general, these written submissions do important work in limning a cultural historyof rap that informs the non-literal reception of attempted rap lyrics. Each brief traces rap
history to 1970s-80s street culture and the politics and social unrest of the time. Each refers
to examples of important songs from the rap corpus in which the rapper uses violence foraesthetic effect or to sublimate their own aggression. The broad vision of these briefs to
identify genre characteristics of rap music and common lyrical moves made by rappers, andto suggest how these genre expectations work as a model or template for the aspiring rapper.

99 See Brief for Marion B. Brechner First Amendment Project et al. as Amici Curiae Supporting Petitioner,

Elonis v. United States, (No. 13-983), 2015 WL 2464051; Brief for Erik Nielson et al. as Amici Curiae Supporting
Petitioner, Bell v. Itawamba, cert. denied, 136 S. Ct. 1166 (2016) (No. 15-666), 2016 WL 763687; Brief of Amici
Curiae Michael Render (“Killer Mike”), Erik Nielson, and Other Artists and Scholars in Support of Petitioner,
Knox v. Commonwealth of Pennsylvania, cert. denied, 139 S.Ct. 1547 (2019).

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The argument is that important rappers have rapped in such a (seemingly violent or
threatening) way, and we as an aesthetic community have interpreted them non-literally.
And so when these aspiring rappers make these same lyrical moves, we should also interpretthese amateur attempts as non-literal. These aspiring rappers are simply participating in an
aesthetic discourse.
These briefs are essential for two reasons: 1) they situate an unfamiliar
reader/listener for this particular kind of speech act, and 2) they suggest the political natureof much of rap. First, I underline the value of detailing this kind of unspoken context for
rap music. Rappers participate in a language game with an internal set of rules that are
known to fans and critics. An individual rapper can assume that if someone e.g. purchases
their album or streams their song that listeners are already acculturated to the conventions of
the genre and will interpret the lyrical moves the rapper makes against this implied context.
However, when a rap is heard – or worse, read – by a court unfamiliar with this backgroundcontext then the individual judge is unable to construct legible meaning of a contested lyric.
These amicus briefs help to situate a cohort of Supreme Court justices who mostly came ofage prior to the advent and mainstreaming of rap in America.
These amicus brief are also essential in suggesting the political nature of much of rap,
and expanding and refining our collective sense of what might count as political speech forFirst Amendment coverage. Political speech is core to the First Amendment. We protect itfor Holmesian marketplace reasons and because vibrant dissent is necessary to democratic
self-government and our education as citizens.100 Political speech can take myriad forms. It
can be the flyer of the pamphleteer, the speech of the soapbox contrarian or an op-ed in

100 Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, supra note 11 at
1785 n.104 (identifying important political speech theories “based on self-government or democratic
deliberation”).

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your local newspaper. But what these amicus briefs remind us of is the political subtext of
rap and how parastatal organizations like the police are divisive for many Black Americans.
Rap serves a safety valve First Amendment function that allows rappers to sublimate antiauthority aggression and to comment on perceived injustices related to surveillance, profiling
etc. We can hear rap, even rap made of violent or raw, inchoate lyrics, about “the system”
and law enforcement to be a covered form of political speech. NWA and Ice-T have beenvalorized by the Art World. But even if they had self-published their anti-police raps101 we
could conceptualize their message as political speech. Without the historical section of theseamicus briefs a judge might not discern the implicit political meaning of this form of rap.
The genre context reifies the political value of a contested rap song like that of Ice-T.
While this situated approach to legal analysis works well when forming a criticaltheory, there are two core doctrinal problems with the arguments advanced by the law andrap community. The first is that the early demographic history of rap does not map onto
who produces or consumes rap music today, i.e. white people like it too. Statisticaldisciplines like criminology show the odious racial patterns at work in who ends up in jailafter drafting rap lyrics. But a threats analysis works at the very individual level of discerning
intent. If we allow any American regardless of race or class etc. to dress up a true threat byparroting a rap lyric then we obscure the relevant historical genealogy of rap while distorting
criminal law doctrine. For example, Anthony Elonis was a regular white guy without ahistory of writing, let alone vocalizing, raps.102 Do we need to situate his Facebook post
within a cultural tradition of protest rap? I think not. We can assume that the amicus
briefers were here worried about the background subtext of a generation of young black
101 E.g., Fuck tha Police, WIKIPEDIA (last visited Feb. 21, 2020) (“a protest song by American hip hop group
N.W.A.”), https://en.wikipedia.org/wiki/Fuck_tha_Police; Cop Killer (song), WIKIPEDIA (last visited Feb. 21,2020) (Ice-T collaboration with metal band Body Count), https://en.wikipedia.org/wiki/Cop_Killer_(song).
102 United States v. Elonis, 730 F.3d at 325.

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men who are too eager to share their amateur raps on the Internet, and thus argue for a kindof blanket coverage that protects these sympathetic black voices as well. But this individualgroup conflation points to the tensions in operationalizing a normative socio-legal critiqueand encourages the amicus briefers to ignore the problem of artfulness.
This second doctrinal problem of aesthetics is core to my paper. We can interpretthe argumentative move of citing to a few important rap songs that have included potentiallythreatening lyrics, and then situating e.g. Elonis’ lyrics about his wife, or Bell’s lyrics about
his gym teachers, or Knox’s lyrics name-checking his arresting officers within this tradition
as a kind of enthymematic syllogism. The mistaken premise is that “some important raps are
violent.” The briefs then deductively apply the logic of “if those prior raps are violent, andthese contested lyrics are also violent, then these contested lyrics must be raps as well.”Instead the law and rap community forgets (like most all of us) the important gatekeeper
work of the Art World. This is an incomplete syllogism in that it forgets that these cited rap
songs were already vetted as artful. The point is not that those prior raps detailed violence
and were also constitutional. But that those raps reflected a more narrow and rarefied
category of raps rapped by rappers who had been validated by the Art World and were thus received bylisteners as both non-literal and aesthetic even though their raps happened to detail violence. The assumed
artfulness of the raps is core to the constitutional coverage of those prior raps. It’s why wecover (and the only reason why we are able to cover) the non-political, potential threatening
raps of Eminem and Tupac. We just forget they were unusually good rappers, because prior
to the Internet most everything we consumed was relatively good rap.

Section VIII: One Case/ Two Ways
Is Jamal Knox doing political speech?

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I first ask whether the rap of Jamal Knox can be covered as political speech. Jamal
Knox was arrested as part of a routine traffic stop that escalated when he and a co-defendant
fled the vehicle on foot.103 He was quickly apprehended, and found to have 15 bags ofheroin on his person along with a wad of cash.104 He was charged for a number of crimes
including providing a false name and possessing a stolen gun.105
While his case was pending Jamal Knox and his co-defendant, Rashee Beasley, wrote
and recorded a rap song, “Fuck the Police.”106 Interestingly, it was tracked with a montage
series of photos and uploaded to YouTube by a third party, where it is currently viewable.107
There is some ambiguity as to whether Knox expected the recording to be shared publicly.108
This does not affect my analysis of whether his rap is covered as political speech or art
speech.
Knox’s lyrics vivify his animosity toward the local Pittsburgh police unit. Most of
the lyrics are the rote stuff of puffery and flexing typical of gangster rap. But Knox also
adds a granular level of detail in his first verse that makes his amateur rap uniquely
threatening: he “refer[s] to Officer Kosko and Detective Zeltner by name” while including
insulting language too graphic for the text of this paper.109 In doing so the rap transforms
into a particularized threat to these two law enforcement officers, thus triggering a true
threats analysis.
The specificity of this reference negates its generic value as anti-police politicalspeech. It is a distortion of our conception of political speech to claim that it includes name-

103 Knox, 647 Pa. at 597.
104 Id.
105 Id.

106 Id. at 598.

107 Ghetto SuperStar Committee ft Mayhem Mal & Soulja Beaz - Fuck the Police, YOUTUBE (last visited Feb. 21, 2020),
https://www.youtube.com/watch?v=3ScQEiBgzBo.
108 Knox, 647 Pa. at 616.
109 Id. at 598-599.

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checking private individuals. The rap scholars’ brief observes without citation that “rapmusic and other forms of political protest do indeed single out people by name.”110 It is
certainly true that rap lyrics – like those of many musical genres – have directly referred toelected politicians and well-known bureaucrats or war generals. But when a lyricist makes
direct reference to a public official we interpret the reference to be mere fantasy or reflectiveof a broader ideological critique that the particular official is associated with. A recent wellknown example of this kind of political namedrop is “FDT” (2016) by rappers YG and
Nipsey Hussle. “FDT” is short for “Fuck Donald Trump,” and was written in response to
his divisive 2016 presidential campaign.111 The celebrity of Donald Trump gives the song a
popular appeal that made the rap a topical political anthem. It is heard as a commentary on
the constructed persona of Trump and his campaign message, and not as a literal descriptionof what these rappers want to happen to Trump as an actual person.
This public/private distinction informs how we think about reputation moregenerally in the law. All successful bar exam writers know that private persons need toprove mere negligence in a defamation suit. In part because private individuals are unable
marshal the resources to defend themselves against a defamatory statement or threatening
rap song, and so this makes them the potential target of other listeners as well.112
In Knox both Officer Kosko and Detective Zeltner are employees of the state. They
each wear a police badge, the chevron of authority. When Kosko is on the beat he acts withthe force of the state. But when he’s not in uniform he’s just Michael. We elect our public

110 Brief of Amici Curiae Michael Render (“Killer Mike”), Erik Nielson, and Other Artists and Scholars in
Support of Petitioner at 17, Knox v. Commonwealth of Pennsylvania, cert denied, 139 S.Ct. 1547 (2019).
111 See, e.g., Christopher R. Weingarten, YG Talks Summer Protest Anthem ‘FDT (F—k Donald Trump)’, ROLLINGSTONE (Sept. 1, 2016), https://www.rollingstone.com/music/features/yg-talks-summer-protest-anthem-fdtf—k-donald-trump-w437360.
112 See Michael Pierce, Prosecuting Online Threats After Elonis, 110 NW. U. L. REV. 995, 1003 (2016) (arguing
courts should apply a hybrid approach that “focus[es] on the identity of the target and impose[s] a higher mens
rea standard when the target is a public figure”).

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officials to represent us both before 9am and after 5pm. It is less clear whether regular state
employees – even those who work in law enforcement – are necessarily and always the
personification of the state. Referring to a generic “cop who arrested me” universalizes theexperience and imbues a lyric with political gravity. Name-checking a law enforcement
officer instead personalizes a song so that the officer reasonably feels in danger of his own
safety.

Is Jamal Knox doing aesthetic speech?
The more difficult question is whether this meets our First Amendment standard of
rap-as-art. I first contest the Kleinman reading of Hurley that the first Amendment only covers“great art.”113 We should not read the Hurley reference to Lewis Carroll and Jackson Pollock
as an ejusdem generis construction to suggest that covered art must be at the standard of ourcultural canon. Rather Justice Souter was simply citing well-known examples of seemingly
un-meaningful art to make a doctrinal point about the St. Patricks’ Day parade at issue. Our
institutional gatekeepers distinguished art from non-art, but certainly there has been avariable quality of published or curated art since time immemorial. I don’t propose a nicestandard in this paper for threshold First Amendment coverage. Our gatekeepers were notmaking binary choices even in seemingly gestalt art forms like pop art. My working test isthat for a rap to become “art speech” it must at least be cognizable as rap-as-art.
Any honest reviewer would remark that “Fuck the Police” by Knox and Beasley ismuch better than its transcribed lyrics would indicate. This goes to my earlier observationthat lyrical quality is a weak index of the overall listenability of a rap song. Knox and Beasleyare each competent rappers. They can flow in the pocket and vary their delivery to adjust to113 Kleinman, 597 F.3d at 326.

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beat shifts etc. The most interesting bar is when Knox states: “My momma told me not to
put this on CD/ but I'm gonna make this fuckin' city believe me.”114 This seems to echo thesame meta awareness we observed in Elonis’ references to the nature of true threats doctrine
and his disclaimers about the veracity of his own lyrics. We can plausibly interpret this line
to suggest a similar kind of aesthetic awareness on the part of Knox, and to be reinforcing
the believability of his rap because it is not actually literal. My reading might over-complicate
the intended meaning of Knox. But this fourth wall reflection on how audiences might
receive his lyrics as least goes to the constructedness of the song. It’s not simply a rant in
the purest definition of unfiltered speech.
This is a tough case. In large part this is because of our First Amendment paradigm
that requires us to distinguish aesthetic intent from bad intent. Recall that a speech act
cannot have blended intent according to blackletter doctrine, as a threat is conceptualized asa kind of physical action that allows us to make a content-based value judgment and thus
disfavor it. This creates strange outcomes such as where a rap could pass First Amendment
muster if it is only minimally artful but yet extremely threatening.115 If a rap meets ourthreshold standard of artfulness, then we are simply indifferent to the intensity or directnessof the threat. It is already in the covered zone of art speech. We can put an “explicit” label
on its album cover or adjacent a streaming avatar, or prevent it from being played on public
speakers or at elementary schools etc. But it can’t be censored or criminalized once it has
this valorization as art speech.

114 Knox, 647 Pa. at 600.

115 Professor Tushnet also suggested the need for a balancing test.

Mark Tushnet, Art and the First Amendment,
35 Colum. J.L. & Arts 169, 202 (2012). Interestingly, Jed Rubenfeld pointed out a sort of converse to thisproblem. Rubenfeld, supra note 22 at 829 (“As far as Brandenburg is concerned, a person who deliberately incites
others to commit a minor offense is in the same position as a person who incites others to riot. In both cases,
the speech is equally unprotected.”).

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Of course this is not the calculus that was used prior to modern First Amendment
doctrine116, and it’s not the kind of decision-making process that was ever used by the Art
World. Rather we can assume that our institutional gatekeepers employed a sort ofbalancing test that considered the aesthetic value of the song, and how a potentiallythreatening line might be heard within it. The greater the credibility of the rapper as an
artist, or the expectation that a rap would be heard as aesthetic or fictive storytelling, themore likely record label A&R or a record producer would publish the potentially threatening
line; for example, Tupac’s references to east coast rap foes in “Hit ‘Em Up” or Eminem’s
repeat references to his ex-wife in his early oeuvre. We can also assume that a competentrecord producer would suggest editing a line similar to the one in “Fuck the Police” that
individuates local police officers. This track is less compelling as a rap compared to the
output of Tupac or Eminem. Worth noting is that Eminem became an A-list rapper only
after he released The Slim Shady LP, and was not well known during the production of it. But
Eminem also famously worked with legendary producer Dr. Dre for that album, his majorlabel debut with Aftermath/Interscope records. These background facts contour the
expected audience reception to Eminem’s lyrics about his ex-wife. We don’t have to
condone a lyric to cover it as art speech.117
Justice Alito in his Elonis dissent instead proposed a recklessness test for art threats
in which the speaker or artist acknowledges how an audience is likely to receive a posted or

116 See, e.g., Lakier, supra note 23 at 2179-82.

117 Cf. Schauer, Towards an Institutional First Amendment, supra note 23 at 1256 (“so many prominent First
Amendment litigants have been bad people with dangerous things to say…”). This Eminem example also goesto the point that we make these qualitative decisions at the time of publication, and so we can’t simply defer tothe wisdom of history as Justice Souter did when referring to Jackson Pollock or Lewis Carroll. Professor
Enrique Armijo made a similar point when he asked what the First Amendment status of Duchamp’s Fountainwould have been when first exhibited in 1917 “if no other person at the time saw anything other than a urinal?”
Enrique Armijo, The Freedom of Non-Speech: Free Speech Beyond Words, 33 CONST. COMMENT. 291, 307 (2018).

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recorded lyric.118 This audience-awareness approach would require the speaker/artist to
think about the medium of expression and her expected audience. I agree that would-be
rappers should be aware that written “raps” do not reflect the sonic quality of a song, andshould also remember how the semiotic context of the Internet obscures a post from its
original context.119 The permanence of Internet communication reifies the “present-ness” ofa communicative act, extending the lingering sense of threat that a reader might feel.120 At
the same time, a speaker/artist can claim that by sharing a rap publically that he expects a
broad reception beyond e.g., his family, friends, ex-wife or arresting police officer.121 The
unique context of the Internet both frames and distorts our analysis of Elonis, Bell and Knox.
Chief Justice Roberts never referred directly to the “Internet” in his Elonis majority
holding.122 This is likely because its framing effects are so complicated and difficult to
unpack that it feels like a Sisyphean task to articulate with nicety the effect of the Internet on
art speech, or speech altogether. I have referred to rap speak as a Wittgensteinian language
game. But Internet speak is perhaps its own language game as well, one that we are both
embedded in yet still unsure of its very nature.
The Justice Alito test is bold in considering how aesthetic and bad intent might coexist. Indeed, Alito himself might not realize how this synthetic look at intent destabilizes
the very core of our First Amendment regime (or perhaps he does not want to flag this for
doctrinalists). It also seems to internalize the quality control work of the prior Art World,and forces the speaker/audience to consider her likely audience, and whether a listener willreasonably assume that a rap is targeting them as an individual. The problem with this
118 Elonis, 135 S.Ct. at 2014-16 (Alito, J., dissenting).

119 P. Brooks Fuller, Evaluating Intent in True Threats Cases: The Importance of Context in Analyzing Threatening Internet

Messages, 37 HASTINGS COMM. & ENT. L.J. 37, 50 (2015).
120 John Villasenor, Technology and the Role of Intent in Constitutionally Protected Expression, 39 HARV. J.L. & PUB.
POL'Y 631, 633 (2016).
121 See Alexander Tsesis, Inflammatory Speech: Offense Versus Incitement, 97 MINN. L. REV. 1145, 1166-67 (2013).
122 Jing Xun Quek, Elonis v. United States: The Next Twelve Years, 31 BERKELEY TECH. L.J. 1109, 1126 (2016).

174audience-aware approach is that it favors the known over the unknown artist.123 If theunknown artist takes too many risks in her creative process she might deaden the vitality ofher work, and thus remain an unknown artist! There is a real fear that a recklessness
standard might chill the kind of provocative art speech that we want to encourage in ourFirst Amendment culture. Still, the Alito test is an important innovation in that it reminds
us of the real reason that we cover art speech – not because it contributes to our marketplaceof ideas, or vitalizes our political discourse, or empowers speaker autonomy, but because
there is a qualitative aesthetic value internal to our First Amendment jurisprudence.124

Section IX. Why we cover art
A Marketplace of art speech
We need to ask again what the jurisprudential basis is for art speech before we
consider possible ways to cover and secure it in our post-gatekeeper world. I first discountthe relevance of a Holmesian marketplace, and suggest how rap is properly framed as anexperiential art medium like visual art or film rather than a textual art like novel writing. In
short, we don't necessarily care about the idea of a given artwork, or even if it has one. We
can broadly categorize philosophizing on aesthetic experience around mentalists like Arthur
Danto who focus on how the mind receives an artwork in context, or sensualists like Susan
Sontag who consider values of pleasure.125 These competing theories of aesthetic experience
are both consistent with the fact that an artwork does not have to convey an effable idea.
This is also true of rap, especially in our new paradigm of a rap world where sound is

123 Kerr, supra note 47 at 90.

124 Tushnet, Art and the First Amendment, supra note 115 at 173 (2012) (suggesting that we assume
nonrepresentational art is covered “because we think that such art is, in some sense, a ‘good thing.’”).
125 See, e.g., Peter Brooks, An erotics of art, NEW YORK TIMES (Sept. 14, 1975),
https://www.nytimes.com/1975/09/14/archives/an-erotics-of-art-the-pleasure-of-the-text-sz.html.

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prioritized over meaning. I have listened to “EARFQUAKE,” the standout single fromTyler the Creator’s 2020 Grammy-winning rap album IGOR, a bazillion times over the lastyear, but I still have no clue what rapper Playboi Carti is even saying on his signature guest
verse.126 It’s clearly awesome. It’s also unintelligible to the casual listener who enjoys it as
background music in the office. In real-time I have located his lyric from genius.com127 andshare it here:
We ain't gotta ball, D. Rose, huh
I don't give a fuck 'bout none', huh
Beamin' like fuck my lungs, huh
Just might call my lawyer, huh
Plug gon' set me up, huh (Yeah)
Bih', don't set me up (Okay)
I'm with Tyler, yuh (Slime)
He ride like the car, huh
And she wicked, huh, yuh
Like Woah Vicky, huh, yeah (Like Woah Vicky)
Oh, my God, hold up, um
Diamonds not Tiffany, huh, yeah (Woah, woah)
So in love
So in love
I am still unsure what Playboi Carti is rapping about, but I am confident that having
completed this rap-reading exercise will have negligible impact on my future enjoyment oflistening to this song. The reason I like it is not because of its idea, but because of its sonic
impact. The marketplace of ideas is irrelevant here.

Art speech as political speech
Other theorists have argued that art speech is covered by the First Amendment
because it is formative to our core political speech rights. These post hoc moves to cover art
126 Earfquake, WIKIPEDIA (last visited Feb. 21, 2020), https://en.wikipedia.org/wiki/Earfquake.

127 EARFQUAKE (Tyler, the Creator), GENIUS.COM (last visited Feb. 21, 2020), https://genius.com/Tyler-thecreator-earfquake-lyrics.

176speech seem to confuse the benefits of an arts education with the precise First Amendment
question of why or how we determine that certain kinds of artworks are covered by theConstitution. The main argument here is that exposure to art elevates our politicalsensibility. Marci Hamilton suggested in her article, “Art Speech,” that aesthetic expression
is a kind of pre-verbal or non-discursive form of political expression.128 Others have viewed
the arts as inspiring possibilities of subversion or imagination that are fundamental to selfgovernment.129 Even Alexander Meiklejohn wrote that “literature and the arts must be
protected by the First Amendment … [as] they lead the way toward sensitive and informed
application and response to the values out of which the riches of the general welfare are
created.”130 These connections feel tenuous because of the breadth and generality of theargument.131 A very wide swath of human activities “lead the way” to an appreciation of
constitutional values; for example, Mark Tushnet asked if running a small business, or eventicket scalping might inspire considered reflection on First Amendment values.132
Hamilton and Meiklejohn do not seem concerned with covering a specific categoryof art speech. Rather their thinking echoes cases like Meyer v. Nebraska in which the Supreme
Court held it is unconstitutional to deny foreign language education to primary school
students.133 Meyer has been characterized as both a fundamental rights case134 as well as aFirst Amendment case.135 Either way Meyer goes to the conditional question of whether we
128 Hamilton, supra note 8 at 103-109 (1996).

129 Id. at 76 (1996) (“Art permits individuals to experience alternative worlds, thereby providing an efficient andeffective means of testing the status quo without risk.”). See also Patricia Krieg, Copyright, Free Speech, and theVisual Arts, 93 YALE L.J. 1565, 1580-81 (1984).
130 Meiklejohn, supra note 40 at 257.
131 Blocher, supra note 61 at 131 (observing that this connection “may be a bit of stretch”).
132 Tushnet, Art and the First Amendment, supra note 115 at 173 (2012).
133 Meyer v. Nebraska, 262 U.S. 390 (1923).
134 Id. at 399 (“The problem for our determination is whether the statute as construed and applied unreasonably
infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment”).
135 Tinker, 393 U.S. at 506 (citing to Meyer immediately after the following prefatory statement: “First
Amendment rights, applied in light of the special characteristics of the school environment, are available toteachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to177can pass legislation to the effect of banning arts education in a school district.136 This isseparate from the precise coverage question of asking when and why does the First
Amendment cover certain artworks but not others. A political speech rationale lacks
explanatory power here.

Art speech as autonomy
The prior two theories of why the First Amendment covers art each have an
instrumental orientation: to improve the quality and range of our ideas, or to rarefy ourpolitical sensibility. The other theory that has been proposed by scholars is the
deontological value of speaker autonomy.137 The argument goes that the First Amendment
has an expansive notion of speech because speech is important in itself, and when we
express ourselves we are able to nurture inchoate thoughts, explore the frontiers of ourimagination and further develop our sense of self.138 This kind of identity value converges
with Justice Kennedy’s thinking about personal destiny and vision of self139, and echoes
Meyer v. Nebraska in how the First Amendment is part of our fundamental rights analysis. I
agree that speech is fundamental. But this autonomy value does not explain what
distinguishes art speech from e.g., the sports car-loving libertarian who feels the primordial

freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court
for almost 50 years.”).
136 Cf. Soucek, supra note 60 at 459 (suggesting that aesthetic regulation is more problematic than aesthetic
subsidies). See also Hamilton, supra note 8 at 102 (1996) (“In contrast, arts education in the public schools is acompelling interest in a representative democracy, and decisions to suppress certain works in the schools
require careful scrutiny.”).
137 See, e.g., T. M. Scanlon, Why Not Base Free Speech on Autonomy or Democracy?, 97 VA. L. REV. 541 (2011). See also
Eberle, supra note 14 (arguing for art coverage based on theories of self-realization).
138 See, e.g., Martin H. Redish, The Value of Free Speech, 130 U. PA. L. REV. 591 (1982).
139 Cf. Lawrence v. Texas, 539 U.S. 558, 565 (2003) (“Roe recognized the right of a woman to make certain
fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the
Due Process Clause has a substantive dimension of fundamental significance in defining the rights of theperson.”).

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urge to express herself by breaking the speed limit.140 An autonomy rationale could bemarshaled to justify any and all of the many quotidian or anti-social things we all say or doeach day. It covers too much.141

Art speech as culturally important speechInstead the best explanation of why art speech is covered by the First Amendment –or why any sort of speech is covered by the First Amendment – is because it is core to ourFirst Amendment culture.142 Professor Schauer is best known for this perspective. He
encouraged us to “consider the possibility that the most logical explanation of the actual
boundaries of the First Amendment might come less from an underlying theory of the First
Amendment and more from the political, sociological, cultural, historical, psychological, andeconomic milieu in which the First Amendment exists and out of which it has developed.”143
Dean Post echoes this same culture-based intuition when he writes that the boundaries of
the First Amendment are “anthropologically apparent.”144 In broad-brush strokes, the First
Amendment covers things that we like (good art), or it covers things that we usually don’t

140 This is a widely shared critique. See Gey, The First Amendment and the Dissemination of Socially Worthless Untruths,
supra note 43 at 12 n.38 (2008) (citing Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47
Ind. L.J. 1, 25 (1971) (“[T]he important point is that these [autonomy] benefits do not distinguish speech fromany other human activity. An individual may develop his faculties or derive pleasure from trading on the stock
market, following his profession as a river port pilot, working as a barmaid, engaging in sexual activity, playing
tennis, rigging prices or in any of thousands of other endeavors.”); see also Frederick Schauer, The Role of thePeople in First Amendment Theory, 74 CALIF. L. REV. 761, 772 (1986).
141 E.g., Scanlon, supra note 137 at 546 (commenting on the varied understandings of “autonomy”).
142 Amy Adler, Performance Anxiety: Medusa, Sex and the First Amendment, 21 YALE J.L. & HUMAN. 227, 228 (2009)(referring to Professor Adler’s own scholarly project as a “cultural theory of the First Amendment.”).
143 Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, supra note 11 at
1787.
144 Robert Post, Participatory Democracy as a Theory of Free Speech: A Reply, 97 VA. L. REV. 617, 623 (2011) (cited in
Blocher, supra note 61 at 145).

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like (crude political speech, ignorant speech), but we tolerate it because we want to serve
other cultural goals like having a vibrant democracy or protecting the free trade of ideas.145
I reiterate: we like good art because we like good art. This is a circular proposition.
But the quality control work of our prior institutional gatekeepers gave content to thisnotion of “good art.” Without these gatekeepers we are forced to confront the generalprinciples that delimit First Amendment coverage.
I quickly situate “Jabberwocky” within these concentric boundaries. Joseph
Blocher’s recent contribution on nonsense speech is an erudite look at defining and valuing
the use of nonsense in society, and elegantly situates Justice Souter’s reference to Lewis
Carrol’s “Jabberwocky” in Hurley.146 I first explicate a threshold issue that is both obvious
yet essential: “Jabberwocky” was not shared by an unknown author on an Internet forum.
Rather it was written by the celebrated author Lewis Carroll, and included as part of his
novel, Through the Looking-Glass, and What Alice Found There, the sequel to his successful Alice’s
Adventures in Wonderland. This background context frames the reader to recognize it asliterary writing. It has already met the threshold standards of the Art World (here, the worldof literary publication), and we read it against this implicit quality control work. Lewis
Carroll (aka Charles Dodgson) was himself a lecturer at Oxford, and certainly this kind of
credential adds an aura of reputation and quality that surrounds his work. And finally,
Jabberwocky is not simply nonsense. It is lyrical and full of whimsy, and reading
Jabberwocky is a pleasurable aesthetic experience. It is really good nonsense.147

145 In terms of Bobbitt’s modalities: the former reason is ethical; the latter reasons are prudential. See, e.g.,
Philip Bobbitt, Methods of Constitutional Argument, 23 U. BRIT. COLUM. L. REV. 449 (1989).
146 Blocher, supra note 61.
147 Or is the context of it being a novel irrelevant to its aesthetic value? See Susan Stuart, Shibboleths and Ceballos:
Eroding Constitutional Rights Through Pseudocommunication, 2008 B.Y.U. L. REV. 1545, 1546 (2008) (“In the context ofLewis Carroll's children's story, Jabberwocky has no meaning, at least that an adult audience could discern.”)(emphasis added).

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In short, it’s not that the First Amendment covers nonsense, it’s that it covers great
nonsense. We don’t cover art simply because it is “a protected realm of freedom” in which thegovernment cannot interfere.148 This goes to the Meyer-like problem of arts education, but
not to the precise reason of why we cover provocative public art works. Humanistic valuesof aesthetic quality inform Justice Souter’s passing reference here. The coverage question isunarticulated because it depends on our “social milieu.”149 The related problem for rappers
is that some of these social audiences might not “get it” or have a desire to learn how toappreciate rap, but that by sharing raps on the Internet that these un-acculturated audiences
may read or hear it. I thus argue for 1) a civic response to the gatekeeper problem byinstitutionalizing a rap guild or 2) a re-imagined role for the state to do the quality control
work that used to be done by record labels.

Section X. Some suggestions
A rap guild
My first proposal is that rappers create a sort of self-regulated guild based on internal
standards of quality. The benefits of such a move would be to add a layer of institutional
credibility for unsigned rappers or rappers who choose to self-release their music, and to
make membership based on community standards of aesthetics rather than rely on themarketing calculi of record label execs.150 A rap guild would not manage individual rapper’s
choices as to what or when to release music to the Internet, and so it’s “quality control”
work would be limited to membership decisions. But this is also consistent with the
148 Eberle, supra note 14.

149 Schauer, The Boundaries of the First Amendment: A Preliminary Exploration of Constitutional Salience, supra note 11 at

1787.
150 Cf. Madhavi Sunder, Cultural Dissent, 54 STAN. L. REV. 495 (2001) (observing, perhaps critically, how certain
cultural groups have First Amendment expression protections because of constructed notions of insularity andgroup membership).

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evolutionary nature of rap. I have argued previously that the Stanley Fish test of readerrecognition is the best index of what counts as rap today, but that the relevant “text” is not
the published rap, but the rapper her- or himself.151 Our social definition of rap seems to bewhatever the aesthetic output is of people who look or act like rappers to us.152 This echoes the artistcentric argument made by Acting Solicitor General Seth Waxman in National Endowment for
the Arts v. Finley153 involving performance artist Karen Finley.154
This lack of a rigid sonic template for rap is liberatory and exciting in some ways, andinforms recent aesthetic moves like the sing-songy trap of Young Thug or Travis Scott or
emo-rap of Lil Peep or Juice WRLD. But this rapper-inflected definition of rap is also
problematic. When genre-hopping musicians like Drake155 or Tyler the Creator156 aim to
expand their catalog and produce non-rap songs, the music industry still categorizes thesee.g. R&B or pop songs as “rap.” This exacerbates the perception that rap is simply what
“young black men” do, or worse, that these young black men can only do rap, and are notmusicians who have the chops for e.g. rock or pop.
There are also core critiques about the viability or ethos of such a guild. It
admittedly would be quite difficult to administer a guild made up of likely hundreds ofthousands of wannabe rappers. My analogy in mind is a working union like the Screen

151 Andrew Jensen Kerr, Rap Exegesis: Interpreting the Rapper in an Internet Society, 7 COLUM. J. RACE & L. 341(2017).
152 Cf. Schauer, Towards an Institutional First Amendment, supra note 23 at 1275 (“[W]e investigate whether thatvalue is situated significantly within and thus disproportionately served by some existing social institution
whose identity and boundaries are at least moderately identifiable. If so, then we might develop a kind of
second-order test. If there is a reporter's privilege, for example, we might ask not whether this exercise of theprivilege serves primary First Amendment purposes, but instead simply whether the person claiming theprivilege is a reporter.”).
153 National Endowment for the Arts v. Finley, 524 U.S. 569 (1998).
154 Schauer, Towards an Institutional First Amendment, supra note 23 at 1275-76.
155 Joey Nolfi, Drake disputes his Grammy category: 'Hotline Bling' is 'not a rap song', ENTERTAINMENT WEEKLY (Feb.
19, 2017), https://ew.com/grammys/2017/02/19/drake-grammys-hotline-bling-not-rap-song/.
156 Toyin Owoseje, Tyler, The Creator slams Grammys' 'urban' category as a politically correct version of the n-word, CNN
ENTERTAINMENT (Jan. 27, 2020), https://www.cnn.com/2020/01/27/entertainment/tyler-the-creatorgrammys-intl-scli/index.html.

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Actors Guild. Perhaps the threshold institutional setting of a Hollywood film explains inpart why we never see criminal cases related to e.g., statutory rape or contributing to childdelinquency. In a way, the Hollywood depictions of these crimes still satisfy their strict
liability nature. It would be similarly surprising to see an actor’s film work cited as evidence
in a courtroom. We assume this is all the work product of a professional class of actors andthat it thus has zero legal relevance. Another way to frame this is that the Art World ismaking the kinds of quasi-legal decisions I referred to earlier about aesthetic quality that we associal actors defer to. These “easy cases” are disposed of prior to court. But perhaps ascene depicting statutory rape in a low-budget homemade indie film would be received
differently by a court. Another example is a stand-up comedian making a statement thatwould be considered defamatory when being interviewed on the nightly news, but thatwould be dismissed as a mere “joke” (as covered art speech) if recited on stage as part of abit. Our collective sense of institutional context distinguishes these seemingly congruent
acted scenes or lies/jokes. This was Danto’s same point about the Campbell’s Soup cans. But
we can still think of novel hard cases; e.g. a comedian on a news-inflected talk show157, orconfrontational forms of “performance art” identified by Mark Tushnet.158
I sense that the law and rap community is trying to make a similar argument that allof rap should be assumed to have zero legal relevance, for either threats analysis or probity
value in evidence. To this extent the creation of a rap guild similar to the Screen Actors
Guild could help them achieve these desired ends. But the SAG and related acting guilds are

157 E.g., Joseph Ax, Trump withdraws "orangutan" lawsuit against comic Bill Maher, REUTERS (Apr. 2, 2013).

158 Tushnet, Art and the First Amendment, supra note 115 at 184 (2012) (“Of course it is easy to come up with
examples of content-neutral regulations that can be applied to artworks without violating the First
Amendment. The most obvious cases involve performance artworks that violate ordinary criminal statutes.
Performance art that takes the form of defacing public or private property or interacting with unsuspecting andunwilling bystanders in ways that amount to technical assaults, for example, is clearly not protected by the First
Amendment because the government interest embodied in general criminal law is substantial and excising all
artworks from the coverage of those laws is impracticable.”).

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also labor unions, and this professional distinction allows them to control membership basedon pay stubs or other gatekeeper determinations of quality. My rap guild proposal isspecifically non-economic in nature, which complicates membership evaluation.
Finally, we might wonder if a rap guild conflicts with the very ethos of rap. Rap iscommonly thought of as a transgressive genre. And perhaps an institutional organization is
at odds with an anarchic, rebellious ethic that still manifests in many kinds of rap today. I
am certainly open to other novel forms of gatekeeping that maintain the integrity of thisever-evolving genre. I am also unsure if today’s rappers are necessarily anarchic, or at least
any more anarchic than any other genre of musicians. Some of our most famous rappers are
known for their organizing abilities and entrepreneurial talent.

The State as Quality Control Worker?
My second proposal is that the state enters the quality control space that used to be
managed by record labels or other gatekeepers like book editors or film producers. At first
blush this might feel strange. After all, political speech is core to our freedom of speechjurisprudence, and we typically interpret this to mean dissent. There seems to be an obvious
conflict of interest in allowing the state to do the work of editing anti-state speech. This is
the literal definition of censorship.
My proposal is specific to the production and distribution of art speech. As I haveargued, the jurisprudential basis for art speech is not that it contributes to the marketplace ofideas or vitalizes democratic self-government, but our shared sense that the First
Amendment does and should cover quality aesthetic expression for values internal to ourconstitutional culture. There might not any black-letter doctrine for this. But nor are there
any recorded cases of published rap or art being deemed a true threat by a court. The only184

distinction between a song like Tupac’s “Hit ‘Em Up” and Jamal Knox’s “Fuck the Police”
is that Tupac is considered a great rapper. In just the last half-decade three amateur rap
threat cases have petitioned the Supreme Court for certiorari. A fourth case is inevitable.
The jurisprudential basis for art speech is the seeming tautology that we like goodart. It isn’t that controversial to think government should help people improve the quality of
their art. Brian Soucek reminded us in “Aesthetic Judgment in Law” that government makes
everyday aesthetic decisions on which kind of art to fund or curate in museums.159 Still, as
rappers use words as part of the construction of their songs, it is understandable why it
might feel icky if a government employee is influencing which words are vocalized in a rap.
This might faintly echo the problem of forced speech in Barnette v. West Virginia.160
I counter that this might depend on our rhetoric about the state and how we think
about the precise job description of the quality control worker. If we depict the state as an
Orwellian surveillance regime, which has a Weberian monopoly on the use of violence, thenthis might all feel scary. But if we equate the state with a licensed social worker or publicschool guidance counselor then maybe readers can be more sanguine about this kind of
quality control work. Amateur rappers or performance artists etc. don’t benefit from theprofessional editing work of record label or publishing house. A school counselor who isable to explain to students why name-checking a private individual is received differently
than rapping about an institution or “the system” is not necessarily distorting the identity ofa student’s rap song, but she might be helping this student avoid school suspension or a
court visit.161 This growing pains concern is an important one in the context of rap threats,

159 Soucek, supra note 60.

160 Armijo, supra note 117 at 314-18 (2018) (contextualizing art speech within theories of First Amendments
protection to not use words, associated with scholars like Louis Michael Seidman and Martin Redish).
161 Interestingly, YG was visited by Secret Service after he released his music video for FDT, and pressured toomit a line for the published album version that made reference to cartel kingpin El Chapo. See Adelle Platon,

185

where our subtext for cases like Elonis is the very many young people like Taylor Bell who
are simply writing their way through their early development as a rapper.
In Bell v. Itawamba (2015), the Supreme Court denied certiorari in the case of Bell, anovice rapper who posted to Facebook and YouTube a recording of a rap he wrote in
response to allegations concerning the lewd behavior of two gym coaches at his Mississippihigh school.162 Like the aesthetic output of probably most teenagers, Bell’s lyrics lacked
sophistication and poise. But they also inflected some topical rap devices (e.g. “Run up on
T-Bizzle” echoes the lexicon of Snoop Dogg) and rhymed etc.163 It was a clear attempt at
rap, even if not a very good one. It also mentioned inserting “a pistol down your [i.e. one of
the coach’s] mouth” and referred by name to these coaches at Itawamba Agricultural HighSchool.164 Bell was suspended for seven days and required to spend the rest of the grading
period (approximately six weeks) at the county alternative school. An en banc Fifth Circuit
panel upheld the school board decision.
Again, this is a tough case, further complicated by the fact that school administrators
must balance individual rights of self-expression with the exigencies of moral education anddiscipline (see Tinker v. Des Moines).165 But this same mandate for moral education could reframe how school personnel managed this case for Taylor Bell. A seven-day suspension, six
weeks at the county alternative school and not being allowed to attend school functions feels
like a draconian sentence for an attempted rap. Perhaps instead e.g. a counselor could haveworked with Bell to edit or remove these lyrics after his Internet posts were discovered byschool administration. The First Amendment was theorized by Thomas Emerson as a sort
YG Says Secret Service Reached Out Following Release of Anti-Trump Song, May Try to Take His Album Off Shelves,
BILLBOARD (Apr. 27, 2016), https://www.billboard.com/articles/columns/hip-hop/7348438/yg-secretservice-donald-trump-fdt. I of course argue here for a more consensual, restorative approach to state counsel.
162 Bell, 799 F.3d 379.
163 Id. at 384.
164 Id.
165 Id. at 390.

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of social safety valve.166 The argument goes that we should allow individuals to vocalize antisocial or violent thoughts so they don’t fester and manifest as actually violent action. Thissafety valve function informs the history of “battle rapping,” in which live participants in afreestyle “cypher” traded barbs and insults in rhyme form.
But the problem today is that an amateur rapper might think they are merely
performing a “battle rap” when the Internet listener/reader (i.e. Bell’s gym coach, or Elonis’
ex-wife) is unaware of this genre context. A battle rap that is not rapped in-person in directview of the audience, but that is instead posted to an unmediated Internet is received quite
differently. In Wittgensteinian terms, Bell was using rap-like language for an audience who
was not part of the relevant rap language game. This also goes to my proposal for stateintervention in art speech. A government social worker could work with Internet speechplatforms to edit or delete art threats after they are originally posted to minimize their impact
to the extent possible. We should consider non-legalist167 responses to what are social
problems prompted by our evolving Internet speech culture.

Section XI. Conclusion
Rap is art. However, that does not mean that all who attempt to rap are necessarily
artists or record artful songs. This is axiomatic of all musical genres, and all forms of art.
The word “art” is commonly assumed to connote a threshold of quality. We apply this word
only to paintings, or songs, or performances that are good. And so although my paper
clarifies that the First Amendment does not necessarily cover the written or recorded raps ofamateur rappers, it also reminds the legal world that not all rap speech is equal. This is agood thing as well.
166 THOMAS EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 7 (1970).
167 See generally JUDITH N. SKLAR, LEGALISM (1964).

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The law and rap community seems to want to insulate attempts at rap from bothcourtroom use and threats analysis. But while their motivations are sympathetic, their logic
functions to deny the nobility of rap as compared to other music genres. There is alegitimation cost to declaring that all attempted raps are covered by the First Amendment,that bad rap, or even Justice Alito’s feigned rap, is equal to good rap.168 This reinforces asocietal perspective that rap is simple, unrefined, rote or juvenile.169 That it’s a kind of folk
tradition rather than an aesthetic form of music.
This kind of popular, or folk, approach to rap is reflected in perhaps the mostformative contribution to law and rap scholarship, Paul Butler’s “Much Respect: Toward a
Hip-Hop Theory of Punishment” published in the Stanford Law Review in 2004.170 Butler’sgroundbreaking paper cites to rap as a form of cultural authority, as an index of community
views about different theories of criminal jurisprudence. His paper reflects a novel way toapproach issues of community justice, and can be situated within his wider intellectual
project on jury nullification.171
But to the extent his paper is a theory of folk jurisprudence, and how ideas about
criminal justice percolate through a community of rappers and rap audiences, then his theory
is necessarily more about ideas than about the aesthetic quality of rap. Ideas were likely much
more important to early genres of rap, like the political rap of Public Enemy in the 1980s or
the conscious rap of the 1990s associated individuals like Mos Def and Common. Today
ideas don’t matter as much in rap. However, if we build a theory of rap based in its idealized
vision of justice, this leads the law and rap community to think about the demographics of
168 Cf. Robin West, From Choice to Reproductive Justice: De-Constitutionalizing Abortion Rights, 118 YALE L.J. 1394,
1405-12 (2009) (discussing the “legitimation costs” of the creation of a constitutional right to abortion).
169 Cf. Anthony Kronman, Is Poetry Undemocratic?, 16 GA. ST. U. L. REV. 311, 312-13 (1999) (positing that poetry
has aristocratic inclinations).
170 Paul Butler, Much Respect: Toward a Hip-Hop Theory of Punishment, 56 STAN. L. REV. 983 (2004).
171 See, e.g., Paul Butler, Racially-Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677(1995).

188

rappers and the other societal problems they face. This all sounds good in theory. But it
also causes us to forget the fundamental qualitative determinations that go into the
production and distribution of rap as an art. This aesthetic basis of rap justifies its
constitutional coverage as art speech. Prior to the Internet we didn't need to think about
these aesthetic thresholds because published rap had necessarily been vetted (and likely
edited) in the quality control work of our gatekeepers. But now that the amateur rapper, or
the feigned rapper, can simply upload their seemingly threatening rap to the Internet weneed to rethink fundamental coverage questions. These are broad principles, and they seemto reduce to facile metrics like likeability and quality.172 This makes the coverage boundaries
feel a bit non-legal and perhaps beyond judicial ken. But maybe this is a reason why weshould finesse these boundaries, and allow new sorts of intervention to help with the quality
control work that our record labels can no longer do on their own.

172 Cf. Post, Recuperating First Amendment Doctrine, supra note 6 at 1272 (1995) (“The most general statement of
this point is that all legal values are rooted in the experiences associated with local and specific kinds of social
practices.”).

189

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