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Thursday, September 11, 2014

Don't Quote House of Cards in a Judicial Opinion Without Cite Checking

Sahil Kapur at Talking Points Memo has this post on how a federal judge in the Southern District of Ohio recently quoted Francis (or Frank) Underwood, a character in the Netflix series, House of Cards.

Kapur writes:

A federal judge quoted fictional "House of Cards" character Frank Underwood in an opinion released Thursday for aptly articulating a "longstanding and fundamental principle of American law." 
U.S. District Court Judge Timothy S. Black struck down an Ohio law banning false statements about political candidates, decreeing it unconstitutional. The judge argued that although "[l]ies have no place in the political arena," it's not the role of the government to police the accuracy of statements.

Here's the paragraph of the opinion where the court quotes Underwood:

What then is the alternative? The United States Supreme Court has clearly signaled the answer. For starters, the Supreme Court held flatly in 2012 that: “The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth.” United States v. Alvarez, 132 S. Ct. 2537, 2550 (2012) (emphasis supplied). The more modern recitation of this longstanding and fundamental principle of American law was recently articulated by Frank Underwood in House of Cards: “There’s no better way to overpower a trickle of doubt than with a flood of naked truth.”
While at first glance the Underwood quote sounds like it recites the principle advanced by the court, the context of Underwood's remark reveals otherwise. In fact, the true meaning of Underwood's quote is probably the last thing the court wants to espouse.

Warning: House of Cards Season One spoilers following the break.

The court is quoting a line from House of Cards, Season One, Episode 7, "Chapter 7". In that episode, Underwood is pursuing a scheme to place Congressman Peter Russo into the running for the governorship of Pennsylvania -- an office that had previously been held by the current Vice President. Underwood's overall plan is for Russo to run, but fail late in the game, forcing the Vice President to run for governor instead, thereby leaving the Vice Presidency open for Underwood to seize.

In the early stages of the Russo campaign, however, the President and his Chief of Staff, Linda Vasquez, express doubt over Russo's suitability as a serious candidate. They point out Russo's history of alcoholism and drug abuse. Underwood fires back by admitting that Russo has a history of alcohol and drug abuse, but adds that this would play into an "underdog" campaign narrative and promising to support Russo throughout the campaign. This rapid-fire statement of the elaborate plan seems to catch the President off guard, and the President agrees to Underwood's strategy, This prompts Underwood to remark to the audience:
I didn't plan on telling him so much so soon, but if I didn't, Linda would've swayed him. There's no better way to overpower a trickle of doubt than with a flood of naked truth.
This context reveals two problems with the District Court's use of the Underwood quote.

First, Underwood is not referring to the principle that more speech is the best remedy for false speech. Underwood's statement is made in the context of communication between parties in a relationship of trust. If that trust is threatened, a party may regain its reputation as trustworthy by revealing a number of revealing, truthful facts. This statement about trust relationships is quite different from the District Court's claim that a false statement's true nature is best revealed by the release of additional true speech.

Furthermore, the "truth" that Underwood refers to is indeed made up of truthful facts, but the "flood" of truth that Underwood unleashes on the President and Chief of Staff is a calculated release of partial truths meant to conceal a greater scheme. So, contrary to the District Court's claim that more speech is the best way to undo the damage of false speech, Underwood's use of truthful facts in this episode shows how releasing truthful information can be used to obscure a broader, more important truth.

The District Court should learn from the Court of Appeals of Maryland, which quoted Underwood in its April, 2014 opinion, Fraternal Order of Police, Montgomery County, Lodge 35 v. Montgomery County. That opinion begins:

"Proximity to power deludes some into thinking they wield it," observed the character Francis Underwood, portrayed by Kevin Spacey, in the U.S.-version of the television series "House of Cards." Petitioner here, the Fraternal Order of the Police, Montgomery County Lodge 35 ("FOP"), fell under such a spell in maintaining this litigation. The Police Labor Relations Act ("PLRA") of the Montgomery County Code grants the FOP a proximity to power in requiring the County Executive to negotiate certain employee benefits with a representative of the FOP. Despite this proximity, the FOP lacks actual power under the PLRA because, as the well-known adage provides, "he who holds the purse strings rules the roost." Under the PLRA, the County Council (the "Council") in Montgomery County holds the purse strings (i.e., the actual power) each fiscal year when it approves the budget.

Thus, we hold that the Council acted in this case within its authority under the PLRA in deciding not to fund fully — and, thereby, to "change" — certain benefits in the pre-existing collectively-bargained agreement, at least where the "changes" are fiscal in nature and the County Executive and the FOP did not submit a re-negotiated agreement to the Council.
Quoting Francis Underwood can be a risky undertaking. The Court of Appeals of Maryland avoided re-interpreting the meaning of Underwood's remark, and in doing so avoided the dangers that the original quote's context can raise.

Any courts seeking to make broader use of Underwood's wisdom would be best served by careful cite-checking and analysis of the authority the courts cite. This strategy would have two benefits. First, it would reduce the danger of courts taking Underwood's quotes out of context. And second, it would require clerks to watch House of Cards. This would improve the clerks' lives, and thereby improve the quality of judicial opinions.

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