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Tuesday, October 04, 2016

On "The Troublesome Use of Photographs . . . and Other Images" in Federal Court Opinions

Bear with me.

In 1997, Hampton Dellinger wrote an interesting commentary in the Harvard Law Review titled "Words Are Enough: On the Troublesome Use of Photographs, Maps, and Other Images in Supreme Court Opinions." Dellinger wrote that "visual attachments" to written opinions have potential value, including "offering the possibility of offering an impact more powerful than words." But he warned that "the unique attributes of these attachments pose special dangers." Even in cases where the accuracy of a visual attachment--a map or photograph, for instance--is not in dispute, it could still be problematic, because its "probative value [could] be outweighed by its prejudicial impact." Dellinger recommended that the Court stop using visual attachments altogether, or at least use them with great care. His article was fairly clearly directed at ostensibly useful, relevant, and probative visual attachments; judging by his discussion of Chief Justice Warren's use of photographs in Estes v. Texas that were more in the way of persuasion than directly relevant evidence, I think it's fair to say he would be even more critical of the judicial use of visual attachments that serve a purely or essentially persuasive purpose, relying on emotion rather than evidence. 

Dellinger's article has been cited a number of times. In Nancy Marder's article "The Court and the Visual: Images and Artifacts in U.S. Supreme Court Opinions," Marder is supportive of the use by Justice Kennedy, in Brown v. Plata, of a stark photograph of a metal cage in which prisoners were kept. The photograph, she writes, is "very powerful, and adds a different kind of support--beyond the statistics and the words of experts--to Justice Kennedy's opinion." Marder disagrees with Dellinger's proposal that such aids not be used at all. But she adds emphatically that "they need to be used with care," that "the image with the greatest potential harm is the photograph, which can be very powerful and can elicit a strong emotional response from viewers," and that "the justices need to exercise restraint in deciding whether to include a photo in a highly contested area of the law. The most serious potential harm with photos is that they could arouse a strong, visceral response in viewers in an area that is controversial or emotionally charged. In such cases, the photos, rather than adding to reason and argument, will undermine them."

Finally, in "Taking Images Seriously," Elizabeth Porter addressed directly the use of visual images for essentially argumentative purposes: "visual icons," or images used "for purposes that are tied more closely to rhetoric than substance." She wrote--I think descriptively not normatively, based on what follows in the article--that "the naturalness" of such images makes [them] less subject to criticism than judicial use of extraneous or rhetorical textual examples." Porter proceeded to argue that "there are significant risks to allowing images to seep into the legal vernacular," including "the risk that image-driven legal argument will vitiate the intellectual rigor and civility of legal discourse." This risk, she wrote, "is more subtle [than the other risks she sets out], but perhaps more pernicious and less susceptible to regulation." It could result in "a language that appeals to emotion over intellect." Like Marder, Porter urged judges to use great care in deciding whether to incorporate images into their opinions, especially images that are "outside the record" and "only tangentially related to the subject matter of the case." 

All this suggests a few points that seem to fall within the center of opinion about the use of images in judicial opinions. I think it also represents the general consensus among lawyers. These images should be as relevant and accurate as possible. Because they may have a great visceral and emotional impact, they should be used with great care, if at all. Judges should be especially reluctant to use them when they function essentially as an appeal to emotion, and when that appeal to emotion may overshadow the specific subject of the case. These problems are likely to be especially present and grave when the issue under review is a highly emotionally salient or hot-button one. Where a judge does so anyway, judges and scholars should be ready and willing to engage in public criticism of that judge. 

When someone (other than me, since I do it all the time) writes this much in so dry a fashion, it's a fair guess that the tl;dr approach is deliberate, and is perhaps intended to secure gradual agreement through a series of discussions and examples that are not the subject of any recent conduct that is still subject to the passions and distorted judgments of the day, before holding up precisely such an example and asking people to judge it against that standard, regardless of the politics or strong feelings involved. And that is exactly what I'm up to here.  

Here is an interview--a softball interview, unfortunately, of Jimmy Fallon-like toughness, although Fallon of course is not a journalist--between Mark Joseph Stern of Slate and Senior Judge Damon Keith of the Sixth Circuit. The interview concerns Judge Keith's dissent in a recent voting rights case, Northeast Ohio Coalition v. Husted. As Stern puts it, "Keith included in his dissent a [photographic] gallery [of] 'martyrs of the struggle of equality,' slain civil rights heroes 'whose murdered lives opened the doors of our democracy and secured our right to vote.'" In the interview, Judge Keith justifies his decision as follows:

I wanted to dramatize the racist attitude of the majority. Look at those pictures. These are men and women who died for the right to vote. I was really so hurt by the decision of the majority of the court. My grandparents lived in Georgia, and they were not allowed to vote because of racism. I thought about them. . . . I said in my dissent precisely what I thought the Ohio law was about, and I wrote about the struggle that we still have in this country for the right to vote. And I said, look at these pictures. All those men and women, white and black, Jew and gentile, gay and not-so-gay—this is what they lived for! This is what they fought for! This is what they died for!"

I cannot comment on the election law issues. I can say that the gallery of photos and captions--ten pages worth, or more than one-quarter of the dissent--is moving and powerful. I can say that built as it is on a history none of us should forget, it has a powerful visual and rhetorical impact. I can, in short, say all the things one is expected to say, not least because I feel them sincerely. That said, I find it very difficult to conclude that the inclusion of these images, from well beyond the record or the specific issues in the case, comes anywhere near the standards proposed by those scholars who have written on the issue of the use of visual images in judicial opinions. Again, I think that standard is no outlier, but fairly represents the center of lawyerly opinion on this question.

If those writers were right that the issue deserves attention, then Judge Keith's decision to include the gallery deserves attention from those who are concerned about or interested in the use of visual images in judicial opinions. It requires either public justification--principled justification consistent with past views on the subject--or public criticism. It is obvious that Stern could and should have pushed back more in the interview than he did. (The interview, the piece notes, was edited and condensed. If he did push on the point, he should have included that in the edited version.) For background purposes, Stern might have started by reading this article by his own Slate colleague, Dahlia Lithwick, in which she argues, citing Dellinger's piece, that the photographic display in Brown v. Plata was questionable given the power of the opinion itself, and questions whether "the court [should] be using visual aids to prompt emotional responses . . . in the first place."  

One long last note. I hesitated some time before posting this, for two reasons. (Well, three, but an ambitious person's fear of being viewed negatively for posting something on this topic is not a good reason.) First, Judge Keith is an extraordinary man who has had a remarkable career and contributed significantly to the law on many issues, not least those involving the American original sin of race. Even those who disagree with some or many of his rulings can and should show respect for his exceptional life and long record of public service. The second reason is his age. Judge Keith is 94 years old. Perhaps his age itself, combined with that record of a long and distinguished life, counsels respectful silence even if he erred in including the gallery, at least according to the standard offered above. Age sometimes demands its own tribute, and sometimes the tribute is to let pass what, at least on the view above, would be a lapse in exercising the best judicial judgment and temperament. Perhaps that is compounded where, from the judge's perspective and perhaps that of many others, the arguable lapse is motivated by passion over an enduring injustice, and over what it means for a long history of struggle and sacrifice. It seems to me, however, that this last point may affect the ultimate argument about whether the display was improper or whether, instead, it was justified by extraordinary circumstances; but this should form part of the discussion about the propriety of the "gallery" itself and should not affect the decision whether to publicly raise that issue or not. Really, respect for or concern over his age is the key factor here. 

Perhaps, then, a respectful silence would have been the best thing. But my decision to post anyway is itself based on respect. Whatever his age, Judge Keith still sits on the bench. Respect for him, as a judge and as a person, entails taking him seriously, and taking him seriously includes being willing to criticize him or, at a minimum, raise questions about the propriety of the gallery. Silence in these circumstances can be respectful, but it can also be patronizing, condescending, or dismissive. If he is fit to serve, and I certainly do not suggest otherwise, then he is fit to be criticized. Moreover, while I cannot help but feel his advanced age is a good human reason to be sensitive, I also note that most of the time, while we acknowledge that judges are human, we also treat their work product as that of professionals, and subject to professional commentary, questions, and criticism.

Finally, raising these questions here would have been less necessary if Stern had done his job properly. That the gallery was unusual as a matter of judicial practice and arguably involved the use of visual aids not for reasoned argument but "to prompt emotional responses" was obvious on its face. Indeed, it is likely that the unusual nature of the gallery prompted the Slate interview in the first place. Slate and other media sites these days are keen on the idea that it's not enough to just give someone an uncritical platform; the journalist has the duty to push back and ask tough questions. Stern's interview obviously fell short of that standard; it was more of a mash note. If he had done his job, readers would have had some additional and necessary context by which to judge the use of visual aids in Judge Keith's dissent. Whether they then criticized it or approved of it, they would at least have been relevantly informed. Since Stern didn't do his job, someone must.

For all that, I hesitated, both because of the powerful and sensitive issues and history that formed the subject of the gallery and because of the judge's advanced age--and, no doubt, out of a desire for professional self-preservation. But the issue deserves to be aired, so that people can consider what the proper general standard should be for the use of emotionally stirring, extra-record visual displays by judges, and either criticize the display in this case or come up with a sound reasoned justification for it.                  

Posted by Paul Horwitz on October 4, 2016 at 09:53 AM in Paul Horwitz | Permalink


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