The Epistemic Status of Mike Daisey’s Monologues

I assume all the readers here have followed this story, listened to the This American Life episodes, and read some of the commentary.  So I’m not going to give any backstory here, since you’re on your computers anyway if you need some.  I had "monologues" in quotes in the title initially, not to derogate the artform (I agree with his reviewers that Daisey is a captivating storyteller) but to highlight the ambiguity about what exactly the term means—to theatergoers, radio listeners, and, it appears, to Daisey himself.  And yes, I am still thinking about this in the context of the Stevens prosecution report, but it seems to me that there are lessons to be learned here about language use, communicative context, and meaning that are particularly important for lawyers; in short, as explained below, this is one of those "Don't be like that guy" episodes which students can remember and use as a heuristic as they hopefully internalize the values of our profession.   A thousand words, below the fold:

I wrote an article a couple years ago called “What Is Truth?” which explores what I find to be a fascinating epistemic grey area in the First Amendment: the courts have interpreted the Free Exercise Clause to forbid judicial decisions on religious questions, but have given precious little guidance on distinguishing religious questions from fact questions—which, of course, courts not only can but must decide.

A large part of the problem is that people are often sloppy, uncertain, or deliberately ambiguous about what kind of assertion they are making.  The best example is the famous D.C. Circuit Scientology case about whether the First Amendment protects claims that “auditing” cures cancer (among many, many other marketing claims about the benefits of the practice).  Is that a “fact” claim or a “religious” claim?  Well, in a way, it’s both, right?  You assert it because you believe in it as part of your religious faith, but you believe it to be factually true.  So can the FDA regulate the claim as part of its authority to regulate the marketing of medical devices?  Or is it more like “God created Eve out of Adam’s rib” (or whatever)?   

There isn’t any good a priori way to answer this question, because meaning is so context-dependent (I have an article on anonymous internet threats that gets into the weeds on that, while I’m plugging articles).  And the district court opinion on remand in the Scientology case is the best example I’ve seen of a court trying to take seriously its duty to ask what the communicative function of various utterances actually was, in context.  The collected works of L. Ron Hubbard may be the scriptures of Scientology, as the D.C. Circuit had said, but that does not mean that a claim like “No one who has been through auditing has ever gotten cancer,” when made to the general public as part of marketing campaign for a service offered for sale to the public specifically to improve health, is immune from regulation under the Free Exercise Clause.  You have to look at the words, the relationship between speaker and hearer, and the surrounding context.  If I’m trying to sell you a product by claiming it will cure cancer, I surely intend that you will interpret my claim literally.  Maybe the context makes it clear that I’m joking?  Well, if so, you’d better show me the context, if you’re claiming the speech was clearly not meant literally and would not be so interpreted by a reasonable listener.  And that’s what the district court did, line by line, claim by claim.

So when I read Mike Daisey’s defense of lying to Ira Glass and misleading the thousands (millions?) of people who heard his story about his visit to the Foxconn factories in China, I thought about it, as maybe most lawyers did, though the lens of this sort of contextual evaluation of communication.  People do this sort of thing all the time, after all: caught in a lie, or a threat, or even an unintended truth (think Etch-a-Sketch) they try to back off it—“Hey, come on, I didn’t mean that literally, and no one would think I did,” etc.  This is what Daisey has repeatedly said: that he was “making art,” not “asserting facts,” that he’s a “storyteller within the context of the theater,” not a journalist, that he lied to Ira Glass because “the work was really good,” and his “larger truth” about manufacturing conditions was more important.   You can read his comments at length in many places, including on his blog, here: http://mikedaisey.blogspot.com/

This whole episode should be illuminating to us, as teachers in professional schools, training students to enter a profession in which virtually every case has something of the Daisey-Glass-audience relationship to it.  So Daisey says he’s a performer of artworks, not an asserter of facts.  Well, maybe—but have the audiences at his performances been apprised of how he sees that distinction? He calls his shows “monologues,” a term that does not have a commonly-understood valence on the truth-fiction axis, and that to many people’s ears probably suggests facts.   And his monologues, throughout his career, have been about his own experiences; the first one, you may recall, was about his time working after college at Amazon. And certainly there’s nothing in the monologues themselves that clues anyone in that the stories he’s telling are made up, in whole or in part: on the contrary, they are narrated as direct personal experiences.  And Daisey has never claimed—nor could he seriously try—that the appeal of his shows would have been the same if people didn’t think his stories were true.  Why did so many people come to see him talk about Foxconn?  Because he said he’d actually been there, actually met and talked to people who’d suffered debilitating injuries, etc.  Of course he *had* really been there, and there *are* people who’ve suffered injuries making things in China.  But you’re not going to sell tickets to a show where a guy sits on a stage and says “I read a story in the New York Times about working conditions in Chinese factories.” 

Remember that guy who wrote a “memoir,” A Million Little Pieces, chock-a-block with bad-boy-rebel-rehab-arrest stories, that was picked up by Oprah?  And then he had to admit that he made most of it up?  If that guy’s storytelling skills were what people valued, the book would have done just as well as fiction.  But he must have known that it wouldn’t sell as fiction—why else sell it as a memoir?  (He did subsequently write a novel, by the way, the fate of which proves the point.)      

As lawyers we see this all the time.  People try to get what they want from other people using linguistically vague utterances that they know their interlocutor will interpret one way, but which they’ll be able to read the other way if it ever comes to litigation.  How many examples can you think of?  Just in my little world, you have plea agreements (better be real clear on what constitutes breach); queen-for-a-day proffer agreements (better be real clear on sharing with other agencies and offices); hints of leniency by interrogating agents (which is a big deal under state law here in California); Brady (see the Stevens case, where at least one agent claimed not to realize that prior inconsistent statements were discoverable on the ground that they could be used to impeach a witness; one assumes, though, that any agent who’s ever interrogated a suspect has used their prior statements against them); or the crux of the Schuelke report, criminal contempt: as it turned out, although the report concluded that the lawyers had deliberately violated their Brady obligations, criminal contempt did not lie because Judge Sullivan had not specifically ordered the attorneys to comply with their Brady obligations.  The transcript, indeed, shows the judge saying that he doesn’t need to issue such an order because they are professionals who know their ethical obligations, and the prosecutors had repeatedly told the court that they were aware of their obligations and were meeting them.  And, of course, cross-examination, or a witness with a perfectly probative true story who feels the needs to sell it just a little bit more.

People who work in other areas will have many more examples, probably even more closely on point than these.  Just by way of one non-criminal illustration I've been thinking about, as a follow-up to my article on the lines between truth claims and religious claims, I've been playing around with a piece collecting various bread-and-butter contexts in which courts are forced to evaluate claims that have at a least a facial religious valence for many people.  Consider this one: in Casey, the Court said that states can have pre-abortion notification requirements if the information is (inter alia) "true."  So a state goes and tries one where the doctor has to say:

    That the abortion will terminate  the life of a whole, separate, unique, living human being; that     [the patient] has an existing relationship with that unborn human being.

The Eighth Circuit looks at this (en banc) and says, well, there's another section of the law that defines "human being" as "an individual living member of the species of Homo sapiens, including the unborn human being during the entire embryonic and fetal ages from fertilization to full gestation." Ok, reasons the court, if that's the definition, then it's "true" and thus constitutional.  The problem is that many (most?) (all?) people interpret "whole, separate, unique, living human being" in a considerably broader and less technical way.  To the ordinary reasonable speaker of English, there's a pretty strong religious/moral/value-heavy valence to uttering that sentence to a pregnant woman seeking an abortion.   You want to say, come on-- of *course* the point of the warning is to convey precisely that moral valence and discourage abortion; does anyone really believe that the North Dakota legislature thought it vitally important to remind women that fetuses are genetically human?  

You can read the en banc opinion at 530 F.3d 724.  It's not the one I would have written, but legislatures do have the rare Humpty Dumpty privilege of sui generis term definition; people making money by deliberately blurring the line between what they saw and did and what they read in the paper or imagine might have happened get no such privilege.  One of our duties is to teach our students to spot the Mike Daiseys out there; in fact, one might say that part of that “thinking like a lawyer” we’re trying to impart to our students is getting them to see exactly what’s behind our vague intuition that there’s something sleazy going on here.  Do *you* buy his claim that he really didn’t intend to mislead anyone, and that anyway he got the “larger truth” out?  Do *you* buy his claim that the people who came to his shows to hear him describe experiences he’d never had, and that he explicitly said he had had, were all in on the subtle “art not truth” distinction?     

(In case anyone cares, I was a year ahead of Daisey in college.  Didn’t know him personally, but I saw him in a couple of plays.  He was particularly good, if I’m recalling correctly, as Dionysus in Euripedes’ Bacchae.)