Posted by Eugene Volokh:
What a Bad Supreme Court Brief:
http://volokh.com/archives/archive_2007_10_21-2007_10_27.shtml#1193166106
I just finished reading [1]Williams' brief in U.S. v. Williams, and
it's pretty shoddy.
The brief has many substantive and structural problems: For instance,
it keeps arguing that the child pornography pandering law is overbroad
because the law lacks the proper mental state requirements; but the
government argues, quite plausibly, that the law does include those
mental state requirements, and the brief never adequately responds to
the government's argument. More broadly, the spends a lot of time
repeating platitudes that are surely familiar to the Justices and law
clerks, and far too little time responding concretely to the
government's concrete legal arguments.
But for now, let me just point to the less important but more obvious
problems with the brief -- the remarkably shoddy writing. I quoted the
opening sentence of Part I of the Argument [2]below, but here are some
more examples:
The Section, as currently drafted, while appearing to one person to
constitute an offer or solicitation to sell, buy or barter
contraband �- whether true or false �- can appear to another person
(listening to the same words of the speaker) to be an offer or
solicitation to sell, buy, or barter something totally lawful and
therefore, protected by the First Amendment....
Subsections (i) and (ii) of the PROTECT Act pandering provision
capture what is clearly child pornography both before and after
Free Speech Coalition was decided whether involving actual or
virtual child pornography....
However, the Section, as written, addresses not only liability to
the offered or solicited material but rather to the ideas and
images communicated to the viewer by the representation of what
those materials constitute, the First Amendment is necessarily
implicated....
And while this Court tries �not to nullify more of a legislator�s
work than is necessary, ... � (Reagan v. Timer, Inc., 468 U.S. 641,
652 (1984)), when a statute is as overbroad and vague as the
Section, and particularly where it affects First Amendment freedom,
the more frustrating remedy is to simply let Congress re-write the
statute rather than risk speech freedoms of millions of people
across the country every day and then burden witnesses, law
enforcement, prosecutors, judges, juries and higher courts with
trying to sort out the mess created by the Section on a case by
case basis....
There are many other such passages. As an editing exercise for a legal
writing class, this brief would be excellent. As a brief in the
Supreme Court, not so much.
References
1.
http://www.oyez.org/cases/2000-2009/2007/2007_06_694/briefs/respondent/Brief%20for%20Respondent%20Michael%20Williams.pdf
2. http://volokh.com/archives/archive_2007_10_21-2007_10_27.shtml#1193163198
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