Literature and the Law

The Supreme Court of the United States grant of certiorari to review 303 Creative LLC v Elenis, is both puzzling and disturbing.  It is puzzling because most first year law students will quickly conclude that the case is not justiciable under the Case or Controversy clause. Justiciability is a set of well-established rules about whether a case can be heard or not (discussed below). And it is disturbing because, despite its lack of justiciability, the Court chose to hear it anyway. That second point suggests that the court bent the rules on justiciability for a reason. But why? The answer might lie here. Justiciability was ignored because some on the court saw 303 Creative as a vehicle to extend first amendment religious rights to a commercial entity so that it could deny services to a customer based on the customer’s sexual orientation.   

To bring suit, a case must be justiciable. That is, among other things, plaintiff must have either been harmed or be facing an immediate threat of harm. Further, the alleged harm cannot be speculative, abstract, or hypothetical. This element of justiciability is called standing. Yet that is exactly what this case is about:  a speculative, abstract, hypothetical harm that has not yet occurred and is not imminent.  If the court  eventually decides to rule on the case on its merits, it will, in the writer’s opinion, have given an advisory opinion. But advisory opinions are prohibited under the U.S. Constitution.

The issue in this case is whether applying a Colorado public-accommodation law [CADA] to compel an artist to speak or stay silent violates Free Exercise clause of the First Amendment. CADA is an anti-discrimination law.  It guarantees equal access to public accommodations (businesses) regardless of, among other things, sexual orientation.

Plaintiff is a web designer [“artist”] who wants to refuse to build a wedding website [“an expression”] for a same sex couple. Plaintiff’s alleged harm is possible prosecution under CADA  for something they have not actually refused to do. Why? Because their web design business does not do wedding websites. It is not their business. But if they did, they contend CADA might compel their speech [artistic expression] unlawfully under the free speech clause.

The problem is that plaintiff is not in the wedding website business, but claims they MAY want to be in the future. Thus, if they ever were to actually refuse a same sex couple’s request for a wedding website, Colorado might prosecute them.  Does the harm plaintiff complains of sound speculative, imminent, or hypothetical to you?  

If these facts sound familiar, they should. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court ruled (on very narrow procedural grounds) that CADA commissioners did not approach their hearing on the case with “religious neutrality,” i.e., they were biased against religion. But the Court stopped short of ruling that by forcing the cake maker to design the cake that it would have violated their First Amendment religious rights. Neither, however, did the court rule that Cakeshop had not violated Colorado law.

Given the similarity of the issues in both cases, might the court have shoehorned 303 Creative into their calendar despite its lack of justiciability?  The argument in favor of that conclusion is that the Court seems especially anxious to add to their ruling in Masterpiece Cakeshop. By so doing, they might further explore the intersection between First Amendment religious right to refuse service (discriminate) certain persons versus the right of those persons to be treated equally in the marketplace? This time around their ruling may not be limited, narrow,, and procedural, but substantive. If so, religious orientation may soon trump be trumping anti-discrimination laws against sexual orientation and become the law of the land. Consider, however, the slippery slope. If religious freedom can be used as a basis to discriminate against same-sex couples, can it also be used to justify commercial discrimination based on race, other religions, ethnicity, miscegenation, marriage rights, etc?

SCOTUS will soon decide the validity of the Independent Legislature Theory in Moore v. Harper. Specifically, they will decide whether North Carolina’s [NC] Supreme Court can overrule NC state law when it violates the NC State Constitution and the Constitution’s Fourteenth Amendment’s Equal Protection Clause.  

Marbury v. Madison looms large in this SCOTUS review. Marbury established (counterintuitively) that “[i]t is emphatically the province and duty of the judicial department [SCOTUS] to say what the law is,” not the legislature. This ruling was later extended to lower federal courts and state courts like NC. To this day, Marbury remains the law of the land.      

Conservatives in the NC legislature now argue that the NC court’s decision to overrule a blatantly prejudicial gerrymandering law was unconstitutional because it violated U.S. Constitution’s Election Clause which they claim vests nonreviewable authority in state legislatures over all election matters.

This argument, however, turns Marbury on its head and asserts that it is the legislature, not the court, that has the power to interpret the law. Marbury, the law of the land since 1808 may be the next major precedent to be overturned or weakened by this court despite 124 years of legal tradition.   

Recently, I read a review of a book that was critical of it because the story contained too many trigger warnings. I was ignorant of the phrase, possibly because it is a hot topic more within the culture wars context. But since such warnings were claimed to be something that the author of this book had used too frequently to the detriment of her work, I wanted to understand what she had done wrong. What I learned was valuable to me as a writer and thus, perhaps, to you too. 

What are Trigger Warnings?

Trigger warnings, according to Merriam Webster, are admonitions that an author,  speaker, or third party like a librarian or activist provides to caution some audiences that they might find content that follows objectionable. Thus, a trigger warning would likely appear as a preface to a narrative to warn of upcoming offensive material or prior to a TV announcer switching to a graphic scene. With respect to such a warning within the body of a literary narrative, the warning would need to be placed in brackets ahead of the  offending material. In the context of writing versus speaking, no author would want to interrupt their carefully crafted narrative or dialogue with such a bracketed warning,  

I concluded that it had to appear as a preface—perhaps on the book cover, a forward, or similar section of a novel, but never as part of the narrative or dialogue itself. Thus, it was hard to imagine how an author could have used too many of them in the body of their text to have earned a negative critique.    

But since the critique was clearly objecting to too many trigger warnings within the narrative, the use of that phrase in the context of a fictional writing made no sense. To illustrate, imagine being deep into reading the Godfather and then suddenly the narrative stops to warn you that the next scene will involve the head of a decapitated horse. Whatever the reviewer of the book meant to identify that had occurred too many times within the body of the text is unknown.

Perhaps the reviewer was thinking of different literary device like a literary trigger, a flashback, or even a  foreshadow. Let me explain.  

Conflation with Literary Devices

Trigger warning as a preface was defined above so we now turn to related concepts of trigger, flashback, and foreshadow. Trigger has two meanings. The first relates more to psychology than to literature.  A trigger is an event or occurrence that reminds a person who has been traumatized of a previous trauma.

An example would be that when a person sees a man shot in a movie it triggers the re-experiencing of a similar traumatic event in their past. Such triggers are a common feature of people with PTSD. Although such triggers relate to psychological phenomena, nothing would prevent an author from depicting a character who suffers from this malady.

Use of a psychological trigger in this way would facilitate an author’s exploration of a character’s past to explain her present state of mind. Its use can also serve to segue to a scene of violence, action, or adventure that is interesting unto itself and adds texture to the story.

When an author goes back and forth through time, that literary device is called a flashback. A flashback does not necessarily require a horrible psychological trigger to provide a segue back in time. It can be nothing more than visiting a past non-traumatic event that helps the reader understand the present state of mind of the character. For example, a father’s use of a pocketknife to slice fruit for his five-year-old son. This scene from the past, or flashback, can lend meaning to the boy as a grown up when he inherits the same knife on the death of his father.

The second meaning of trigger is literary but is similar to its meaning in psychology. In addition, it is not widely recognized and may not be a true literary device. The literary trigger is said by some to be a wound or a false or negative belief that the character has about himself or the world around him. It is not used as a wound from the past to explain his present, it is what the character struggles with as he develops in the story.  In other words, it relates the arc of the character’s growth—her journey or transformation into a changed person. It is the internal conflict about herself that she must resolve (or not resolve). And it is what triggers the reader into being interested and invested in the character.

It is similar to the meaning of trigger in the psychological sense in that it involves a negative:  a wound, a false or negative belief that came from such a wound, or perhaps a burden of guilt from a prior event that the character must resolve. However, it goes further because it is used not only to explain the inner workings for the character’s mind by looking to his past but also what the character is trying to resolve in their life—in his arc as a character.  

There is a related concept that may have been conflated into our book reviewer’s mind—foreshadow. It is very unlike the psychological trigger which refers to a prior traumatic event to explain the current state of mind of a character. And it is also distinct from the literary trigger which is a character fault, a burden of guilt, or a false belief that the protagonist must work through to change and grow. Instead, foreshadows look forward not backward and are usually not explicitly significant things that point obviously to events still to come. Instead, the foreshadow is just clear enough to tease the reader’s expectation about something that may be coming later in the narrative.  Or it can be an obscure fact that serves later to reinforce and explain some future event.

The main purpose of a foreshadow is to hint at where parts of the story are going. For example, will the boy’s skill at shooting wolves in Siberia lead to him becoming a decorated military sniper (Enemy at the Gates)?  His early skill with a rifle sets an expectation. The writer must have put it into the story for a reason. Thus, it builds suspense and tension as the story moves toward its climax—the day that Ivan becomes a sniper.

Might any of these literary devices be overused?  Yes. Overly repetitive use of any literary device is likely to have a detrimental effect on the reader. Discretion in how much or how little a literary device is deployed in writing is what makes some writers good and some bad. So far as how an author could overuse a trigger warning in their writing goes, it was a red-herring. It was simply a misuse of the phrase which belongs in a preface to the narrative—not inside the narrative.        

Special to The Desert Sun, July 2022

by Richard Leslie Brock

The demise of Roe v. Wade was based in part on the argument that the term “abortion” (or other terms describing abortion) is not explicitly mentioned as a protected individual right in the U.S. Constitution. That is true.  

However, the individual right to privacy, to marry, procreate, divorce, or annul a marriage, (among others) are not explicit in the U.S. Constitution either. Instead, those historical rights have been adjudicated by the U.S. Supreme Court in hundreds of cases to be implicitly supported as fundamental rights. These constitutionally guaranteed rights are only sustained as individual rights under the principle of stare decisis, which essentially means that once a legal principle has been decided in a case, it becomes the law from that time forward. Honoring stare decisis is one of the cornerstones of our legal system and is fundamental in providing stability in our legal system. Sadly, the current Supreme Court sacrificed this principle by overruling the law of the land on abortion, which had stood for more than 50 years. 

The right to abortion was also rejected on a companion argument that “abortion” was not a historically supported right early in the founding of the nation. In the words of the court, abortion was not “deeply rooted in this nation’s history and tradition,” and therefore, not worthy of federal constitutional protection. The court then proceeded to present historical findings that supported this lack of deep roots. 

However, the court ignored historical facts that defied their conclusion about the history of abortion. For example, the British colonies, which became the United States in 1776, limited but did not prohibit abortion. Abortion was legal so long as it was performed prior to “quickening,” i.e., before movement could be detected in the womb. In other words, it was a right like other rights. Yes, it could be regulated (like marriage is regulated) and thus limited to “pre-quickening” situations. But still, it was a historical right during our colonial period. Notably, this was the same period from which we adopted the common law of England as the law of the United States. 

The outsized dependence by the court on historical tradition rather than legal tradition (stare decisis) is dangerous. Consider, for example, that slavery was deeply rooted in the nation’s history until it was abolished by the 13th Amendment. So too was miscegenation, i.e., marriage between persons of different races. In Loving v. Virginia, the Court adjudicated it to be unlawful for a state to prohibit such marriages. Ironically, that ruling now survives only because of the steadying principle of stare decisis, which the current court just showed that it was willing to ignore to reach an ideological conclusion.  

Stare decisis has been severely weakened by the demise of Roe v. Wade. In addition, the current court has shown hostility to any putative right that is not explicitly mentioned in the U.S. Constitution. Thus, we should not be surprised to see other non-explicit rights such as the right to homosexual marriage, or the right to interracial marriage, as targets based on this court’s emphasis on historical tradition or on its select interpretation of “history.”

Richard Leslie Brock of Indio is a retired attorney who teaches law at the University of California, Riverside, and is the author of books including Laguna Diary, The House of Ilya, and The Sins of the Fathers. He is now working on his fourth book:  In the Shadow of Aizkorri.  

Mute Inglorious Miltons

Philosophers and literary critics alike have used the idea of a mute inglorious Milton as a vehicle to explore literary fame as a defining measure of literary worth. Thomas Gray coined the phrase in his poem—”Elegy Written in a Country Churchyard.”   Milton, of course, famously penned “Paradise Lost,” a classic of English literature. Gray’s poem introduces the idea of a mute inglorious Milton in his elegy upon observing a church cemetery and wondering who might be buried there. Might there have been a person buried in the churchyard with talent equal to Milton’s who simply never produced such a noteworthy poem, he seems to ask? Or might a person interred there have produced an epic poem of equal worth to Milton’s epic, but for some obstacle or failure of process, was never published or recognized in the same way as Milton was?  In that instance, can we call that unpublished person a “mute inglorious Milton”?

First, let’s acknowledge that a mute inglorious Milton is a semantic conundrum. The famous Milton was a published poet who earned his literary reputation for writing by selling sufficient copies of “Paradise Lost.” A mute inglorious Milton is distinct from the writer of Paradise Lost precisely because he did not write, and publish, and earn fame for accomplishing those same feats. Thus, he is not that Milton. He may be some other Milton with equal talent and potential, but he cannot be a mute inglorious Milton because the real Milton was un-mute, was famous, and was published, which is precisely what makes him that Milton in the first place. 

Semantics aside, poignant observations raised by the idea of a mute inglorious Milton remain for us modern writers—writers who may see in themselves a modern variant of an inaudible Milton. Writers, for example, whose novels have been repeatedly rejected by agents or  publishers. Or writers who, but for their inability to find some well-connected influencer in Paris to act as their agent like a Gertrude Stein of old, are likewise unpublished and unsung.  Other examples might include self-published writers like T.S. Eliot, Zane Grey, Virginia Wolf, D.H. Lawrence, and Henry David Thoreau. By self-publishing, these writers managed to garner enough traction from their self-publications to move on to greater success with traditional publishing.  After all, isn’t the end game—aside from the pure joy of writing itself—to become an un-muted and unabashedly glorious Milton?

Going further with this little philosophical stroll through the churchyard, what is it about fame—particularly, fame as a writer of literature that attracts us? What is it that makes us protective of our work to the point that we resist the changes that others, say editors, might suggest to make the work better—meaning more publishable?  After all, isn’t part of the process to have a work that is worthy of publication, which leads to fame, which leads to glory?  Yes, you say, but at the same time, isn’t it also true that you want your fame to be about you, your soul, your creation, your expression, your imaginings untainted by the influence of others? How dare they, you grumble, suggest that you change the smile of your literary Mona Lisa just to get it through the doors and hung in the Louvre? Writers are a bundle of contradictions.

So, how does Richard Leslie Brock fit into this rambling tract about mute inglorious Miltons? As you can see from this website, he has three novels printed in the self-published category with a mere trickle of reviews—stellar and appreciated as they may be—traction still awaits.  He has a third that he is shopping to agents, but he has not yet found his Gertrude. Despite that, he endeavors to carry on with his search by polishing his query, writing this blog, managing his website, and working on his fourth novel.  Those of you who have some time on your hands (and if you are reading this screed, it’s quite possible that’s the case), consider reading The Sins of the Fathers, Laguna Diary and The House of Ilya. Oh, and please leave a review: (traction remember).  And if you know Gertrude, put in a good word.

Thanks for reading.

Richard    

Stuck on how to begin your best selling novel or short story? Another way of framing this challenge is to ask what thing, concept, person, experience, observation, idea, dream, situation, or event intrigues your soul and inspires you enough to write.  The operative phrase here is:  it intrigues your soul and inspires. The internet provides a plethora of ideas on the topic of finding something that you want to write about, but many are mechanical or impersonal approaches. For example, one site offers 365 story ideas (elsewhere called “story prompts”) which puts the aspiring writer in touch with characters in hypothetical situations. Here is an example: 

A lonely man finds a hand-written diary in a dingy bookstore in Paris and falls in love with the female diarist who is probably long-dead.

Now this example might intrigue your soul and inspire you. All well and good. But I would suspect that while most of us would find it to be an intriguing idea, I question whether it will touch your soul and inspire unless, perhaps you actually knew of such a person. If so, you would be more prone to investing further, because the story is closer to you and your soul—not just because it is a good idea for a story.  My point is that unless you connect emotionally to the story idea, it will be just that—someone else’s story prompt.

I have a suggestion. Keep a notebook or file on things, concepts, persons, experiences, observations, ideas, dreams, situations, or events that intrigue your soul and impact you at a personal level. These will become the personal story prompts that you can use when you are ready. Here is a personal example.

My novel Laguna Diary started from something I saw while taking a long walk on the beach during a driving rainstorm. Inside a sea cave carved into a sandstone cliff was the rusted out chassis of an old 1950’s car. The cave was only opened a few times a year when rainstorms would carve out the sand inside. This unusually stormy day left the chassis fully exposed. How did it get there, I asked? Was it pushed off the 100 foot cliff or did someone drive it off by accident or on purpose? Were the driver’s bones still in and around the car on the day I stumbled into it? When I took the next step of touching the rusted surface of the frame, I was hooked. It became my story to tell.

I keep a file of just such accidental encounters and ideas in a file on my computer. The brain works in mysterious ways, and one needs to capture these precious ideas as they are revealed. After all, these will become your story prompts.

How do they get into my file? In the past, I wrote them down on a piece of paper. If it was a dream, I would get up and jot it down even in the dead of night and then review it again in the morning. If it passed the morning test, it went into the file as a text document. Today I send myself a text message with an idea, test it after a day or so, and enter it into the file if it feels right. Today I don’t struggle with ideas for my writing. I only struggle with the time to write. To make this objectively clear, here is my actual file path:

C:\Desktop\Writing\AAA WRITINGS\PROSE\Story Sketches & Backgrounds\Story Ideas

I hope this tip helps with your quest for meaningful story ideas for your fictional prose. Stay tuned for another post on the same topic involving Poetry versus Prose and the idea of a getting out of the way of your muse.   

How would you like to become a good writer and author? This is a blog on writing that offers tips on how to write effectively. Would you like to write fiction, non-fiction, or even legal writing? Would you like to read an occasional screed on a legal topic? Do you want to publish your work, and would you like to know how to do that? Should you copyright your work? Would you like to see frequent hints that will help you to improve your writing? The Blog in Writing will go over all of these topics—not in any particular order— in easy to read segments offering tips on how to become a good writer.

In the process, we will review excerpts of both good writing and bad writing that we can use to learn from. You will also find my personal observations on the craft of writing in various styles and an occasional polemic on the law applied to contemporary issues. Finally, I will provide samples of my own writing from novels, short stories, histories, and poetry for your review and comments.