Copy-editors sued for [language] battery?
Last night I came across something very interesting. The folks over at Language Log have discussed at length the semantic effects of careless copy editing and of selective quotations. The example I came across – although not exactly falling under either one of these – seems to be just as striking. I assume it must be a common practice to edit out selected portions of judicial decisions in law textbooks, where the intent of the editor is that of eliminating information that interrupts the logical flow of the discourse (such as case or essay citations) and thus helping the student-reader to understand and analyze the legal reasoning appreciating its ramifications, without being sidetracked by pleonastic language or information intended for a completely different audience (as in fact, case citations would be). This seems to me a completely reasonable objective and thus a wholly legitimate practice – if, that is, it were to be applied sensibly.
Living with a fresh-out-of-the-first-week law student – and being the law and language geek that I am – I was welcomed last night at my return home with an interesting read. It was a 1994 decision of an Ohio appellate court, Leichtman v. WLW Jacor Communications, Inc., 634 N.E.2d 697 (Ohio Ct. App. 1994). As David asked me to read through the case and see if everything made sense to me, I found that I too was stumbling on exactly the same passage he was struggling with.
The case deals with an anti-smoking activist who sued a radio co-host of a show where he was a guest, alleging battery, following the intentional and provocative act of said co-host who had lit up a cigar and blown smoke across the activist’s face. The trial court held that blowing smoke onto somebody could not be considered battery and dismissed the claim. The appellate court reverses and remands the case for further proceedings, thus legitimizing the claim of battery. It so does on grounds that are set forth in the following passage, with the editing shown as in Torts & Compensation, 5th Ed., Dan B. Dobbs and Paul T Hayden, Thomson West, pp. 44:
The first time around, this passage seemed incoherent to both of us. The passage strikes the reader with immediate and apparent contrastive semantics to its preceding context and yet something in it was eliciting a different reading, namely that of the recap or conclusion to the rationale exaposed in the paragraph. On semantic grounds this seemed completely incoherent. The court had just terminated stating that the act in question – indeed exhaling smoke which will predictably contact a non-smoker – was indeed a battery. Furthermore, the facts in the case seem to apply to what one would at first describe as “smoker’s battery”. Now, it’ll be apparent to all those who are familiar with the legal ramifications of terms such as substantial certainty[1] that this passage is actually preventing a generalization of the rationale applied here from being made to the general case of substantially certain second-hand smoke. And here is my point exactly. While the passage as edited requires some additional level of domain-specific knowledge to construct the correct contrastive discourse/rhetorical relation with the previous text, if the text had been included in full, such knowledge wouldn’t have been necessary at all (thus considerably facilitiating the job of the poor first year student!). This is substantiated by the fact that as soon as I could read the full text (thanks google!) of the decision, the coherence of the passage was restored and I was actually able to explain what it was that the court was addressing in writing that paragraph. And now, the mysterious removed text, the language that holds the key to the correct interpretation, will be revealed!
In some theories of discourse analysis, linguistic features hold a key role in guiding the discourse syntactic interpretation assigned to natural language texts (or speech, for that matter). Absent the however bit from the previous paragraph, everything else linguistically suggests a structure incoherent with the semantic content of the text. It is not clear to me what are the exact linguistic conditions that made such structure salient, as this is one the current foci of my personal research, but in retrospective I seemed to have instinctively chosen a structure where the final passage is in some way recapping the argument, and providing the final word on how the rationale in toto was to be construed. Arguably - and one's prosodic production in an out-loud first instinctive reading of this passage could indeed provide some useful insight in settling the matter - I unknowinlgy and subconciously assumed that the missing illocutionary operator was something along the lines of therefore rather than however - which of course would have made no sense, thus causing the puzzling over the case in the first place.
When we analyze the unedited text, the presence of the strong discourse marker however suggests and makes salient a wholly different structure. The conclusive caveat put forth by the court is contrasted with what has been said thus far, as to limiting the scope of applicability of the first part of the argument. What we have here - it seems - is a quite complicated and insidious case of garden path discourse: a semantic incongruence is requiring a correction on a discourse structure made salient by linguistic factors (or more likely by statistical distributions conditioned on linguistic information and genre constraints). What is quite interesting is that the mere reinsertion of the original discourse operator seems to prevent the GP effect, probably affecting the salient statistics.
In short, there are – it’s true – numerous situations when the removal of information-less pieces of language such as discourse cues and markers does not alter the preferred structure that the language interpreter is building as she goes along, because of the fact that linguistic [and epistemological] evidence is redundant and complementary. On the other hand, there can be instances when the contributions given by such devices are essential for a speedy and effortless correct interpretation.
Furthermore, on the subject of copy editing, it seems to me that it should be a desirable exercise in humility to show deference for the careful way in which language is often crafted by the courts in their decisions for the specific purpose of requiring the minimal amount of guesswork in interpreting their findings; which in turn implies putting more care in editing language which has the potential of carrying significant rhetorical force.
NB: A reminder for the jurists that wander these places: this entry’s purpose is to show how there’s something funny going on here about the linguistic properties of this particular case of editing. It furthermore involves issues in discourse interpretation that interest me greatly. It seems quite clear to me that those who are particularly knowledgeable about tort-law (which a first year law-student after one week of class is probably not) would not necessarily be puzzled by the passage at hand. 20/20 hindsight will also play the same trick; in fact I can’t seem to feel as easily befuddled by the language as much as I did the first time I read it. Nonetheless both David and I puzzled over it for several minutes. I consider this worth of mentioning because in my view it legitimizes some of the belief I hold about discourse processing and the importance of linguistic evidence (as opposed to semantic and knowledge-intensive) for decisions about discourse grammaticality.
[1] Or who are familiar enough with tort law to actually recognize the phrase “smoker’s battery” from the legal literature as charged with specific meaning and associated with well-defined contexts. I most certainly was not. Only the next day after some research it appeared clear to me that one could have used this knowedlge as a signficant clue and therefore not be confused at all. The fact that the editors most likely possessed such knowledge and were therefore convinced of the clearness and coherence of the edited text would seem to contribute to this thesis.
Living with a fresh-out-of-the-first-week law student – and being the law and language geek that I am – I was welcomed last night at my return home with an interesting read. It was a 1994 decision of an Ohio appellate court, Leichtman v. WLW Jacor Communications, Inc., 634 N.E.2d 697 (Ohio Ct. App. 1994). As David asked me to read through the case and see if everything made sense to me, I found that I too was stumbling on exactly the same passage he was struggling with.
The case deals with an anti-smoking activist who sued a radio co-host of a show where he was a guest, alleging battery, following the intentional and provocative act of said co-host who had lit up a cigar and blown smoke across the activist’s face. The trial court held that blowing smoke onto somebody could not be considered battery and dismissed the claim. The appellate court reverses and remands the case for further proceedings, thus legitimizing the claim of battery. It so does on grounds that are set forth in the following passage, with the editing shown as in Torts & Compensation, 5th Ed., Dan B. Dobbs and Paul T Hayden, Thomson West, pp. 44:
In determining if a person is liable for a battery, the Supreme Court has adopted the rule that "[c]ontact which is offensive to a reasonable sense of personal dignity is offensive contact." [...] It has defined "offensive" to mean "disagreeable or nauseating or painful because of outrage to taste and sensibilities or affronting insultingness." [...] Furthermore, tobacco smoke, as "particulate matter," has the physical properties capable of making contact. R.C. 3704.01(B) and 5709.20(A); Ohio Adm.Code 3745- 17.
As alleged in Leichtman's complaint, when Furman intentionally blew cigar smoke in Leichtman's face, under Ohio common law, he committed a battery. No matter how trivial the incident, a battery is actionable, even if damages are only one dollar. [...] The rationale is explained by Roscoe Pound in his essay "Liability": "[I]n civilized society men must be able to assume that others will do them no intentional injury—that others will commit no intentioned aggressions upon them." Pound, An Introduction to the Philosophy of Law (1922) 169. [...] We do not [...] adopt or lend credence to the theory of a "smoker's battery," which imposes liability if there is substantial certainty that exhaled smoke will predictably contact a nonsmoker. [...]The incriminated passage here is
We do not […] adopt or lend credence to the theory of a "smoker's battery," which imposes liability if there is substantial certainty that exhaled smoke will predictably contact a nonsmoker.
The first time around, this passage seemed incoherent to both of us. The passage strikes the reader with immediate and apparent contrastive semantics to its preceding context and yet something in it was eliciting a different reading, namely that of the recap or conclusion to the rationale exaposed in the paragraph. On semantic grounds this seemed completely incoherent. The court had just terminated stating that the act in question – indeed exhaling smoke which will predictably contact a non-smoker – was indeed a battery. Furthermore, the facts in the case seem to apply to what one would at first describe as “smoker’s battery”. Now, it’ll be apparent to all those who are familiar with the legal ramifications of terms such as substantial certainty[1] that this passage is actually preventing a generalization of the rationale applied here from being made to the general case of substantially certain second-hand smoke. And here is my point exactly. While the passage as edited requires some additional level of domain-specific knowledge to construct the correct contrastive discourse/rhetorical relation with the previous text, if the text had been included in full, such knowledge wouldn’t have been necessary at all (thus considerably facilitiating the job of the poor first year student!). This is substantiated by the fact that as soon as I could read the full text (thanks google!) of the decision, the coherence of the passage was restored and I was actually able to explain what it was that the court was addressing in writing that paragraph. And now, the mysterious removed text, the language that holds the key to the correct interpretation, will be revealed!
We do not, however, adopt or lend credence to the theory of a "smoker's battery," which imposes liability if there is substantial certainty that exhaled smoke will predictably contact a nonsmoker.
In some theories of discourse analysis, linguistic features hold a key role in guiding the discourse syntactic interpretation assigned to natural language texts (or speech, for that matter). Absent the however bit from the previous paragraph, everything else linguistically suggests a structure incoherent with the semantic content of the text. It is not clear to me what are the exact linguistic conditions that made such structure salient, as this is one the current foci of my personal research, but in retrospective I seemed to have instinctively chosen a structure where the final passage is in some way recapping the argument, and providing the final word on how the rationale in toto was to be construed. Arguably - and one's prosodic production in an out-loud first instinctive reading of this passage could indeed provide some useful insight in settling the matter - I unknowinlgy and subconciously assumed that the missing illocutionary operator was something along the lines of therefore rather than however - which of course would have made no sense, thus causing the puzzling over the case in the first place.
When we analyze the unedited text, the presence of the strong discourse marker however suggests and makes salient a wholly different structure. The conclusive caveat put forth by the court is contrasted with what has been said thus far, as to limiting the scope of applicability of the first part of the argument. What we have here - it seems - is a quite complicated and insidious case of garden path discourse: a semantic incongruence is requiring a correction on a discourse structure made salient by linguistic factors (or more likely by statistical distributions conditioned on linguistic information and genre constraints). What is quite interesting is that the mere reinsertion of the original discourse operator seems to prevent the GP effect, probably affecting the salient statistics.
In short, there are – it’s true – numerous situations when the removal of information-less pieces of language such as discourse cues and markers does not alter the preferred structure that the language interpreter is building as she goes along, because of the fact that linguistic [and epistemological] evidence is redundant and complementary. On the other hand, there can be instances when the contributions given by such devices are essential for a speedy and effortless correct interpretation.
Furthermore, on the subject of copy editing, it seems to me that it should be a desirable exercise in humility to show deference for the careful way in which language is often crafted by the courts in their decisions for the specific purpose of requiring the minimal amount of guesswork in interpreting their findings; which in turn implies putting more care in editing language which has the potential of carrying significant rhetorical force.
NB: A reminder for the jurists that wander these places: this entry’s purpose is to show how there’s something funny going on here about the linguistic properties of this particular case of editing. It furthermore involves issues in discourse interpretation that interest me greatly. It seems quite clear to me that those who are particularly knowledgeable about tort-law (which a first year law-student after one week of class is probably not) would not necessarily be puzzled by the passage at hand. 20/20 hindsight will also play the same trick; in fact I can’t seem to feel as easily befuddled by the language as much as I did the first time I read it. Nonetheless both David and I puzzled over it for several minutes. I consider this worth of mentioning because in my view it legitimizes some of the belief I hold about discourse processing and the importance of linguistic evidence (as opposed to semantic and knowledge-intensive) for decisions about discourse grammaticality.
[1] Or who are familiar enough with tort law to actually recognize the phrase “smoker’s battery” from the legal literature as charged with specific meaning and associated with well-defined contexts. I most certainly was not. Only the next day after some research it appeared clear to me that one could have used this knowedlge as a signficant clue and therefore not be confused at all. The fact that the editors most likely possessed such knowledge and were therefore convinced of the clearness and coherence of the edited text would seem to contribute to this thesis.
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