Of Judicial Notice and the Big Lebowski

Last week, Doug Jasinski graced my post with a comment challenging my interest in how different media like blogs and Wikipedia articles find their way into judgments.

His question: “Do 20-year old slacker movies count as different media?”

I don’t presume, Doug, that you really expected (or wanted) my take on this, but I’m prepared to share it anyway. Doug raised an interesting article from Business Insider which talks about a Texas Supreme Court decision citing the Big Lebowski. The reasons for judgment in Kinney v. Barnes, a freedom of speech injunction matter, were released on August 29, 2014 and reference Walter Sobchak’s (the character portrayed by John Goodman) rant in the face of a waitress who asks him to stop yelling obscenities in a family restaurant.

“Oh please, dear?!” yells Walter, the ear-gnawing, gun brandishing, Jewish-American libertarian, “For your information, the Supreme Court has roundly rejected prior restraint!” (Relive the full scene here.)

If the Cohen brothers ever expected lines from their script would find their way into judicial reasons, I’d be well impressed. Because I think it’s fair to say most of us didn’t see this coming. But maybe we should have. As an artist, you’ll know you’ve made it because people in robes start footnoting your work.

Here the Lebowski reference is nicely placed in the context of Justice Debra Lehrmann’s reasons because it reinforces judicial notice of how the “cornerstone of First Amendment protections” is reaffirmed not only in the various courts, but in popular culture. Sure Walter’s words are the last tier of authority, but his are on the layer cake at least!

And really, who’s to say that Walter Sobchak isn’t just as deserving of judicial notice as Iago or Hamlet? At least we know who the Cohen brothers are! The apocryphal Bard? Not so certain there, William (or Francis!).

Shakespeare has been rampantly quoted in judgments. Professor Gillers from NYU was quoted in the New York Times a number of years back (in an article about Wikipedia’s creep into judicial reasons) as saying courts cite Shakespeare or Kafka to set the stage, and get the reader to appreciate the context. “The higher the court the more you want to do it.”

Here are some amusing examples:

  • In Goesaert v. Cleary, 335 U.S. 464 (1948) US Supreme Court Justice Frankfurter cited Shakespeare’s “alewife, sprightly and ribald,” to take judicial notice that married women historically have been bartenders. “We are, to be sure, dealing with a historic calling.”
  • In Levy v. Louisiana, 391 U.S. 68, a case against the denial of wrongful death benefits for illegitimate children, the US Supreme Court concluded “that it is invidious to discriminate against them when no action, conduct, or demeanor of theirs is possibly relevant.” To wit, Justice Douglas said it with Shakespeare:

“Why bastard? wherefore base?
When my dimensions are as well compact,
My mind as generous, and my shape as true,
As honest madam’s issue? Why brand they us
With base? with baseness? bastardy? base, base?”

King Lear, Act I, Scene 2

Judicial notice, you may recall, is a legal doctrine by which a judge accepts a proposition of fact without any admissible evidence as to its existence. Judicial notice can be made of adjudicative facts (see, Google Maps shows it’s only a 20 m distance from where you said you were standing!), legislative facts and law (the WHO website shows that drinking water is not safe in that country, so little Jethro won’t be moving overseas with dad any time soon), or less crucially about everyday society, like contextual facts and definitions—such as how free speech is jealously protected, how children can’t really be blamed for being born out of wedlock, or how married women are natural bartenders.

To me what makes this all really interesting is that theater plays and films with fictitious characters —in contrast to Wikipedia, Google Maps or law blogs—never purport to be factual. Walter Sobchak is a caricature. So what is he really a record of? Is that a clear indication that popular culture holds freedom of speech in reverence? Or is it something much less?

It may be that episodes of South Park are sufficiently embedded in the culture and zeitgeist too, but could any of it aid a judge in finding context for life in a quiet mountain town?

If you want more serious reading on the various ways that electronic sources (rather than 20-year old slacker movies) are influencing judicial notice, read Ellie Margolis, “It’s Time to Embrace the New – Untangling the Uses of Electronic Sources in Legal Writing” 23 Alb. L.J. Sci. & Tech. 191 (2013), abstract online: <http://ssrn.com/abstract=2303755>.

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