Amicus Curiae Briefs: Friend or Foe?

From Stephen Colbert to rap music, the role of amicus curiae briefs has caught the public eye.

On the first day of the 2014-15 Supreme Court term, Stephen Colbert interviewed William & Mary law Professor Alison Larsen about her research into the 800% increase in amici filings over the last fifty years. Colbert described amicus briefs as “informational documents written by third parties who are not involved in the situation, whose opinion was not sought, but still want some say in the decision.” Or, as Colbert spoofed, “the legal equivalents of grandparents.”

Professor Larsen does not dismiss amicus briefs outright, but does raise some red flags. Larsen, whose article “The Trouble with Amicus Facts” will be published in the Virginia Law Review, told Colbert that our Supreme Court justices may have a hard time distinguishing between reliable and unreliable “facts,” now that they must wade through dozens of amicus briefs filed by so-called experts.

Trial courts weed out unreliable experts, Professor Larsen said, but the Supreme Court is a relatively open door: “Today, anyone can be a factual expert, or claim to be,” she said.

“When you want an expert witness at trial, you don’t let anybody come to the courthouse and testify,” Larsen told Colbert. This echoes a point Justice Scalia made in a 2011 dissent criticizing the majority’s reliance on government-funded studies that made no appearance in the case until the appeal. Justice Scalia wrote, “Supreme Court briefs are an inappropriate place to develop the key facts in a case … An adversarial process in the trial courts can identify flaws in the methodology of the studies that the parties put forward; here, we accept the studies’ findings on faith, without examining their methodology at all.” Sykes v. United States, 131 S. Ct. 2267, 2286 (2011) (Scalia, J., dissenting).

The trouble with amicus briefs, Professor Larsen submits, is that they come in at the eleventh hour and are untested. Or they purport to deliver “facts” but actually present an advocacy group’s selective viewpoint. Her research shows that even our esteemed Supreme Court justices may have difficulty separating fact from fiction.

Will the Supreme Court encounter this problem in an upcoming free-speech case? In Elonis v. United States, rap music experts filed an amicus brief on behalf of Anthony Elonis, who was sentenced to four years in prison for making threatening posts on Facebook. At issue is whether a “true threat” (not protected by the First Amendment) depends on the speaker’s intent or the listener’s response.

A jury convicted Elonis for posting on Facebook comments about murdering his former wife, shooting up their child’s kindergarten class, and going after a female FBI agent. The Facebook posts read like rap lyrics, styled with rhyme and rhythm. Elonis argues that rap lyrics aren’t confessional or punishable, but that they are instead artistic expressions about pushing limits.

In their amicus brief, Erik Nielson (University of Richmond) and Charis Kubrin (UC-Irvine) argue that “Rap music resides squarely within a long tradition of African American storytelling and verbal competition, one that privileges exaggeration, metaphor, and above all, wordplay. Underlying this tradition is the practice of signifying, or the obscuring of apparent meaning; in the process of signifying, ambiguity is prized, meaning is destabilized, and gaps between the literal and the figurative are intentionally exploited.” (Marion Brechner of the First Amendment Project contributed to this brief.)

The amicus brief essentially argues that police, politicians, and judges don’t understand rap music. They don’t understand how “an insult can be a compliment, a seeming threat a mere joke.” Instead, they engage in stereotyping and impose unjustifiable punishments.

Writing for, Dahlia Lithwik describes the amicus brief as a “master class on Rap Music for Aging Jurists.” As Lithwik points out, the brief concludes with a university professor’s remarks that “in 20 years’ time, Tupac Shakur will be ranked with Walt Whitman as a great American poet.”

So, Professor Larsen tells us that amicus briefs are at an all-time high and that jurists must approach them with caution. While that may be true, rap music may be a topic particularly well suited for some extra analysis. Perhaps the amicus brief shouldn’t exonerate Elonis, but it provides critical context for determining how the First Amendment applies in the modern age.

Gentry Locke’s appellate lawyers have their ears to the ground – and attuned to the work of Tupac, Queen Latifah, and Public Enemy – to see how it all plays out.

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