Peter Goodrich, Cardozo School of Law
An early emblem book, of which I am fond, Johan Flittner’s Nebulo nebulonum (1620) or critique of the fog of fakes, provides a classic image of an attorney. Wearing a hat, gown and purse, he is walking with his face buried in a text, oblivious to his path and surroundings. What mattered historically for legal dogmatics and doctrine was the text, the monochrome linear regimentation of the page. The gothic typeface took precedence over, and moulded the real. The contemporary visual turn in law, always lagging somewhat behind, reflects the break up of the legal text, the unleashing of the archive in the remediated form of fragments and images, memes, bites, tweets, SMS, NFTs, screenshots, hyperlinks, CCTV footage, clips and grabs. I have studied one aspect of that change of medium, a unique feature of the law becoming imaginal, which is that of judicial insertion of images into precedent decisions.
The online law reports are awash with largely unremarked new media and with visual relays: pictures of the scene of the crime, stills of victims and perpetrators, photos of products and places, screenshots of websites, emojis, text messages, clips and hyperlinks. What is the normative significance of these new media of transmission? What is the precedential value of a picture of an ostrich with its head in the sand in a U.S. decision on forum non conveniens or wrong jurisdiction? Can CCTV stills of a car chase prove the truth of a police press release in a defamation case? These and similar questions mark what Foucault termed a ‘fissure’ in discourse, the point of intersection of incompatible forms of statement, text imbricated with image. It requires analysis. I mean this in a dual sense. First that the judicial relay of images in judgments exposes something approximating the unconscious, the vision in decision, the affect that triggered the determination. Second, the unconscious is overlooked, it is the repressed in discourse and the images are symptomatic shards, another window into the legal mind and its atlas of thought.
I will take the example of an exploding head inserted into a decision of the Texas Supreme Court (Texas Dept. of Criminal Justice v Levin, 2019). The case involved an anti-death penalty advocacy group who published the name and address of a pharmacy which supplied the Texas Department of Justice with the lethal chemicals used in executions. The question before the court was whether this publication, accompanying verbal postings, and an animated image of an exploding head constituted a ‘substantial threat of physical harm’. Justice Green posts the image, a still extracted from the sequence, as evidence, accompanied by the posting “meet the pharmacist who sold their medical ethics and shamed the profession for $2800…” The Judge picks up on themes from the Court of Appeal decision which had remarked, somewhat counter intuitively, on a “graphic depiction of an exploding head, without any explicit linkage to physical violence as the cause”. It might be observed that this is a peculiar perception in that outside of spontaneous combustion it is hard to imagine a non-violent cause of the fulminated head, organs adrift in a splatter. The Supreme Court, however, agrees, adding that the writer of the blog post “does not mention or intimate violence or threats”. Note that what matters to the Court is the scripture, the linear, the familiarity of ratio scripta.
The judgment reproduces the image but then, and this is characteristic, pretty much ignores it, or tries to see through it, to read it as if it were a text. There is no discussion of the animation – the boom and bang – and no remark on the floating, dismembered eye, the symbol of justice and law. Nothing is said of the warning red of the starfish in the upper corner, overlooking the fatality. When Justice Pemberton in the Court of Appeals does comment, he says, in clear visual error, it is an exploding clay head, when it is a jigsaw whose pieces that are digitally disassembling. The fact that it is a figure of colour goes unnoticed, and the repetition of the animated sequence is also overlooked. In place of viewing the image, let me get to the point, the Court wants its blood, desires a conviction, and so treats a professorial letter written to another pharmacy in another state at another time as grounds for inferring a substantial threat of physical harm. One Professor Humez had written that “manufacturing a drug expressly to kill people flies in the face of those commandments that Moses got from Jehovah on Sinai”, and then “as the folks at the federal building can tell you [it] only takes one fanatic with a truckload of fertilizer to put a real dent in business as usual”. This email, unrelated to the particular posting at issue, in the context of “escalated threats of harm in recent times”, in a “very unsettled and dangerous world”, was sufficient to impugn the defendants, despite their having nothing directly to do with the writing in question.
The sensible and real appearance of the exploding head, there and manifest in the judgment, is scotomized, meaning not seen, or viewed as if it could only be seen through, as an inchoate attempt to say something, as a failed effort towards becoming text. The printed law report of course compounds the dismissal by reproducing the still image in black and white, as if it were writing, monochrome print. The judgment then moves on to the epistolary email, to the remaining fragment of scriptural familiarity, to something that looks like a letter missive. The old term ‘blind justice’ takes on a peculiar new meaning, a refusal to look, a juridical version of prosopagnosia. In sum and kettle, the image says everything and nothing. It manifests a fissure in legal discourse. The picture has sufficient affective force to appear in the judgment but is then negated, treated as if it does not matter because it can only be seen, it cannot be read. By the same token, the image manifests something that cannot be said and can only be shown. Its presence can serve to remind us that in the medium of judgment the power of law is in large measure its aesthetic force.