4

Source: *Agency For International Development Et Al. v. Alliance For Open Society International, Inc., Et Al, Justice Scalia's dissent

[Start from last para on p 19 of 25 of this PDF.] The First Amendment does not mandate a viewpoint-neutral government. Government must choose between rival ideas and adopt some as its own: competition over cartels, solar energy over coal, weapon development over disarmament, and so forth. Moreover, the government may enlist the assistance of those who believe in its ideas to carry them to fruition; and it need not enlist for that purpose those who oppose or do not support the ideas. That seems to me a matter of the most common common sense. For example: One of the purposes of America’s foreign-aid programs is the fostering of good will towards this country. If the organization Hamas—reputed to have an efficient system for delivering welfare—were excluded from a program for the distribution of U. S. food assistance, no one could reasonably object. And that would remain true if Hamas were an organization of United States citizens entitled to the protection of the Constitution. So long as the unfunded organization remains free to engage in its activities (including anti-American propaganda) “without federal assistance,” United States v. American Library Assn., Inc., 539 U. S. 194, 212 (2003) (plurality), refusing to make use of [1.] its assistance for an enterprise to which [2.] it is opposed does not abridge [3.] its speech. And the same is true when the rejected organization is not affirmatively opposed to, but merely unsupportive of, the object of the federal program, which appears to be the case here. (Respondents do not promote prostitution, but neither do they wish to oppose it.) A federal program to encourage healthy eating habits need not be administered by the American Gourmet Society, which has nothing against healthy food but does not insist upon it.

I'm only guessing, so further to checking my guesses, please explain how to determine/deduce the right antecedent? Is Justice Scalia's pronoun use truly ambiguous here, or is my naivety the problem? For brevity, abbreviate 'government' as govt and the unfunded organisation orgn.

  1. its = the US government's (assistance)?
  2. it = the US government

  3. its = the unfunded organization's?

Update Dec 16 2014: How can [1.] mean the orgn? Does it only make sense for the orgn to refuse the govt assistance? Why would the govt refuse the orgn's assistance?

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    imo - all refer to 'the unfunded organisation' …but I only read it 3 times to get there ;) I do it by lopping off unnecessary bits of sentence until what remains appears to survive some form of 'Occam's secateurs' – Tetsujin Dec 11 '14 at 12:14
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    please fix "propa -ganda" – J.R. Dec 11 '14 at 13:32
  • I can be determined from context, but I agree that this is ambiguous at best. I agree with your assignment of pronouns. – Jason Patterson Dec 11 '14 at 18:41
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It took me several minutes to figure out the antecedents of the pronouns, and I'm a native American English speaker. Here's what I think:

  1. its = the unfunded organization's [assistance]
  2. it = the unfunded organization
  3. its = the unfunded organization's [speech]

Here's my translation into plain English:

As long as the government doesn't prevent an organization from publicly expressing its ideas, the government's refusal to hire that organization because that organization opposes some ideas of the government does not violate that organization's right of free speech.

It's confusing because we usually think of governments as giving assistance to citizens. But “assistance” here means work performed by the organization for the government, and paid for by the government. Scalia's point, once you straighten out the complicated sentences, is that the government has the right to refuse to hire an organization if that organization opposes the government's ideas. A simpler example would be as follows. Suppose that the government favored developing nuclear energy, and suppose that a business that repaired cars also publicly advocated against nuclear energy. Scalia is saying that the government isn't violating that business’s right to free speech if the government refuses to hire that business to repair the government’s cars just because of the disagreement about nuclear energy.

The moral of all this is: to figure out pronouns, you often need to make educated guesses. You have to think: "What would this person probably intend to say?" Legal writing often has very complex sentences with ambiguous pronouns and ambiguous grammar that only an expert can sort out, and sometimes even an expert can't be sure.

Scalia might disagree with what I just said. He actually wrote about “canons of interpretation” of pronouns in legal documents, described in this blog.

  • Thanks. Would you please see my update in my OP as I remain confused? – Greek - Area 51 Proposal Dec 15 '14 at 17:15
  • @LawArea51Proposal-Commit I just made a revision, addressing your new question and also revising my “translation” of the big sentence into plain English. – Ben Kovitz Dec 15 '14 at 19:25
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    @LawArea51Proposal-Commit I was getting ready to write an almost identical answer to this one, although I arrived at it by a different path. Reading the opinion before you read the dissent is very helpful in understanding the meaning of the dissent. The dissent is essentially a rebuttal of the opinion, and it is written with the assumption that it will be read in that context. If there is ambiguity, you resolve it by looking at the points in the opinion that the dissent disagrees with. – ColleenV Dec 15 '14 at 19:50
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OP:

Is Justice Scalia's pronoun use truly ambiguous here, or is my naivety the problem?

Scalia:

So long as the unfunded organization remains free to engage in its activities (including anti-American propa -ganda) “without federal assistance,” United States v. American Library Assn., Inc. , 539 U. S. 194, 212 (2003) (plurality), refusing to make use of [1.] its assistance for an enterprise to which [2.] it is opposed does not abridge [3.] its speech.

The disambiguation of the ambiguity you see is (once again) to be found in the passage itself:

Moreover, the government may enlist the assistance of those who believe in its ideas to carry them to fruition; and it need not enlist for that purpose those who oppose or do not support the ideas.

You must read the sentences not in isolation but in the context of the sentences that have preceded them.

  • Thanks. Would you please see my update in my OP as I remain confused? – Greek - Area 51 Proposal Dec 15 '14 at 17:13
1

There are basically two ways to figure out what pronouns refer to:

(a) By examining the grammar and semantics of the sentence. As Tetsujin says, it often helps to eliminate or ignore clauses that complicate the sentence but aren't relevant to the use of the pronoun.

(b) By considering the meaning of the sentence in context, or possible rational meanings in light of common sense, etc.

For example, "When the mother and baby entered the room, she was carrying her proudly." Normally we'd assume that "she" here refers to the mother and "her" to the baby, because common human experience is that it is very unlikely that the baby was carrying the mother.

So in this case, the article is talking about the government giving assistance to organizations that do not share the government's goals. So "its assistance" probably mean "the government's assistance". Alternatively, it could be referring to the organization's assistance in carrying out the government's goal, so "its" could be referring to the organization.

The third pronoun, in "its speech", can have only one rational meaning: the speech of the organization that does not agree with the government. Scalia is not talking about the government's speech here.

The second pronoun is arguably ambiguous. On my first reading, I understood "enterprise" to mean an activity that the government is engaging in, so I read "an enterprise to which it is opposed" as meaning, "an activity that the non-government organization opposes", i.e. "it" refers to the organization. But on re-reading I think you could also take "enterprise" as meaning the organization, so "an enterprise to which it is opposed " means "an organization that the government opposes", and "it" refers to the government. I think the first reading is what Scalia meant, but maybe not.

All told, the sentence is arguably ambiguous. Well, the ultimate meaning is clear, but the details of the meaning of that sentence could be debated.

  • Thanks. Would you please see my update in my OP as I remain confused? – Greek - Area 51 Proposal Dec 15 '14 at 17:15
  • In context, the government refuses the organization's assistance because it doesn't want to give the organization money. We're not talking about volunteer assistance here, we're talking about organizations offering to sell their services to the government for a fee. Though even if services were offered free of charge, the government might reject assistance if it considered the organization disreputable -- like "thank you Nazi Party of America, but we don't need your help", because accepting assistance would mean sharing confidential information, or for many other possible reasons. – Jay Dec 15 '14 at 21:04

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