Fear and Loathing in Kennedy Plaza
No. Vol. 69 No. 5 Pg. 9
Rhode Island Bar Journal
April, 2021
March,
2021
Peter
J. Comerford, Esq.
Coia
& Lepore, Ltd. Providence
On
October 2, 2020, Judge Mary S. McElroy of the federal
district court for the District of Rhode Island issued a
decision in Carroll v. Craddock,[1]granting a preliminary
injunction for Sean Carroll, enjoining the Rhode Island DMV
from withdrawing his license plate “FKGAS.” This
was a groundbreaking opinion, not just because of its erudite
exposition of the relevant principles of First Amendment law,
but because it appears to be the first judicial opinion to
cite to the writings of gonzo journalist Hunter S. Thompson.
Judge McElroy used this literary reference to express
wonderment at the role of the car in American life:
Hunter S. Thompson described the feeling behind his trip in
the Red Shark in this way: “Every now and then when
your life gets complicated and the weasels start closing in,
the only cure is to load up on heinous chemicals and then
drive like a bastard from Hollywood to Las Vegas …
with the music at top volume and at least a pint of
ether.” Fear and Loathing in Las Vegas: A Savage
Journey to the Heart of the American Dream (1971).
The Red
Shark was the large, red, rented Chevrolet convertible that
Thompson drove during the remarkable adventures narrated in
the book. The court used the quote as illustrative of the car
functioning as “an instrument of grand
adventure.”[2]How this quotation functions within
the opinion we will explore later, but at this point, it is
enough to note that Judge McElroy has joined a distinguished
company of jurists who have used literary references to
enliven their opinions. The legal journal The Green
Bag published a study[3]in which they quantified the literary
references made by then-sitting justices of the United States
Supreme Court and the authors they cited. Shakespeare and
Lewis Carroll were tied for being cited most frequently, with
sixteen references each. The opinions authored by the late
Justice Antonin Scalia offered the most literary allusions of
the justices surveyed. Hunter S. Thompson was not cited in
any of the opinions studied.
Our own
Supreme Court has often included literary quotes and
allusions in its opinions. Like their federal brethren, Rhode
Island’s justices most often cite Shakespeare,
frequently in the form of brief quotes cited as a form of
authority, rather than illustrative of the narrative
underlying the decision. A search of Rhode Island cases on
Casemaker for “Shakespeare” yields forty-three
results, though several of those result from the
court’s citation of the New York case Shakespeare
v. Markham.[4]For instance, in May v. Penn TV
& Furniture Co., Inc., Justice Flanders quoted
The Merchant of Venice in support of the proposition
that appearances can be deceiving.[5]The observation in Romeo
and Juliet that “a rose by any other name would
smell as sweet” is cited in three different
opinions[6]by three different justices to remind
us to look at substance rather than labels in our legal
analysis. In the first paragraph of Long v. Atlantic PBS,
Inc., we are told that Neil Sedaka crooned that
“breaking up is hard to do,” and that the parties
find themselves, as in Shakespeare’s phrase in King
Lear,“more sinned against than
sinning.”[7]
Other
authors, with literary merit if not popularity at the level
of the Bard, make do with only one or two mentions by the
court. For instance, even Homer barely rates a couple of
mentions. Justice Kelleher (more about whom later) said,
“given the unique circumstances surrounding this case,
we shall recite those facts again even though we are not
unmindful of Homer’s lament, ‘It is tedious to
tell again tales already plainly told.’”[8]Sometimes
the literary reference is a way of tracing and acknowledging
the origin of an adage or saying. For example, after using
the phrase “let sleeping dogs lie,” Judge Savage
traced the saying to “Geoffrey Chaucer, Troilus and
Criseyde, l54 (1381-1386); (Barry Windeatt trans.,
Penguin Books 2003) (“It is nought good a slepying
hound to wake.”); see also Wade v. Rich, 618
N.E. 2d 1314, 1322 (Ill. App. Ct. 1993) (citing
Chaucer).”[9]Similarly, Justice Robinson, in
explaining why he would uphold the validity of a
poorly-drafted criminal statute, quoted the proverb that
“the best is the enemy of the good.” He
explained, in a footnote, “According to an
authoritative source, the quoted language was originally an
Italian proverb that was quoted in Italian by Voltaire in a
letter that he wrote to the Duc de Richelieu on June 18,
1744. The Yale Book of Quotations 791 (Fred R. Shapiro ed.,
2006).”[10]
The use
of literary materials as a form of authority was the...
