Fear and Loathing in Kennedy Plaza, 0421 RIBJ, RIBJ, 69 RI Bar J., No. 5, Pg. 9

PositionVol. 69 5 Pg. 9

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...

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