Justice Alito’s Concurrence in Facebook–Context Matters!

As my colleague (the Grand Duchess of the TCPAWorld) explains in an excellent post commenting on the Facebook v. Duguid decision–When in Doubt, Begin with the Text.

She is, of course, right.  And, when considering the text, folks should also keep in mind Justice Alito’s concurrence, which cautions against an inflexible application of interpretive rules. Context matters. To make that point, Justice Alito dedicates his concurrence to a critical analysis of “the Court’s heavy reliance on one of the canons of interpretation”: the “series-qualifier” canon.

The series-qualifier canon instructs: “‘When there is a straightforward, parallel construction that involves all nouns or verbs in a series,’ a modifier at the end of the list ‘normally applies to the entire series.'”  Except, in Justice Alito’s view at least, the main Facebook opinion goes too far when it characterizes the canon as a “rule of grammar.”

That is, Justice Alito cautions against treating the canon as an “inflexible rule,” and explains that interpretive canons are only “useful tools” “to the extent [they] accurately describe how the English language is generally used.”  The important point, at least for Justice Alito, is context.

So, for instance, when Peter (from the Bible) “went forth and wept bitterly,” no one thinks he “went forth bitterly.”  As Justice Alito put its: “No one familiar with the English language would fail to understand it–even though the meaning is contrary to the one suggested by the series-qualifier canon.”  The series-canon qualifier, in other words, is only a “useful tool” when the context does not suggest otherwise.

His point is important to keep in mind, including as lower courts apply Facebook or interpret any of the many other wrinkles in the TCPA.  Indeed, litigants facing arguments that rely on the series-qualifier canon (or other canons of construction) are likely to cite to and rely on Justice Alito’s admonition about the importance of context.


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