Flaunt v. Flout Redux

I had to chuckle when I read this post by blogger SpinDentist at the All Spin Zone, "“Flouts,"” Not "“Flaunts"”. Citing this quotation from Ron Paul, a Republican Representative from Texas:

And this: "“Congress has generously ignored the Constitution while the President flaunts it, the courts have ignored it and they get in the business of legislating so there's no respect for the rule of law."”

SpinDentist bemoaned the fact that "Paul misuses the word "“flaunt"” in one of those quotes, and it is one of my biggest pet peeves." He also chastised the website, Afterdowningstreet.org, which reprinted the quote without use of "[sic]" to note the misuse of the word. The Philadelphia blogger conceded: "Call me elitist, call me a nitpicker, but Ron Paul is a fucking Congressman and should know how to speak English! Heck, he probably couldn't properly order a cheesesteak here in Philly."

I have mentioned before, in Alito is All That, that I clerked for the 3rd Circuit Court of Appeals after law school. My clerkship was with Judge Joseph Weis, who is now a Senior Judge on the Court. One of the highlights of my tenure was the brouhaha that ensued when the Judge was the subject of a Bill Safire "On Language" column in 1981.

In the September 13, 1981 NY Times article, captioned "In re Flaunt v. Flout," Safire opined:

In defining ''willfulness'' in connection with violating a law, Judge Joseph F. Weis Jr. of the Third Circuit wrote: ''Willfulness connotes defiance of such reckless disregard of consequences as to be equivalent to a knowing, conscious and deliberate flaunting of the Act.''

Flaunt? Hardly. To flaunt is ''to display ostentatiously''; to flout means ''to show contempt for,'' akin to the noun ''flute,'' from the whistle of derision.

Safire then observed that several other courts also took note of the error when citing the Judge's opinion in that case. In fact, "the Ninth Circuit joined in the controversy, not only disagreeing with the willfulness decision but the flaunting thereof: It quoted the errant Third Circuit's flaunt and inserted after it in brackets the word sic, Latin for ''thus,'' which means ''precisely reproduced even though wrong.''' Safire continued:

I petitioned Judge Weis in Pittsburgh, where the Third Circuit sits: Is he the linguistic equivalent of ''Turn 'em loose, Bruce''? Arguendo, is he flaunting his use of ''flaunt'' to flout convention? On what does he bottom his opinion? Here is the judge's response:

DEAR MR. SAFIRE: Some years ago Judge Learned Hand wrote, ''(I)t is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary ... .'' Nevertheless, when I am beleaguered by my colleagues who (sic)'d and ''...'' my use of that perfectly good word ''flaunt,'' I must take my station behind Webster's Third.

Before I wrote my second opinion defending the use of the word and mildly reproving my intolerant brethren, Babcock & Wilcox Co. v. OSHRC, 622 F. 2d 1160 (3d Cir. 1980), I sought support from the publishers of the dictionary. The editorial director responded by citing reputable authors and said, ''(E)ven the writers who comment unfavorably on this use of flaunt indicate that it is widespread. For these reasons, the editors of the Third judge this use to be established in the language and entered it without stigma.''

Much less charitable, I must say, is Thomas H. Middleton's reference to a possible etymological bond between the two words in the March 1981 issue of Saturday Review: ''That would simply imply that flaunt has more than just a bonehead relationship with flout. It might be flout's illegitimate child and the flaunt-flout confusion becomes evermore understandable.''

For shame! Do the flout forces know no limit to their campaign of vilification? Are you not aware that in a series of cases the Supreme Court has championed the rights of illegitimates to share in the benefits of our society? See, e.g., Trimble v. Gordon, 430 U.S. 762 (1977).

In his inimitable style, the Judge got the last word on the subject:

Will I give up on flaunt? By no means. Even at the risk of being labeled a loose constructionist, I shall stand my ground against what I consider to be a formidable assault on judicial independence. John Marshall withstood the attacks of Thomas Jefferson, and I trust that I shall survive my battle with the flout forces. Respectfully yours, JOSEPH F. WEIS Jr. P.S. I reserve the right to use flout if I choose.

I can remember that the Judge dedicated as much time and attention to that letter as he did to his opinions -- and enjoyed every minute of doing it. Unlike what is often said of many judges, Judge Weis personally wrote every opinion he authored. We did the research and wrote bench memos, but he drafted the opinion himself. We may have reviewed and edited the draft over several versions with him, but the final product was all his.

He was the perfect role model for a new lawyer. Which is why the "Weis guys" (as his former Clerks are called) still get together with the Judge several times a year when he's in Philadelphia for a court sitting. Some people come from New York, New England and Maryland, along with those of us who are local, to wine & dine with the Judge (we wine, he dines).

Of course, my musings aren't meant to flaunt these facts.