I. Introduction

One picture can replace a thousand words of legal discourse.[1] An attorney or counselor at law can supplement or even replace several pages of narrative or legal reasoning with a graphical visualization of the communication—a photograph, a cartoon, a painting, a model, or another form of visual or graphical rendering—and in so doing, improve the document’s communicative and persuasive potential.[2] The near instantaneous cognitive and communicative power of visual images makes visual rhetoric a worthy subject of examination in modern rhetoric and legal discourse.[3]

This Article evaluates visual legal rhetoric in order to demonstrate the potential of visual-graphical devices and narrative elements for use in legal discourse. The subject of my demonstration of graphical rhetorical devices is the famous work of modern rhetoric, Reverend Dr. Martin Luther King, Jr.'s “Letter from Birmingham Jail.” I will perform a rhetorical analysis of the verbal topics of invention and tropes of style in the text of the letter, and simultaneously demonstrate the use of images and visual elements in an “illustrated” form of the letter.

Part II of this Article provides an introduction and background information regarding Dr. King’s letter. Part III will provide a brief background on modern legal rhetoric. In part III(A), I will discuss the communicative power of visual and graphical works as symbolic speech and communication, and how visual rhetoric is the next logical step for legal rhetoric and advocacy. In part III(B), I will discuss several lessons regarding visual rhetoric concerning pathos-based modes of persuasion to address cognitive and situational effects on decision-making. Part IV will discuss the use of visual rhetorical devices as a topic of invention and arrangement and a trope of style within contemporary legal rhetoric and modern argument theory. The discussion traces the potential of visual-graphical expressions of ideas and concepts as an effective means of communication to build knowledge and understanding of the ideas and concepts or to advocate a position. Part V presents my rhetorical analysis and demonstration of an illustrated “Letter from Birmingham Jail.”

My goal here is to critically examine the potential of visual-graphical topics of invention and arrangement and tropes of style as contemporary legal rhetorical devices. The recognition that visual rhetoric is rapid, efficient, constructive, and persuasive reveals the potential of visual rhetorical devices to serve as topics and tropes in legal discourse to construct meaning and to inform and persuade legal audiences. However, the cautions of scholars as to the dangerous power of visuals to deceive or to overpower more deliberative forms of rational thought and analysis should not be dismissed lightly.[4] The speed and power of visuals is seductive. Visual topics and tropes are subject to abuse and must be used ethically and with careful regard to their propriety as a tool to create meaning and inspire imagination and not as a tool of deception or obfuscation within the rhetorical situation at hand.[5] This, of course, is a lesson for all rhetoricians of legal discourse, whether employing strictly verbal tools of communication and persuasion, or a mixture of verbal and visual tools.[6]

In conclusion, the Article asserts that visual rhetorical devices are a proper form of legal rhetoric if they are used to construct knowledge and understanding of the meaning and message of the communication and do not mislead or prejudice the audience’s reception or understanding of the communication.

II. The Letter from Birmingham Jail

Reverend Dr. Martin Luther King, Jr.'s “Letter from Birmingham Jail” is regarded as a great work of modern rhetoric.[7] Dr. King’s Letter is, of course, a text with no drawings, pictures, or illustrations. This Article analyzes the letter as verbal rhetoric, but simultaneously presents and analyzes a version of the letter that is illustrated with images that are, in most instances, contemporaneous to its time as a demonstration of the potential power of visual rhetoric in conjunction with the letter’s equally powerful verbal rhetoric.

The letter, also titled as “Letter from Birmingham City Jail,” “From the Birmingham Jail,” “The Negro is Your Brother,” or “Why the Negro Won’t Wait,” is approximately sixteen pages long, and is dated April 16, 1963.[8] Dr. King was jailed during his participation in the Birmingham Campaign, which began on April 3, 1963. Reverend Fred Shuttleworth’s Alabama Christian Movement for Human Rights and Dr. King’s and Reverend Shuttlesworth’s Southern Christian Leadership Conference designed and coordinated the Birmingham Campaign as a form of “direct action,” non-violent protest. They used coordinated marches and sit-ins to protest the lingering effects of “Jim Crow” laws, unrelenting racism, and continued racial segregation in Birmingham, Alabama.[9]

On April 10, 1963, Alabama Circuit Judge W. A. Jenkins issued a blanket injunction against “parading, demonstrating, boycotting, trespassing and picketing” without a permit in and around Birmingham.[10] The leaders of the Birmingham Campaign announced that they would disobey the ruling.[11] On Good Friday, April 12, 1963, Dr. King, Reverend Ralph Abernathy (King’s chief aide), and Reverend Shuttlesworth dressed for an arrest in rough, denim work clothing, and led a march toward the Birmingham City Hall.[12] Dr. King, Reverend Abernathy, and Reverend Shuttlesworth all were arrested that morning.[13]

Shortly after his arrest, King received a newspaper that contained “A Call for Unity”—an open letter published in the Birmingham News by eight clergymen from Alabama—Bishop C. C. J. Carpenter, Bishop Joseph A. Durick, Rabbi Milton L. Grafman, Bishop Paul Hardin, Bishop Nolan B. Harmon, Reverend George M. Murray, Reverend Edward V. Ramage, and Reverend Earl Stallings.[14]

These eight white clergymen stated their opposition to King and his “unwise and untimely” methods, advised patience, and appealed “to both our white and Negro citizenry to observe the principles of law and order and common sense” by calling for an end to the marches and protests.[15] The authors feared the violence these direct-action demonstrations might provoke. Reading “A Call for Unity” stirred King into action, and he quickly started to write a response. As King later recounted “on the margins of the newspaper in which the statement appeared, while I was in jail, the letter [then] continued on scraps of writing paper supplied by a friendly [black] trusty, and concluded on a pad [his] attorneys were eventually permitted to leave [him].”[16]

The letter summarizes the reasons Dr. King is marching, the reasons for non-violent resistance to oppression, and the moral basis for these beliefs and actions.[17] The letter also addresses multiple audiences. It initially addresses the eight clergymen who wrote against King in “A Call for Unity,” but then redirects its focus to an audience that has been described as “intelligent and religious moderates.”[18] By the end, it is clear that the letter is speaking more generally to all African Americans and to all concerned citizens who hate oppression and discrimination.[19]

III. A Brief Background on Modern Legal Rhetoric

The advanced study of advocacy and persuasion in legal writing and oral communication requires an understanding of rhetoric.[20] A critical part of rhetoric is the study and discipline of the methods and modes of persuasion, but rhetoric stretches even further to the “‘discovery and transmission of insight and knowledge.’”[21] Rhetoric is the discipline that examines “ways of winning others over to our views, and of justifying those views to ourselves as well as others, when the question of how things in the world ought to work is contested or contestable.”[22] “Rhetoric is primarily verbal, situationally contingent, epistemic art that is both philosophical and practical and gives rise to potentially active texts.”[23] Much of the scholarly attention within the discipline of rhetoric has been directed to effective communication with a particular focus on techniques for persuasive communication and argumentation; thus, many familiar definitions of rhetoric revolve around persuasion in discourse.[24]

This Article refers to the academic study of rhetoric, both in its classical[25] and contemporary[26] forms. Rhetoric as the study of persuasion and argument has a noble and classical tradition, but the discipline has had difficulty shaking off a common but enduring slur that is traced to ancient sources: Socrates and Plato described the early study and practice of rhetoric by the ancient Greek Sophists as the art of flattery and trickery, and the slur has stuck throughout the ages.[27] However, this slur is not the subject of this Article. Rhetoric, the academic discipline, is not the study of hollow speech, nor is it puffery designed to prop up specious assertions, nor hyperbole employed to distract an audience from the truths or falsities of the speakers’ position.[28] In short, it is nothing like the meaning of the commonplace phrase, “mere rhetoric.”[29] This Article does not propose or support the use of visuals (images, photographs, drawings, and other visual elements) as schemes of exaggeration, distraction, or trickery, but rather as elements of a discipline with a well-developed system of argumentation and persuasion that offers lessons for legal discourse.

The contemporary period of rhetorical study began in the mid-twentieth century.[30] Major movements in thought and science have broadened the study of rhetoric to include all aspects of communication, including linguistics, ethics and persuasion, practical reasoning, human motivation, composition theories, cognitive studies, and socio-epistemic studies.[31] The “common thread” among these schools of thought in the developing discipline of contemporary rhetoric is a “shift in thinking on the nature of knowledge and truth.”[32] The indeterminacy of purely verbal language, and even of “truth,” means that an advocate is striving for a decision-maker to adhere to the advocate’s “version” of reality constructed through the discourse she is creating.[33] The progression of this thread points to greater use of visual-graphic tools for rhetoric because cognitive studies and brain science continually demonstrate the advantages of speed and efficiency of visual rhetorical elements over purely verbal communication,[34] and socio-epistemic and law and society studies affirm that as our culture becomes increasing visual, so, too, must discourse of every kind become increasingly visual.[35]

Yes, there are bounds—certain facts, events, and conditions will be conclusively established, and certain aspects of the law and the rules governing the dispute will not be contestable. But within these bounds, the advocate has a wonderful breadth of opportunity in which to construct reality through discourse. The signs and symbols of verbal language (i.e., words) take time to construct knowledge and understanding; visual signs and symbols work faster. Hence the adage, “one picture is worth a thousand words.”[36]

Visual imagery is not only faster than words; it is better than words. Brain science demonstrates that images allow greater perception, comprehension, and retention of certain kinds of information.[37] Visual rhetoric has an unusual advantage over verbal works: visuals, such as photographs and videos, generally are perceived by audiences as “showing the truth,” as opposed to making an appeal to persuade or manipulate the audience.[38] “The power of images comes not just from the emotions they evoke but also from the linked feature that they are hard to see as arguments: they persuade without overt appeals to rhetoric.”[39] “Though every image has a purpose, ‘the most general claims of the discourse are a kind of disclaimer, an assertion of neutrality; in short, the overall function of photographic discourse is to render itself transparent.’”[40]

This is especially important in the context of an emotional appeal (in classical rhetorical terms, an appeal to pathos) because a highly charged emotional appeal in words often can backfire if the audience perceives the author as attempting to manipulate the audience to set aside reason and follow an emotional response. An audience might dismiss such verbal maneuvers as “hyperbole”—a highly disfavored trope of rhetoric. Not so with the use of visual devices. Scientists in cognitive studies and brain science have demonstrated over and again that photographs and video are perceived as true because you can look right at them and see what is going on—you see reality for what it is.[41] Audiences from lay people[42] to United States Supreme Court justices[43] are ready to say that a photograph or video “quite clearly” speaks for itself; it obviously is the truth. This may at times (or often) be a manifestation of the bias of naïve realism[44] or cognitive illiberalism.[45] But audience bias is one of the conditions of the rhetorical situation that advocates will face, and use of photographs and video is one method of putting that bias to work to communicate ideas and construct knowledge and understanding, provided that the author is not using images to play upon the bias to obfuscate or deceive the audience.

B. Lessons for Visual Rhetoric Concerning Pathos-Based Modes of Persuasion to Address Cognitive and Situational Effects on Decision-Making

A significant part of contemporary cognitive studies and brain science challenges the assertion that legal decision-makers are autonomous individuals weighing costs and benefits in individualistic terms, unaffected by context and situation.[46] Under the traditional and still prevailing doctrine of rational choice, rational decision-making should not be affected by situation, meaning that choices that maximize the decision-makers’ ends should not be affected by situation.[47] The values and interests implicated by a choice may be different from individual to individual, but once identified, the choices made in recognition of the same values and interests should not change from situation to situation.[48] However, cognitive studies and brain science on situational decision-making take the opposite position based on empirical evidence and argue that decisions are affected by biases and heuristics that are connected to the context and situation of the decision-making.[49]

Cognitive studies and brain science have worked a similar correction in contemporary rhetoric’s modern argument theory: the assumptions and premises of classical and traditional theories of rhetoric regarding audience have been refined by modern social science and cognitive studies that redefine the concept of the rhetorical situation in a way that affects every part of persuasive discourse—the audience, the message, and the speaker.[50] The lessons learned in cognitive studies and brain science inform modern argument theory that visual rhetorical devices can improve communication, comprehension, belief, and adherence of audiences to the ideas presented in legal discourse.[51]

Visual rhetorical devices—referred to here as topics of invention and arrangement and tropes of style—fill a gap in communication and comprehension because they work rapidly, almost immediately, to communicate ideas, achieve the belief of the audience in the meaning and truth of the ideas communication, and thus persuade the audience of the truth and propriety of the speaker’s communication.[52] Visual perception produces the effect known as naïve realism—the bias that contributes to the belief that everything one sees is, in fact, true; that for rhetorical purposes, seeing really is believing.[53]

Situational decision-making often implicates the different values that people assign to different choices depending on the context and situation in which the decision is to be made,[54] and a rhetorical examination of values leads to the analysis of pathos[55]—the emotional response to persuasive discourse[56]—because values in contemporary brain science appear to be the most important trigger of emotional conviction.[57] Contemporary rhetoric encompasses examination and consideration of the values, passions, and biases of the audience in its study of the use of practical reasoning and informal logic, narrative reasoning (and its many sub-categories—storytelling, mythical forms, parable forms, hero-antihero archetypes), and the schemes and tropes of composition in analogical and literary forms (e.g., schemes and figures of speech, metaphor theory, and literary allusion).[58] Contemporary rhetoric applies cognitive studies and brain science to inform the predictions of audience reaction and motivation produced by the use of certain topics of invention or tropes of style.[59]

I have previously written that there are two rhetorical lessons to be drawn from the recent findings of cognitive studies and brain science: First, a single rhetorical approach to discourse may miss the audience and fall short of the rhetorical situation.[60] Discourse should be crafted in layers, and by this I mean the use of multiple layers using different modes of persuasion directed toward the same audience for the same level of rhetorical communication.[61] Second, an advocate should consider pathos-based modes of persuasion to target the values of the audience in the situation and present a discourse that the audience will identify and accept.[62] This strategy will be greatly facilitated by a thoughtful and intentional use of visual rhetorical devices.

IV. Application of Visual Rhetorical Devices in Discourse

The recognition that visual rhetoric is rapid, efficient, constructive, and persuasive reveals the potential of visual-graphical elements as a source of topics (topoi)[63] and tropes[64] to construct meaning and to inform and persuade legal audiences. Visual topics and tropes inspire inventive thinking about the law that constructs meaning for the author and the audience.

Under contemporary legal rhetoric’s modern argument theory, rhetoric is the practice of crafting discourse for the audience and the situation.[65] Modern argument theory confronts the problem of the indeterminacy of language.[66] The linguistic limitations of indeterminacy mean that arguments are not provable in the absolute unless the language used is determinate enough for absolute proof—at least “proof” within the language of that discipline—such as the language of mathematics and formal logic.[67] Outside the realms of mathematics and formal logic, language is only determinative of probabilities of meaning, so that, when the discourse extends beyond pure mathematics and formal logic, argumentation depends on the construction of the most reasonable and probable argument that can be made in the social situation or institutional setting.[68] The argument is not offered as incontrovertible proof, but instead as the most reasonable and probable outcome that can be advocated in the situation.[69]

Invention and arrangement are topics of rhetoric that directly confront the rhetorical problem of composing communications to impart meaning to an audience and to persuade that audience in a particular situation. Within these topics, Aristotle divided modes of argument into two parts: (1) the modes of argument and persuasion that are invented or created by the author—the entechnic pisteis or “artistic” or “artificial” proofs known as logos, pathos, and ethos;[70] and (2) the modes of argument and persuasion that the author does not or cannot invent, but that are discovered or found—the atechnic pisteis or “non-artistic” or “non-artificial” proofs, including facts and data, statistics and reports, documents and contracts, sworn testimony (including expert testimony), interviews, polls, and surveys.[71]

It is noteworthy that visual rhetorical devices, particularly photographs and video, appear to bridge the two categories. They are created and applied by the author, and thus are artificial, but they are perceived as transparent, revealing only the true, actual subjects of the depiction, and thus are perceived and accepted as non-artificial.[72] This contributes to the perception and belief that the author is not engaging in argument (or even rhetoric) when she applies representational visual depictions in discourse.[73]

A. Visual Devices as Topics of Invention

Invention describes the means to create, devise, and conceive of persuasive discourse.[74] The term “invention” is a translation of the Latin inventio and carries the same meaning as the Greek term for invention or discovery, heuristic (Ευρετική).[75] The canon of invention (discovery) serves as a reminder to authors of legal discourse to consider the available means of persuasion and the interaction of the modes chosen so as not to leave out available means or employ self-contradictory or self-defeating means.

The classical rhetoricians did not consider this canon to be a list of required elements of argument.[76] Ideally, the classical rhetorical topic of invention should be used to craft and invent a discourse to persuade through logos,[77] a logical exposition of the argument, as well as by revealing the competence and integrity of the author to handle the exposition itself (ethos),[78] and inspire emotions that put the audience in a frame of mind to be persuaded by the argument (pathos),[79] by using the non-artificial facts and evidence made available by the rhetorical situation.

Invention and discovery is the most obvious method of application of visual rhetorical devices. Visuals can serve as exhibits in discourse:

 
 
 
 

At the same time, the presentation of visuals runs a risk of substituting or constructing a contrived reality for actual reality, the actual facts and events of the problem. In my first amendment and art law lectures, I often display examples of visual propaganda and protest art, such as the following:

 
 
 
 

It is easy to marginalize these depictions as propaganda—a visual form of hyperbole. If offered as proof of facts (how the events actually occurred), they would certainly be challenged as more prejudicial than probative, particularly because they were designed and crafted to depict the scene in a certain light, from a certain perspective, and in so doing to appeal to the emotions of viewers concerning the events depicted.[88] But what of these more recent photographic depictions of a “massacre” in Boston (the Boston Marathon Bombing in 2013), or graphic photographs of injuries in a tort case against a fast food manufacturer (Liebeck v. McDonald’s Restaurants), if offered in the complaint or as evidence in a criminal prosecution:

 

Boston Marathon Bombing, 2013[89]

 

Liebeck v. McDonalds, 1992[90]

Originally, I inserted the actual color version of these four photographs,[91] but several commentators and editors of this Journal commented that the visual impact of the original photos was too shocking, too graphic, and too repulsive. Whatever communicative effect was intended by the use, it was overwhelmed by the distracting negative interruption in communication caused by the shocking and repulsive nature of the photographs. The feedback I received presents an object lesson to attorneys, that in spite of the fact that there is nothing staged, re-created, or re-enacted about these photographs, the visual impact is overwhelming to some decision-makers, and works against the intended rhetorical effect. A heavy-handed use of shocking, graphic images may also reduce the ethos level of the author, as the audience may begin to resent or even distrust the credibility of one who attempts to communicate in this manner.[92]

Scholars have commented on the heavy-handed technique of prosecutors who create self-generated visual elements for their arguments to the jury in cases ranging from the American murder trial of Kennedy cousin Michael Skakel, to the Italian murder trial of American expatriate Amanda Knox.[93] In the Michael Skakel trial, prosecutors created a sophisticated PowerPoint with embedded video and animated text excerpted from Skakel’s testimony at trial and from interviews reported in the press to highlight certain of his words that were then interwoven and shown on the screen at the same time as images from the crime scene and the victim’s murdered corpse. The images and testimony were separated by twenty-five years, but the PowerPoint’s animation and embedded video suggested that Skakel’s words of “panic” were linked to the discovery of the murder victim’s body.[94]

In the Amanda Knox prosecution in Italy, the Italian prosecutor created a computer animation depicting what the prosecutor had argued were the facts and events of the evening that Knox’s roommate, Meredith Kercher, was brutally murdered. Although rendered in somewhat clumsy, cartoon-like 3D animation, the video displayed the completely one-sided narrative suggested by the prosecution: first, depicting the victim drinking with Knox’s friends; then showing an argument between Kercher, Knox, and Knox’s Italian boyfriend, Raffaele Sollecito; next depicting a brutal attack by Knox and Sollecito on Kercher—animated with a great deal of blood to match the actual bloodiness of the crime scene; and finally depicting certain actions taken by Knox and Sollecito allegedly to create a false cover story of a violent break-in by a burglar.[95]

 

Amanda Knox trial animation of the prosecution’s version of the events of the night of the murder[96]

The use of rhetoric should create knowledge and understanding by constructing the actual reality for the audience. It should not be used to construct a false reality. The power of video, even animated video, is that it makes the fanciful and imagined seem completely possible just because the audience can see it with their own eyes: “See, it (could have) happened just this way.” Visual rhetoric deserves additional, careful examination for its ability to exceed the ethical and professional obligations not to put forth evidence and arguments that are unsupported by the facts, or that have the potential to mislead or obscure the facts of the matter.[97]

B. Visual Devices as Topics of Arrangement

The classical rhetorical topic of arrangement (Latin dispositio; Greek taxis) pertains to the order and design of the discourse for persuasive effect.[98] The use of graphical and tabular material in both law review articles and court opinions[99] is on the rise:

 

Arrangement is driven by context and purpose. The proper and persuasive arrangement of discourse depends on the speaker, the speaker’s purpose, the setting or situation, the characteristics of the speaker’s audience, and the audience’s purpose, desire, or motivation.[100] As a starting point, the classical rhetoricians developed a complex paradigm for arguments that still is applied in court rules[101] for trial and appellate briefs: Exordium (introduction or statement of the issues presented), Narratio (statement of the case), Partitio (summary of the argument), Confirmatio (argument), and Peroratio (conclusion).[102]

As with the topic of invention, arrangement operates through two modes of logos-oriented communication and persuasion: the Entechnic Pisteis (Artistic) Modes and the Atechnic Pisteis or (Non-Artistic) Modes. Put simply, artistic modes of invention or arrangement are created (drafted, composed, or imagined) by the author, while non-artistic modes are not created by the author, but are found or identified by the author and employed in the discourse in furtherance of the author’s goals.

 

Visual methods of invention and arrangement are found in both artistic and non-artistic modes of logos-oriented communication and persuasion. Visuals can play a direct role in contemporary legal analysis of facts and data, statistics and reports, documents and contracts, sworn testimony (including expert testimony), interviews, polls, and surveys. In short, we have come a long way in the proper presentation of the atechnic pisteis, or non-artistic, modes of invention. In many areas of law—e.g., antitrust law, tax law, securities law, and the calculation of damages in almost every area of contract, tort, and property law—visual forms allow the audience to process mathematical, scientific, and statistical analysis to inform and construct the audience’s understanding of the analysis. Visual depiction of the results of surveys, statistical and quantitative analyses of empirical data, diagrammatical demonstration, and four-quadrant tabular presentation of data—is a well-established method of persuasion.

 

 

The diagram above (Carte Figurative) is the rather famous chart created by Charles Joseph Minard depicting the size of Napoleon’s army marching to and from Moscow in 1812–1813. The gray area is the army of 422,000 soldiers that crossed from Poland into Russia, and the dark black area is the army, now numbering 100,000 soldiers, that retreated from Moscow, of which 10,000 soldiers eventually made it back to Poland. The black area is charted above the temperature recordings during the retreat. This diagram was featured in Edward R. Tufte, The Visual Display of Quantitative Information (1982), as an excellent depiction of numeric data (troop count and temperature), as well as geography, and a timeline of a historic event. This chart tells a very powerful story about the effects of weather and geography (note the losses associated with each river crossing) on an army that went from 422,000 to 10,000 in a single campaign without losing a major field battle to its adversaries.

In the direct proof of damages or an element of the case, or the persuasive ordering and presentation of evidence, the use of visual organizational schemes is substantive, but it is also rhetorical because it is employed as a language to construct knowledge and to convince the reader that the evidence is reliable or that the proposition is proved.[103]

C. Visual Devices as a Trope of Style

The artistic and non-artistic modes discussed above use visual devices in a substantive manner to communicate meaning and construct knowledge and understanding. This section discusses stylistic uses of visual forms that are not in and of themselves substantive, meaning that the logos-type communication and understanding of the analysis and the potential proof of its conclusions achieved through the use of visual forms (e.g., mathematical or scientific forms) is not necessarily the primary reason for employing visual forms in the discourse. Instead, the forms are used for style effects in ways that primarily follow the pathos or ethos pathways of the communication.

Style (Latin elocutio; Greek lexis) pertains to the composition and wording of the discourse, including grammar, word choice, and figures of speech.[104] In classical rhetoric, figures of speech were divided into schemes (artful deviations from the ordinary arrangements of words), and tropes (creative variations on the meanings of words).[105] Style is dependent on the speaker, the context, the setting, and the audience. The audience and the situation for the discourse are, of course, very important to the analysis of the best arguments that can be raised.[106]

Certain visual forms can be used not simply to communicate facts, data, statistics, or other information, but to suggest rhetorically a certain level of rigor that bolsters the ethos appeal of the presentation. For example, visual mathematical forms (charts, diagrams, four-quadrant tables, algebraic formulas, etc.) can stimulate thought and imagination, constructing knowledge and understanding of the information, but the very nature of their appearance as mathematical forms can help to convince the audience of the truth and value of the information, aiding the persuasiveness of the discourse.[107] The following charts offer examples of this phenomenon.[108]

Example 1:

While drafting this Article, I used a chart prepared by the Coalition for Intellectual Property Rights (CIPR)[109] that reported “Ratings of Challenges Facing Successful Operations of a Business in Russia (Among Selected Major Brandholders and Trademark Owners Doing Business in Russia).”[110] It was offered to demonstrate that intellectual property protection was perceived to be a primary challenge confronting international companies doing business in Russia.[111] The methodology was described in the following way:

In the survey, respondents were asked to rate a series of “challenges confronting the successful operations of your business in Russia” using a five-point scale, where one meant “least important” and five meant “most important.” More than one-half (52%) of selected major brandholders and trademark owners doing business in Russia gave a rating of five to intellectual property protection. This ranks intellectual property protection on virtually the same high level of concern as customs (54%) and taxes (52%)—which have historically been perceived as presenting the greatest challenges to business success in Russia.[112]

Unfortunately, this chart no longer is present on the CIPR website, so I recreated the chart using the same numbers but in regard to a fictional country of Dennisuela (named in honor of my son, Dennis):

 

Nothing in this chart is particularly mathematical except the fact that the author added up some survey numbers to produce the chart, but the demonstration of the data in a bar graph with a super-imposed variable line graph makes the presentation all the more authoritative in a rhetorical sense because it appears that a complicated mathematical formula was applied to data to produce this graph.

Example 2:[113]

 

I consider example 2 to be an excellent use of visual scientific charting (taking the form of an informational or decisional flow chart) to make a purely rhetorical point: “The procedure for acquiring a firearm in Quebec is too complicated; just look at it.”

Example 3:[114]

 

This chart (example 3) discusses the rise and fall of mentions of particular city names in English language literature, and claims that this Google Lab chart reports the results of a search of city names in the vast amount of literature that Google has scanned and compiled for searching.[115] The chart purports to tell us something about “the relative importance of different centers of power in the public imagination.”[116] The author could have stated quite simply: when searching for Paris, London, New York, Boston, and Rome, in the scanned English literature from 1750 to 2008, interest in London remained steady and at a higher level than Paris, Boston, and Rome, while interest in New York started at a very low point but grew steadily, surpassing London in approximately 1910, and continued to rise in popularity until 1980, when it began a steady decline. This would have accurately stated the purported findings, but the graphing of the information sends a very different rhetorical message—that something scientific was done to produce the results the readers see before them.

Mathematical and scientific forms are a persuasive visual tool; but the tool is only as good as the user, and the user must be careful about proper uses in proper situations.[117] In general legal discourse, the use of mathematical and scientific forms and schemes as an artistic or stylistic mode comes with a word of caution: the rhetorical power of a mathematical proof or a demonstration of a scientific deduction or induction lies in the openness and transparency of the demonstration. The premises (major and minor) and the nature of the hypothesis induced from the comparison of genus and species of data must be fully disclosed and described so as to allow the presentation to be analyzed and rebutted. The assertions made in reference to the information displayed must be falsifiable. Tautological explication (wherein the information is presented as self-evident or self-established, or in simpler terms, that the information is what it is) adds nothing to meaning or understanding and does not contribute to the mode of persuasion that points to truth. Using mathematical forms simply to dazzle or confuse the audience or obfuscate the relevant information pertinent to the issue is the worst form of trickery (mere rhetoric, not actual rhetoric). Consider the following chart of the Obama Health Care Reform initiative:[118]

 

One might question whether the author of this chart intended to make clear the available options offered under the health care reform initiative.

V. The Illustrated Letter from Birmingham Jail: A Rhetorical Analysis

This final section analyzes Martin Luther King, Jr.'s “Letter from Birmingham Jail,”[119] as supplemented by images provided by me. My methodology is to demonstrate the potential of visual rhetoric in conjunction with verbal rhetoric. I imagine and attempt to create the letter that Dr. King might have written had he had access to a modern personal computer in his cell in Birmingham, and had he attempted to insert visuals to support his rhetoric.[120]


April 16, 1963
My Dear Fellow Clergymen:[121]

 

While confined here in the Birmingham city jail,[122] I came across your recent statement calling my present activities “unwise and untimely.” Seldom do I pause to answer criticism of my work and ideas. If I sought to answer all the criticisms that cross my desk, my secretaries would have little time for anything other than such correspondence in the course of the day, and I would have no time for constructive work.[123] But since I feel that you are men of genuine good will and that your criticisms are sincerely set forth,[124] I want to try to answer your statement in what I hope will be patient and reasonable terms.[125]

I think I should indicate why I am here in Birmingham, since you have been influenced by the view which argues against “outsiders coming in.” I have the honor of serving as president of the Southern Christian Leadership Conference, an organization operating in every southern state, with headquarters in Atlanta, Georgia. We have some eighty-five affiliated organizations across the South, and one of them is the Alabama Christian Movement for Human Rights.[126] Frequently we share staff, educational and financial resources with our affiliates. Several months ago the affiliate here in Birmingham asked us to be on call to engage in a nonviolent direct-action program if such were deemed necessary. We readily consented, and when the hour came we lived up to our promise. So I, along with several members of my staff, am here because I was invited here. I am here because I have organizational ties here.[127]

 

But more basically, I am in Birmingham because injustice is here.[128] Just as the prophets of the eighth century B.C.[129] left their villages and carried their “thus saith the Lord” far beyond the boundaries of their home towns, and just as the Apostle Paul[130] left his village of Tarsus and carried the gospel of Jesus Christ to the far corners of the Greco-Roman[131] world, so am I compelled to carry the gospel of freedom beyond my own home town.[132] Like Paul, I must constantly respond to the Macedonian call for aid.[133]

 

Moreover, I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere.[134] We are caught in an inescapable network of mutuality, tied in a single garment of destiny.[135] Whatever affects one directly, affects all indirectly.[136] Never again can we afford to live with the narrow, provincial “outside agitator” idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.[137]

You deplore the demonstrations taking place in Birmingham. But your statement, I am sorry to say, fails to express a similar concern for the conditions that brought about the demonstrations.[138] I am sure that none of you would want to rest content with the superficial kind of social analysis that deals merely with effects and does not grapple with underlying causes.[139] It is unfortunate that demonstrations are taking place in Birmingham, but it is even more unfortunate that the city’s white power structure left the Negro community with no alternative.[140]

 

In any nonviolent campaign[141] there are four basic steps: collection of the facts to determine whether injustices exist; negotiation; self-purification;[142] and direct action. We have gone through all these steps in Birmingham. There can be no gainsaying the fact that racial injustice engulfs this community. Birmingham is probably the most thoroughly segregated city in the United States. Its ugly record of brutality is widely known. Negroes have experienced grossly unjust treatment in the courts. There have been more unsolved bombings of Negro homes and churches in Birmingham[143] than in any other city in the nation. These are the hard, brutal facts of the case. On the basis of these conditions, Negro leaders sought to negotiate with the city fathers. But the latter consistently refused to engage in good faith negotiation.[144]

 
 
 
 

Then, last September, came the opportunity to talk with leaders of Birmingham’s economic community. In the course of the negotiations, certain promises were made by the merchants—for example, to remove the stores’ humiliating racial signs.[145] On the basis of these promises, the Reverend Fred Shuttlesworth and the leaders of the Alabama Christian Movement for Human Rights agreed to a moratorium on all demonstrations. As the weeks and months went by, we realized that we were the victims of a broken promise.[146] A few signs, briefly removed, returned; the others remained.

As in so many past experiences, our hopes had been blasted,[147] and the shadow of deep disappointment settled upon us.[148] We had no alternative except to prepare for direct action, whereby we would present our very bodies as a means of laying our case before the conscience of the local and the national community.[149] Mindful of the difficulties involved, we decided to undertake a process of self-purification. We began a series of workshops on nonviolence, and we repeatedly asked ourselves: “Are you able to accept blows without retaliating?” “Are you able to endure the ordeal of jail?”[150] We decided to schedule our direct action program for the Easter season, realizing that except for Christmas, this is the main shopping period of the year.[151] Knowing that a strong economic-withdrawal program would be the by-product of direct-action, we felt that this would be the best time to bring pressure to bear on the merchants for the needed change.[152]

 

Then it occurred to us that Birmingham’s mayoralty election was coming up in March, and we speedily decided to postpone action until after election day. When we discovered that the Commissioner of Public Safety, Eugene “Bull” Connor, had piled up enough votes to be in the run-off, we decided again to postpone action until the day after the run-off so that the demonstrations could not be used to cloud the issues. Like many others, we waited to see Mr. Connor defeated, and to this end we endured postponement after postponement. Having aided in this community need, we felt that our direct-action program could be delayed no longer.[153]

 

You may well ask: “Why direct action? Why sit-ins, marches and so forth? Isn’t negotiation a better path?”[154] You are quite right in calling for negotiation. Indeed, this is the very purpose of direct action. Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored. My citing the creation of tension as part of the work of the nonviolent-resister may sound rather shocking. But I must confess that I am not afraid of the word “tension.”[155] I have earnestly opposed violent tension, but there is a type of constructive, nonviolent tension which is necessary for growth. Just as Socrates felt that it was necessary to create a tension in the mind so that individuals could rise from the bondage of myths and half-truths to the unfettered realm of creative analysis and objective appraisal,[156] so must we see the need for nonviolent gadflies[157] to create the kind of tension in society that will help men rise from the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood.[158]

 

The purpose of our direct-action program is to create a situation so crisis packed that it will inevitably open the door to negotiation. I therefore concur with you in your call for negotiation. Too long has our beloved Southland[159] been bogged down in a tragic effort to live in monologue rather than dialogue.[160]

One of the basic points in your statement is that the action that I and my associates have taken in Birmingham is untimely. Some have asked: “Why didn’t you give the new city administration time to act?” The only answer that I can give to this query is that the new Birmingham administration must be prodded about as much as the outgoing one, before it will act. We are sadly mistaken if we feel that the election of Albert Boutwell as mayor will bring the millennium to Birmingham. While Mr. Boutwell is a much more gentle person than Mr. Connor, they are both segregationists, dedicated to maintenance of the status quo. I have hope that Mr. Boutwell will be reasonable enough to see the futility of massive resistance to desegregation. But he will not see this without pressure from devotees of civil rights. My friends, I must say to you that we have not made a single gain in civil rights without determined legal and nonviolent pressure.[161] Lamentably, it is an historical fact that privileged groups seldom give up their privileges voluntarily. Individuals may see the moral light and voluntarily give up their unjust posture; but, as Reinhold Niebuhr has reminded us, groups tend to be more immoral than individuals.[162]

We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed.[163] Frankly, I have yet to engage in a direct-action campaign that was “well timed” in the view of those who have not suffered unduly from the disease of segregation. For years now I have heard the word “Wait!” It rings in the ear of every Negro with piercing familiarity. This “Wait” has almost always meant “Never.” We must come to see, with one of our distinguished jurists, that “justice too long delayed is justice denied.” [164]

 
 

We have waited for more than 340 years for our constitutional and God-given rights. The nations of Asia and Africa are moving with jetlike speed toward gaining political independence,[165] but we still creep at horse-and-buggy pace toward gaining a cup of coffee at a lunch counter. Perhaps it is easy for those who have never felt the stinging darts of segregation[166] to say, “Wait.” But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society;[167] when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she can’t go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky,[168] and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five-year-old son who is asking: “Daddy, why do white people treat colored people so mean?”;[169]when you take a cross-county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading “white” and “colored”; when your first name becomes “nigger,” your middle name becomes “boy” (however old you are) and your last name becomes “John,” and your wife and mother are never given the respected title “Mrs.”; when you are harried by day and haunted by night the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of “nobodiness”—then you will understand why we find it difficult to wait.[170] There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair.[171] I hope, sirs, you can understand our legitimate and unavoidable impatience.

 
 
 
 
 

You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may well ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”[172]

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law.[173] Any law that uplifts human personality is just. Any law that degrades human personality is unjust.[174]All segregation statutes are unjust because segregation distorts the soul and damages the personality.[175] It gives the segregator a false sense of superiority and the segregated a false sense of inferiority.[176] Segregation, to use the terminology of the Jewish philosopher Martin Buber, substitutes an “I–it” relationship for an “I–thou” relationship and ends up relegating persons to the status of things.[177] Hence segregation is not only politically, economically and sociologically unsound, it is morally wrong and sinful. Paul Tillich has said that sin is separation.[178] Is not segregation an existential expression of man’s tragic separation, his awful estrangement, his terrible sinfulness?[179] Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong.[180]

 
 

Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal.

Let me give another explanation. A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote,[181] had no part in enacting or devising the law. Who can say that the legislature of Alabama which set up that state’s segregation laws was democratically elected? Throughout Alabama all sorts of devious methods are used to prevent Negroes from becoming registered voters, and there are some counties in which, even though Negroes constitute a majority of the population, not a single Negro is registered. Can any law enacted under such circumstances be considered democratically structured?

Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First-Amendment privilege of peaceful assembly and protest.

I hope you are able to see the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.[182]

Of course, there is nothing new about this kind of civil disobedience. It was evidenced sublimely in the refusal of Shadrach, Meshach and Abednego to obey the laws of Nebuchadnezzar, on the ground that a higher moral law was at stake. It was practiced superbly by the early Christians, who were willing to face hungry lions and the excruciating pain of chopping blocks rather than submit to certain unjust laws of the Roman Empire. To a degree, academic freedom is a reality today because Socrates practiced civil disobedience. In our own nation, the Boston Tea Party represented a massive act of civil disobedience.[183]

We should never forget that everything Adolf Hitler did in Germany was “legal” and everything the Hungarian freedom fighters did in Hungary was “illegal.”[184] It was “illegal” to aid and comfort a Jew in Hitler’s Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate disobeying that country’s antireligious laws.[185]

I must make two honest confessions to you, my Christian and Jewish brothers. First, I must confess that over the past few years I have been gravely disappointed with the white moderate.[186] I have almost reached the regrettable conclusion that the Negro’s great stumbling block in his stride toward freedom is not the White Citizen’s Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to “order” than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: “I agree with you in the goal you seek, but I cannot agree with your methods of direct action”; who paternalistically believes he can set the timetable for another man’s freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a “more convenient season.” Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.[187]

I had hoped that the white moderate would understand that law and order exist for the purpose of establishing justice and that when they fail in this purpose they become the dangerously structured dams that block the flow of social progress.[188] I had hoped that the white moderate would understand that the present tension in the South is a necessary phase of the transition from an obnoxious negative peace, in which the Negro passively accepted his unjust plight, to a substantive and positive peace, in which all men will respect the dignity and worth of human personality. Actually, we who engage in nonviolent direct action are not the creators of tension. We merely bring to the surface the hidden tension that is already alive. We bring it out in the open, where it can be seen and dealt with. Like a boil that can never be cured so long as it is covered up but must be opened with all its ugliness to the natural medicines of air and light, injustice must be exposed, with all the tension its exposure creates, to the light of human conscience and the air of national opinion before it can be cured.[189]

In your statement you assert that our actions, even though peaceful, must be condemned because they precipitate violence. But is this a logical assertion? Isn’t this like condemning a robbed man because his possession of money precipitated the evil act of robbery? Isn’t this like condemning Socrates because his unswerving commitment to truth and his philosophical inquiries precipitated the act by the misguided populace in which they made him drink hemlock? Isn’t this like condemning Jesus because his unique God-consciousness and never ceasing devotion to God’s will precipitated the evil act of crucifixion?[190] We must come to see that, as the federal courts have consistently affirmed, it is wrong to urge an individual to cease his efforts to gain his basic constitutional rights because the quest may precipitate violence. Society must protect the robbed and punish the robber.[191]

I had also hoped that the white moderate would reject the myth concerning time in relation to the struggle for freedom. I have just received a letter from a white brother in Texas. He writes, “All Christians know that the colored people will receive equal rights eventually, but it is possible that you are in too great a religious hurry. It has taken Christianity almost two thousand years to accomplish what it has. The teachings of Christ take time to come to earth.” Such an attitude stems from a tragic misconception of time, from the strangely irrational notion that there is something in the very flow of time that will inevitably cure all ills. Actually, time itself is neutral; it can be used either destructively or constructively. More and more I feel that the people of ill will have used time much more effectively than have the people of good will. We will have to repent in this generation not merely for the hateful words and actions of the bad people but for the appalling silence of the good people.[192] Human progress never rolls in on wheels of inevitability; it comes through the tireless efforts of men willing to be co-workers with God, and without this hard work, time itself becomes an ally of the forces of social stagnation. We must use time creatively, in the knowledge that the time is always ripe to do right. Now is the time to make real the promise of democracy and transform our pending national elegy into a creative psalm of brotherhood. Now is the time to lift our national policy from the quicksand of racial injustice to the solid rock of human dignity.[193]

<