Tom Brady and Jurisprudence

Just out of field goal range, down 13-10 with less than two minutes to play in the AFC Divisional Playoff game, Tom Brady dropped back to pass. Standing tall in the pocket, he surveyed the open field and cocked his arm back. He looked poised to release the ball, but with an impending hit from Charles Woodson, Brady seemed to reconsider. Instead of airing the ball, he kept his hand firm, gripping the pigskin while the arc of his arm continued forward. It was clear to all witnesses—he attempted to secure the ball, to protect it from a charging Woodson, who crushed his prey and forced the ball loose.  

Referees confirmed an Oakland recovery, and the game looked to be all but lost for Brady and the Patriots. However, citing an NFL rule since known as “the tuck rule”—which states, “forward movement of the arm starts a forward pass, even if the player loses possession of the ball as he is attempting to tuck it back toward his body”—referee Walt Coleman deemed Brady’s miscue an incomplete pass and returned the ball to the Patriots, who went on to win the game and the Super Bowl.

Nearly two centuries earlier, in 1821, Abner Updegraph stated at a gathering that the Holy Scriptures were a mere fable, a contradiction, containing a great many lies. For his statements, the Commonwealth of Pennsylvania charged Updegraph with blasphemy, or of “intending to scandalize and bring into disrepute, and vilify the Christian Religion, and the Scriptures of Truth.” Updegraph’s counsel argued a defense one can imagine in a courtroom today: “The constitution of this state, and of the general government, guarantees to each citizen the free and undisturbed enjoyment and expression of his opinions on all matters, whether civil, religious, or political. And such expression only becomes criminal when it interferes with the order of government, or disturbs the peace of society. This is the land of toleration.”

Updegraph, however, was convicted for the crime, not because of his words per se, but because of his alleged intent in stating them. Justice Duncan delivered the opinion of the Pennsylvania Supreme Court: “This verdict excludes every thing like innocence of intention; it finds a malicious intention in the speaker to vilify… From the tenor of the words, it is impossible that they could be spoken seriously and conscientiously, in the discussion of a religious or theological topic…A malicious and mischievous intention is, in such a case, the broad boundary between right and wrong…if the matter published contains any such evil tendency, it is a public wrong.” The opinion slammed the protestations of Updegraph’s counsel—that the words were uttered by a member of a debating association which convened weekly for discussion and mutual information, and that the expressions were used in the course of argument on a religious question—because “so serious a subject” was apparently “treated with so much levity, indecency, and scurrility.”

So what does the tuck rule have to do with case law as established by Updegraph v. Commonwealth in 1824? The former statute is constructed so that the referees (the judges of the game) are not forced to interpret the intent of the player, whereas the latter demands that the intent of the doer, as interpreted by the judges, be the deciding factor.

Many decry the injustice of the tuck rule, for a player (like Brady), whose intention is not to pass, can fumble the football without consequence. But when the intention is not obvious, the wording of the rule deprives fallible humans from declaring a judgment based on murky evidence. The decision in Updegraph, on the other hand, invites judges to speculate on human motivation and, in turn, issue a verdict. Therefore, it is not just the words, but “the mode and manner the words were spoken” that evidences guilt; if the mode and manner with which the words were spoken displays a malicious intention, in the opinion of the Court, then one is convicted of the crime.

Intention is a dangerous precedent for judgment. For starters, intention can assume a plane of generality that nearly strips away all meaning: “He intended to get a rise out of his audience, didn’t he? Therefore he clearly had malicious intent.” Secondly, intention is built of many parts and can take on many forms—conscious and subconscious, proper and improper. Moreover, actions derived from intention are equally abstruse—they can be accidental, imperfect, rooted in false pretenses or ignorance—all in ways that belie the reductionism and interpretive necessity of declarative judgment. 

In the mythical tribunal of objective justice, the Raiders would have been granted possession of the football and gone on to win the game. Brady’s intent was not to pass; the look in his eyes after the play exposed the breadth of his guilt—he knew it was a fumble. But clear rules defined the movement of his arm to be a pass, and compliance with determinate rules rendered pleas for mercy irrelevant.

For my part, in civil life or football, as a citizen or a player, I would rather submit to definitive rules, which establish clear parameters for right or wrong action, than to allows others to speculate on my intent, to indict based on “the mode and manner” that an arm progresses forward, or “the mode and manner” in which words are spoken. Cheers to the tuck rule.