Communication and Intent

Steve Long Salinas17 at AOL.COM
Thu Feb 22 08:08:25 UTC 2001

In a message dated 2/21/2001 12:21:46 AM, gvk at writes:
<<It is simplistic to define communication only by its effect. Just because
it is so difficult to get at the "intention" of the speaker or actor, is no
reason to avoid it.>>

Intention is like electricity.  We can't see it, but we know its there
because of its effects.  Lightbulbs, tv sets and electric shocks.  We have no
trouble making the inference from the obvious effects that electricity has.
Intention is rather telltale, too.  "Some inferences are as obvious as a
trout in the milk pail."

<< As an analogy consider that all law is based in trying to ferret out the
real intentions of the actor.  We have to discover as best as we can what
those intentions were to make a reasonable judgment as to what action to
take. >>

Law is a good reality check because it can be so practical about intention.
IN FACT, in many, many cases in American law, intent is an element to prove
but never really at issue.

That's because judges and juries are allowed to and are even mandated to
infer intention from the defendant's action, unless the defendant can give
some acceptable explanation.  There's the common concept in tort law of "res
ipsa loqitur" - the thing speaks for itself.   Except in capital murder
cases, intent is only relevant if you can somehow show "additional" evidence
that you really didn't "mean to do it."

With regard to communication, Justice Holmes in a famous statement used the
example of (falsely) shouting "Fire!" in a crowded theatre.  (He said it was
not constitutionally protected free speech, but shouting "Fire!" is certainly
communication.)   What's interesting about the example is that Holmes didn't
even bother to explain what happens when you do that.  He assumed his readers
knew what the effect would be - people panicked and possibly being injured in
trying to escape.

"Common experience" is an important concept in the law.  It allows judges and
juries to infer your intention if, e.g., you shout fire! or shoot a gun at
someone.  And it even allows a defense that you come from somewhere where
there are no guns (or fires, I suppose) and you didn't know what the effect
would be.  In that case, the assumption is rebutted and the "intended effect"
can't be automatically inferred.

The law generally treats intention as something that can be known or at least
confidentially surmised from the usual, expected effects of what was done.
And from that we get a good practical - if not physiological - definition of

Intention is what we expect to happen (future effect) next time because of
what happened (future effect) last time.  Intention is using history to
effect the future.

An old twist on the Holmes example illustrates how this relates to

A man at a chocolate factory falls into a vat of chocolate.  He yells "fire!
fire!"  Some people hear him and come and rescue him.  One of them asks him
after they pull him out, "Why did you yell 'fire! fire!'?"

And he says, "If I yelled 'chocolate! chocolate!', do you think anyone would
have come?"

The intended effect defined the communication.  If the antagonist in the joke
had intended his dying words to be an accurate communication about the cause
of his death, "chocolate! chocolate!" would have worked fine.  But we can
confidentially infer that was not the effect he was after, not his intention.
 And if the joke is funny to us (or some of us), it is because "common
experience" tells us why his communication achieved its "intended effect"
despite its literal inaccuracy.

Steve Long

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