'Alternative facts': A common legal term

It has been rather shocking to observe the recent tidal wave of derision hoisted upon President Trump’s senior adviser, Kellyanne Conway – shocking not because the derision is the deserved blowback for a foolish, embarrassing utterance, but because the derision has been so spectacularly off base. The phrase “alternative facts” is used in law and is known to most lawyers. I presume that this includes Ms. Conway, who received her degree from George Washington University Law School. It therefore seems eminently possible that Ms. Conway knew exactly what she was saying. Before we move on to some nonlegal examples of alternative facts, here is but one of many ways the concept can be employed in an actual case. Of particular note is the clause “provided there was plausible evidence to support both alternatives.” In other words, two points of view may differ and still both be truthful.

In a similar vein, the distinction in law between the truth and the whole truth is arguably rooted in this notion of alternative facts. For instance, a man might testify that he was “a professional baseball player who played with the Yankees” – and that could be factually true. However, pursuit of the whole truth (i.e., the alternative facts) might reveal that the man dressed up as a young woman to play softball for the Lady Yankees and was “paid” in the form of a uniform, cleats, and ice cream. Again, factually true, but facts are not a reliably valid substitute for the truth. Despite such distinctions, critics will continue to posit that the only conceivable intention of using of the term “alternative facts” would be to obfuscate truth. Such a claim is not self-evident. Consider the following real-world example. Fact: Yesterday, February 1, 2017, the temperature in Salt Lake City was 35°F. Alternative Fact: Yesterday, February 1, 2017, the temperature in Salt Lake City was 32°F. How could this be? Because temperatures changes with time; at one point in the day it was 32°F, but at another point in the day it was 35°F. Our folklore, too, is filled with the challenges presented by the delicate relationship truth has with facts. Surely, we are all familiar with the story of the blind men and the elephant. In this tale, though each man is limited by his subjective, physical senses, the facts they share are truthful and correct. In essence, they are presenting “alternative facts”: the elephant feels rough; the elephant feels smooth; the elephant feels like a rope, like a pillar, like a fan... While it is true that their subjective conclusions miss the larger truth (it is an elephant they are touching), it does not follow that their alternative facts are lies or falsehoods. Indeed, it is often by the coalescence of “alternative facts” that we are led to the richer, fuller truth. In a more esoteric realm, consider the three famous compositions Erik Satie wrote – together called “The Gymnopédies.” According to Satie, these complementary works conveyed the feelings he experienced upon viewing a Brancusi sculpture from three different angles. Would it be wrong, then, to say the sculpture presented “alternative facts” depending on the position from which it is viewed? And are these varying points of view false simply because they are not in perfect alignment or agreement? And what of simple optical illusions? Below is a drawing of a beautiful young woman. That is a fact. However, it is also a demonstrable alternative fact that this is a drawing of a haggardly old woman. Here, again, alternative facts are not automatically synonymous with lies or falsehoods. Rather, they point to perspectives that differ. In conclusion, when Chuck Todd upbraids Kellyanne Conway with the claim that “alternative facts are not facts; they’re falsehoods,” he is not only wrong, but propagating an ignorance born out of lazy and shallow thinking. But this is not surprising, really, since when it comes to telling half-truths, or presenting alternative facts, the liberal mainstream press is more notoriously guilty than any other group currently out there.