Every year, I ask my students to read a variety of articles on the use of language, especially passive voice. For the last few years, I’ve included a 2015 New York Times opinion piece on how Texas history books use passive voice to hide the acts of pre-Civil War enslavers and make slavery sound less horrific than it was. See Ellen Bresler Rockmore, How Texas Teaches History, New York Times (Oct. 21, 2015); see also Dana Goldstein, American history textbooks can differ across the country, in ways that are shaded by partisan politics, New York Times (Jan. 12, 2020)(explaining Texas has started to improve its discussion of enslaved people in its history books).
This year, several students assumed the Texas history article was new, given its timeliness for our national conversations on bias and race, and I realized the author’s points on passive voice really are timeless. Legal Writing teachers like me suggest removing passive voice because it muddies meaning and takes more words to say less. Passive voice either removes the actor from the sentence entirely, like “the car was driven,” or obscures the action unnecessarily, such as “the car was driven by Al.” But as we try to be ever more conscious of bias and strive for neutral language, we should also remove passive for substantive reasons.
As Rockmore explains, we stress good writing for clarity. She notes: “Whenever possible, use human subjects, not abstract nouns; use active verbs, not passive” and do not “write, ‘Torture was used,’ because that sentence obscures who was torturing whom.” Rockmore, How Texas Teaches History. Yet in the Texas textbooks she analyzed, the editors “employ all the principles of good, strong, clear writing when talking about the ‘upside’ of slavery,” but “when writing about the brutality of slavery, the writers use all the tricks of obfuscation.” Id. For example, “Some slaves reported that their masters treated them kindly,” but “Whippings, brandings, and even worse torture were all part of American slavery.” Id. Rockmore asks, “where are the [enslavers] who were actually doing the whipping and branding and torturing? And where are the slaves who were whipped, branded and tortured? They are nowhere to be found in the sentence.” Id. As one more example, Rockmore notes how the sentence “Families were often broken apart when a family member was sold to another owner,” hides the enslavers. Id.
As you read these sentences, hopefully you rewrote them in your mind to include the enslavers (without using the word, “owners,” please). We should all do the same with our own appellate documents, even when our use of passive is less insidious. We’ll save words for more content, and we’ll communicate more clearly.
Unless you want to hide the actor for positive reasons, like in some criminal defense situations, listen to your grammar school (and Legal Writing) teachers, and avoid passive voice.