The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The headline I quote in this post's title is from Fox News; here's more from the body of the article:
The Trump campaign on Tuesday mocked Biden over his use of the phrase. Both Trump and Biden are in Iowa Tuesday holding dueling political events.
"No word yet on whether Biden will start borrowing 'Basta!' as well," Trump campaign deputy communications director Matt Wolking said Tuesday, referring to the hashtag Avenatti often used on Twitter.
Fox News has requested comment from the Biden campaign.
Biden last week faced criticism after it was revealed that his campaign lifted passages from numerous other sources in the initial version of its climate change plan. Citations were later added, with the campaign describing the initial version as a mistake.
Matt Margolis (PJ Media) labels this outright "plagiariz[ing]."
But the phrase wasn't Avenatti's to "rip off," nor is there anything wrong with "lift[ing]" a short line like that. As with many pithy phrases, they have been reused and likely reinvented for decades (if not more), and their original sources are often not remembered. A quick Lexis search revealed that Sen. Ted Kennedy used it on Mar. 11, 2005, in a speech on cutting child poverty; Anita Hill was quoted on Nov. 14, 1992 as having used it shortly before; Sen. Rick Santorum's campaign used it in 2011; novelist Joe Klein (author of Primary Colors) used it in a 2001 novel; and Langston Hughes had used it in a 1935 poem called "Let America Be America again," which Sen. John Kerry used in his 2004 campaign. Novelist Joe Kl
Plagiarism can be a serious offense, for instance when journalists or academics copy others' work without attribution—both because journalists and academics are supposed to be original, and because the copying is usually of a material amount.
But politicians aren't supposed to be original; they are supposed to adapt good ideas from others. I'm not terribly upset by Biden's past copying from other sources, whether as to his campaign's borrowing material for his climate plan, or even as to the copying of parts of Neil Kinnock's speech back in his 1988 Presidential campaign. (The real problem there, as I recall, was that that his use of Kinnock's words as his own end up misrepresenting aspects of his own background.)
Indeed, to the extent the Biden campaign was faulted for copying material from activists, I would think the activists should be pleased: The whole point of advocacy is to get decisionmakers to adopt your ideas, and if they even use your words, all the better. That's why lawyers don't get upset about judges' borrowing their words (with some exceptions not relevant here).
But when we're talking about a five word phrase, the claims of improper borrowing (whether labeled as "plagiariz[ing]" or as "rip[ping] off") by a politician strike me as completely unsound. It's a phrase that comes easily to people's minds, especially in the wake of President Trump's "Make America Great Again"; it wasn't original when Avenatti used it, or when Kennedy used it, or likely even when Langston Hughes used it.