Panic Street Lawyer: Don't swallow the frack, Part I

Sunday, 16 June 2013 06:00 AM Written by  Jay Hornack

20130616wap thenational 150Tuesday’s concert by the National at Stage AE was described (correctly, in my opinion) as “glorious” by one music blogger and “extremely powerful” by another. And, no, my endorsement of those favorable reviews has nothing to do with the “Bona Drag was still on” line that they wrote into “Pink Rabbits,” one of the songs they performed in Pittsburgh off of “Trouble Will Find Me,” the band’s sixth LP.

Another new song that was on the National’s Stage AE set list was “Don’t Swallow the Cap:”

If you watch and listen to the video above, you will hear what sounds like the song’s title only in the background.

Music publications have written with confidence about what the song means. But what does the song’s title mean? Drummer Bryan Demendorf agreed with an interviewer that the title itself was “weird.” Maybe yes, maybe no…

With “swallow” meaning “to take through the mouth and esophagus into the stomach,” singer/songwriter Matt Berninger may have taken “don’t swallow the cap” from his timeline of instructions to his young daughter. His fears and anxieties about being a new father also seemed to be the motivating factor in an earlier National song, “Afraid of Everyone.”

20130616 coffeecup photocom92358107  150Carolina K. Smith, M.D.
Getty Images
But for Panic Street Lawyer, I first thought the words “Don’t swallow the cap” were a poor attempt at drafting a toothpaste tube label warning, similar to printing “Don’t spill contents on skin” on a coffee cup. Of course, that is not what the warnings on cups from McDonalds say; instead, they say “Caution: contents hot.” So a toothpaste tube from Proctor and Gamble with a traditional small screw-off cap would be more likely to say “Caution: removable cap.”

But issuing that warning to children not able to read inadequately addresses legal concerns that makers of Crest must have regarding the very real hazard of choking while attempting to swallow a cap. Rather, Proctor and Gamble – headquartered in Cincinnati, where Matt Berninger grew up and where the National was formed – addresses product liability concerns in a different way: big flip caps on some, but not all, toothpaste tubes.

Panic Street Lawyer sees a second possible interpretation of the song’s title by applying a different definition to “swallow” (“to accept without question, protest, or resentment”) and “cap” (“an upper limit”). Maybe the National – a band that performed at rallies in support of Barack Obama for President in both 2008 and 2012 – was really advocating that people question and protest against legislative “tort reform” efforts to impose noneconomic damage award caps at the federal and state level.

Lately I have wondered whether the backup vocalists are singing something other than “don’t swallow the cap.” With publicity surrounding the release of Josh Fox’s sequel to the 2010 Oscar-nominated documentary “Gasland,” I have wondered whether the song lyrics are actually “don’t swallow the frack.” Those may have been the words echoing in the head of former Pennsylvania Department of Environmental Protection Secretary (and 2014 gubernatorial candidate) John Hanger when he refused to drink a glass of water, from a well affected by hydraulic fracturing, in one of the more memorable scenes from “Gasland.”

Three natural gas drillers were sued in tort last week, in the Court of Common Pleas of Allegheny County, by six Fayette County families who alleged economic and noneconomic damages (including fear and anxiety) caused by fracking. According to the complaint, efforts by the companies to fix the problems by installing new seals, tanks, and bypass lines have failed.

20130616 gaslandtwologo 150Meanwhile, Fox’s national screening tour of “Gasland 2” comes to Pittsburgh this Thursday for a special showing at Soldiers and Sailors Memorial Hall in Oakland. Make no mistake: this sequel to “Gasland” will further advocate that Pennsylvanians not “swallow” fracking as a safe method for meeting the commonwealth’s future energy needs.

Fox says that that he looking forward to having a “great discussion” after the screening at Soldiers and Sailors, on questions such as “Who are we supporting for governor? How will we do that? What are our demands?” After attending the screening down the street from my house, I will look next week at how all sides of the fracking issue attempt to influence public opinion – and how each side talks to and about the others.

(Top image: Matt Berninger, left, and Scott Devendorf of The National perform during the Bonnaroo music festival on Friday, June 11, 2010 in Manchester, Tenn. Mark Humphrey/Associated Press)

The Panic Street Lawyer is a personal opinion column by attorney Jay Hornack. Contact him right here at This email address is being protected from spambots. You need JavaScript enabled to view it. and follow Jay on Twitter: @panicstlawyer

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