Month: June 2018

Saturday Afternoon Ethics, 6/23/18: Pondering Pandering And Zugswang By The Sea

/ Jack Marshall / 19 Comments

Good afternoon.

It’s a good thing that I don’t pay myself anything for this, because I’d have to fire myself. Thanks to a full fledged computer crash at 6 am., all of my plans this morning to get a post up, get my notebook organized for tomorrow’s ethics training, and complete the outline for my Smithsonian Associates program on the influence of Gilbert and Sullivan on 21st Century America week from today before I had to fly to Tampa were as dust in the wind. This is especially bad for Ethics Alarms, as the blog gets virtually no traffic after noon on Saturday, no matter what I write about.

So here I am at the Wyndham Grand on Clearwater Beach—the sun is shining, the ocean is gleaming, and the pool, music, bar and beautiful women are right below my balcony—and what’s the first thing I do? This.

1 Ethics Zugswang and the illegal immigrant kids. The news media is now telling us that the President’s executive order creates an inherent conflict if he is serious about “no-tolerance” immigration violation enforcement. Yes, we knew that, or at least the people who didn’t blind themselves, Oedipus-like, rending their garments over “Think of the Children!” mania knew it. See, it goes like this:

A. Entering the country illegally is a crime.

B. People who commit crimes are supposed to be arrested, or more such people will commit those crimes.

C. Illegal immigration is a federal crime.

D. Children who accompany their parents while committing federal crimes cannot, by law, be  imprisoned with their parents.

E. They also cannot be held at all for more than a proscribed time, which is too short a period to process their law-breaking parents.

F. If the children have to be returned to their parents,, then the parents cannot be punished for breaking immigration laws.

G. If the children are separated from their parents, the government officials doing so are evildoers who must be shamed, excoriated and condemned.

F. Thus government officials are supposed to ignore the law, by the principle that Children Invalidate Laws, which they didn’t teach me in my college government classes or in law school but apparently that’s a rule.

G. But government officials are sworn to uphold and enforce the law.

Ethics Zugswang.

This Gordian Knot requires some distortion and deceit to stay tied, however…

One: “No-tolerance” is being used by the media to make “enforcing the law when people break it” sound like the equivalent of a school suspending a student for making his fingers look like a gun. Law enforcement is not supposed to “tolerate” crime and law-breaking. Illegal immigration is a serious breach of law, and what the news media is calling “no-tolerance” is really just enforcement.

Two: The Obama Administration opted for “catch and release,” which can be fairly described as “pretending to enforce the law, but not really doing it.” It was a dishonest, cynical, incompetent and unethical policy.

Three: There is no justification for treating the children of illegal immigrants differently from the children of citizens who are arrested and who have no one to care for their kids.

Four: The principle being advocated by the hysterical critics of the “separation of families” at the border (the accurate description is “the arrest of illegal border-crossers) is, now correct me if I’m wrong, “If a child or children accompanies a parent when the parent is apprehended while trying to violate a law carrying a substantial penalty, that parent will be treated with more leniency than if a child did not accompany him or her.” My puzzlement arises from this conundrum: Why do only law-breaking non-citizens get this benefit? Why don’t we “catch and release” good old American single parent bank robbers and burglars who bring their toddlers along as a “Get out of Jail ” card?

Five: What’s the difference? Here’s the difference: the progressive ghetto of our culture has adopted the convenient fiction that illegal immigration isn’t a crime at all, and illegal immigrants are heroes, or martyrs, or potential Elizabeth Warren voters, or something, but certainly they aren’t doing anything wrong. It’s an act of love (said Jeb Bush, proving that he had  squishy soft nougat center). Then why do we have a law against it, Jeb, et al.? Oh, because you can’t have open borders, that would be ridiculous and irresponsible. History shows us that. A nation most protect its borders!

Ethics Zugswang.

It is not ethics zugswang, though. It may be political zugswang because of the greed, dishonesty, emotionalism, and rationalizations driving this issue (in addition to its usefulness as another excuse to undermine this particular President), but the ethics are clear:

—The government’s primary duty is to enforce the laws.

—The integrity of national borders must be ensured using laws.

—The illegal border-crossers are breaking the law.

—They should be punished exactly the same regardless of whether they have brought children along or not.

—The responsibility for placing the children in this position belongs to the parents, and only the parents.

—Making the fate of the children the primary focus of any portion of the illegal immigration debate is intellectually dishonest, manipulative, and unethical, or, at best, innocently ignorant and emotional. Continue reading →

Morning Ethics Warm-Up, 6/22/18: Boy, Am I Ever In A Bad Mood This Morning…

/ Jack Marshall / 38 Comments

Good morning.

Grrrrr…

1. The TIME “Welcome to America” cover.  This is probably worthy of a full post, but I’m really sick of this topic, and losing respect for so many previously sane and reasonable people who have become blathering “Think of the children!” zombies that I want to spit.

TIME, that dying, irrelevant, completely left-biased news magazine, grabbed one last moment in the sun with this cover:

It nicely symbolizes the media dishonesty and public manipulation regarding the border mob of children, with or without parents. I assumed that the cover was symbolic art: obviously this stand-off never occurred. But TIME used a photo of a real Honduran girl who we were told in other media reports and viral social media rants was crying because she had been separated from her mother when mom was arrested for trying to enter the country illegally. As CBS reported today, though, the little girl was really crying because her mother was apprehended at eleven o’clock at night crossing illegally into the US, the tot was tired and thirsty. She was never separated from her mother at all. Here’s the original photo:

Perfect. Fake news, through and through. If TIME wanted to make a symbolic image, the magazine was obligated to either make it clear that it was art only. Using a photo that had already been falsely represented in the news media to represent exactly what it had been falsely claimed to represent advanced a lie. Here is the original photo:

The Daily Mail got  this part of the story  from the girl’s father:

Denis Javier Varela Hernandez, 32, said that he had not heard from his wife Sandra, 32, who was with his two-year-old daughter Yanela Denise, for nearly three weeks until he saw the image of them being apprehended in Texas.

In an exclusive interview with DailyMail.com, Hernandez, who lives in Puerto Cortes, Honduras, says that he was told yesterday that his wife and child are being detained at a family residential center in Texas but are together and are doing ‘fine.’ …

He revealed that his wife had previously mentioned her wish to go to the United States for a ‘better future’ but did not tell him nor any of their family members that she was planning to make the trek.

“I didn’t support it. I asked her, why? Why would she want to put our little girl through that? But it was her decision at the end of the day….‘I don’t have any resentment for my wife, but I do think it was irresponsible of her to take the baby with her in her arms because we don’t know what could happen.”

2. Charles Krauthammer. Unfortunately, this is what I will most remember about the conservative columnist and commentator who died yesterday. After the first Republican candidates debate, the one in which Megyn Kelly called out Donald Trump on his habitual misogyny, Krauthammer, today being lauded for his brilliance and perception, stated unequivocally that Trump had proved himself “not ready for prime time,” and that hos poor performance in the debate had effectively ended his candidacy. Continue reading →

Now That The ACLU No Longer Wants To Be The ACLU, The United States Needs An ACLU

/ Jack Marshall / 25 Comments

In a confidential memo obtained by former board member Wendy Kaminer, the American Civil Liberties Union has defined a policy that retreats from and undermines—perhaps the best word is betrays— its traditional mission of protecting the Bill of Rights, and especially the First Amendment rights of all Americans.  The memo says in part,

Work to protect speech rights may raise tensions with racial justice, reproductive freedom, or a myriad of other rights, where the content of the speech we seek to protect conflicts with our policies on those matters, and/or otherwise is directed at menacing vulnerable groups or individuals….We are also firmly committed to fighting bigotry and oppression against other marginalized groups, including women, immigrants, religious groups, LGBT individuals, Native Americans, and people with disabilities. Accordingly, we work to extend the protections embodied in the Bill of Rights to people who have traditionally been denied those rights. And the ACLU understands that speech that denigrates such groups can inflict serious harms and is intended to and often will impede progress toward equality.

…There is no presumption that the First Amendment trumps all other amendments, or vice versa. We recognize that taking a position on one issue can affect our advocacy in other areas and create particular challenges for staff members engaged in that advocacy. For example, a decision by the ACLU to represent a white supremacist group may well undermine relationships with allies or coalition partners, create distrust with particular communities, necessitate the expenditure of resources to mitigate the impact of those harms, make it more difficult to recruit and retain a diverse staff and board across multiple dimensions, and in some circumstances, directly further an agenda that is antithetical to our mission and values and that may inflict harm on listeners…Our defense of speech may have a greater or lesser harmful impact on the equality and justice work to which we are also committed, depending on factors such as the (present and historical) context of the proposed speech; the potential effect on marginalized communities; the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values; and the structural and power inequalities in the community in which the speech will occur….

Where the ACLU defends the right to speak of those with whom it disagrees, it should generally engage in counter-measures both to reinforce the
values the speaker attacks and to make clear that we do not endorse the substance of the views. Some options might include:

1. Denouncing the views in press statements, op-eds, social media, and other available fora.

2. Participating in counter-protests. When we assist people in securing the right to march or demonstrate for views we condemn, we can and generally should support and participate in counter-protests, with consideration given to participation by senior staff or board members to highlight the ACLU’s commitment and ensure that such participation does not disproportionately burden other staff.

3. Supporting other counter-speech by supporting, organizing or helping to organize events, facilitating access to media, or taking other actions that will amplify and
strengthen the voices of those espousing our values.

4. Expanding our work on behalf of the values the speaker attacks.

5. Earmarking any fees recovered from the case to projects within the ACLU that further the values that we support and the speaker attacked, or donating them to another organization that works to advance those values, preferably in the geographical area where the speech occurred….

Continue reading →

Now THIS Is A Prejudicial Tattoo..

/ Jack Marshall / 12 Comments

This is not a hoax.

His name in Michael Vines, and we have his South Carolina mug shot. He is charged with unlawfully carrying  a firearm. You can see the guilt on his face.

Here is what will happen. We know this, because there have been many cases with criminal defendants standing trial who have, entirely due to their own cretinous choices, incriminating or otherwise potentially prejudicial tattoos, like swastikas, words like “hate,” “kill,” or “murder,” and names like “Hitler”  visible somewhere on their head or neck.In each case, the judge has ruled that the tattoos must be covered with make-up—paid for by the State— to ensure a fair trial. A conviction of a man with, say, “hate” tattooed on his neck who is charged with a hate crime would provoke an automatic reversal and new trial. I have several posts about these cases, and normally I would supply the links, but I’m afraid that looking at more than one of these pictures in a 24 hour period will jeopardize my already precarious IQ stability. Search for “tattoos” on the blog: you’ll find them.

This guy’s tattoo is a new wrinkle: Have a graphic representation of your crime imprinted on your forehead.  This opens up a whole new vista in self-incriminating body art. Spousal abusers can sport tattoos of a man belting a woman. Embezzlers can have a tattoo showing a hand reaching into the till. Drug pushers can wear a drawing of a loaded syringe. FBI agents can display portraits of Hillary Clinton.

Of course, the simple way to convey the same message is to just have a talented tattoo artist write “I’m an idiot” on your face. (Make sure he’s not eating a Milky Way, or you may be stuck with “I’m an idoit.” Come to think of it, that might be even better.

I have been wondering if a defendant would be allowed to stand trial with nice tattoos on his face that suggest harmlessness and innocence. You know: tattoos of Care Bears, peace signs, hearts or portraits of Gandhi, Jesus, Mother Theresa, or Barack Obama. Would a judge allow such a defendant to appear before the jury with those messages uncovered?

My guess is yes.

___________

Pointer and Source: Res Ipsa Loquitur

Ethics Hero: CNN’s Brooke Baldwin

/ Jack Marshall / 8 Comments

I am not convinced that CNN’s Brooke Baldwin is all that bright: for example, her insistence that female athletes should be guaranteed the same compensation as male athletes is feminist cant and bias-based nonsense. At least she tries to be balanced, though, or what qualifies as balanced in the hyper-biased news environment in which she works.

This is an admirable example. Democratic Senator Tammy Baldwin (D-WI) was hilariously unprepared to be grilled on the Democratic and progressive—not to mention the news media—hypocrisy in suddenly deciding that detaining children of illegal immigrants in “cages” is unconscionable now, under Trump, when the critics remained silent under President Obama. Everyone knows CNN is “Get Trump!” 24/7. Either Senator Baldwin was supremely confident that only softballs would waft her way, or she is an idiot, because this is a question any ethical journalist should ask.

To be fair to the Senator, though, this is CNN, Trump has been denied fair coverage since 2016, and her interviewer even shares her gender and last name! Why would the Senator expect to have to account for her party’s double standard in such a friendly forum?

Listen to the Senator’s complete descent into classic“humina humina,” incoherent, deflecting gibberish when Baldwin asks her if she objected to similar treatment of detained kids at the border under Obama. It’s wonderful. Even Jackie Gleason would have to applaud.

Good for Brooke.

(Incidentally, it is “humina,” not “homina.”)

 

Morning Ethics Warm-Up, 6/21/18: Assholes, Frauds, And Hypocrites

/ Jack Marshall / 42 Comments

Good morning!

1. “A Nation of Assholes” Update: A congressional intern, can be heard yelling, “Mr. President, fuck you!” at President Trump this week as he arrived at the Capitol for a meeting with Republican lawmakers, as heard in a video clip recorded by NBC’s Frank Thorp. Nice.  This is what “the resistance” and allied Democrats—and Robert De Niro, Samantha Bee, Stephen Colbert and the rest, like Peter Fonda, Jane’s younger, less talented brother, who tweeted, “We should rip Barron Trump from his mother’s arms and put him in a cage with pedophiles and see if mother will stand up against the massive giant asshole she is married to”— have produced. Hold them accountable. Hold the members of Congress who employs her responsible too: she obviously is reflecting the attitude she absorbs in the office all day long.

As that 2015 post makes clear, making someone like Trump our leader, and thus our culture’s ethics role model—yes, that’s how leadership works—does lead to this kind of disgusting, divisive and un-American conduct. However, it doesn’t justify those who sink this low. She must be identified and fired. Those rationalizing her outburst should be rebuked, just as those who tried to justify Rep. Joe Wilson’s unforgivable “You lie!” during an Obama State of the Union address should have been rebuked.

Besides, after she is fired, MSNBC will probably give her a show.

2. You know, such incidents are making it hard for me to maintain my ethical objections to boycotts. Department of Homeland Security Secretary Kirstjen Nielsen was having a working dinner at Cocina Mexicana, a popular Mexican restaurant in Washington, DC.  Protesters from the Metro DC Democratic Socialists of America entered the restaurant and began harassing her, based on the controversy over the handling of illegal immigrant families at the Mexican border. You can read their content-free chants here; the only one that interests me is “”No borders! No walls! Sanctuary for all!”, which is signature significance for a lawless, ignorant fool. She had to leave after about ten minutes.

Why were the protesters allowed to enter the restaurant and interfere with a customer’s meal? It doesn’t matter who the diner is: the establishments duty to is treat guests as guests while they are in the establishment. Has Cocina Mexicana apologized to Nielsen? It doesn’t matter, really: that kind of abuse should not be permitted even once. Are we now going to have establishments segregated by ethnicity and sympathy for open borders?

I won’t eat there, even if someone else is paying. Continue reading →

The NBA Coach, The Secrets, The Loving Wife, And Twitter

/ Jack Marshall / 23 Comments

The Colangelos (though she goes by the name of Barbara Bottini)

This isn’t exactly a social media ethics story, not entirely. Yes, it reinforces the Ethics Alarms position that Twitter makes you stupid, and that it is an ethics disaster waiting to happen for the impulsive and the unwary. The main ethics lesson, however, lies elsewhere,

Bryan Colangelo resigned as the president of basketball operations for the Philadelphia 76ers two weeks ago despite leading his perennially doormat team to the NBA play-offs this season for the first time in many years. He resigned in the middle of a Twitter scandal. The Ringer, a sports website,  received an anonymous tip from someone who claimed that he  or she had linked five anonymous Twitter accounts to Colangelo. The accounts had all tweeted about internal matters relating to the 76ers players, personnel and business, even, in one tweet, defending Colangelo for his eccentric shirt collar style, which had been the topic of some social media mockery.

The Ringer contacted the 76ers, but only told the organization about two of the suspicious accounts, not all five. Colangelo informed the team that one of them, @Phila1234567, was indeed his, but insisted that he had never posted anything using it. Coincidentally, or probably not, the other three accounts that the Ringer had not revealed were suddenly switched from public to private after the  76ers had their little talk. After the Ringer published The Mystery Of The Insider Tweets,  the 76ers  hired a large New York law firm  to conduct an independent investigation. Over the course of a week, the firm collected several  suspicious laptops and mobile phones (well, it was the owners who were really the suspected ones; you can’t blame the devices), and retrieved text messages and emails. Investigators also analyzed the involved Twitter accounts to try to determine who was behind them. Continue reading →

Morning Ethics Warm-Up, 6/20/18: Darrow, Damn Technology And Dunkin’ Donuts

/ Jack Marshall / 23 Comments

Good Morning!

1. Shameless self-promotion Dept. Once again, I am presenting my three-hour Clarence Darrow and modern attorney ethics CLE program for the D.C. Bar, and later this summer, Virginia CLE will be sponsoring the same seminar in Richmond and Northern Virginia. As always, my partner and collaborator in All Things Darrow is esteemed D.C. actor (and American University law school instructor, and, I am proud to say, my friend) Paul Morella, who has been Darrowing since he premiered my one-man show about the great and flawed lawyer in 2000, for The American Century Theater. His website is here. This is Paul…

Paul is a lot taller, thinner and better looking than Darrow, and unlike Clarence, he also bathes regularly. It doesn’t matter. I can’t recommend his show, which he performs for bar associations and legal groups around the country, more highly, and would feel this way even if I hadn’t written it. Of course, any group that wants Continuing Legal Education credits can also book today’s seminar, which has many of Darrow’s greatest courtroom orations, but also legal ethics commentary from me.

2. Ah-HA! NOW I understand why I’m being sued for defamation!  This is in the “This comes as no surprise” category, but it still explains a lot. The Pew Research Center just released a survey that demonstrates that a large proportion of the public can’t distinguish facts from opinions. The main portion of the study  measured the public’s ability to distinguish between five factual statements and five opinion statements. Pew found

“…that a majority of Americans correctly identified at least three of the five statements in each set. But this result is only a little better than random guesses. Far fewer Americans got all five correct, and roughly a quarter got most or all wrong. Even more revealing is that certain Americans do far better at parsing through this content than others. Those with high political awareness, those who are very digitally savvy and those who place high levels of trust in the news media are better able than others to accurately identify news-related statements as factual or opinion.”

I challenge that last part. It may well be that those who place high levels of trust in the news media could distinguish between fact and opinion in those  ten statements, but it doesn’t change the fact (now this is my opinion, but I still believe it is demonstrably true) that the news media distorts what it represents as facts based on journalists’ biased opinions. Continue reading →

Transgender Ethics: Connecticut’s PC And Unfair Gender Rules For Athletic Competition

/ Jack Marshall / 13 Comments

Transgender high school sophomores Terry Miller and Andraya Yearwood came in first and second place respectively in the 100-meter race at Connecticutt’s State Open Finals this month. Miller also won the top prize for the 200-meter race. She and Yearwood were born male, but they now identify as females, whatever that means.

Wow, what a coincidence! The only transgender females running, and they finished first and second! What are the odds of that?

“Some parents within Connecticut’s high school track and field circle expressed outrage,”  ABC News notes. Some?

It is astounding to me that any parents or runners—though the students are subject to daily PC brainwashing, so I’m sure that’s a factor—put up with the ridiculous and anti-competitive Connecticut Athletic Conference rules. They generously allow high school athletes to compete based on the gender with which they identify.  Says ABC in another masterpiece of equivocation, “Critics say the rules give male-to-female transgender people a competitive edge over cisgender women — whose biological sex matches their gender identity — because some have higher testosterone levels than non-trans females.”

Oh, critics say that, do they? How about a slight edit: “Male-to-female transgender people have  competitive edge over cisgender women whose biological sex matches their gender identity because some have higher testosterone levels than non-trans females.”

“I think it’s unfair to the girls who work really hard to do well and qualify for Opens and New Englands [competitions],” sophomore sprinter Selina Soule, who finished sixth in the 100-meter State Open Finals, told the Hartford Courant. “These girls, they’re just coming in and beating everyone. I have no problem with them wanting to be a girl.”

That is, “Not that there’s anything wrong with that.”
Continue reading →

Morning Ethics Warm-Up, 6/19/2018: Double Standards And Greed

/ Jack Marshall / 132 Comments

Time for a Good Morning song!

1. Life on Facebook. A lawyer friend who should know better posted a comment that began, “You wouldn’t think that posting something like ‘Taking children away from their parents and sticking them in cages is wrong’ would be controversial, but in almost every case where one of my friends has said something like this, at least one of his/her friends feels the need to argue about it…” Later he compared the statement “Taking children away from their parents and sticking them in cages is wrong” to “Torturing kittens is wrong.” I told him that as a lawyer, he should be objecting to and explaining the transparent deceit of “Taking children away from their parents and sticking them in cages is wrong”—a half-truth designed to stifle argument, not attacking those who are correctly pointing out the emotionalism and dishonesty of that tactic.

I should count up the number of lawyers whose comments on Facebook on this issue are pure “Think of the children!” with no substantive legal and policy analysis whatsoever. My friend also made the typical suggestion that only Trump voters—you know: morons—would argue with “Taking children away from their parents and sticking them in cages is wrong” as a fair and conclusive verdict on the current policy.

2. Theranos.  Elizabeth Holmes, founder and CEO of Theranos, as well as Ramesh Balwani, the company’s former president ( and Holme’s love interest, were indicted yesterday on charges of conspiracy and wire fraud. The Theranos debacle is a classic corporate fraud story on par with Enron, if not as wide-reaching.

I missed it. This is embarrassing for an ethics blog, and for someone who thinks he scours various news sources thoroughly enough to catch the major ethics stories. I blame Donald Trump, but I also blame the various news sources in 2015 that chose to report fake news, trivial news, future news and theoretical news rather than give a major corporate scandal the attention it deserved. If I missed the story, and I’m looking for it, what chance do normal people with sensible occupations have?

The civil fraud charges in the case were filed in March by the Securities and Exchange Commission, though the scandal had broken earlier, when the Wall Street Journal published its 2015 exposé.  Holmes and Balwani allegedly raised millions of dollars using false statements about how well the company’s  blood-testing device worked, while using  a contract with the Department of Defense and a partnership between Theranos and the pharmacy chain Walgreens to con pharmacies, doctors and the public. The apparent scam created a Business of Cards that, at its peak, had more than 800 employees and a paper valuation of $9 billion.

There is a book out about the Theranos scandal by the reporter who broke the story… Continue reading →