Post Road Trip Ethics De-Brief, 11/20/2019, AND Morning Warm-Up, 11/21/2019

Bvuh.

Thinking is a chore right now, never mind typing.

We returned from a triumphant two-Darrow ethics program New Jersey tour, highlighted by the intense Darrow oratory performed by actor/legal instructor Paul Morella. This does a cynical ethics CLE presenter’s heart good: finding myself short of time, I asked the assembled NJ Bar members to vote on whether Paul should omit Darrow’s famous Leopold and Loeb closing argument, or Darrow’s own desperate plea for an acquittal when he faced a jury considering his own guilt of jury tampering in the 1911 MacNamara case. The group almost unanimously voted that we complete both closings, with my ethics commentary as well, bringing the program to an end almost a half hour later than scheduled. Nobody left, and believe me, in most CLE seminars, the lawyers seldom stay one second longer than they have to.

Brought a tear to my eye…

No rest in sight, though: tomorrow, I take an early flight to team up with rock guitar whiz and singer Mike Messer in Las Vegas for Ethics Rock Extreme. And I’m punchy now...

1. Well, maybe the NFL is learning…News item: The Miami Dolphins released already suspended running back Mark Walton on Tuesday, hours after he was arrested on charges of punching his pregnant girlfriend multiple times in the head. Walton had been serving a four-game suspension because of  three arrests before the season started. He was sentenced in August to six months’ probation after pleading no contest to a misdemeanor weapons charge.

Now let’s see if the Patriots sign him…

2. Just a quick impeachment hearings note: It is astounding to me that witnesses are being called by the Democrats to testify regarding their opinions on a President’s phone call to a foreign leader. Big black headlines shout that witnesses called a phone call “inappropriate.” Who cares? The President has the authority to decide what is “appropriate,” and there are no impeachment articles in the Constitution designating “acting inappropriately” according to someone else’s opinion as a “high crime and misdemeanor.”  Leaders become leaders because they do thinks that others think are “inappropriate.”

Don’t get get me  started on presidential actions through the centuries that experts, government veterans and other critics at the time thought were “inappropriate,” or worse.

I started compiling a list of what I would consider genuinely impeachable actions by past Presidents The list makes the current impeachment push look even more contrived than it already is.

3. I see that the group that surreptitiously filmed Planned Parenthood staff discussing abortions was hit with over 2 million dollars in damages. Good.

A federal jury in San Francisco decided that David R. Daleiden, an anti-abortion activist had broken federal and state laws by secretly recording staff and executives in 2015.  The videos were indeed troubling, but the ends don’t justify the means.

 The jury found that Daleiden, the leader of a group called the Center for Medical Progress, had trespassed on private property and committed fraud by posing as  a biotechnology representative.  His defense is that he was acting as an investigative journalist. No, he was acting as a spy, trying to see what he could find.

We are rapidly reaching the point where journalists need to be defined with some specificity. The problem is that is that so few professional journalists practice journalism any more, at least the ethical variety. Is anyone with a laptop and a camera a journalist?

Planned Parenthood was decisively exposed as being callous about the nascent human beings they were snuffing out. It apologized for the ugly tone that one of its officials had used in a video while discussing a sale of fetal tissue, but this was a PR move.  I’m quite sure the callousness was typical on the organization, but that doesn’t justify the lies and violations of privacy the “journalist” engaged in to get it recorded.

4. If we start judging art by the character of the artists, we’ll just have lousy are created by nice people.

  • In France, people, are suddenly upset with fugitive rapist Roman Polanski, who has been avoiding justice in Europe for decades. A.R.P., an association of film directors, is putting a motion before its members to exclude anybody convicted of sexual assault, and suspend any member being investigated for it. Polanski was recently accused of a second rape that allegedly occurred in 1970. The new measure appears to be aimed at him. “A.R.P. strongly supports all victims of violence and today decided to make a strong commitment to support the fight for the rights of victims,” the organization’s  statement said.

As usual, this is grandstanding and virtue-signaling. The organization exists to promote the film director’s art, not #Me Too. Now protests by groups of feminists have shut down several screenings of the director’s latest film around the country.

  • In London, a similar attitude is dogging the “Gauguin Portraits” exhibition at the National Gallery in London. The show, which runs through Jan. 26, focuses on painter Paul Gauguin’s popular works, including paintings of the young girls he lived—and slept with— with in Tahiti. The wall text tells visitors that Gauguin  entered into many sexual relations with young girls. “Gauguin undoubtedly exploited his position as a privileged Westerner to make the most of the sexual freedoms available to him,” art-lovers learn.

    Christopher Riopelle, a co-curator of the National Gallery show, sasy that now artworks must be viewed “in a much more nuanced context.” “I don’t think, any longer, that it’s enough to say, ‘Oh well, that’s the way they did it back then,’ ” he said.

    Better, then, is to judge the conduct of artists based on modern sensibilities, and mark down the worth of their artistic creations because they are found to be ethically sub-par?

“The person, I can totally abhor and loathe, but the work is the work,” Vicente Todolí, who was Tate Modern’s director when it staged a major Gauguin exhibition in 2010, told the New York Times.

“Once an artist creates something, it doesn’t belong to the artist anymore: It belongs to the world,” he said. Otherwise, he cautioned, we would stop reading the anti-Semitic author Louis-Ferdinand Céline, or shun Cervantes and Shakespeare if we found something unsavory about them.

Exactly. This is applicable to Gauguin, Danny Kaye, Earnest Hemingway, Bill Cosby, Mozart , Woody Allen, Frank Sinatra and Roman Polanski, among thousands of other artists. Is It Time Gauguin Got Canceled?” asks the Times

Don’t be silly.

5. On “Red Flag” laws. “In order to have enough liberty, it is necessary to have too much.” As is often the case after spending time with Mr. Darrow, my favorite quote of his keeps intruding on my thoughts.

The authorities in the Seattle area became alarmed at a photo on social media in October showing a man holding two AK-47-style rifles above a caption above read: “one ticket for “Joker” please.”

Detectives checked the man’s online history and discovered Charels Donnelly, 23, writing about threatening his mother with a gun and describing fantasies about hurting women.

“I will shoot any woman any time for any reason,” was one Twitter post. “Kill all women,” was another.  A third read, “Prowling the Seattle streets for women to assault. No luck so far. Hopefully my urges will be satisfied soon.”

Using a new “red flag” law police sought and obtained a temporary court order to seize  three handguns and three rifles, including an AK-47-style rifle and its accompanying magazines from Donnelly’s home. Donnelly  testified at a hearing that many of the posts about violence were just jokes for his friends.

 He had no history of criminal or drug issues. Donnelly’s lawyer described the seizure of  the weapons from his home as an intrusion on both his First Amendment and Second Amendment rights. The judge agreed.

So do I. “In order to have enough liberty, it is necessary to have too much.”

And if Donnelly goes on a shooting rampage using those weapons returned to him? That will be moral luck. The correctness of the judge’s ruling will not be changed.

 

30 thoughts on “Post Road Trip Ethics De-Brief, 11/20/2019, AND Morning Warm-Up, 11/21/2019

  1. Re 3: I’m somewhat unconvinced by the desire to draw a line around legitimate journalists. If the penalty is appropriate for the spy, it should be appropriate for CNN (as if they would do legitimate investigations these days, ha).

    Even the penalty for me is encroaching a little on the “too much liberty” line, so I’m thankful that you mention it later on the post. In any case, it seems excessive to me, and I’d like to see it challenged on First Amendment grounds and see where it lands (it will be illuminating to see which press organizations support PP and which the videographers).

    • You don’t have to wait. The MSM will support PP. Fox and other conservative media will support the videographers. It does not change the fact that they were spying.

  2. 3. Journalists

    So who gets to judge who is a journalist and who isn’t? We can’t let “journalists” do it, otherwise every reporter to the right of Mao Zedong will be excluded.

    I think this is another case of “It is necessary to have too much liberty…” Perhaps all fraudulent representations used to expose people should be subject to civil liability, including by journalists, or else none of such representations purporting to serve a legitimate public interest should be. That would level the playing field and return a bit of integrity to the profession, even if a vanishingly small amount. It would also let miscreants get away with conducting their awful business in the shadows if we opt for the first choice, but alas, we cannot continue deciding someone is or is not a journalist on the fly.

    I am not sold on your argument. The protections afforded journalists have become very diffuse and vague in the 21st century owing mainly to technology. There is no doubt Planned Parenthood’s illicit processes deserved to be exposed — the only question at issue was the credibility of the exposer as a journalist. If he/she is a journalist, it’s a First Amendment defense; if not, it’s a fraud tort.

    At the same time, you make fair points that are at least debatable, but I think they deserve more exposition than a warm-up can properly provide. The topic is a ripe one, rife with ethical issues that need thrashing out.

    • Doesn’t this ruling (probably overturned on appeal) chill investigative journalism? I wonder if this guy’s undercover films are unethical at all. Michael Moore has made a ton of money doing this kind of thing – check out “Roger & Me” where he runs around trying to interview Roger B. Smith, CEO of GM to confront him about the harm he did to Flint, Michigan with his massive downsizing.

      Do we really think Planned Parenthood is going to tell the truth about they ways it raises money? They have an army of lawyers to protect that information from being disclosed. No one asked how PP was able to afford a huge Houston facility if it was not really in the abortion business.

      Here is what it looks like:

      https://www.google.com/url?sa=i&rct=j&q=&esrc=s&source=images&cd=&ved=2ahUKEwjQu6iapvzlAhVCRqwKHfg3A4IQjRx6BAgBEAQ&url=https%3A%2F%2Fsaynsumthn.wordpress.com%2F2015%2F07%2F28%2Fhouston-planned-parenthood-target-of-pro-life-sting-under-possible-investigation%2F&psig=AOvVaw3VsDCBZInoMZbPwldMPepo&ust=1574459784024982

      So, if this is unethical and actionable, what about the movie, “Unplanned”? A former Planned Parenthood administrator had a moral conversion (according to the movie) and wrote a movie about Planned Parenthood’s nefarious activities.

      • The sympathy for the guy is puzzling. Undercover journalism, involving lies, hidden cameras, disguises and more, is romanticized because of Nelly Bly’s famous exploits, but journalism ethics codes says that they are only acceptable in extreme circumstances, the last resort rather than the first. Just bugging or surveiling an office isn’t journalism, and neither is tricking someone into saying damning things while being recorded.I’ve seen no evidence that Daleiden tried traditional reporting measures to investigate PP. Did he seek out former employees? It appears that he became a human bug in the organization, using false pretenses, to find “dirt,” whatever it might be..and to benefit himself and his organization (which is an advocacy group, not a journalism outlet) by doing so. That’s spying.

          • Ugh. Another reminder that I have to get The Ethics Scoreboard back online.I scored the show unethical, and I was not alone:vigilante justice, entrapment, using deception, and all to get high ratings. Sting policework is tolerable; sting journalism is not.

              • There’s no valid comparison. Clinton lied under oath, in court, and before a grand jury as President of the United States. He was forced to give up his right to practice law. If you’re not honest and trustworthy enough to be a lawyer, you’re not fit to be President either. But yes, I have to get the Ethics Scoreboard back up.

  3. 5. Red flag laws.

    This was a proper outcome, but I don’t trust judges to do this consistently. Red Flag laws, generally, are a shameful affront to due process that should be rejected by the appeals courts unless they provide a proper process for the subject of the EPO to instantly have it dismissed if it is deficient or unlikely to withstand judicial scrutiny.

    In other words, it should essentially be tried on the merits in a hearing before it may be enforced. Standard of proof: Clear and convincing evidence. Duration of the order should be no more than six months, and it should be subject to dismissal at any time should the complaint become deficient with time.

    • In other words, it should essentially be tried on the merits in a hearing before it may be enforced. Standard of proof: Clear and convincing evidence. Duration of the order should be no more than six months, and it should be subject to dismissal at any time should the complaint become deficient with time.

      The only way to make this process fair and just would also make it prohibitively expensive. The judge needs to be able to award damages and attorneys fees to those who are vindicated. Otherwise, Red Flag laws will be used as processes of attrition, where defendents either appear pro se before the hearing, or are sucked dry by time off from work for the hearing and legal costs defending their constitutional rights.

      No one should represent themselves before a judge while the police are depicting them as mentally unstable, yet the cost of representation may prove prohibitive. Even indigent gun owners who qualify for public representation are vulnerable, because the limited resources of public defenders prioritize criminal cases.

  4. My two cents: either everyone is a journalist, or none are. This ‘spy’ tactic is a time honored one used by the left my entire life. They just don’t like the tables turned when their priests are caught in corruption.

    Tough.

      • Yup. I see this more and more in terms of war and less of ethics. The left has relentlessly attacked, and we can fight back, or perish.

        Sorry. My cynicism is boosted by the flu that as kicked my feet out from under me. I got immunized but this strain was not covered. I wonder if it was covered in the South American shot?

  5. 2. Impeachment

    The new rules are that the un-elected bureaucrats set national security and international relations policy. The Article II powers of the President of the United States are a dead letter.

    So sayeth the Democrat party. Except, of course, the new rules only apply to other people — because “other” is the Democrats’ stock in trade.

  6. 3. “We are rapidly reaching the point where journalists need to be defined with some specificity. The problem is that is that so few professional journalists practice journalism any more, at least the ethical variety. Is anyone with a laptop and a camera a journalist?”

    I’ve made this point before, but differently; One demonstrates that they are a journalist by journalisming…. Or by holding up a camera phone…. Or having a blog. Because there are schools for journalism, but they aren’t required, because there is no accreditation, because the SPJ is toothless, and largely ignored, because any idiot with a camera, a laptop, or a channel on YouTube can put together more professional investigative journalism than CNN on and day of the week ending in the letter Y… we’re all journalists. or no one is.

    We need to stop putting the profession up on a pedestal and treating the job title as if it’s meaningful. It isn’t. It hasn’t been in more than a decade. The people who purport to be journalists are largely self aggrandizing partisans who wouldn’t know what investigative journalism was if it bit them in the taint. They don’t act like the title of journalism should be respected, so why the bloody hell should we? (I’m looking at you, Jim Acosta…. Although, to be fair, so are you. You’re just looking much more tenderly and lovingly into that mirror than I’m looking towards you. I’m jealous. Everyone! Find someone that loves you like Jim Acosta loves Jim Acosta.)

    This isn’t to say that journalism should be left out to dry. No, they should have the same protections as any other citizen in regards to the first amendment. And that should be enough. And if it isn’t enough, then perhaps we need to strengthen our commitment to free speech, and not pick winners and losers via some ephemeral, meaningless job description.

    4. “Polanski was recently accused of a second rape that allegedly occurred in 1970.”

    Perhaps this time it was *rape* rape, as opposed to that other kind of rape. You know, the oe that allows people like Whoopi Goldberg to draw distinctions to rape. I’m thinking the rape that doesn’t count as rape is maybe a playful kind of rape; a struggle snuggle? Perhaps the participants are speaking in really bubbly tones, backed by children’s music. “Let It Go?” Perhaps?

    5. “The authorities in the Seattle area became alarmed at a photo on social media in October showing a man holding two AK-47-style rifles above a caption above read: “one ticket for “Joker” please.””

    This is almost certainly what was reported, but I always cringe at “AK-47 style” weapon. What does that even mean? Scary black gun? There are AK-47’s that aren’t “AK-47 style” weapons by most of the ways that style could be described; it’s one of the most versatile models out there, right up there with the AR-15. I wonder if things like this are reported that way because the “journalists” involved are too lazy to figure out what the actual weapons were, or they have a narrative to spin, and they don’t want to confuse their audiences by telling them that there are more than 12 models of guns out there.

  7. “His defense is that he was acting as an investigative journalist. No, he was acting as a spy, trying to see what he could find.”

    Well that’s just wrong. Assuming there is a difference between a spy and an undercover journalist (and I think there is) then that difference is clearly intent. A spy infiltrates an organization to gather information for another competing organization’s private gain. A journalist does the exact same thing except the information is released to the public for the general gain.

    A few test cases:
    Operation Brunnhilde where communists stole industrial secrets from the west and gave them to the soviets who then… kept them in house instead of broadcasting them openly to the world at large. Spying, clearly.

    1993’s GM vs VW snafu where VW ended up paying 100 million flat and 1 billion in sales over 7 years to GM after they engaged in industrial espionage. Again the fruits of that labor were not broadcast to the world, but held privately by VW. Spying, clearly.

    Elizabeth Jane Cochran lied and said she was crazy to infiltrate a mental hospital and expose the cruelty of their practices. Did she hold that herself and use it for monetary leverage in a lawsuit? Nope. Released it to the world and prompted significant reform of the mental health industry. Journalism, clearly (and pretty goddamn close to what Project Veritas did).

    The Zimmerman telegraph is probably the best example of this divide. The British intercepted a really nasty telegram from Germany to Mexico trying to convince Mexico to invade the US. What did they do with that telegram? They held it close to their chests for a few weeks while they desperately tried to figure out a believable cover story that would convert what was obviously spying efforts into internationally valid journalism. They found a good lie, ran with it, and the US entered WW1 shortly after. If some erstwhile reporter had stumbled across the telegram and decoded it themselves, those few weeks of cover story brainstorming wouldn’t have been necessary. Clearly, the British were engaged in spying.

    I vaguely recall that the British Ultra decrypter broke the German code and allowed several smaller towns and shipping efforts to be bombed so that the Germans would think the code secure and it use it to transmit orders about larger attacks. I’m out of time to dig into it though.

    In any case, James OKeefe is a lying hyper partisan ass hat but he’s also very cleanly engaged in the act of journalism. He’s out there bringing truth, however ugly, to the wider world not squirreling it away for private gain or leverage. Any gain he gets from the truth is as incidental to the ethics as the gain the NYT got from Elizabeth Jane Cochran’s lies.

    • This is a very strong argument. The problem seems to boil down to who’s ox is being gored, or alternatively, who gets to define “journalism.” Or perhaps both. It is arguable that technology has made defining “journalist” near impossible. Or perhaps said better, it has broadened any reasonable definition to the point of uselessness.

      There is no question the incident under discussion was not done to steal competitive, or otherwise valuable secrets. The secret selling of body parts is not some kind of legitimate business deserving the protection of a cause of action. Rather, the intent was to expose that practice and embarrass the perpetrator into changing their ways. And as this is a matter of legitimate public interest where “journalists” clearly come down on one side of the argument, they would have no interest whatever in investigating what Planned Parenthood was doing.

      So if we define “journalism” as narrowly as journalists would like, we are effectively abridging the First Amendment protections afforded to people practicing the same art, but without the legitimacy granted by a group of people setting themselves up as guardians of the profession. This seems unlikely to survive Supreme Court scrutiny.

  8. RE: #1
    Now let’s see if the Patriots sign him…

    Doubtful. Running backs, the Patriots have. They’re looking for offensive linemen and pass catchers.

  9. Being held accountable for your words is the basic corollary to the 1st amendment. If you think it important enough to say, then say it and stand by your words…Too many of our Rights are being hemmed in and cut away by fear of the consequences..

  10. He had no history of criminal or drug issues. Donnelly’s lawyer described the seizure of the weapons from his home as an intrusion on both his First Amendment and Second Amendment rights. The judge agreed.
    So do I. “In order to have enough liberty, it is necessary to have too much.”

    And if Donnelly goes on a shooting rampage using those weapons returned to him? That will be moral luck. The correctness of the judge’s ruling will not be changed.

    This is similar to stop-and-frisk, which Michael Bloomberg had defended for years.

    http://thinkprogress.org/mayor-bloomberg-equates-civil-rights-group-fighting-stop-and-frisk-with-gun-lobby-extremists-38db41d98092/

    I loathe that illegal guns threaten our communities every day, especially black and Latino communities, because politicians don’t have the courage to stand up for the measures that can save lives. In Washington, some elected officials don’t have the courage to stand up to the special interests on the right and pass common sense gun laws. And in New York City, some don’t have the courage to stand up to special interests on the left and support common sense policing tactics like stop and frisk. We don’t need extremists on the left or the right running our police department, whether it’s the NRA or the NYCLU.

    Note that Bloomberg described both gun control laws and stop-and-frisk as “common sense”.

    • Also note that he slips up up and deviates from anti-firearm dogma by stating “…illegal guns threaten our communities…”. He’s supposed to claim that all the law-abiding owners and their legal firearms are the ones who need to be further burdened with more ineffective regulations.

  11. #2 I started compiling a list of what I would consider genuinely what impeachable actions by past Presidents The list makes the current impeachment push look even more contrived than it already is.

    I’ve been thinking about this, too. When I’ve discussed this online (with people I know), I usually conceed that it is not proper and put the Ukrainians in a shit situation. However, I can also see nothing so grossy illegal that it deserves impeachment.

    From the beginning, I accepted that even if the situation were 100% true and as bad as it could possibly be, it was still a contrived basis for impeachment.

    Yesterday, I realized that all these hearings are doing is proving that the situation is 100% true. My opinion of the underlying conduct has not changed.

    If presidents exploiting there lawful powers to politically damage there opponents were clearly impeachable conduct, what then is using the entire weight of the IRS to harass conservative organizations?

    Res ipsa loquitor

    Samantha Bee said recently “All these bombshells do is confirm what we already know!”.

    Exactly.

    • It is no crime at all, the motives are mixed, and the investigation would have been justified if the former VP was retired. What Bee means by “what we already know” is that the voters elected a monster who has to be taken down at all costs. She’s been saying so for years.

  12. #3 I’m quite sure the callousness was typical on the organization, but that doesn’t justify the lies and violations of privacy the “journalist” engaged in to get it recorded.

    Two of my friends attended a public open house for an abortion clinic in New Haven to mark its thirtieth year in operation. When they were leaving, the crowd sang “Happy Birthday” to the clinic.

    A.R.P. [Civil Society of Authors, Directors, Producers.], an association of film directors, is putting a motion before its members to exclude anybody convicted of sexual assault, and suspend any member being investigated for it.

    This would seem a straight forward policy (albeit three decades late). It’s own thing to appreciate existing work, it’s another to enable a predatory artist going forward. Professional societies are meant to encourage voluntary ethical behavior and practices among it’s members, as an integral component of promoting the industry.

    • In their profession, about 75% of directors commit what #MeToo would call sexual assault. This would be the most hypocritical grandstanding I can imagine. Why just sexual assault? Why not other crimes? A member gets suspended for a single accusation resulting in an investigation? Associations are supposed to support members, not throw them under the bus. By all means, have a rule or a Code provision declaring harassment and assault unethical. But even the ABA doesn’t eject a lawyer accused of either.

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