Morning Ethics Warm-Up In Vegas, Afternoon Warm-Up In Alexandria, 11/22/2019

Walter Cronkite, Nov. 22, 1963, relaying the shocking news that changed…everything.

Good whatever it is where you are!

1. President Kennedy was assassinated on this date in 1963. He had been President exactly as long as Donald Trump has, and by most measures, President Trump has accomplished more,despite the fact that JFK really did have “the best people.” You might have to go back to George Washington to find a more qualified Cabinet.  By this point in his term, JFK, we now know, had already committed impeachable “high crimes and misdemeanors” notably through his reckless sexual escapades with an Israeli spy and a mob moll, allowing J. Edgar Hoover (speaking of Deep State villains) to blackmail his administration, and perhaps others. Yet the vast majority of the public regards Kennedy as a great President, which shows what a pretty face, an inspiring speaking style, a complicit news media, and getting shot will do for a President’s reputation.

I’d ponder what this nation would be like if Lee Harvey Oswald had missed that beautiful day in Dallas, but that way madness lies, as King Lear like to say.

2.  How many botches can Joe Biden’s campaign take?  The Biden campaign sent out an email about Joe’s performance in the Democratic debate several hours before ithe debate had started. “Did I make you proud?” it began. (I can’t imagine another typical stumble-fest from Biden would make anyone proud, but never mind)

“I’m leaving the fifth Democratic debate now,” It continued. “I hope I made you proud out there and I hope I made it clear to the world why our campaign is so important.”

I wrote about something like this during the 2012 debates, when USA Today published an analysis by a conservative and a liberal pundit over the previous night’s Obama-Romney debate that was obviously written before the debate took place. These things are lies. What should the public take away from learning about them? They should learn that the people involved will deceive them even when they don’t have to.

“You might have just gotten an email from Joe about just getting off of the debate stage,” the rapidly deployed statement from the embarrassed campaign said.  “That’s our bad, team. We know Joe is going to make us proud tonight. We were just so excited for it that we accidentally hit send too soon,” they added.

Huh? If the message was written before the debate but pretended that it was written after the debate, it is a lie regardless of when it is sent.

3. Eugene Volokh reports on more unconstitutional speech restriction:

From Castro v. City of Clovis, decided Friday by Judge Dale A. Drozd (E.D. Cal.):

… On June 13, 2019, plaintiff filed this action, alleging violations of his rights to free speech and due process. According to the complaint, plaintiff is a former Clovis High School student who recently turned 18 and finished high school. Plaintiff was scheduled to attend his graduation ceremony on May 30, 2019, when his school “revok[ed] his VIP sitting privilege in the graduation ceremony, remov[ed] him off the school premises, and enjoin[ed] him from participating in his long-awaited graduation ceremony that was by then only 3 hours away,” allegedly as punishment for a tweet that he had posted on Twitter. In that tweet, sent to a Nigerian friend on an unidentified date before his graduation, plaintiff used the words “nigga” and “nigger,” apparently with his friend’s consent and as a form of “intercultural communication.” Another Twitter user saw the tweet and reported it to the school, which, in addition to barring plaintiff from attending his graduation, “order[ed] him to delete the alleged offensive message from his [T]witter account[.]” …

Castro sued on various theories, but the one that survived the motion to dismiss (and the one I’m interested in here) was the claim that the school’s actions violated his free speech rights; and, surprisingly, the defendants’ entire argument as to free speech was,

In his first cause of action, Plaintiff alleges that Defendants violated Plaintiff’s right to Freedom of Speech under the First Amendment of the United States Constitution because Defendants disciplined plaintiff for using language that is almost universally considered to be profane in nature. Although the First Amendment of the United States Constitution guarantees broad speech liberties to persons residing within the United States, it is not without limit. Of note, certain speech activities of pupils at public schools may be limited. The California Education Code § 48907(a) states that “Pupils of the public schools, including charter schools, shall have the right to exercise freedom of speech and of the press including, but not limited to, the use of bulletin boards, the distribution of printed materials or petitions, the wearing of buttons, badges, and other insignia, and the right of expression in official publications, whether or not the publications or other means of expression are supported financially by the school or by use of school facilities, except that expression shall be prohibited which is obscene, libelous, or slanderous.” (Emphasis added.)

In this case, Plaintiff used the word “nigga” and “nigger” which was seen by someone who took offense to the use of Plaintiff s choice of words. So much so, that this (unidentified) person reported Plaintiff s speech activities to Defendants. As noted in California Education Code § 48907(a), pupils of California schools do not have the right to expression which is obscene, libelous, or slanderous. As the words “nigga” and “nigger” are universally considered obscene, Plaintiff does not have Constitutional protection for this expression. Because Plaintiff does not have any First Amendment protection for said obscene language, his First Amendment Right related to this particular expression cannot be violated.

But, as the court points out, this reflects a misunderstanding of what “obscene” means in First Amendment law.

Defendants argue that plaintiff’s free speech claims must fail because the terms “nigga” and “nigger” are obscene and therefore not protected speech. It is true that courts “have long held that obscene speech—sexually explicit material that violates fundamental notions of decency—is not protected by the First Amendment.” However, as plaintiff points out, the terms “nigga” and “nigger,” while offensive to many, are facially not sexually explicit and, thus, cannot be considered obscene under the framework set forth by the U.S. Supreme Court. Thus, defendants’ motion to dismiss on the basis that plaintiff’s tweets are obscene speech not protected by the First Amendment will be denied.

Volokh adds,

(The California Legislature could define “obscene” differently in in its statute if it wanted, but there’s no indication that it aimed to use a different definition—and in any event, the plaintiff’s claim is that the school’s actions violate the First Amendment, not the state statute.)

So the school thought “the N-word” could be punished because it’s obscene? So much for English language proficiency. Imagine: a tweet that had nothing to do with school or the person offended by it was considered sufficient to justify yanking a kid out of his high school graduation! You literally can’t get there from here. How did the idea take hold that we can seek punishment for someone’s words when they aren’t even directed at us? If the school administrator don’t immediately hear ethics alarms clinging in their skulls when they consider punishing the tweeter, how can they be trusted to educate students?

I have to mention, however, that using Twitter like it is email qualifies as epic stupidity and social media incompetence. [Note: I owe someone a Pointer for this, but lost the email. Whoever you are, thanks!]

6 thoughts on “Morning Ethics Warm-Up In Vegas, Afternoon Warm-Up In Alexandria, 11/22/2019

  1. Jack: “If the message was written before the debate but pretended that it was written after the debate, it is a lie regardless of when it is sent.”

    I don’t entirely agree with this. I imagine that most campaigns, most new organizations, sports writers, theater critics, etc. begin writing things beforehand.

    If I am reviewing a play, I might be able to lay out half of the review ahead of time, just by knowing what is in the program. the substance of the review would have to wait for the performance but the writing could begin beforehand.

    With an election campaign, where there will be nothing critical of Biden, probably 80% or more could be written beforehand, only adding particular highlights to points he was actually able to make in the debates. But, you would not have to wait until after the debate ends to begin writing all of the fluffy parts that you know you are going to say anyway. Let me give you an example:

    BOILERPLATE: “I hope I made you proud out there.”

    SPECIFIC INSERTION: “i was more coherent and articulate tonight than I was during the last debate and am on pace for complete lucidity by next November.”

    Instead, I think the issue here is simple incompetence; they sent it off accidentally. We have all hit the Send button too soon, or by accident. You try not to, and there is a good chance of looking dumb if you do. But, when your goal is to convey competency, such errors are particularly damning. it is so easy to have your draft going in Word until it is done, then you cut and paste over to e-mail. That this got shot off early shows bad public relations management.


    • This was not a,result of someone hitting the send button too soon. Emails of this type are handled by services designed to push tens of thousands of messages out at once. Someone entered the wrong send time into the batch process program.

        • Good point but I never created an email of real importance in the email program just for that reason. I would craft the message in Word and use its capabilities to spice up the verbiage, check spelling and grammar, and save it as a doc file. When it was ready Iwould merely copy the text and paste it in the email editor.

          It’s safer that way; especially when you plan to use reply all.

    • I agree that “everybody does it,” and that it might be convenient and efficient, but the fact is that you are writing that you did something before you did it, and descriibing something that hasn’t happened yet. This how Newsweek ended up with it’s Hillary Elected” cover. You can write a letter than will be accurate whatever occurs, but it is still dishonest to mislead the reader, and implying that what was written was written after an event that hasn’t taken place is misleading. No way out.

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