Saturday Afternoon Ethics, 11/13/2021

vietnam mem

On this date in 1982, the Vietnam Veterans’ Memorial was dedicated in Washington, D.C. It has one of the more remarkable stories of any memorial or monument in our Capital. A deceptively simple V-shaped black-granite wall inscribed with the names of the 57,939 Americans who died in the conflict arranged in order of death date, the striking and sober memorial was the design of Maya Lin, a Yale University architecture student who won a nationwide competition. Many veterans and veterans’ groups initially hated Lin’s winning design, which they felt degraded their service and represented the controversial war ” as an ugly gash in our history.” However, within months of the memorial’s dedication, either by design or kismet, it became the most dynamic memorial of them all, as veterans and families of the perished walked the black reflective wall seeking the names of their loved ones and then leaving notes, flowers, photos, dog tags and even cans of beer. That tradition hasn’t changed since: the spot is among the most moving in the city, or anywhere in the nation. A Smithsonian Institution director called it “a community of feelings, almost a sacred precinct,” and a veteran declared that “it’s the parade we never got.”

My law school and section classmate, Robert W. Doubek, was one of the dedicated veterans instrumental in making the memorial a reality. He also graced the cast of a couple of my Gilbert and Sullivan shows at Georgetown. Bob wrote about how the memorial was created here.

1. Good for him. Stephen Sweeney, the second most powerful lawmaker in New Jersey and victim of one of the most stunning upsets of all those that rocked his party on election day, conceded defeat last week. The loss had been close enough to justify waiting until all the votes had come in, but eventually Sweeney had to face reality: virtually unknown truck driver Edward Durr had beaten him with a threadbare campaign—he spent less than $2000— that nobody believed could succeed. Once, Sweeney was considered a future contender to be governor of the Garden State. No more.

“The results of Tuesday’s election are in. All votes have been fairly counted. And I, of course, accept the results,” Sweeney said. “I want to congratulate Mr. Durr and wish him the best of luck. The people in the third legislative district are the best in New Jersey. It has been an honor and a privilege to represent them in the state Senate and to serve as the president of the state Senate.”

That’s the way it’s supposed to be done. Hillary, Trump and Stacey Abrams, take note.

2. Seldom are the words of the old knight more appropriate…

Jeffrey Pollock, an Allegheny County (Pennsylvania) attorney, was trying to pass through a metal detector at the Family Division courthouse in downtown Pittsburgh. His suspenders kept making the gate beep, and he didn’t want to remove them. When the security guards refused to “wand” him, he argued with them, and as he said later, he “had a brain cramp, a brain fart, whatever you want to call it” and took stripped off his pants. Pollock was arrested, released and charged with disorderly conduct in the courthouse.

Will ethics sanctions follow? I don’t think so…

3. I have to ask…my sister, an intelligent woman and lawyer, was ranting about what a disaster Biden and Harris were and then opined that if Trump is re-elected, it will be the end of our democracy. Why and how do people keep saying this? I’ve read it in op-eds and heard it on MSNBC, but nobody has ever offered anything close to an answer with any substance. It is, of course, just the holdover, Big Lie #3: “Trump Is A Fascist/Hitler/Dictator/Monster.” The only thing that has changed since Ethics Alarms formulated it is the freak-out over the January 6 riot at the Capitol, because if there’s one way a mad fascist will try to take over the government, it’s with a mob of 300 idiots wearing funny hats and wielding bear spray. (As of yesterday, incidentally, CNN was still calling this “the insurrection.”

I want to have someone get on the comments board and explain what President Trump did in four years that constituted a threat to democracy, or that suggests that he will be a threat to democracy if he wins another term. The closest might be refusing to accept the legitimacy of the 2020 election, but the Democrats spent his four years denying the legitimacy of his election, so I don’t see how that makes Trump a unique threat.

By any substantive and objective measure, the Biden Administration has been threatening democracy more in ten months than Trump did in his entire time in office. The Fifth Circuit just slammed the vaccination mandate as unconstitutional and an over-reach of government power. What did Trump attempt of that magnitude? Nothing. The Democrats tried to undo as much of an election as possible using historically invalid grounds for impeachment. Did Trump use the IRS to shut down opposition during an election? No, that was Obama. Did his Education Department push colleges and universities to abandon due process in sexual harassment and sexual assault cases? No, THAT was the Obama DOE. Did Trump use corporate allies in Big Tech and Social media to muzzle the speech of political adversaries? No, that would be the Democrats. Did he push to eliminate the filibuster, a measure designed to protect against “tyranny of the majority”? Did he agitate to pack the Supreme Court? To make “hate speech” an exception to free speech guarantees? To undercut the Second Amendment, which protects the rest? Did Trump lock up and prosecute political rioters that supported his adversaries while allowing rioters who supported his party to run amuck and go free? Was Trump bolstered and protected by a news media overwhelmingly behaving as a state propaganda network? Did Trump’s Attorney General sic the FBI on parents who strongly protest school policies and teaching on gender and race?

Nobody is more convinced than I that another Trump Presidency would be unhealthy for the nation, but if there is a threat to democracy, it’s coming from his foes, not him. Unless, of course, there is someone who can present actual evidence to the contrary. I don’t think there is.

4. From the Res Ipsa Loquitur files: A court really had to rule that rap lyrics aren’t evidence. From Bey-Cousin v. Powell, decided Tuesday by Judge Joshua Wolson:

Vincent Van Gogh summarized an artist’s inspiration: “You must start by experiencing what you want to express.” But while many artists base their art on experience, they also embellish, change, or distort their experience for purposes of their craft. The question before the Court is whether a party to a lawsuit can use an artist’s expressions against him as evidence of the truth. And the Court’s answer is, “Not always.”

In a society that treasures First Amendment expression, courts should start with a presumption that art is art, not a statement of fact. To rebut that presumption, the party offering the evidence must demonstrate that the art is the artist’s attempt to tell a factual story. The mere fact that an artistic expression resembles reality is not enough because holding otherwise would risk chilling the free expression that our society holds dear.

Muadhdhin Bey-Cousin is one such artist. As a budding hip/hop rap artist, he released an album called “Busted by Da Fedz Vol. 1” while facing gun possession charges. Now, Defendants Ernest Powell and Phillip Cherry want to use Mr. Bey-Cousin’s lyrics against him. But Officers Powell and Cherry have not put before the Court enough facts to rebut the presumption that Mr. Bey-Cousin’s lyrics are art. The Court will therefore exclude them from the trial in this case….

Late in the evening on March 28, 2016, two officers in the Philadelphia Police Department heard a call for back-up which included a description of a 160-170 pound, 21-year-old, light-skinned African American man with minimal facial hair who was wearing dark blue pants and a red hooded sweatshirt (or red jacket). In response to that call, those officers, Defendants Ernest Powell and Phillip Cherry, stopped Mr. Bey-Cousin, a 200 pound, 32-year-old, dark-skinned African American man with a long beard who was wearing black sweatpants and a red puffer jacket. That stop led to an arrest and conviction in federal court for being a felon in possession of a firearm. Mr. Bey-Cousin remained incarcerated from March 28, 2016, until December 2018, when the Third Circuit vacated the conviction. Mr. Bey-Cousin alleges that Officers Powell and Cherry planted a firearm on him during the arrest. In his Complaint, he asserts violations of 42 U.S.C. § 1983 for malicious prosecution and malicious use and abuse of process….

Officers Powell and Cherry assert the songs describe the facts at issue and suggest that the Court permit them to cross-examine Mr. Bey-Cousin about the lyrics. Officers Powell and Cherry also argue that the jury should hear Mr. Bey-Cousin’s lyrics to assess Mr. Bey-Cousin’s claim for damages based on harm to his career….

Under Federal Rule of Evidence 104(a), a court must decide any preliminary question about whether evidence is admissible. Evidence is relevant if it has “any tendency to make a fact more or less probable than it would be without the evidence.” When the relevance of evidence depends “on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.” The Parties have not identified, and the Court has not found, a case that sets forth a rule to determine when artistic expression is relevant. In determining whether an artistic expression is relevant, the Court finds guidance in Federal Rule of Evidence 102, which directs courts to construe the Rules of Evidence “so as to administer every proceeding fairly … to the end of ascertaining the truth and securing a just determination.

These rules require the Court to start with a presumption that artistic expression is not factual, for two reasons. Artists might base their work on real life, but they take creative liberties that blur the line between fact and fiction. Embellishment and fictional elements pervade, even when the artist draws on real world experience for inspiration. Thus, the introduction of artistic expression as a party admission will often not further the end of ascertaining the truth.

In addition, if artists or budding artists know that their expression might put them in legal jeopardy, they might put down their pens, pocket their paintbrushes, or bite their tongues. As a society, we encourage that type of expression. A rule that discourages it would not be just, either to the parties or to the broader public. The Court recognizes that starting with a presumption that artistic expression is not a factual admission might in some cases lead to the exclusion of admissible evidence. But the First Amendment requires no less.

To overcome that rule, the proponent of evidence must offer some preliminary indicia that the artistic expression is a truthful narrative, like the inclusion of factual detail that is not publicly available. In an effort to meet that burden, Officers Cherry and Powell point to the “seemingly autobiographical details involving the arrest and prosecution at issue in this case.” But their own words betray them: a “seemingly” autobiographical work is not necessarily autobiographical.

First, it is not enough just to show that an artist used the first person. Artists use the first-person as a tool of creative expression, sometimes to describe themselves, sometimes to describe a fictionalized version of themselves, and sometimes to describe a fictional character. Freddy Mercury did not confess to having “just killed a man” by putting “a gun against his head” and “pull[ing] the trigger.” Bob Marley did not confess to having shot a sheriff. And Johnny Cash did not confess to shooting “a man in Reno just to watch him die.”

Second, it is not enough to show that an artist’s expression bears some resemblance to real life events. Writers ripped Law & Order’s scripts from the headlines, but they disclaimed, “The following story is fictional and does not depict any actual person or event.” The People v. OJ Simpson and The Assassination of Gianni Versace, two American Crime Stories, depicted real events, but were not necessarily factual retellings.

Third, it is not enough even to show that an artist wrote in the first person about events that resemble real life. Examples abound. In the television series The Goldbergs, Adam Goldberg chronicles his childhood exploits, with video excerpts at the end showing the real-life events that inspired the episode. Still, no one understands the show to be an accurate representation of events. The movie Captain Phillips depicts acts of heroism, but at least some reports suggest that it embellishes the events to favor Captain Phillips himself. Likewise, Eight Mile appears to be an account of Eminem’s youth in Detroit, but in fact it is a fictionalized account that bears parallels to his real experience. And musically, when Calvin Broadus (aka Snoop Dogg) released “Murder Was the Case” after his prosecution for the murder of a rival gang member, he did not suggest that he was confessing to a version of events other than what he presented at trial.

Officers Cherry and Powell argue that the Court should permit the jury to sort out whether Mr. Bey-Cousin’s lyrics are factual or fictionalized. But doing so would not be a search for truth. It would instead be a trial about an artist’s process, asking the jury to decide where the line is between inspiration and narration. Rule 102 does not contemplate such a trial issue. Nor does Federal Rule of Evidence 403, which permits a court to exclude otherwise relevant evidence if the danger of undue delay and a waste of time substantially outweighs the probative value. The collateral inquiry into Mr. Bey-Cousin’s artistic process would substantially outweigh the probative value that his lyrics offer….

As a society, we have decided to encourage free expression in all its forms. The Court will not adopt a rule that might undermine that goal. It therefore adopts a rule that presumes that artists tell stories, even when they draw inspiration from reality. Officers Cherry and Powell have not overcome that burden, so the Court will grant Mr. Bey-Cousin’s Motion and preclude evidence of his lyrics….

14 thoughts on “Saturday Afternoon Ethics, 11/13/2021

  1. 3. What a great list. Thanks for compiling it. Did it have any effect on your sister? I’m going to assume not. How do really smart people turn into random Democratic party talking point spouting machines?

    I think the “threat to democracy” talking point will be used against any Republican candidate. I’m guessing people like your sister consider Republicans, i.e. elected or party officials, or simply registered voters or even independents who don’t vote for Democrats, a “threat to democracy” because they are impeding the implementation of the progressive project. “Democracy” means “Democratic party hegemony.” Hillary not being president was a near fatal blow to the expected ascendance of democracy, as so defined. I’m beginning to think anyone defeating Hillary would have set off the same derangement. I think it’s well to do, mostly coastal but certainly smugly upscale urban and suburban, baby boomer lefties that comprise the lunatic demographic spouting this talking point. I know probably a dozen people by age who are absolutely rabid on these sorts of points that have no basis in fact whatsoever.

    These people have lost their minds. Trump Derangement Syndrome needs to be re-named Democrat Derangement Syndrome.

    • Actually, I’d describe my sister as a moderate Democrat who just doesn’t follow politics that closely and gets a lot of second hand opinions from her friends and peer groups…and watches too much MSNBC, as in “any.”

        • Well, she’s opposed to illegal immigration, she has many qualms about abortion, she favors nuclear power; she detests Hillary and Harris, and thinks Joe is pathetic, she is as much of a free speech advocate as I am, she finds Bernie Sanders ridiculous and dangerous. As a lawyer appearing before the DC Court of Appeals, she thought Scalia was fair and brilliant. She listens to arguments. She’s just irrational about Trump, the pandemic, and climate change.

          I’d call that moderate, no?

  2. 3.) I read recently that BLM is threatening “riots, fire, and bloodshed” if NYC’s new mayor reconstitutes a police anti-crime unit. Although not expressed as explicitly, I regard (or translate so that it actually makes sense) statements such as “Trump is a threat to democracy” as meaning that the Democrats will feel forced to double down on their anti-democratic agenda if the unwashed masses are dumb enough to reelect him (or anyone aligned with him).

    I think many people that voted for Biden were hoping that the heat would be dialled way back. That didn’t work out so well.

    Agree with Other Bill — great list.

    • I can’t swear on it, and trying to find something that was a legitimate, possible undermining of Democracy in the millions of articles that make false claims about Trump undermining Democracy, but I believe he requested Senator McConnell abolish the filibuster while the Republicans had enough Senators to abolish the filibuster. McConnell refused. He also had a few other questionable requests that were not fulfilled; attempts to fire or remove Don McGahn & Robert Mueller.
      A reminder of the caveat, sorting through reported threats amongst actual threats makes proving the above difficult to confirm.

  3. “it’s the parade we never got.”

    I was pro-military in general, but anti that particular war (it’s a puzzlement, as Yul Brynner said). Or, as Jack puts it the other way round,: you can respect the office and still diss the person sitting in it.

  4. Jack wrote:

    I want to have someone get on the comments board and explain what President Trump did in four years that constituted a threat to democracy, or that suggests that he will be a threat to democracy if he wins another term.

    I don’t think he did anything specific. Generally, what he did was use an unprecedented level of political rhetoric that shattered previous norms, upended any pretense of civility in public discourse (to the extent it wasn’t already), and produced the kind of reactionary, tone-deaf and uninformed statements that his opponents could paint in the most dire terms.

    Combine that with a Democratic party and lapdog media that decided to sell out in an attempt not just to cripple his presidency both from the minority and majority, but to personally destroy and even imprison him (and anyone who agreed with him) on a range of demonstrably false and hyperbolic faux-charges, and we have four years of chaos that, fair or unfair, Trump gets to own in the public mind.

    I know his opponents were at least as responsible for all this as Trump was, but because he was the President, most people don’t think of the “rabid dog Democrat years,” but rather the “Trump years.”

    Throw in a heaping helping of media hyperbole, and voilà! — you have Trump as a threat to our way of life. Is it a defensible position? Not really, but people can be forgiven for seeing the totality and blaming the president. The same thing happened to Carter, Nixon, and Clinton.

    By any substantive and objective measure, the Biden Administration has been threatening democracy more in ten months than Trump did in his entire time in office.

    I share that opinion. Biden’s use of executive authority has been inchoate and destructive, and the damage is being felt widely in the economy, public policy and in public discourse. His appointments to cabinet positions have been an abject train wreck, and when we were promised a return to normalcy, at minimum I would’ve expected sane, if leftist cabinet appointments. Alas, the least insane cabinet member of consequence is Janet Yellen, and I think she’s partially responsible for a significant portion of the economic chaos we are seeing. Can it be possible that Trump’s appointments were more responsible even given hindsight? At this point, I consider it a rebuttable presumption.

    I really wouldn’t have imagined that it would actually devolve further under Biden than Trump, but I appear to have been mistaken. To be fair, COVID-19 has exacerbated some of this wreckage, but Biden’s policies have amplified its effects by an order of magnitude at least.

  5. I’ve been to the memorial – I think the addition of some more traditional statues of Vietnam-era soldiers nearby added what was missing. Then again, I guess we’re lucky it didn’t get tagged or damaged last year.

    1. Ciattarelli also gave up the ghost and refused to say the election was stolen. Good for him, although I think he did it as much to preserve his viability in 4 years as any other reason.

    2. Stupid, although in all fairness some of these court security officers also act like idiots. I saw one such officer throw an attorney out of the courthouse bodily because he didn’t like the way he placed his briefcase on the conveyor to be scanned. Turned out the lawyer was the brother-in-law of one of the county freeholders. Two phone calls later and this officer was working midnights at the jail annex. Never gratuitously piss off someone whose capabilities you do not know.

    3. Yes, but you might as well be talking to the wall. The other side won’t defend their position, it’s too easy to just call you a racist instead.

    4. And that’s a rap.

  6. Apropos but not directly responsive: Andrew Sullivan, red-pilled again. A taste:

    We all get things wrong. What makes this more worrying is simply that all these false narratives just happen to favor the interests of the left and the Democratic party. And corrections, when they occur, take up a fraction of the space of the original falsehoods. These are not randos tweeting false rumors. They are the established press.

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