Author: Jack Marshall

It’s A Comment Of The Day Weekend! First Up…Comment Of The Day (3): “An Ethics Alarms Holiday Challenge! Identify The Rationalizations, Logical Fallacies, Falsehoods And Outright Errors In This Essay…” AND, In Related News, Another Bakery Gets Slammed In Oregon

/ Jack Marshall / 271 Comments

I’m not exaggerating: I have at least four Comments of the Day stacked up on the Ethics alarms runway after this one, and there are usually COTDs arriving on Saturdays. I can’t promise to get all of them up today, especially since I’m hacking away at the 2017 Ethics Alarms Awards, and this is a long working weekend at ProEthics. Still, I will get a lot of them to you, and it’s a provocative group, as you will soon see.

But first, a prelude and some context.

An Oregon appellate court this week upheld a ruling against the owners of the since-closed Sweetcakes by Melissa,  Aaron and Melissa Klein, forcing them to pay emotional-distress damages of $135,000 to Rachel and Laurel Bowman-Cryer, a lesbian couple for whom they refused to design and sell a wedding cake almost five years ago. The Klein’s argued that state Labor Commissioner Brad Avakian violated state and federal laws and their rights as artists to free speech, their rights to religious freedom and their rights as defendants to  due process.

The Oregon court ruled that the Kleins’ argument that their cakes entail an artistic expression is “entitled to be taken seriously,” but it’s not enough for the couple to assert their cakes are pieces of art:

“Although we accept that the Kleins imbue each wedding cake with their own aesthetic choices, they have made no showing that other people will necessarily experience any wedding cake that the Kleins create predominantly as ‘expression’ rather than as food.”

This mess commenced  when Rachel Bowman-Cryer went to the suburban Portland bakery with her mother in January of 2013. When Aaron Klein was told that the wedding did not involve a male partner,  he said that the bakery did not make cakes for same-sex weddings. They left, but soon the mother returned to argue with Klein as Rachel sat in the car, weeping. her mother went in to speak with Klein. The mother told Klein she had once thought like him, but having two gay children forced her to see the error of her ways.  Klein retorted with Leviticus: “You shall not lie with a male as one lies with a female; it is an abomination.”

The complaint and action by Oregon’s Bureau of Labor and Industries followed. You can read the opinion here.

Ugh.

This case is even worse than the one currently before the Supreme Court, discussed here. Continue reading →

Morning Ethics Warm-Up, 12/30/2017: Is Robert Mueller Biased? Are The Patriots Cheating Again? Is Larry Tribe Deranged? Is President Trump A Robot?

/ Jack Marshall / 18 Comments

Good Morning!

(Nothing better than waking up to a light dusting of snow!)

1 When you can keep your head when all about you are losing theirs…Alan Dershowitz, a Democrat and legal expert who has prominently avoided the ravages of anti-Trump mania that have crippled so many of his distinguished colleagues, tried to clarify several issues in the Mueller investigation on Fox News.

On Special Prosecutor Mueller personally and professionally: “I don’t think he’s partisan, I don’t think he cares whether the Democrats or the Republicans benefit from this.I think he’s a zealous prosecutor and if he were going after Hillary Clinton, he’d be going after her with as much zeal.”

On his investigative team: “Now that’s not true for some of the people on his staff. He should never have allowed these people to serve on this investigative staff, if they had the points of view that they’ve had towards Hillary Clinton and towards Donald Trump. That was a mistake…when you’re going after a president or a presidential candidate, you have to be ‘Caesar’s wife,’ you have to be above reproach, and he didn’t do a good enough job in vetting the people that he brought on to the prosecution and the investigative team, and that hurts his credibility.”

Correct, and obviously correct. So why is the White House and Fox News being criticized daily for questioning the legitimacy, fairness, objectivity, and independence of the investigation? It doesn’t matter if Mueller is personally fair and objective if he appoints biased and conflicted lawyers to do the work. That still means the investigation is compromised and untrustworthy. It also means that Mueller undermined the investigation exactly the way he could not afford to if he wanted its results to be accepted.

There is nothing inappropriate about those being investigated pointing out bias, incompetence and conflicts of interest by the investigators. Criticism of a legitimate complaint, backed up by facts, indicates that those critics  don’t care about bias, incompetence and conflicts of interest, if they lead to the result they crave.

2. Suspicion! Why would the NFL’s New England Patriots sign a washed-up, 39-year-old Pittsburgh Steelers veteran, James Harrison, with only one game left in the regular season, at a cost of about $60,000 for that game and for any play-off games the Patriots participate in? Harrison has barely played all season, is no longer a top performer, and was a discordant and disruptive presence in the locker room. Many sportswriters and fans believe that he is being paid by New England to be a turncoat, and to reveal  Steelers’ secrets that might provide an edge if the Patriots, as many expect, have to defeat Pittsburgh on the way to another Super Bowl. The Patriots have been caught cheating more than once. Would this be cheating?

I assume not, unless Harrison had an enforceable non disclosure clause that prohibited him from revealing Steelers plays and strategies even after he was no longer on the team. Indeed, it would be unethical for Harrison not to help his new team in any way possible. When New England signed him, they signed his body, mind and accumulated experience. Continue reading →

Ethics Quote Of The Week: Peggy Noonan

/ Jack Marshall / 8 Comments

“Why does all this matter? Because we are losing history. It is not the fault of Hollywood, as they used to call it, but Hollywood is a contributor to it. When people care enough about history to study and read it, it’s a small sin to lie and mislead in dramas. But when people get their history through entertainment, when they absorb the story of their times only through screens, then the tendency to fabricate is more damaging. Those who make movies and television dramas should start caring about this. It is wrong in an age of lies to add to their sum total. It’s not right. It will do harm.”

—-Former Reagan speechwriter and current columnist Peggy Noonan, after citing the material historical misrepresentations in the Netflix series “The Crown” and the new Spielberg film, “The Post.”

I have written about the ethics of misrepresenting history in films many times, always facing the “Lighten up! It’s just a movie!” chorus. As Noonan explains deftly, the stakes are different now, in an age of rotten public education, mass media and internet indoctrination. The first time I wrote about this issue was 2010, in the post “Titanic” Ethics. It concluded in part,

I don’t blame Cameron for not basing his portrayal on evidence that only was clarified years after his film. I fault him for discounting the testimony of survivors, and misinforming the public by plastering a false version on a giant screen for millions to see, knowing that they would trust that a man who would insist that the doomed ship’s china pattern was accurate…Now the film is back, bigger than ever, and false representations of Officer Murdock, “Unsinkable” Molly Brown, the sinking itself, and other aspects of the iconic event will be embedded even deeper into our historical understanding. It didn’t have to be that way, and it is wrong that it is. History, the public, and the 1500 who died that night in 1912 deserve better.

I’ve seen “The Crown,” and like it a lot. The portrayals that Noonan complains about, however, especially the suggestion that Jack Kennedy abused Jackie, rang false immediately. As for “The Post,” which I haven’t seen, Noonan calls out a misrepresentation of a cultural villain whom the film-makers probably thought nobody would rise to defend: Continue reading →

Comment Of The Day (2): “An Ethics Alarms Holiday Challenge! Identify The Rationalizations, Logical Fallacies, Falsehoods…”

/ Jack Marshall / 7 Comments

Well, still more Comments of the Day on this post turned up today, so I better get cracking. The first one is here. Next up is adimagejim‘s excellent comment that focuses on the concept of hate speech. But first, I want to give a special honorable mention to Aleksei, who was the only reader to follow the terms of the challenge as issued, which was to identify the rationalizations used by  Noah Berlatsky in his Essay That Will Live in Infamy. 

Aleksei perused the Ethics Alarms Rationalizations List and properly identified these:

1. “Everybody does it”
1A. “We can’t stop it”
13. “It’s for a good cause”
13A. The Road To Hell
23. “I’m just giving the people what they want”
27. The Victim’s Distortion
28. “These are not ordinary times”
29A. The Gruber Variation
30. “It’s a bad law/stupid rule”
31. “Ethics is a luxury we can’t afford right now”
35. “Better late than never”
48. “Haters gonna hate”
51. “That’s in the past”
57A. “If it save just one life”
58. “I’m all right with it
59. “It’s the right thing to do”

I’m still waiting for the logical fallacies. Obviously Noah employed “appeal to authority” (I am pretty sure that a law professor or two can be found to stand for just about any proposition, no matter how bizarre), “the ends justifies the means” (speaking of Nazis!), the “straw man,” and “post hoc ergo propter hoc.” I have to confess: I don’t want to linger enough on this piece of offal long enough to do a definitive analysis myself. Reading it makes me angry—oh not the article itself: stupidity doesn’t make me angry. What I find infuriating is that NBC would give it the legitimacy publication as a “thought experiment,” leading others as weak-minded as its author to give his arguments the same level of  credibility he gave to the addled professors.

Here is adimagejim‘s Comment of the Day on the post, An Ethics Alarms Holiday Challenge! Identify The Rationalizations, Logical Fallacies, Falsehoods And Outright Errors In This Essay Advocating Limits On Speech…:

To be just and transparent, self-proclaimed conservatives such as George Will in his doctoral thesis defends the notion of excluding others, like Nazis, from the formal political process due to their explicit seeking to undermine or eliminate the constitutional rights of others. This is not classically liberal thought nor does it appropriately defend the rights of political minorities, as abhorrent as they may be.

The problematic issue is the notion of hate speech itself. Who is to determine what is and is not hateful speech? Who is to codify it? Who will enforce it? Who will adjudicate it? Who will pronounce the types of sentences for it? It is apparent those advocating for hate speech regulations wish to be all of the above. And, again, by the annals of their thoughts, move the goal posts of right and wrong, illegal and legal as they see fit.

Proponents of this kind of thought advocate for the notion of those they view as currently empowered as the only people capable of doing harm and therefore are one crucial step closer to conviction in the kangaroo court of their minds.

Has anyone seen what are proposed to be microaggressions by the hate speech law proponents? It is both amazing and unintelligible. Your job as the allegedly empowered is to unceasingly bow to the offended for offenses committed by you by your existence.

The result of all this would likely be an intellectual, if not actual, concentration camp. A camp to be run by erstwhile comic book editors.

Ethics Observations On Pew’s “17 Striking Findings From 2017”

/ Jack Marshall / 19 Comments

#1Partisan divides dwarf demographic differences on key political values. The average gap between the views of Republicans and Republican-leaning independents and Democrats and Democratic-leaning independents across 10 political values has increased from 15 percentage points in 1994 to 36 points today. Two decades ago, the average partisan differences on these items were only slightly wider than differences by religious attendance or educational attainment, and about as wide as differences across racial lines. Today, the partisan gaps far exceed differences across other key demographics.

I attribute this ominous development to both parties crossing previously observed lines of appropriate political tactics and rhetoric, picking at the seams that hold our society and democracy together. The GOP-advanced Whitewater investigation of the Clintons’ financial shenanigans began the criminalization of politics. President Clinton’s arrogance and recklessness as a sexual predator placed Democrats in the position of defending unethical conduct especially repugnant to conservatives, and the furious (and dishonest) efforts of both Clinton and Democrats to deny the legitimacy of his impeachment drove the parties further apart.

The essentially tied election of 2000 came at the worst possible time, but Democrats made its wounds to public comity worse that they had to be by using the false claim that the election was “stolen” to energize its base for years. The rise of hyper-partisan leaders in the House and Senate—Gingrich, Pelosi, McConnell, and worst of all, Harry Reid—continued to poison discourse.  The Iraq War fiasco, a Republican mistake, and the false Democratic mantra “Bush lied…” in response to it exacerbated the divide. Then the bi-partisan botches that led to the 2008 crash were widely attributed only to Republicans. Spurred by the prospect of a black President, the news media, always heavily tilted leftward, abandoned large portions of its ethical values to be an unapologetic cheerleader for the Democratic candidate, because having a black President elected would be so darn wonderful for everybody. Thus did the media fully embrace “the ends justifies the means” as an operating principle/

The inevitable racist response of a minority—but a vocal one—in conservative and Republican circles to the prospect of a black President caused further division, and Obama’s alliance with an openly racist Reverend Wright caused more racial polarization. Once elected, President Obama could have healed much of the damage since 1994 (as he promised to do) , but instead he chose to leverage divisions among races, genders, ages, classes, gays and straights, and legal and illegal immigrants for political advantage. His supporters, meanwhile, including those in the news media, began using accusations of racism to smother and inhibit legitimate criticism. Obama broke with Presidential tradition by repeatedly blaming his predecessor for problems he proved unable to solve, keeping partisan resentment hot.

Even with all of this, Obama could have healed much of the accumulated partisan antipathy if he had been an effective leader. He wasn’t. In contrast to his predecessor he was an effective (though over-praised) communicator,and in marked contrast to the current POTUS, he played the part beautifully, and that’s not inconsequential. The rest, however, was an ugly combination of misplaced priorities, incompetence, laziness, racial bias and posturing, with awful results. This hastened the divide, because Obama’s core base, the African American community, was inclined to view him uncritically no matter what he did. As other groups called out the President on his failings, that group’s loyalty and bias drove it, and allied groups, into defensive, knee-jerk ideological opposition, as the growing power of social media exacerbated hostility between the ideological polls.

Obama’s divisive administration, rhetoric and poor governing habits begat Donald Trump.

And here we are. Continue reading →

Comment Of The Day (1): “An Ethics Alarms Holiday Challenge! Identify The Rationalizations, Logical Fallacies, Falsehoods…”

/ Jack Marshall / 10 Comments

While I was away talking about legal ethics with some extremely lively and ethically astute D.C. lawyers, I challenged the Ethics Alarms regulars to identify the rationalizations, logical fallacies, falsehoods and outright errors in this risible essay by Noah Berlatsky, who presented a terrible case for suspending the First Amendment in the case of “Nazis” (not that there is a good case available) that was somehow deemed worthy of publication on the NBC website, in a section called “Think,” of all places. To be fair, NBC does not have a section called “Brain Dead,” so that wasn’t an option.

A brief sample of Noah’s reasoning:

“This doesn’t mean that the First Amendment is useless, clearly. Hopefully it will play a part in helping the protesters, known widely as the J20 defendants, go free. But it also isn’t a cure for all social ills. Hate speech hurts marginalized people, and the First Amendment doesn’t always and invariably protect them. Free speech advocates say that hate speech “is a price ‘we’ pay for living in a free society,” Delgado told me, but they never stop “to add up the two accounts” or look “to see on whom the price is imposed.”

“I’m expecting some Comments of the Day when I get back from my seminar,” I wrote.

I got them. First up is this masterful effort by Mrs. Q. As of this moment, Mrs. Q holds the Ethics Alarms record for the best Comment of the Day- per-comments-made-ratio (min. 25 comments or more). This COTD is also notable for its rare format, the satirical parody.

Here is Mrs. Q’s Comment of the Day on the post, An Ethics Alarms Holiday Challenge! Identify The Rationalizations, Logical Fallacies, Falsehoods And Outright Errors In This Essay Advocating Limits On Speech…:

Hi. My name is Noah. I’m Jewish so I can tell you all about what black people go through. Also I just fuckin’ hate Nazi’s for the obvious reasons. So anyway I’m mostly going to refer to one book by two authors as my jumping off point. I know that’s rather limited in making a coherent case but hey, free speech right?

First off I want you to know I’m woke. You know this because even though my fellow liberals are becoming more anti-Semitic thanks to Black Lives Matter collaborating with BDS, I’m still being published on NBC news which you know, is super down, which means I’m super down too. Continue reading →

Morning Ethics Warm-Up, 12/29/2017: Daring The Alt-Right

/ Jack Marshall / 62 Comments

GOOD Morning, Everyone!

1 Ethics Alarms Holiday Challenge! report: You did not disappoint  me. I have not read all the comments in detail yet, but the various evisceration of NBC’s jaw-droppingly stupid call for an end to freedom of speech produced at least five strong Comment of the Day candidates. I won’t re-post all of them, because Noah’s inept screed doesn’t warrant that much space, frankly. Good job!

On a related administrative note, I’m really going to try to get all the Ethics Alarms Best and Worst completed this year (having fallen short the last two), and would appreciate nominations in all categories. (Some examples are here and here, but don’t feel constrained. New categories are welcome.)

Use this post, please, or e-mail me at jamproethics@verizon.net.

2. Doesn’t help…President Trump couldn’t resist tweeting this:

‘In the East, it could be the COLDEST New Year’s Eve on record,’ he tweeted from Mar-a-Lago Thursday night, where it is currently a balmy 78 degrees Fahrenheit Perhaps we could use a little bit of that good old Global Warming that our Country, but not other countries, was going to pay TRILLIONS OF DOLLARS to protect against. Bundle up!’ 

Ugh.

  • These are the tweets that try men’s souls. It’s just never a good thing for the leader of the country to broadcast his ignorance and deficits of critical thought.
  • It would be a bit less annoying—but still unpresidential and self-destructive,  if the President were satirizing the climate change chorus, which despite the fact that the science they claim to revere so much says its nonsense to do so, still cite individual weather events as “proof” of global warming, most recently the 2017 hurricane season. Or if he were trolling his foes, which he is often masterful at doing, trying to lure them into hypocrisy. Predictably, journalists took the bait anyway, with many suddenly becoming sticklers for the key distinction between  climate change, and weather after years and years of intentionally blurring in in their interviews and reporting. Sadly, there is no reason to believe the President was doing anything but trumpeting his own scientific illiteracy.
  • I wonder what the President’s approval ratings would be if he had never sent a tweet after taking the oath of office?

Continue reading →

An Ethics Alarms Holiday Challenge! Identify The Rationalizations, Logical Fallacies, Falsehoods And Outright Errors In This Essay Advocating Limits On Speech…

/ Jack Marshall / 61 Comments

…then please explain to me…

…why NBC would put such crap on its website, especially in a section called “Think”…

…how a freelance writer for a comic book website is deemed qualified to discuss Constitutional law..

…how people can graduate from college and not understand the principle of free speech better than this guy…

…why a “case” so easily refuted (“If you can proclaim what Nazis say as illegal speech, what will stop some other group with temporary power from declare your speech illegal?”) continues to be argued by so many?

Read the thing here.

(Keep a bucket handy.)

I’m expecting some Comments of the Day when I get back from my seminar…

 

Morning Ethics Warm-Up, 12/28/2017: Bad Lawyer, Bad Losers, Bad Lottery, Bad Policy

/ Jack Marshall / 10 Comments

 

GOOD MORNING!

1 Gee, I wonder how this happened? I’m doing a year-end legal ethics seminar for D.C. Bar members this afternoon, and this story showed up in time for me to use. A federal jury has found Evan Greebel, the former lawyer for convicted fraudster Martin “Pharma Bro” Shkreli guilty of helping the fick pharmaceutical executive craft a scam to repay defrauded investors. You remember Shkreli—this guy, who entered the Hall of Infamy for his unapologetic price-gouging of the HIV drug Daraprim after he bought the rights to the drug and  then hiked its price from $13.50 to $750.

Prosecutors  claimed Greebel, Shkreli’s lawyer during  scheme, gave his client detailed advice on how to pay off investors in his  hedge funds, MSMB Capital and MSMB Healthcare, with his company’s  funds, as well as how to circumvent trading restrictions. He was also was accused of participating in fraudulent backdating of documents and helping draft phony settlement and consulting agreements. Greebel’s lawyers countered that Shkreli was an evil manipulator who dragged his own lawyers, unaware, into his crimes. his own lawyers. Greebel, they said, acted in good faith as the outside attorney for Shkreli’s company, and lacked criminal intent.

The news story ends with this:

“Greebel, a partner with Katten Muchin Rosenman, saw his annual salary triple from $355,000 in fiscal year 2013 to $900,000 in 2014, when he was advising Shkreli.”

The moral: Nothing freezes ethics alarms like a lot of money.

2. What do Roy Moore, Al Gore and Hillary Clinton have in common? They are lousy losers. Moore, the horrible GOP candidate for the empty Alabama Senate seat, has filed a lawsuit to try to stop Alabama from certifying Democrat Doug Jones as the winner of the U.S. Senate race. Moore lost by 20,000 votes, but insists that there were irregularities. He wants a fraud investigation and a new election. Once upon a time, even the losers in close elections where some funny things went on conceded gracefully and accepted the results. This was a traditional demonstration of respect for the system and democracy, and girded our elections from cynicism and distrust. Even Samuel J. Tilden, the Democrat who was cheated out of the Presidency despite winning both the popular and the electoral vote, acceded to the back room deal that gave Hayes the victory.

No longer. Al Gore permanently killed that tradition in 2000, and Hillary’s minions set the corpse on fire in 2016. Now losing candidates can be expected to exploit any excuse imaginable to try to reverse election results. This is a dangerous slippery slope the endless Florida recount put us on, and I fear that it will eventually slide into violence. Better that the occasional election be won illicitly than to have every election be a potential court case.

In other news, the determination of a tie-breaker to settle who won a decisive seat in Virginia’s House of Delegates has been delayed after lawyers representing Democratic candidate Shelly Simonds filed a motion asking a trio of circuit court judges to reconsider their decision to allow a controversial ballot to be counted as a vote cast for her Republican opponent.

Of course! Continue reading →

From The “UGH! Will They EVER Stop Making Me Defend President Trump?” Files: The Kennedy Center Honors Double-Bind

/ Jack Marshall / 63 Comments

I really, really wanted to bury this one in the Morning Warm-Up. I’m thoroughly sick of writing about the dishonest manipulation of facts and principle used to attack President Trump every day, many times, in the mainstream news media. I am sick of pointing out how unprofessional the Trump-hating publications are that uncritically publish screeds that they would never accept as meeting basic standards of ethical journalism if it weren’t for the identity their target: this President of the United States. I’m also sick of readding proyests from readers trying to rationalize such miserabl ejournalism and punditry. I know readers are sick of all of this too, but the important point is that gullible members of the public and partisan journalists are not sick of the tactic, or ready to play it straight.  They are counting on those who care about fairness, process and truth to give up before they do.

Well, they will wait a long time for me, especially when they publish opinion pieces as bad—misleading, unfair, and unethical— as this one, by playwright Sarah Ruhl.

Ruhl criticizes the President in inflammatory terms for not attending the Kennedy Center Honors ceremony as its host. The White House announced in August that the Trumps would not participate in the December 3 event in Washington, D.C. to avoid “political distraction.” “The president and first lady have decided not to participate in this year’s activities to allow the honorees to celebrate without any political distraction,”  Sarah Sanders said in a statement, adding that the president and Melania Trump “extend their sincerest congratulations and well wishes to all of this year’s award recipients for their many accomplishments.”

Ruhl criticizes the decision in the most inflammatory terms:

“In dictatorships, the artists are often the first to go. Or maybe they are the third to go, after the press and the intellectuals. The refusal of the president to celebrate them is a chilling and clear departure from American values. Perhaps the Trumps didn’t want to compete with the Obamas, who at the 2016 Kennedy Center awards received the longest standing ovation of the evening.”

What unbelievable gall!  Nowhere in Ruhl’s piece, which unflatteringly compares Trump to previous Presidents who attended the gala, does she mention a material fact. Did you catch the omission? Do you think Times readers and the people who are being primed to detest the President did?

The announcement that the Trumps would not be attending came only after honoree Norman Lear, creator of “All in the Family,” “Maude” and “Sanford and Son,”—and also of the ultra-left advocacy group People for the American Way—said that he would boycott the White House reception in protest of the President’s proposed funding cuts to the National Endowment for the Arts and the National Endowment for the Humanities. His fellow 2017 honorees musician Lionel Ritchie and singer Gloria Estefan also hinted that they were considering making a snub of their host a centerpiece of the event. Continue reading →