Business & Commercial

Morning Ethics Warm-Up: 7/18/17

/ Jack Marshall / 17 Comments

It’s an All-Fred Morning!

Every day, Ethics Alarms head scout Fred sends me multiple suggestions for posts from he finds heaven-know-where. Even when I can’t fit them in, they often serve as references and always are enlightening.

1. I suspect this belongs in the Polarized Nation of Assholes files: For two years, since he returned from service combat zones in Iraq and Afghanistan, Lieutenant Commander Joshua Corney, has kept his promise to salute his fallen comrades in arms by playing a recording of Taps every evening before 8:00 p.m on his five-acre property in Glen Rock, Pennsylvania. It takes 57 seconds. It does not exceed volume limits. My dog barks longer that that every night after midnight when we put him out. Nonetheless, some of Corney’s neighbors have filed objections with the  borough. Now Glen Rock, which allows church bells to ring, among other sounds, ordered Corney to limit the playing of taps to Sundays and what it termed “flag holidays.” Each violation of the borough’s order would bring a criminal fine of 300 dollars. But the borough’s enforcement action involves two big constitutional no-nos: the heckler’s veto and content-based censorship. The borough is relying on a nuisance ordinance that prohibits sound that “annoys or disturbs” others, and just one individual annoyed by the somber Civil War era bugle solo is enough to deliver a “heckler’s veto.’

The ACLU is on the case, and backing Corney as he fights the action. It writes,

“If a “heckler” could shut down anyone who said or played something that annoyed or offended them by complaining to government officials, freedom of speech would be no more. For more than 75 years, it has been black letter First Amendment law that the government cannot censor speech simply because it is not universally appreciated.

Moreover, the borough cannot use its vague nuisance ordinance to single out only Lt. Commander Corney’s musical expression for censorship from the range of sounds that are part of the borough’s regular sonic landscape. The borough has not ordered Lt. Commander Corney to lower the volume of taps or claimed he has violated a noise-level ordinance.

And it could not claim such a violation because the recording neither exceeds any established noise levels nor is it as loud as many other sounds the borough tolerates — including many sounds that do not communicate a message, like lawnmowers, leaf blowers, chainsaws, and vehicles. Censoring clearly protected expression, like taps, for being too loud, while allowing louder sounds that carry no constitutionally protected message turns the First Amendment on its head.”

Bingo. It is in cases like these that the American Civil Liberties Union shows how essential its role is in protecting the freedoms here that are so frequently under attack.

2. I was surprised when I learned some time ago that undercover police officers used to routinely have sexual relations with prostitutes before arresting them (homosexuals too, when they werebeing persecuted and  prosecuted). Just two months ago, Michigan became the last state in the U.S. to make it illegal for police officers to have sexual intercourse with prostitutes in the course of an under-cover (or covers) sting. Now Alaska wants to go an additional step, banning “sexual contact” with “sex workers” entirely. This could be mere touching or kissing. Advocates of Alaska’s House Bill 73 and Senate Bill 112 argue that police catching sex workers in the act by engaging with them sexually is a human rights violation, and Amnesty International has made an official statement supporting that claim: “Such conduct is an abuse of authority and in some instances amounts to rape and/or entrapment.” Police, quite logically, point out that the bill would make  successful undercover investigations impossible, which is, of course, the whole idea.

“[The prostitutes] ask one simple question: ‘Touch my breast.’ OK, I’m out of the car. Done. And the case is over,” Anchorage Police Department Deputy Chief Sean Case told the Alaska Dispatch News in a hypothetical example. “If we make that act (of touching) a misdemeanor, we have absolutely no way of getting involved in that type of arrest.”

Ethics Alarms is anti-prostitution. As with recreational drug use and probably polygamy, prostitution, which harms families and the young women and men exploited and abused to support it, is almost certainly on the road to legalization. Government won’t protect vital society ethics norms, but it will order you to buy health insurance because it’s for your own good. Continue reading →

The Unethical Fine Print Game

/ Jack Marshall / 17 Comments

I am on record as believing that lawyers who intentionally assist their clients in burying unconscionable, unenforceable or unfair terms in standard contracts, usually in fine print, are unethical, and engaging in a professional violation of the Rules of Professional Conduct. I’ve offered several seminar hypotheticals on the topic to make my point, and have never encountered a lawyer who had a good defense for the practice. Usually the best they can come up with is “everybody does it” or “but it’s legal!” Of course, the bar associations are on their side, not mine, because, well, everybody does it. That’s a proverbial can of worms the bar associations don’t have the guts or integrity to open. What else could it be but unethical, however, when a client company says, “Make sure you bury this provision saying that they have no recourse if we cheat them in the fine print!” and the lawyer says, “But that’s unenforceable!” and the client says, “Yeah, but they won’t read it before signing, and when we point out that they did agree to it, maybe it will scare them off,”  and the lawyer shrugs and says, “Whatever you say! It’s your contract”?

WiFi companies are especially egregious in this regard. As an effort to show itself as above the field and avoiding the unethical industry practice, a British WiFi company, Purple, ran  a social science experiment, inserting language in its standard contract that obligated consumers to clean toilets at festivals and clear sewer blockages.  22,000 people signed up anyway. The contract stated–in fine print—that its signatories would be legally required to perform 1000 hours of community service, including, but not limited to, “cleaning toilets at festivals, scraping chewing gum off the streets” and “manually relieving sewer blockages.”

The gag clause was inserted in the company’s terms and conditions for a period of two weeks, “to illustrate the lack of consumer awareness of what they are signing up to when they access free WiFi .” Purple also offered a prize to anyone who actually read the terms and conditions, and found the “community service clause.” Only one person won it. Continue reading →

The Unappreciated Home Depot Hero

/ Jack Marshall / 22 Comments

It’s more exciting than you think!

Ethics Alarms has dealt with this issue multiple times: an employee violates policy by intervening to prevent a crime or serious injury, and is fired for it.  In 2009, a bank teller named Jim Nicholson turned Batman and foiled a bank robbery, then was fired.. A would-be robber had pushed a black backpack across the bank counter to Nicholson and demanded money. The teller threw the bag to the floor, lunged toward the man and demanded to see a weapon. The robber sprinted for the door with Nicholson in pursuit. Eventually Bat-Teller  knocked the man  to the ground and held him until the police arrived.

The bank had to fire him. The episode could have gone wrong many ways, some resulting in bank customers and employees being injured or killed. Law enforcement repeatedly cautions against such conduct, and the bank’s policies were clear.

In other cases, no-tolerance makes no sense, as no-tolerance often does. In 2012, Ryan Young, then working in the meat department of a Safeway grocery store in Del Rey Oaks, California, witnessed a man beating a pregnant woman, apparently his girlfriend. Young told the man to stop, but when he continued with his assault, shoving and kicking her, Young jumped over his counter, pushed the thug away, and ended the attack.

Safeway fired him. So what would it have had Young do, stand there and wag his finger? This crossed into duty to rescue territory. Young did the right thing, and rather than blindly following a policy that didn’t fit the facts, Safeway should have realized that an exception was called for.. (Eventually public opinion and bad publicity forced Safeway to re-hire the hero). A similar scenario involved a lifeguard who violated his employer’s policy by saving a drowning man off a beach adjacent to the property where he was stationed. Jeff Ellis Management, an Orlando, Florida-based company, fired  21-year-old Tomas Lopez for daring to save a life pro bono, and was similarly pilloried by public opinion. Two lifeguards quit in support of Lopez, and he was also eventually offered his job back. Lopez told Jeff Ellis Management to get bent, or words to that effect. Continue reading →

From The “Law vs Ethics” Files: PETA Chooses To Harm An Artist On Behalf Of A Monkey Who Couldn’t Care Less, And Judges Think It’s An Amusing Legal Condundrum

/ Jack Marshall / 26 Comments

“I’m baaaaack!”

When we last heard from  photographer David Slater, the U.S. Copyright Office had rejected his claim that he owned the  copyright for the famous series of selfies presumably taken unintentionally by a Celebes crested macaque.  In 2011,  Slater spent several days following and photographing a troop of macaques in Sulawesi, Indonesia, and the selfies were a lucky bi-product that quickly became a web sensation. Slater had asserted ownership over the photos, and had demanded that various on-line users, such as Wikipedia, either take them down or pay him as the copyright holder. The ruling of the Copyright Office was based on the theory that Slater had not taken the photo, so he was not the creator, and animals couldn’t own copyrights, so the photos were in the public domain.

Pop Ethics Quiz: Would it have been unethical had Slater simply released the photos without revealing that the selfies had been the lucky result of an  accident, snapped by the monkey while it was messing around with his equipment?

About the Copyright Office’s ruling: I’m dubious. Slater owned the equipment, and had the sense to preserve the photos. A decision that if a photo is taken accidentally by a non-human or an act of God, the photographer who owns the equipment gets the copyright would have been fair.  Zapruder owned the film that inadvertently caught President Kennedy having his forehead shot off, and it made him rich. Slater’s claim just goes a step further: Zapruder left the street  to buy a hotdog, put his camera on on a trash can and asked a friend to “watch it,” and a dog turned the camera on, catching the grisly scene. So Zapruder doesn’t own the film anymore? Does that make sense to you?

Well, that was the ruling anyway. Then things got really ridiculous. Slater included the monkey selfies in a book, and People for the Ethical Treatment of Animals (PETA)  brought a law suit against Slater on behalf of the monkey,which PETA claims is named Naruto, and asked that PETA be appointed to administer proceeds from the photos for the benefit of Naruto and other crested macaques in the reserve on Sulawesi. So PETA would suddenly be the de facto copyright holder. Continue reading →

Ethics Quiz: Let The Seller Beware?

/ Jack Marshall / 75 Comments

My son, an auto mechanic and an BMW enthusiast. just purchased a used BMW for 300 dollars from a customer who was frustrated with the car and not willing to pay any more to repair it. He regarded the purchase as great deal, but it was even a better deal than he thought. While he was checking out the car last night, be discovered that a spark plug had been misinstalled by the owner. When it was replaced, the engine sang like Beverley Sills.

My son said that he had suggested to the owner that he change the spark plugs, but had been told that this had recently been done. “He was nasty about it, too,” he said. “Would he have sold you the car for such a low price if the car was running the way it is now?” I asked.

“Never,” my son replied.

Your Ethics Quiz of the Day:

Is there an ethical duty to offer the car back to the original owner when it is discovered after the purchase that the vehicle was better and more valuable than the owner thought?

Secondary question: My son says that he might feel badly about the deal if the owner hadn’t been such a jackass throughout the transaction, and not only rejected his advice that would have revealed the car’s problem, but did so abusively.

Is that a valid and relevant ethical consideration?

 

Morning Ethics Warm-Up: 7/13/17

/ Jack Marshall / 26 Comments

Good Morning!

1. I owe Robin Meade an apology. The astoundingly bright-eyed, bushy-tailed HLN morning host has been used here as an an example of the sexism of broadcast news media producers, and it is true that she is uncommonly attractive even by “news babe” standards. However, I have come to realize that she is also a unique talent, and more than just a pretty face and figure. Meade has natural presence and charisma, projects genuine optimism and and an up-beat nature, and most unusual of all, doesn’t spin the news or tilt her delivery to signal her own opinion. She’s really good at what she does. I’m sorry Robin; I was biased against you because you are attractive, which is just as wrong as being biased for you. You’re a pro, through and through.

2. Constitutional law expert Eugene Volokh (who is also my favorite candidate for a Supreme Court post if one opens up) published what I consider to be a definitive refutation of the claim that receiving opposition research, as in “damaging information about Hillary Clinton,” is a crime under current law. He also makes a case that it couldn’t be criminalized under future law:

“It would raise obvious First Amendment problems: First, noncitizens, and likely even non-permanent-residents, in the United States have broad First Amendment rights. See Bridges v. Wixon, 326 U.S. 135 (1945) (“freedom of speech and of press is accorded aliens residing in this country”); Underwager v. Channel 9 Australia, 69 F.3d 361 (9th Cir. 1995) (“We conclude that the speech protections of the First Amendment at a minimum apply to all persons legally within our borders,” including ones who are not permanent residents).

Second, Americans have the right to receive information even from speakers who are entirely abroad. See Lamont v. Postmaster General, 381 U.S. 301 (1965). Can Americans — whether political candidates or anyone else — really be barred from asking questions of foreigners, just because the answers might be especially important to voters?”

The professor concludes not. I hadn’t even considered the First Amendment issue in determining that the election law prohibition against receiving “anything of value” benefiting a candidate from a foreign nation or individual was not intended to preclude mere information, but Volokh’s argument seems air tight. Continue reading →

Ethics Quiz: The Neglectful Mom

/ Jack Marshall / 55 Comments

An upstate New York mother allowed her 10-year-old child to shop alone at the LEGO store as she shopped at a different store in the same mall. It appears that the LEGO store’s personnel called the mall’s security, and the child’s mother was arrested and charged with endangering the welfare of a child. The store does have a sign that states that children under the age of 12 must be accompanied by an adult.

Arresting the mother is obviously absurd over-kill. Obviously also, the LEGO store has a right to have whatever policy it chooses regarding unaccompanied children. However the question remains, and is the Ethics Alarms Ethics Quiz of the Day…

Is it irresponsible for a mother to allow her 10-year-old to shop alone if the mother is shopping in the same mall?

Related questions as you ponder: Continue reading →

Morning Ethics Round-Up: 7/8/17

/ Jack Marshall / 22 Comments

Good Morning!

Trying to warm myself up too, as I have to address a room full of new D.C.  bar admittees and tell them about their new ethics rules less than two hours from now….let’s see how much I can get down before by wife starts threatening me for not being dressed yet…

1. If anyone pays attention, Fox News is providing  nifty lessons to all organizations about how fish rot from the head down,  and how a pervasive unethical culture keeps going like the Energizer Bunny until it is decisively changed by responsible leadership. Yet another Fox News host,”Making Money’s” Charles Payne, is being disciplined and may be on the way out after  allegations of “professional misconduct,” sexual harassment, and more. It seems that the married analyst was having an affair with one of the blonde clones Fox’s Roger Ailes liked to have on the air, and had her fired after their tryst went sour. I assumed that Fox News was a hotbed of this kind of thing even before Aisles was exposed as a serial harasser; it was laughably obvious, with so many women dressing and sounding like cheerleaders and the on-air banter on “Fox and Friends” often crossing lines. If Payne is the last employee publicly fingered for harassment, it is only because Fox News is handing out preemptive settlements like Halloween candy. This was all right there, in front of millions, for anyone to see, and for Fox News management to stop, for decades before it blew up. Incredible.

2. I watched “Spotlight” again last night, and couldn’t stop thinking about CNN. The Catholic Church sexual molestation scandal doesn’t have much in common with the current descent of the U.S. newsmedia into ethical corruption and professional disgrace, except this: in both cases, leadership of  institutions that depend on and are based on trust and faith have willingly embarked on a course directly in opposition to the core values they were supposed to be committed to, and used the rationalizations  #13. The Saint’s Excuse: “It’s for a good cause” and #14. Self-validating Virtue to blind themselves for years, doing immeasurable and perhaps permanent harm to society and themselves in the process, not to mention their millions of victims. When in the movie did this parallel start occurring to me? When the film started showing angry Catholics attacking the reporters for daring to expose the truth, because the Church did so much good, and because anyone exposing an institution that was so vital to society was the real villain. Today what I hear is that because we need a courageous, reliable, independent free press (ironically, “Spotlight” shows why) we should pretend the press we have meets those standards, even when it has rejected them for partisan bias.

I envision a time when the whole news media looks back on 2016 and 2017 and wonders how they could have behaved so badly, and done such damage to the public trust.  I just hope that time arrives soon.

3. I can’t imagine a more audacious, in-your-face-display of inappropriate partisan arrogance than New York City Mayor Bill DeBlasio’s decision to fly to Hamburg, Germany, to join leftist and anarchist protesters at the G-20 summit. To do this, he is skipping the swearing-in of a new  class of NYPD recruits  at a time when the assassination of Officer Miosotis Familia, would seem to dictate a mayoral show of support for the police, and it was recently reported that his city is experiencing a rise in homelessness to levels not seen in decades. What a great time to relive his student protesting days instead of doing his job!

Fun question: who is the more egregious jerk, Governor Christie, or DeBlasio?

4.

Ugh…I am being threatened with defenestration if I don’t shave. Back later…

From The “Trump-Hate Disabling News Media Ethics Alarms” Files: The Washington Post “Kids Chorus”

/ Jack Marshall / 25 Comments

For those inexplicably loyal fans of the news media who said to themselves, “Well, CNN is an exception. The other respected news organizations will never let the President push them to completely alienate the public’s trust,” here is the hard, cruel truth: you are dead wrong. Open your eyes.

Witness the Washington Post, which somehow thought that it would enhance its reputation as a fair, independent, responsible and objective news source by recruiting a group of children to mock President Trump by singing his tweets. This was a Washington Post promotion, now. The Post believes that its readers want to get their news from a newspaper that gratuitously ridicules the President of the United States.  Maybe they are right. Such readers, however, are not looking for facts, or objective analysis. Those readers are looking to feed their confirmation bias.

At “The Hill,” reporter Jonathan Easley tweeted: “WaPo getting kids to mockingly sing Trump’s tweets seems needlessly antagonistic and a dumb move right now.” 

Gee, ya think?

I’m trying to imagine the long list of broken ethics alarms that had to malfunction for the Post to let this get all the way through conception, to production, to publication. Nobody in the chain of command said, “Yeah, that’s hilarious, but let’s leave this kind of thing to Jimmy Kimmel, okay? We’re a newspaper.” Nobody. Nobody thought that this would simply confirm what media critics have been saying about toxic anti-Trump bias. Nobody thought about how a graphic demonstration of this mindset at the paper would undercut any claim that the Post is capable of fair reporting on an elected leader it would show such disrespect to just to make a promotional pitch. Nobody. Continue reading →

Dear Idiots: Please Stop Making Me Defend The Bigoted Baker

/ Jack Marshall / 88 Comments

I am pleased that the Supreme Court will be taking the case of Jack Phillips, the Colorado baker who refused to sell a wedding cake to a gay couple because, he said, they wanted it to be customized, and doing so would offend his faith.  His claim is based on the First Amendment, which prevents the government from making you say what you don’t want to say as much as it prevents the government from stopping you from saying what you want to.

Colorado’s courts denied that Phillips was doing anything but saying that he doesn’t like or respect gays sufficiently to make the exact same cake for them that he would make for non-gays.  I agree with their holding that his actions violated the public accommodations laws. I wrote when this case first reared its frosted head…

“The court’s conclusion  is impossible to rebut. The cake the baker was asked to bake for the gay wedding differed not at all from one he would normally sell a straight couple. In truth, this had nothing to do with expression. He was just refusing to serve a gay couple because of their sexual orientation. Selling them a standard cake would neither constitute, nor would it be recognized as a “message” in support of gay marriage.

The Court agreed that a wedding cake with a customized message celebrating a same-sex marriage as such might implicate First Amendment speech issues, but “we need not reach this issue,” the court said. “We note, again, that Phillips denied Craig’s and Mullins’ request without any discussion regarding the wedding cake’s design or any possible written inscriptions.”

In other words, Phillips was gratuitously and unnecessarily being a cruel jerk. An alleged Christian who is unable to detect the basic Golden Rule application in treating fellow citizens with the minimal level of respect inherent in allowing them to buy a standard wedding cake requiring no “Yay Gay!” or “Charlie and David Forever!” messages in pink frosting deserves no sympathy or quarter from the law. Could the couple have just shrugged and found another bakery? Sure, they could have. Linda Brown could also have just shrugged and found an all-black school to attend, too.

The gay couple are not the villains here. Jack Phillips broke the social contract, as well as the law.”

Now that SCOTUS has decided, by agreeing to review the case,  that he has perhaps a scrawny, shaky legal leg to stand on before they kick it out from under him, Phillips and his lawyer are taking a premature victory lap, as if making it quite clear that you think gays are second class citizens is something to be proud of (and, sadly, too many still think it is.) Their publicity campaign took them all the way to The View, a wise choice. After all, nothing can make an unethical position seem more persuasive than when it is being attacked by idiots, and idiots of the left-wing persuasion are pretty much what ABC’s “Six Opinionated Female B and C List Celebrities Sitting Around Slamming Conservatives”  daytime show has to offer. (To be fair, the show usually has one even dumber right-wing idiot on hand to make the left-wing idiots seem astute by comparison.) Continue reading →