Ethics Alarms Award Nominee

Observations On The Justin Trudeau Groping Allegation

/ Jack Marshall / 11 Comments

Canadian progressive rock star and Canadian Prime Minister Justin Trudeau is now dealing with his own #MeToo crisis, and, as you will see, not that well. These are old allegations, first appearing in a tiny community paper called the Creston Valley Advance in 2000 An unsigned editorial related that Trudeau, then a 28-year-old teacher, groped a young, female Advance reporter covering the Kokanee Summit Festival in Creston, British Columbia. The Creston editorial did not include details of the alleged groping incident, but wrote that the reporter involved felt “blatantly disrespected” and that Trudeau allegedly apologized a day later for “inappropriately handling” her.

Nobody cared. After all, Bill Clinton had just ducked impeachment because American Democrats and the news media successfully sold the narrative that a President using his intern as a personal sex-toy was “private, personal, consensual conduct.” The story was quickly forgotten.

Then came the Harvey Weinstein Ethics Train Wreck, and suddenly any male in power is vulnerable to having their career and reputation undone because of a recovered or re-evaluated memory they did that everyone winked at decades ago, but is now proof positive of a dark and irredeemable soul, or something. (This is the point where, if you are Prof. Paul Butler, you shout “Oh come ON!”)  The episode resurfaced recently when popular political commentator and Trudeau critic Warren Kinsella tweeted a picture of the editorial last month with the hashtag #MeToo. His tweet was later picked up by various conservative outlets. This is suddenly a problem for liberal leader who has proclaimed his feminist credentials. He has said that he has no tolerance for any kind of sexual harassment or unwanted touching.

And now this. Observations:

  • Here was Trudeau’s response to the allegations: he initially said that he did not recall the event. Then he said, well, he remembered the event, but not the incident. “I remember that day in Creston well. It was an Avalanche Foundation event to support avalanche safety. I had a good day that day. I don’t remember any negative interactions that day at all,” he said. The next day,  he told reporters that he apologized to the alleged victim for the incident he doesn’t remember “in the moment,” but said he is confident he “did not act inappropriately”…but respects ” the fact that someone else might have experienced this differently.”

Translation of this self-contradicting double-talk:

Let’s see now: He doesn’t remember the event, which he remembers well, but not the incident, though he remembers that he apologized for it, though he is certain he did nothing that required an apology, but he can certainly understand how someone might see it differently.

All righty then! Continue reading →

More On “Media Bias Report 3.1”

/ Jack Marshall / 8 Comments

It is amazing how many desperate liberals  circulate or defend  the absurd, misleading and incompetent chart purporting to measure the bias of various news sources as if the thing had any integrity at all. First of all, they could not (I hope) have read the creator’s nonsensical criteria for her assessments. Second, it should be obvious that no single individual could possibly examine and compare over 40 news sources with anything approaching thoroughness and accuracy. How would this be possible, even as a full-time endeavor, which it most certainly was not in this case? A research group like Pew might be able to pull such a study off with a large budget, lots of time, and a substantial staff, and even then I’m very dubious.

The chart is a classic example of making fake research—garbage in, garbage out— look impressive through packaging. This is, of course, unethical.

For the record, here are some of the factors someone who was seriously interested in measuring bias objectively (and not primarily determined to show that mainstream media bias is a right-wing myth): Continue reading →

Exhibit A. On Why The News Media Won’t Address Its Unethical Bias

/ Jack Marshall / 14 Comments

Just look at that chart, sent to me by a frequent commenter here. I wish I could make it larger on the site, but a clearer version is here.

The woman [going by only the name “Vanessa,” as far as I could discover] who created this appears to be serious: if this is satire or trolling, she fooled me. The thing is so obviously itself a product of liberal bias that it is amazing that it would be presented as otherwise. There is Fox News way over in the hyper-partisan conservative field, which is mostly fair, but lo and behold, there sit outrageously hyper-partisan CNN, The New York Times and the Washington Post mostly in the “neutral” field while ABC, CBS, NBC,  NPR and TIME [KABOOM!] are sitting entirely in “neutral.”

How is it possible that someone could come to such an obviously incorrect conclusion? Several ways, actually. One is that she is far enough left that the biased and slanted hackery of sources like CNN seem moderate and fair to her. Another is that she doesn’t have a clue what bias is. A third is that she’s an idiot, and a fourth is that she’s doing propaganda for the propagandists. She has a long section on her methodology here: please read it if you are curious, and report back. I’m not going to waste my time. Any methodology that leads to the conclusion that NPR is paragon of unbiased journalism is crap by definition. I don’t need to read it to figure that out. Vanessa says we should trust her analysis because she in an English major and a patent lawyer.

Oh.

This visual representation of denial does have value: it demonstrates that there are no unbiased news sources, and that journalism is not merely untrustworthy, but actively impeding the communication of essential knowledge to the public, so they can make the informed choices crucial to a functioning democracy.

Of course, I knew that already.

(Somebody tell Vanessa.)

 

Morning Ethics Warm-Up, 6/28/2018: The Post-Kennedy Retirement Announcement Freak-Out

/ Jack Marshall / 78 Comments

Good Morning!

1. How prescient of me to headline yesterday’s warm-up “Deranged” before Justice Kennedy announced his retirement and the progressive/Democratic/ mainstream media/social media freakout commenced!

2. Duh. Since nobody seems to be writing about how perfectly this proves the Trump-inflicted brain damage on the Left, allow me:

  • Justice Kennedy is 81. As my dad used to say when he entered his 8th decade, he’s in the red zone, and can drop dead at any second. Did Democrats really assume he would keep working forever?

Their shock at this is ridiculous and unbelievable. WHAT? An 81-year-old judge is retiring?

  • This is a wonderful example of how people assume that everyone else thinks as they do. The Trump-Deranged have reached the point where they would saw their pets in half to undermine the President, so they assume that Kennedy feels the same way.

There is no evidence that he does, in part because, unlike Ruth Bader Ginsberg, who has periodically trumpeted her contempt for the President, he has been judicially discrete and professional.

  • It is per se irresponsible for an 81-year-old in a challenging job with national impact not to step down before he or she becomes incompetent, or drops dead. Scalia was irresponsible not to retire. Ginsberg should retire (she is 84). Breyer is two months short of 80: he should retire.

Outside of judges, we have multiple members of Congress, notably Pelosi and John McCain, who are being unethical by not stepping aside.

  • The bottom line is that nobody should be freaking out, because everyone should have been prepared for it.

3. We get it! You are vicious, juvenile, angry, rigis and irrational people. The Daily News nicely sums up the calm, analytical, reasoned reaction by the Left:

Continue reading →

Morning Ethics Warm-Up, 6/27/2018: Unhinged

/ Jack Marshall / 129 Comments

Good Morning.

1. Nah, there’s no mainstream media bias…This is one of the times that I am sorry that the Trump Deranged on Ethics Alarms have temporarily withdrawn from the Comment section battles, as I would love to hear their self-indicting rationalizations.

Here was this morning’s New York Times, big black headline:

JUSTICES  BACK TRAVEL BAN, YIELDING TO TRUMP

Outrageous in every way. The Court did not “yield” to anyone or anything but the law as it stands and has stood for centuries. As Constitutional Law expert Eugene Volokh succinctly put it, “The federal government may pick and choose which foreigners to let into the country (at least setting aside foreigners who have are already been granted residence), even based on factors — political beliefs, religion, and likely race and sex — that would normally be unconstitutional.” He explains:

This used to be called the “plenary power” doctrine, referring to the principle that the government has essentially unlimited power when it comes to at least this aspect of immigration law, unlimited even by the Bill of Rights. It is not based on the constitutional text; textually, the First Amendment would apply to all exercise of Congressional authority, whether under the Commerce Clause or the District of Columbia Clause or the Necessary and Proper Clause under Congress’s power over immigration. But, right or wrong, it is based on longstanding American legal history; and the majority adheres to that history.

Historically, this has even be used to authorize Congress to discriminate based on race (query whether the Court would today condemn this as “irrational”; more on that below). It has long been seen as authorizing Congress to discriminate based on country of citizenship, without investigation into whether such discrimination might actually be motivated by ethnic hostility. And, most relevant to today’s decision, it was seen in Kleindienst v. Mandel (1972) as authorizing discrimination based on political ideology, which would otherwise be forbidden by the First Amendment….The Court rejected the First Amendment claim:

Recognition that First Amendment rights are implicated, however, is not dispositive of our inquiry here. In accord with ancient principles of the international law of nation-states, the Court in The Chinese Exclusion Case (1889), and in Fong Yue Ting v. United States (1893), held broadly, as the Government describes it, that the power to exclude aliens is “inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers—a power to be exercised exclusively by the political branches of government ….” Since that time, the Court’s general reaffirmations of this principle have been legion. The Court without exception has sustained Congress’ “plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.” Boutilier v. Immigration and Naturalization Service (1967). “[O]ver no conceivable subject is the legislative power of Congress more complete than it is over” the admission of aliens. Oceanic Navigation Co. v. Stranahan (1909)….

As a result, the Court held that, if decisions to exclude aliens could ever be set aside, this would be so only if there was no “facially legitimate and bona fide” reason to exclude the alien. In Mandel’s case, the dissent noted, those reasons — labeled by the government as Mandel’s “flagrant abuses” during his past visits to the U.S. — “appear merely to have been his speaking at more universities than his visa application indicated.” The dissent argued that “It would be difficult to invent a more trivial reason for denying the academic community the chance to exchange views with an internationally respected scholar.” But the Court didn’t investigate whether the government’s true motive might have been the Administration’s disapproval of Mandel’s political ideas, rather than the supposed violation of past visa conditions; the requirement of a “bona fide” reason did not appear to require an investigation into the government’s true motivations, but rather simply focused on whether the “facial[]” reasons seemed sufficient:

In summary, plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established. In the case of an alien excludable under [the provision involved in Mandel], Congress has delegated conditional exercise of this power to the Executive.

We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.

The majority’s decision in Trump v. Hawaii basically applied this logic to another clause of the First Amendment — here, the Establishment Clause (which normally bars discrimination based on religious denomination, including the use of neutral rules in a discriminatorily motivated way) rather than the Free Speech Clause….

Continue reading →

Contender For Unethical Quote Of The Decade: Rep. Maxine Waters (D., CAL)

/ Jack Marshall / 94 Comments

“If you see anybody from that Cabinet in a restaurant, in a department store, at a gasoline station, you get out and you create a crowd and you push back on them, and you tell them they’re not welcome anymore, anywhere.”

—Maxine Waters, race-biting fool extraordinaire and, astoundingly, a member of Congress, endorsing the Red Hen restaurant’s denial of Sarah Huckabee’s right to enjoy a public accommodation with her family, and encouraging more of the same.

“Creating  crowd”  to harass someone who is doing no harm is called “inciting a riot.” If I see anyone trying to “create a crowd” to tell a citizen that he or she is not welcome, I’m calling the police. In the alternative, I’ll “create a crowd” of fair and decent Americans to make the point that bullies and bigots aren’t welcome in a civilized society. Fortunately most rational people realize that Waters is a vicious idiot, but the Democrats have an obligation to make her cool it.

She is going to get someone killed, and those who tolerate and enable her will be complicit.

Ethics Observations On The Red Hen

/ Jack Marshall / 36 Comments

Believe it or not, I had not heard about a Lexington, Virginia restaurant kicking out Sarah Huckabee Sanders and her family who were there to enjoy a meal when I wrote, a couple of hours ago, in part…

The virtue signaling fad is officially dangerous… since sanctuary cities are applauded for defying law enforcement, and more and more private establishments are basing their service on the political view of potential customers…This will spread, and we will have a completely dysfunctional society if and when it does. It is the natural progression of the divisive strategies and rhetoric employed by “the resistance” and the news media, and is undiluted cultural poison.

Here’s the story: Stephanie Wilkinson, the owner of the bucolic rural Virginia restaurant, was called at home and told the President’s spokeswoman was dining there with a group. Asked what the staff should do, she somehow couldn’t think of the correct and ethical answer, which is “Give her and her group the same hospitality and excellent service we strive to give all our customers. We don’t discriminate.” Instead, she drove to the establishment and told Sanders to leave. Sanders tweeted,

“Last night I was told by the owner of Red Hen in Lexington, VA to leave because I work for @POTUS and I politely left. Her actions say far more about her than about me. I always do my best to treat people, including those I disagree with, respectfully and will continue to do so.”

For her part, the owner told the Washington Post that she would do it again, because “there are moments in time when people need to live their convictions. This appeared to be one.”

Sanders is right, and Hutchinson is despicable, un-American, unethical, and wrong.

Other notes: Continue reading →

Now That The ACLU No Longer Wants To Be The ACLU, The United States Needs An ACLU

/ Jack Marshall / 25 Comments

In a confidential memo obtained by former board member Wendy Kaminer, the American Civil Liberties Union has defined a policy that retreats from and undermines—perhaps the best word is betrays— its traditional mission of protecting the Bill of Rights, and especially the First Amendment rights of all Americans.  The memo says in part,

Work to protect speech rights may raise tensions with racial justice, reproductive freedom, or a myriad of other rights, where the content of the speech we seek to protect conflicts with our policies on those matters, and/or otherwise is directed at menacing vulnerable groups or individuals….We are also firmly committed to fighting bigotry and oppression against other marginalized groups, including women, immigrants, religious groups, LGBT individuals, Native Americans, and people with disabilities. Accordingly, we work to extend the protections embodied in the Bill of Rights to people who have traditionally been denied those rights. And the ACLU understands that speech that denigrates such groups can inflict serious harms and is intended to and often will impede progress toward equality.

…There is no presumption that the First Amendment trumps all other amendments, or vice versa. We recognize that taking a position on one issue can affect our advocacy in other areas and create particular challenges for staff members engaged in that advocacy. For example, a decision by the ACLU to represent a white supremacist group may well undermine relationships with allies or coalition partners, create distrust with particular communities, necessitate the expenditure of resources to mitigate the impact of those harms, make it more difficult to recruit and retain a diverse staff and board across multiple dimensions, and in some circumstances, directly further an agenda that is antithetical to our mission and values and that may inflict harm on listeners…Our defense of speech may have a greater or lesser harmful impact on the equality and justice work to which we are also committed, depending on factors such as the (present and historical) context of the proposed speech; the potential effect on marginalized communities; the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values; and the structural and power inequalities in the community in which the speech will occur….

Where the ACLU defends the right to speak of those with whom it disagrees, it should generally engage in counter-measures both to reinforce the
values the speaker attacks and to make clear that we do not endorse the substance of the views. Some options might include:

1. Denouncing the views in press statements, op-eds, social media, and other available fora.

2. Participating in counter-protests. When we assist people in securing the right to march or demonstrate for views we condemn, we can and generally should support and participate in counter-protests, with consideration given to participation by senior staff or board members to highlight the ACLU’s commitment and ensure that such participation does not disproportionately burden other staff.

3. Supporting other counter-speech by supporting, organizing or helping to organize events, facilitating access to media, or taking other actions that will amplify and
strengthen the voices of those espousing our values.

4. Expanding our work on behalf of the values the speaker attacks.

5. Earmarking any fees recovered from the case to projects within the ACLU that further the values that we support and the speaker attacked, or donating them to another organization that works to advance those values, preferably in the geographical area where the speech occurred….

Continue reading →

The NBA Coach, The Secrets, The Loving Wife, And Twitter

/ Jack Marshall / 23 Comments

The Colangelos (though she goes by the name of Barbara Bottini)

This isn’t exactly a social media ethics story, not entirely. Yes, it reinforces the Ethics Alarms position that Twitter makes you stupid, and that it is an ethics disaster waiting to happen for the impulsive and the unwary. The main ethics lesson, however, lies elsewhere,

Bryan Colangelo resigned as the president of basketball operations for the Philadelphia 76ers two weeks ago despite leading his perennially doormat team to the NBA play-offs this season for the first time in many years. He resigned in the middle of a Twitter scandal. The Ringer, a sports website,  received an anonymous tip from someone who claimed that he  or she had linked five anonymous Twitter accounts to Colangelo. The accounts had all tweeted about internal matters relating to the 76ers players, personnel and business, even, in one tweet, defending Colangelo for his eccentric shirt collar style, which had been the topic of some social media mockery.

The Ringer contacted the 76ers, but only told the organization about two of the suspicious accounts, not all five. Colangelo informed the team that one of them, @Phila1234567, was indeed his, but insisted that he had never posted anything using it. Coincidentally, or probably not, the other three accounts that the Ringer had not revealed were suddenly switched from public to private after the  76ers had their little talk. After the Ringer published The Mystery Of The Insider Tweets,  the 76ers  hired a large New York law firm  to conduct an independent investigation. Over the course of a week, the firm collected several  suspicious laptops and mobile phones (well, it was the owners who were really the suspected ones; you can’t blame the devices), and retrieved text messages and emails. Investigators also analyzed the involved Twitter accounts to try to determine who was behind them. Continue reading →

Morning Ethics Warm-Up, 6/20/18: Darrow, Damn Technology And Dunkin’ Donuts

/ Jack Marshall / 23 Comments

Good Morning!

1. Shameless self-promotion Dept. Once again, I am presenting my three-hour Clarence Darrow and modern attorney ethics CLE program for the D.C. Bar, and later this summer, Virginia CLE will be sponsoring the same seminar in Richmond and Northern Virginia. As always, my partner and collaborator in All Things Darrow is esteemed D.C. actor (and American University law school instructor, and, I am proud to say, my friend) Paul Morella, who has been Darrowing since he premiered my one-man show about the great and flawed lawyer in 2000, for The American Century Theater. His website is here. This is Paul…

Paul is a lot taller, thinner and better looking than Darrow, and unlike Clarence, he also bathes regularly. It doesn’t matter. I can’t recommend his show, which he performs for bar associations and legal groups around the country, more highly, and would feel this way even if I hadn’t written it. Of course, any group that wants Continuing Legal Education credits can also book today’s seminar, which has many of Darrow’s greatest courtroom orations, but also legal ethics commentary from me.

2. Ah-HA! NOW I understand why I’m being sued for defamation!  This is in the “This comes as no surprise” category, but it still explains a lot. The Pew Research Center just released a survey that demonstrates that a large proportion of the public can’t distinguish facts from opinions. The main portion of the study  measured the public’s ability to distinguish between five factual statements and five opinion statements. Pew found

“…that a majority of Americans correctly identified at least three of the five statements in each set. But this result is only a little better than random guesses. Far fewer Americans got all five correct, and roughly a quarter got most or all wrong. Even more revealing is that certain Americans do far better at parsing through this content than others. Those with high political awareness, those who are very digitally savvy and those who place high levels of trust in the news media are better able than others to accurately identify news-related statements as factual or opinion.”

I challenge that last part. It may well be that those who place high levels of trust in the news media could distinguish between fact and opinion in those  ten statements, but it doesn’t change the fact (now this is my opinion, but I still believe it is demonstrably true) that the news media distorts what it represents as facts based on journalists’ biased opinions. Continue reading →