More Photography Ethics: A Federal Court Rules That There Is No Right To Photograph Police

February 25, 2016February 25, 2016 / Jack Marshall / 22 Comments

U.S. District Judge Mark Kearney has ruled that citizens don’t have a First Amendment right to take cellphone videos and photos of police unless they are challenging or criticizing the police conduct.

This opinion makes no sense, and is dead wrong.

Richard Fields, a Temple University student, took a cellphone photo of about 20 police officers standing outside a house party because, he testified, he thought it would be an interesting picture. Amanda Geraci, who says she is “a trained legal observer,” whatever that is, tried to video an arrest during a an anti-fracking protest.

Fields had his cellphone seized and was cuffed, as an officer searched his cellphone before returning it and cited him for obstructing the highway and public passages while taking the photo. Geraci said an officer physically restrained her to prevent her from recording the arrest. The two both sued for alleged First and Fourth Amendment violations, and their cases were consolidated before the court, as the same Constitutional issues were involved.

Judge Kearney argued that Fields and Geraci would have to show their behavior was “expressive conduct” to support a First Amendment claim. Neither plaintiff met that burden, because neither told the police why they wanted to capture the images, Kearney wrote. “The conduct must be direct and expressive; we cannot be left guessing as to the ‘expression’ intended by the conduct.”

“Applying this standard, we conclude Fields and Geraci cannot meet the burden of demonstrating their taking, or attempting to take, pictures with no further comments or conduct is ‘sufficiently imbued with elements of communication’ to be deemed expressive conduct. Neither Fields nor Geraci direct us to facts showing at the time they took or wanted to take pictures, they asserted anything to anyone. There is also no evidence any of the officers understood them as communicating any idea or message.”

What astounding nonsense! Would Kearney argue that an oil painting was similarly ambiguous as “expressive” without the painter saying, “I am painting the picture so that I have a painting that I can show others”? Continue reading →

Ethics Quote Of The Week: FCC Commissioner Ajit Pai

February 23, 2016February 23, 2016 / Jack Marshall / 12 Comments

“The text of the First Amendment is enshrined in our Constitution, but there are certain cultural values that undergird the amendment that are critical for its protections to have actual meaning. If that culture starts to wither away, then so too will the freedom that it supports.”

—FCC Commissioner Ajit Pai to the Washington Examiner, in an interview where he expressed concern that respect for First Amendment principles were diminishing, particularly on college campuses.

Isn’t it fascinating that so many of those who are concerned about the freedom of speech being diminished by political correctness have responded by supporting a Presidential candidate who regularly abuses the right of free speech, and whose response to protesters at his own speeches is to abuse them?

But I digress.

Today’s example of what Pai is talking about comes from California State University Los Angeles (CSULA), where president William Covino, responding to expressions of dismay from the same kinds of students who needed counseling at Rutgers, cancelled a scheduled speech by conservative pundit and Breitbart editor Ben Shapiro, and in a particularly Orwellian touch, did so citing the need for the “free exchange of ideas.” Continue reading →

Ethics Observations On Georgetown Law Center’s Scalia Foofarah

February 23, 2016February 23, 2016 / Jack Marshall / 26 Comments

I am a Georgetown University Law Center grad, as well as a former administrator there. I also know and have personal relationships with several members of the faculty. None of this especially informs my ethical analysis of the community argument there that arose from a rather innocuous official expression of respect and mourning in the wake of Justice Scalia’s death, but if anyone wonders why I’m posting about this rather than many other ethics issues nipping at my heels, that’s part of the reason. The other reason is that this academic dust-up raises interesting ethics issues, and has received national publicity.

Observations on the tale as it has unfolded:

1. Georgetown Law Center issued a press release mourning the death of Antonin Scalia, including a statement from Dean William M. Treanor that read:

““Scalia was a giant in the history of the law, a brilliant jurist whose opinions and scholarship profoundly transformed the law. Like countless academics, I learned a great deal from his opinions and his scholarship. In the history of the Court, few Justices have had such influence on the way in which the law is understood. On a personal level, I am deeply grateful for his remarkably generous involvement with our community, including his frequent appearances in classes and his memorable lecture to our first year students this past November. The justice offered first-year students his insights and guidance, and he stayed with the students long after the lecture was over. He cared passionately about the profession, about the law and about the future, and the students who were fortunate enough to hear him will never forget the experience. We will all miss him.”

[Note: In the original post, I missed the first line, and kept missing it. Don’t ask me why. The text has been finally, after a couple botched attempts, been revised to include it.]

Is there anything inappropriate about the dean’s statement? Not in my view. This is nothing but a traditional expression of professional respect on behalf a prominent institutional member of the legal community. There is nothing in the statement, save for the last sentence, that anyone could argue is untrue. Countless academics, as well as Scalia’s more liberal colleagues, did learn “a great deal from his opinions and his scholarship.” He was an influential and significant figure on the Court. Scalia was generous with his time and passion as a teacher, and by all accounts he was a good one.

The opening statement, “Scalia was a giant in the history of the law, a brilliant jurist whose opinions and scholarship profoundly transformed the law,” seems to be what rankled Scalia critics. It shouldn’t have. At worst it is standard memorial puffery. But calling Scalia a giant “ in the history of the law” seems fair whether you agree with his jurisprudence or not: he is certainly among the 20 or so most quoted, most debated, and most provocative justices. The rest shouldn’t be troubling to anyone who isn’t suffering from Scalia-phobia. A Justice can be brilliant and transformational while being wrong.

None of the reports of the controversy ignited by this standard issue sentiment mention it, but Georgetown Law Center isn’t on the Georgetown campus. It has its own campus that is a 15 minute walk from the Supreme Court. Law students regularly attend oral arguments; I did: it was one of the great advantages of studying law there. More than any law school, the Law Center has good reason to feel a special affinity to the Court and all its justices.

2. What about the last sentence? Is it appropriate for Treaner to speak for the law school community and say that “We will all miss him”? He was reasonable and fair to assume that. Unfortunately, in today’s vicious partisan divide where opinions and sincere positions reached after thought and research are too often treated as proof of consort with Satan, and ion which even lawyers, who are trained not to take legal arguments personally, are frequently unable to respect a colleague for a well-reasoned argument that they may still think is completely wrong, it was not a safe assumption. Pillory the dean, then, for giving all members of his community the benefit of the doubt, and assuming they are capable of grace, compassion, fairness, professional respect and civility.

It’s still not unethical to assume one’s colleagues have some class.

3. They all don’t, unfortunately. Law Center professors Gary Peller and Mike Seidman (I know Mike, never met Gary) then used the Campus Broadcast system, usually used for event announcements, invitations and policy changes, to send a message to all members of the student body titled, “Responses to Dean Treanor’s Press Release Regarding Justice Scalia.” Peller’s statement reads,

Like Mike Seidman, I also was put-off by the invocation of the “Georgetown Community” in the press release that Dean Treanor issued Saturday. I imagine many other faculty, students and staff, particularly people of color, women and sexual minorities, cringed at headline and at the unmitigated praise with which the press release described a jurist that many of us believe was a defender of privilege, oppression and bigotry, one whose intellectual positions were not brilliant but simplistic and formalistic….That ‘community’ would never have claimed that our entire community mourns the loss of J. Scalia, nor contributed to his mystification without regard for the harm and hurt he inflicted.”

This was partisan grandstanding of the worst kind. The professors, of course, have a right to proclaim their opinions to the student body any time they want to, but their complaint here was petty and mean-spirited. It also models behavior that is poisonous both to the legal profession and the culture as a whole. The are saying, in essence, “We don’t mourn him, we won’t miss him, and we’re glad to be rid of him, because his legal theories aren’t our legal theories, and we are on the side of the angels while he was an uncaring villain.” Such a message accomplishes nothing positive, and much that is destructive. The professors engaged in demonizing, when their profession and their duty is not to denigrate but reason. If they really think they can prove that Scalia was a defender of privilege, oppression and bigotry, they can make that case in a scholarly paper: I doubt that they can. Scalia often defended the rights to engage in conduct that he did not personally support, as well as some he did: the sloppy rhetoric of Seidman and Peller echoes the legally ignorant who accuse criminal defense attorneys of defending robbery and murder. Continue reading →

#FreeKesha Ethics: Ignorance, Indignation And Feminist Bias Vs. The Law

February 22, 2016February 22, 2016 / Jack Marshall / 22 Comments

Perhaps, if you don’t follow pop music, you managed to miss the long, long ongoing drama of singer Kesha’s (formerly “Ke$ha”—I know, I know… ) legal efforts to get out of her recording contract with Sony and producer Dr. Luke, (Lukasz Gottwald) who has produced hits by other artists like Katy Perry, Rihanna, Pitbull and Miley Cyrus. It isn’t over, but the unethical caterwauling by Kesha and her supporters both in and out of the industry is deafening.

Also off-key.

Kesha Rose Sebert was 18 and an unknown singer from Nashville when she signed a five or six (I have read both) album contract with one of Dr. Luke’s recording companies in 2005. It took five years, but the producer’s faith in her paid off when Tik Tok became the No. 1 song in the country. Kesha released two albums in the next two years, but none since 2012.

In October 2014, Kesha’s legal team sued Dr. Luke for alleged sexual assault and battery, sexual harassment, gender violence, emotional abuse, and violation of California business practices since the beginning of their business relationship. The lawsuit claimed that Dr. Luke had drugged her, raped her while she was drugged, and also tormented her to the point where Kesha developed an eating disorder that eventually required medical attention. Kesha asked that the court let her out of her exclusive recording contract because, as she put it in a sworn affidavit, “I cannot work with this monster.”

Dr. Luke, not appreciating being branded a rapist, filed a countersuit against Kesha and her attorneys for defamation, and accused her, her mother, and her management of fabricating the abuse claims to break her contract with him and his partner, Sony. Last November, Dr. Luke asked the judge to dismiss Kesha’s allegations of sexually abusing her. Continue reading →

Ethics Review Of “Supreme Court Vacancy Theater”

February 17, 2016February 17, 2016 / Jack Marshall / 104 Comments

The short review would be “Yecchh.”

The reason that the earlier Ethics Alarms post about the death of Justice Scalia expressed the wish that President Obama on his own declare that he would defer the almost certainly futile appointment of a successor to the tender care of the next President was precisely because it was obvious that any other course was just going to create more ugly partisan name-calling and hypocrisy, accomplishing nothing positive and wasting a lot of energy and time. I also knew that this most divisive of POTUS’s would no more do that than he would deliver his next speech in a duck voice. Thus we have the theater, with people who should know better acting like the Republican Senate’s announcement that it would not be voting on President Obama’s nominee, should he make one, is some kind of gross breach of duty and ethics, and people who don’t know better acting as if being one Justice short is some kind of Armageddon. Neither is true.

Nor is there any reasonably similar set of circumstances and conditions that makes the GOP’s entirely political decision, and Obama’s entirely political decision to test it, some kind of breach of precedent. There is no precedent—not with these factors in play:

A Democratic President with both Houses controlled by the Republicans

An ideologically and evenly divided Court, with the new Justice potentially having a momentous and nation-changing effect on the determination of many looming cases

An unusually partisan and ideological President who has proven unwilling and unable to seek legitimate input from the opposing party, and who, in fact, has been personally and bitterly insulting toward it

A rebellion against the “establishment” in both parties, from the extreme reaches of both parties, on the grounds that neither is extreme or combative enough

A lame duck, not especially popular President and an approaching national election that is currently being molded by unpredictable personalities and events, and is likely to be hotly contested..

The Supreme Court unusually central to the government of the country.

The vacancy on the Court being created by the death of one of the Court’s most influential, ideological and powerful members.

A degree of political division in the public not experienced since the Civil War.

These are all material factors, made more material in some cases because of the other factors. Thus accusations that the Republican have engaged in some kind of grand, historical crime against democracy is, to the extent the accusers believe it, crap, and to the extent that they don’t, ignorant. Continue reading →

WHAT??? Now It’s Sexist Not To Like Hillary’s Speaking Style?

February 15, 2016February 15, 2016 / Jack Marshall / 27 Comments

Washington Post Democratic-shill-masquerading-as-a-journalist Dana Milbank is trying a new tact: if you think Hillary is a lousy campaigner, you’re a sexist. In fact, he came this close to saying that there’s “a special place in hell” for anyone who doesn’t find Hillary Clinton a treat for the eyes and ears.

Of course, he began his column–it is called “The sexist double standards hurting Hillary Clinton”— with a statement designed to make me break some teeth: “Much of Hillary Clinton’s difficulty in this campaign stems from a single, unalterable fact: She is a woman.” No, almost all of of Hillary Clinton’s difficulty in this campaign stems from a single, unalterable fact: She is an untrustworthy liar who can’t stop lying.

Never mind quibbling over that. Here is Dana’s argument in brief:

“The criticism is the same as in 2008: She doesn’t connect. She isn’t likeable. She doesn’t inspire. She seems shrill. “She shouts,” Bob Woodward said on MSNBC this month, also suggesting she “get off this screaming stuff.” Joe Scarborough, the host, agreed: “Has nobody told her that the microphone works?”…That’s not about Clinton; it’s about us. “It is a subtle kind of sexism that exists that we don’t recognize,” said Newton-Small, who literally wrote the book on the matter… “When women raise their voices, people tend to get their hackles up. People I talk to at Clinton events put her in a maternal role: Why is she screaming at me? Am I in trouble?”

Wrong. In fact, laughably wrong. In fact, political-correctness mongering in the First Degree. Clinton is engaged in fields, advocacy, politics and leadership, where effective communication skills and tools are essential, and her job, indeed, is to communicate in ways that her intended audience finds persuasive and easy to listen to. She can’t say, as Milbank tries to on her behalf, “Enjoy or you’re oppressing me!” Continue reading →

Ethics Observations On An Ugly–But Entertaining!—GOP Debate

February 14, 2016February 14, 2016 / Jack Marshall / 7 Comments

I knew this time would come, and it came the same week for both parties: I’m getting sick of the debates, and it’s harder and harder to find new illumination and conclusions with each one. For some reason, however—the effect of the unsettling news of Justice Scalia’s sudden death. perhaps?—last night’s Republican debate (transcript here) was nastier and more personal than any of the debates this cycle, and Charles Krauthammer may be correct that that it was the most ugly Presidential candidates debate ever.

Observations:

1. This was 100% the fault of Donald Trump. I keep reading that the Republicans should be embarrassed—-what control does the party have over Trump? He’s in the race, and that means that he will drag down the conduct in the race. Arguing with him is like arguing with a 12-year-old—I was reminded of Erma Bombeck’s line that it is impossible to argue with a six-year-old without sounding like a six-year-old. Sometimes I think all the debaters should agree to turn their backs on Trump when he’s ranting, like all the jurors do in “Twelve Angry Men” when the racist finally lets it all out.

I wrote months ago that Republicans should have told Trump he wasn’t a Republican and thus wasn’t welcome in the debates, the nomination race or the party. They had neither the foresight, principles nor guts to do that, and now they are stuck with him polluting the debates and the race, engaging in the equivalent of belching and farting, as the juveniles supporting him cheer and snicker. Good job, everybody.

2. That was excellent, fair, competent moderation by John Dickerson. You know the debate has been a mess when the moderator is the star.

3. I have really come to resent Ben Carson’s sleepy, arrogant, useless statements and observations, wasting precious time, blathering platitudes, appealing only to those ignorant souls, like him, who really think the most challenging and consequential job on Earth should be handed to a proud amateur. In that respect, he is the most unethical individual on the stage. Continue reading →

The Loyalty Problem: Fundamental Ethics Confusion at Mount St. Mary’s University

February 11, 2016February 11, 2016 / Jack Marshall / 16 Comments

Loyalty is an ethical virtue; the whole concept of duty often depends on it. Loyalty is also the most dangerous of all ethical principles. Misapplied, misinterpreted, followed blindly or carried to extremes, it can lead to absolute wrong. A current controversy at Maryland’s Mount St. Mary’s University illustrates how.

A reliable source obtained information that the school’s president, Simon Newman had argued that the school needed to be ruthless in maintaining high standards by getting rid of less competitive students, and had done so by telling colleagues opposing him, “This is hard for you because you think of the students as cuddly bunnies, but you can’t. You just have to drown the bunnies…Put a Glock to their heads.”

The student newspaper reported the conversation, which Newman hasn’t denied, and it was duly published in The Mountain Echo, the student newspaper.

Shortly after the “scoop,” The Mountain Echo’s faculty advisor Ed Egan was fired by Newman for violating the “code of conduct and acceptable use policies.” During the same period in which Egan was fired, Newman did a Michael Corleone on some other “disloyal” lieutenants.” Thane Naberhaus, an associate professor of philosophy, was dismissed after criticizing Newman’s policies, and David Rehm, was stripped of his role as provost after questioning university policies.

The dismissal letter to Naberhaus, signed by Newman, said “As an employee of Mount St. Mary’s University, you owe a duty of loyalty to this university and to act in a manner consistent with the duty. However, your recent actions, in my opinion and that of others, have violated that duty and clearly justify your termination.” Ed Egan says that he was also told that he had been “disloyal.”

I can’t speak to the dismissals of the other employees, but in the case of Egan, his loyalty was where it should be. President Newman doesn’t understand his own job, or the ethical principles applicable in academia. Continue reading →

The Seventh Annual Ethics Alarms Awards, Part II: The Worst of Ethics 2015

February 8, 2016February 8, 2016 / Jack Marshall / 17 Comments

Ethics Corrupters of the Year

(Awarded to the unethical public figure whose prominence, popularity and success most corrupts the public’s ethical values)

A Tie: Hillary Clinton and Donald Trump. Nobody else is close.

I’m sorry that these two are so dominating the awards. They also dominated the posts last year. If they dominate the awards next year, God Save The United States of America…

Double Standard Of The Year

The deference accorded to anti-white protesters on dozens of college campuses, not just by spineless administrators but much of the news media. Similar protests, conduct and rhetoric by white students would be immediately condemned for what it would be: blatant racism.

Lie of the Year

Hands Up! Don’t shoot! The lie was uttered in 2014, but acquired new status after the Justice Department unexpectedly and definitively determined that the evidence did not support the inflammatory myth that Mike Brown was shot dead in Ferguson while trying to surrender to Officer Wilson. Never mind: the lie is part of the manifesto of Black Lives Matter and similar groups; it is still alluded to by activists and shameless politicians; it still divides the nation and focuses hate on police departments; and it has contributed to getting police officers killed while making communities more vulnerable to crime. It may be the Lie of the Decade.

Uncivil U.S. Official of the Year

Justice Antonin Scalia, who crossed all lines of judicial restraint, collegiality and civility when he excoriated his colleague, Justice Kennedy, who was the fifth vote in the majority of SCOTUS’s ruling that same-sex marriage was a Constitutional right no state could deny, with this comment in a footnote:

“If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

——U.S. Supreme Court Justice Scalia,

The Jesse Jackson Award

(For the Year’s Worst Amateur Diplomat)

Barack Obama. I know, this is snarkier than I like to be in these awards, but the signature diplomatic measure of the past year, the astounding, one-sided, dangerous and Munich-like deal with Iran, could only be the product of an ideological tyro placing wishes and hopes over diplomatic responsibility, and not for the first time. For most Presidents, trading dangerous terrorists for a deserter would be nadir. History has seen many tragedies seeded by world leaders with no diplomatic skills: the disastrous Treaty of Versailles, Potsdam, and the treaty that this one most resembles, negotiated by the hapless Neville Chamberlain. We can only hope that the worst case scenario doesn’t materialize, but if it does not, it will be moral luck.

Most Unethical Sports League

The NFL, for the third year in a row. “Concussion,” Tom Brady, Deflategate, more evidence that NFL players are slowly killing themselves with brain damage, Johnny Manziel. What a great sport pro football is.

Sports Cheat of the Year

Tom Brady, New England Patriots ball-deflating quarterback. Brady eventually avoided punishment because the NFL botched both its investigation and its imposition of penalties, but his smirking, cynical comments about the incident made it clear that he thinks cheating is no big deal, and most of his fans agree.

Not surprisingly, Brady supports Donald Trump.

Unethical Lawyers of the Year

Law Firm Division: Lawyers Stephen Diaco, Robert Adams and Adam Filthaut of the Florida firm Adams & Diaco were found to have “maliciously” set up the drunken-driving arrest of their opposing counsel in a high-profile defamation trial. The plot involved a comely paralegal and a cooperative DUI cop. Last I checked, it looked like all three lawyers would be disbarred for life.

Scary Lawyer Division: California lawyer Douglas Crawford held a can of pepper spray a yard from the face of the opposing lawyer saying, “I will pepper-spray you if you get out of hand.” Then the lawyer pointed a stun gun at Traver’s head and said, “If that doesn’t quell you, this is a flashlight that turns into a stun gun.” To show he wasn’t kidding, Crawford discharged the stun gun the startled lawyer’s face.

Hard-working Lawyer Division: Massachusetts lawyer, Karen Andrade, was charged with prostitution after a police investigated a report by a suspicious neighbor and found online reviews of both the lawyer’s legal services and her escort services

Celebrity Lawyer Division: Michael Cohen, one of Donald Trump’s lawyers, told the Daily Beast that it was legally impossible for a man to rape his wife. He was only a couple of decades and many court cases behind on his research. That piece of legal scholarship came after he had threatened the website’s staff in language usually associated with loan sharks and pimps.

Unethical Prosecutor of the Year

Baltimore’s City Attorney Marilyn Mosby
Continue reading →

So Modern Feminists Are Apparently Bigoted Bullies And Gender Supremacists…Now What?

February 8, 2016February 8, 2016 / Jack Marshall / 91 Comments

The first step is to call them out on it.

Item:

“While introducing Mrs. Clinton at a rally in New Hampshire on Saturday, Ms. Albright, 78, the first female secretary of state, talked about the importance of electing a woman to the country’s highest office. In a dig at the “revolution” that Mr. Sanders, 74, often speaks of, she said the first female commander in chief would be a true revolution. And she scolded any woman who felt otherwise.

“We can tell our story of how we climbed the ladder, and a lot of you younger women think it’s done,” Ms. Albright said of the broader fight for women’s equality. “It’s not done. There’s a special place in hell for women who don’t help each other!”

This is pure bullying, misandry and tribalism, anti-male bigotry and a double standard—not that there’s anything wrong with that.

No male politician, pundit or celebrity would dare argue that a man not only should but must vote for the candidate with testicles, because it would be immediately attacked—correctly—as sexist, bigoted, irresponsible, divisive and as an aside, stupid. How can intelligent people make a physiological feature that is unrelated to ability and competence the defining one in choosing a President?

Unfortunately, there’s an answer to that: this was how Democrats elected and re-elected the first black President, with over 95% of voting blacks using color as the prime reason to chance handing over immense power to an inexperienced, untested amateur at leadership and management. Yet even African-Americans were not so blatant and shameless as to openly state that any black American who didn’t vote based on pigment was deserving of eternal damnation. A former Secretary of State did that to bully women into voting for Hillary Clinton, however, as Clinton beamed.

Continue reading →

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