Law & Law Enforcement

No, Washington Post Editors, THIS Is What Stephen Colbert’s Spat With CBS Is REALLY About…

/ Jack Marshall / 1 Comment

….and you all know it as well as I do.

Proving that the Washington Post wasn’t recently gutted by its Gazillionaire owner Jeff Bezos to make it more fair and objective but just to try to save money while keeping it dishonest and partisan, the paper’s Editorial Board published a disingenuous, politically motivated and deliberately misleading editorial [gift link!]explaining that the Trump Administration’ resuscitation of the long dormant—but still on the books—FCC “Equal Time” rule is simply a pretense for using the regulation for political censorship. You see, as the Post editors “explain,” the rule is no longer needed! here is how they frame the current controversy:

“Passed by Congress as a part of the 1934 Communications Act, the equal-time rule says that if a broadcast station features a candidate for public office, it “shall afford equal opportunities to all other such candidates for that office.” The FCC is charged with enforcing it. On Monday, Colbert said that CBS prohibited him from airing an interview with Texas Senate candidate James Talarico (D). He claimed the network’s lawyers were worried about clashing with the FCC.

“CBS told a different story. It said Colbert wasn’t prohibited from airing the interview, but rather warned that it might “trigger the FCC equal-time rule for two other candidates, including Rep. Jasmine Crockett.” Talarico, a state representative, and Crockett are the leading contenders for the Democratic nomination in the 2026 Texas Senate race. The network claimed it presented Colbert with “options for how the equal time for other candidates could be fulfilled.”

“On Tuesday night, Colbert rebuked the network again, but the finger-pointing misses the point of how a zombie regulation created this mess in the first place.

“The government shouldn’t be dictating the political content of late-night television — or of any other entertainment Americans choose to consume. But that’s exactly what the equal-time rule does. It is rooted in an entirely different technological landscape; in the early 20th century, scarce radio frequencies meant that the means of mass communication were limited. That’s why Congress saw fit to try to mandate that all candidates got a hearing.

“Since the advent of cable news and the internet, the possibilities for transmitting information and entertainment have exploded. Colbert’s Talarico interview, for example, was posted on YouTube, where it already has more than 6 million views — far more than it probably would have received if not for this controversy. Politicians can compete for attention without government help….”

The Post’s subterfuge would be a legitimate argument except for the democracy-rotting condition that the paper is ignoring because it is part of it. That condition is the near total ideological monopoly of the entertainment industry, giving the Left—again, the Post and its pals—access to the controls of the powerful propaganda and indoctrination weapon television still is.

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Someone Is Actually Allowed On TV Who Vomits Junk Like This As “Commentary”…Wow.

/ Jack Marshall / 4 Comments

True, the junk salesman is Lawrence O’Donnell, who is not only Trump Deranged but a serial killer of facts, fairness, objectivity and responsible news coverage who been running amuck on MSNBC, aka. MSNOW, for decades. But even partisan propagandists masquerading as journalists should have some standards enforced on them by their bosses, shouldn’t they? How can the network justify keeping someone employed who offers audiences junk like O’Donnell’s rant yesterday over Stephen Colbert being told by CBS that he had to abide by the FCC’s “Equal Time” regulations?

Here’s O’Donnell, ranting…I think I’ll intersperse my comments in red this time:

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Dogs Are People Too, Sort Of, At Least When It Comes To Divorce, Says Pennsylvania.

/ Jack Marshall / 10 Comments

Pennsylvania looks poised to complete the passage of legislation requiring judges to consider the welfare of “companion animals”—you know, pets?— in divorce proceedings. House Bill 97, sponsored by dog-loving Rep. Anita Kulik, D-Allegheny, is heading to the statute book unless Governor Josh Shapiro has the guts to alienate a rather passionate voting bloc by vetoing it.

The bill amends the state’s Domestic Relations statute to add a special category for companion animals, recognizing them as sentient, “living beings that are generally regarded as cherished family members” and not property to be treated as such. As of now, pets in Pennsylvania divorces have the same status as furniture or appliances. Under the new law, judges would decide which member of the dissolving union should get custody of pets based on…

  • …whether the animal was acquired before or during the marriage.
  • …the pet’s basic daily needs, and who is best able to fulfill them
  • …which party was usually in charge of veterinary care and took care of the animals’ exercise and social interaction.
  • …which party is most likely to comply with compliance with state and local regulations regarding pets.
  • …who haa the greater financial ability to support the animal.

Reasonably, the legislation also presumes that a service animal should remain with the party who needs the service.

My late wife, an animal junkie who got far more upset over movies where a dog dies (as in “Turner and Hooch,” “Old Yeller,” “My Dog Skip”…actually, the dog usually dies in dog movies) than when, say, Ali MacGraw died in “Love Story,” would have loved that law. She never forgave Tom Cruise for treating his dog “like a piece of furniture” in “The Firm.”

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Ethics Observation on the Larry Bushart Fiasco

/ Jack Marshall / 11 Comments

Do read this New York Times story [gift link]about Larry Bushart, a progressive Facebook addict who was arrested and spent 37 days on jail after being arrested on the theory that a meme he posted (that he didn’t create) was a “true threat” and thus a felony. He was held on a two-million dollar bond. I mentioned the case last November, but had limited information then.

Believe it or not—I can barely believe it—the meme above is what got Bushart arrested! Eventually the charges were dropped, but understandably, the 61-year-old retired police officer isn’t posting memes on Facebook any more, and is hesitant to express his contrarian opinions on social media. In a real sense, his free speech has been “chilled” by state action…state action that was unethical, illegal, an abuse of discretion and power, and mind-numbingly stupid. It is also a cautionary tale.

Observations:

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Ethics Dunce (Again): Georgetown University Law Center…and May I Add: KABOOM!

/ Jack Marshall / 3 Comments

From Ethics Alarms, December 10, 2023…

Late yesterday,the president of the University of Pennsylvania, Elizabeth Magill, resigned, and the school’s chairman of the board followed with his own resignation a couple of hours later. Magill was one of three elite college presidents who embarrassed themselves and their employers with offensive, legalistic answers to pointed questions from Representative Elise Stefanik (R-NY) regarding their school’s tolerance of anti-Semitism on their campus in the wake of the October Hamas terrorist attack on Israel, and their weak responses to demonstrations on their campuses that could fairly be called threatening to Jewish students.

UPenn’s situation became critical when alumnus Ross Stevens announced that he was withdrawing a gift worth around $100 million. That would be a significant loss even for Harvard, whose endowment exceeds the treasuries of many nations. The resignation immediately focused attention on Claudine Gay, Harvard’s president of just a couple of months, whose responses to Stefanik’s withering cross-examination in the Congressional hearing were extremely similar to Magill’s. The resignation of all three women was called for in an unusual letter signed by 72 members of Congress, many of them Democrats.

I just received this message as a Georgetown University Law Center alumnus:

Dear Georgetown Law Alumni,

It gives me great pleasure to share with you that M. Elizabeth (Liz) Magill has been appointed as the next Executive Vice President and Dean of Georgetown University Law Center, beginning August 1, 2026. President Robert M. Groves’ announcement is linked here.

Professor Magill brings to Georgetown Law a wealth of experience leading some of our nation’s most prestigious universities and law schools, including serving as President of the University of Pennsylvania, Executive Vice President and Provost of the University of Virginia, and Dean of Stanford Law School. I am pleased to share that, in addition to her role as Executive Vice President and Dean, Professor Magill will join the Law Center as a tenured member of the faculty. And her Georgetown roots run deep—her father and three of her siblings are Georgetown graduates.

Professor Magill is a graduate of Yale University and the University of Virginia School of Law, where she was articles development editor of the Virginia Law Review. Following law school, she clerked for Judge J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit and then for U.S. Supreme Court Justice Ruth Bader Ginsburg. She is an award-winning scholar of administrative and constitutional law whose research focuses on topics such as the separation of powers, standing, regulation, and judicial review. She is an elected fellow of the American Academy of Arts and Sciences and member of the American Law Institute.

This is a critical time for the Law Center and the University. I am confident that Professor Magill is the right person to lead the Law Center into a new era marked by academic excellence, financial resilience, and national prominence. There will be many opportunities over the next several months for you to meet Professor Magill. In the meantime, please join me in welcoming her to Georgetown University and to the Law Center. 

Sincerely,

Joshua C. Teitelbaum
Interim Dean & Executive Vice President
David Belding Professor of Law

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The Fantasy Headline

/ Jack Marshall / 8 Comments

I don’t want to dwell on the headline above from the Times, but this is just another example of how, as in democracy’s death of a thousand cuts, our journalists deceive, confuse and manipulate public opinion. They also think they are clever about it, just as they think they are smarter than they are.

“President Trump on Thursday announced he was erasing the scientific finding that climate change endangers human health and the environment, ending the federal government’s legal authority to control the pollution that is dangerously heating the planet,” the Times piece begins. “The action is a key step in removing limits on carbon dioxide, methane and four other greenhouse gases that scientists say are supercharging heat waves, droughts, wildfires and other extreme weather.”

Well.

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Catching Up With “The Lincoln Lawyer” Part 4

/ Jack Marshall / 4 Comments

I like the show in general, but its writers need to catch up with the Rules of Professional Conduct and their interpretation.

Twenty years ago, in “The Sopranos,” Tony and his wife Carmella were having marital problems—gee , I wonder why?—and Tony was tipped off that she was looking for a divorce lawyer. So Tony contacted every major divorce lawyer he could find to tell them all about his marriage on the pretext that he was considering retaining one of them.. The idea was to conflict them all out of representing her, because they had received confidential communications from Tony.

Rule 1.18, relatively new at the time, held that lawyers had to keep the confidences of even potential clients, making such a dastardly tactic possible. But not long after that episode of “The Sopranos” revealed the loophole in the rules, courts and legal ethics opinions closed it with the sensible holding that someone only consulting a lawyer to create a conflict and not as a good faith effort to seek legal representation was not a genuine potential client.

Nevertheless, in the current season of “The Lincoln Lawyer,” Mickey’s newly minted lawyer associate (and ex-wife) says she got her first family law client because the woman had been frozen out of hiring the established divorce lawyers after her louse of a spouse had pulled Tony’s old trick.

True, it’s not always easy to prove that an estranged spouse is seeking conflicts rather than a lawyer. Nonetheless, lawyer TV shows are ethically obligated not to deceive the public. Tony Soprano’s method is unlikely to work now, and hasn’t been viable for at least a decade.

In one area, “The Lincoln Lawyer” deserves praise for properly representing a lawyer’s duty that Hollywood almost always ignores. Whenever Mickey Haller, “The Lincoln Lawyer,” is presented with a plea deal or another offer from the opposing attorney, even if Mickey makes it clear that he thinks the offer is ridiculous, he always says, “I’ll run it by my client,” which he has to do. But even in some of the most celebrated legal films, like Paul Newman’s “The Verdict,” the lawyers don’t do that. As a result, many clients don’t know their attorney can’t reject or accept a settlement offer without consulting them. That misconception can cause real harm.

The previous installments of these legal ethics commentaries on the streaming series can be found here, here, and here.

Ethics Quiz: The I.C.E. Endorsement

/ Jack Marshall / 18 Comments

Sarai Jimenez, a special education teaching intern at in Pajaro Valley School District’s Watsonville, California-based MacQuiddy Elementary, endorsed the presence of I.C.E. officers in her town in a comment on Facebook last month.

“Yay!!! We need ICE in Watsonville!! It’s been getting out of hand,” Jimenez wrote, as you can see above. But the parents in Pajaro Valley Unified School District, where 84% of students are Hispanic and, given California’s sanctuary state aspirations, might belong to families with one or more illegal immigrants, considered Jimenez’s support for ICE….that is, enforcement of U.S. law…unconscionable. Many complained, and Jimenez was placed on leave from her job in Pajaro Valley School District. It appears that she will be fired, if she hasn’t been already.

“You can’t just tell the world how you feel and not expect repercussions from people because of how they feel about I.C.E.,” local parent Jorge Guerrero said. If I were awake completely, which I’m not, I would compose several alternate versions of this statement with provocative substitutes for “I.C.E.”

Jimenez tried to save her job by groveling a politician-style denial rather than an apology,“I’m sorry that the comment was taken out of context,” she told reporters. “But my actions speak so much louder than all those hateful bullies’ words.” The hateful bullies are the ones who bombarded her with threats and insults until she took down her Facebook page. “You are a shameful disgraceful disgusting woman,” one critic wrote.

Predictably, though apparently not by the interning teacher, the school administrators sided with the bullies if not their methods (although firing someone for supporting law enforcement is a lot more harmful than insulting her).

MacQuiddy Elementary Principal Sara Pearman said in a statement that Jimenez’s comment “does not reflect the values” of the school or district.

Hmmmm…

Your Ethics Alarms Ethics Quiz of the Day:

Is it ethical to fire Jimenez for expressing support for law enforcement officials doing their jobs?

I think this is a close call. Some points:

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Gee, Who Could Have Ever Predicted That Marijuana Use Would Become a Problem? Me, For One…

/ Jack Marshall / 10 Comments

I really try not to get emotional over ethics stories, but the current Editorial Board declaration in the New York Times headlined, “It’s Time for America to Admit That It Has a Marijuana Problem” makes me want to run screaming naked into Route 395.

The U.S. had a marijuana problem a half century ago, when an earlier wave of The Great Stupid washed over the land and all manner of important lessons a healthy and functioning society needed to remember and institutionalize were deliberately tossed away because a lot of passionate, anti-establishment assholes were sure that they knew better than anyone “over 30.” I fought this destructive development from college, when I watched one of my room mates suffer short term memory loss from getting stoned morning and night; in law school, when the student running my lightboard for a production of “Iolanthe” erased all the light cues that we had taken six hours to set up because he was higher than the moons of Jupiter, all the way onto this blog. I put up with the mockery of classmates and dorm mates over the fact that I would not “try” pot (“It’s illegal” wasn’t a winning argument, so I settled on “It’s stupid and destructive.”). I drew a line in the sand with my addiction-prone wife, a former pot-head who was already an alcoholic. My fellow lawyers quickly learned not to get stoned around me because they knew I regarded buying and selling pot when it was illegal grounds for reporting them to bar authorities and respected my integrity enough to have reasonable doubts that I might not pretend that I didn’t know what I knew.

I carried the battle onto Ethics Alarms as the relentless pro-stoner propaganda was heading to victory, resulting in the legalization of the drug, the inevitable result of which the assholes who edit the New York Times have the gall now to tell us “Oopsie!” about after being a significant part of the mob mentality that inflicted it on the public, probably forever.

Back in 2011, I drafted a post that I never finished titled, “To My Friends the Pot-Heads: I Know. I’ve Heard It All Before.” It began:

“I take a deep breath every time I feel it necessary to wade into the morass of the Big Ethical Controversies, because I know it invites long and fruitless debates with entrenched culture warriors with agendas, ossified opinions, and contempt for anyone who disagrees with them. War, abortion, religion, prostitution, drugs, torture, gay marriage…there are a lot of them, and all are marked by a large mass of people who have decided that they are right about the issue, and anyone disagreeing with them is stupid, evil, biased, or all three. Contrary to what a goodly proportion of commenters here will write whichever position I take, I approach all of these issues and others exactly the same way. I look at the differing opinions on the matter from respectable sources, examine the research, if it is relevant, examine lessons of history and the signals from American culture, consider personal experience if any, and apply various ethical systems to an analysis. No ethical system works equally well on all problems, and while I generally dislike absolutist reasoning and prefer a utilitarian approach, sometimes this will vary according to a hierarchy of ethical priorities as I understand and align them. Am I always right? Of course not. In many of these issues, there is no right, or right is so unsatisfactory—due to the unpleasant encroachment of reality— that I understand and respect the refusal of some to accept it. There are some of these mega-issues where I am particularly confident of my position, usually because I have never heard a persuasive argument on the other side that wasn’t built on rationalizations or abstract principles divorced from real world considerations. My conviction that same-sex marriage should be a basic human right is in this category. So is my opposition, on ethical grounds, for legalizing recreational drugs.”

Instead of finishing and posting that essay, I posted this one, which used as a departure point a Sunday ABC News “Great Debate” on hot-point issues of the period featuring conservatives Rep. Paul Ryan and columnist George Will against Democratic and gay Congressman Barney Frank and Clinton’s former communist Labor Secretary Robert Reich. [Looking back, it is interesting how all four of these men went on to show their dearth of character and integrity. Ryan proved to be a spineless weenie, rising to Speaker of the House but never having the guts to fight for the conservative principles he supposedly championed. Frank never accepted responsibility for the 2008 crash his insistence on loosening mortgage lending practices helped seed, preferring to blame Bush because he knew the biased news media would back him up. Will disgraced himself by abandoning the principles he built his career on in order to register his disgust that a vulgarian like Donald Trump would dare to become President. Reich was already a far left demagogue, so at least his later conduct wasn’t a departure. I wrote in part,

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Catching Up With “The Lincoln Lawyer” Part 2

/ Jack Marshall / 1 Comment

In this limited series of as yet undetermined length, I’ll be examining the legal ethics issues raised by the Netflix limited series of as yet undetermined length based on the Michael Connelly character, fed through the filter of the ubiquitous David Kelley.

I’m not going in strict order chronological order because why should I? This issue is a rich one, and arrived in Season 3 of the show. A prostitute whom Mickey had advised and had testified to help a client in Season 2 turned up dead, and he agreed to represent the man, her cyber pimp, accused of killing her before he realized she was the victim. Mickey liked and sympathized with the victim; whether he was officially her lawyer is a bit vague, but she seemed to think of him that way.

Can a lawyer represent a defendant accused of killing a lawyer’s client? Sure enough, this has happened; there’s even a Supreme Court case about it.

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