Law & Law Enforcement

Ethics Alarms Reader Poll: Will The SCOTUS Decision on “Fuct” Be Unanimous?

/ Jack Marshall / 24 Comments

It should be. It’s amazing to me that this issue has to take up the time of the Supreme Court, it’s so obvious.

Last week, the U.S. Supreme Court agreed to review that case of Iancu v. Brunetti, and decide whether the Lanham’s Act’s ban on “immoral” and “scandalous” trademarks violates the First Amendment. The U.S. Patent and Trademark Office had refused to register a trademark for a line of clothing called “FUCT,” reasoning that “FUCT is the past tense” of a vulgar word and is “therefore scandalous,” a federal appeals court said. The U.S. Court of Appeals for the Federal Circuit had struck down the ban on scandalous and immoral trademarks in December 2017,  but clothing designer and artist Erik Brunetti had agreed that the Supreme Court should hear the case even though he had won.  The cert petitions are here and here.

The Supreme Court struck down another provision of the Lanham Act in June 2017,  when it held that the ban on “disparaging” trademarks violated the First Amendment. The case, Matal v. Tam, was filed by an Asian-American rock band that wanted to trademark the name the Slants. The vote was 8-0 because Justice Neil M. Gorsuch did not participate in the decision. That decision also squashed efforts begun by Democrats and the Obama Administration to force the Washington Redskins to give up their “offensive” team nickname. The team’s trademarks had been cancelled in 2014 following complaints from “offended” non-football fans and a small minority of Native Americans. Justice Samuel Alito wrote for the Court,”It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”  The opinion rejected the government’s argument that protected trademarks become a form of government, rather than private, speech. Continue reading →

Morning Ethics Warm-Up, 1/7/19: Fleeing The US, Exploiting The Golden Globes, Spinning The Shutdown, And More

/ Jack Marshall / 24 Comments

Best wishes for an ethical week ahead!

1. They just can’t help themselves. Golden Globe hosts Andy Samberg and Sandra Oh went out of their way before the show to sell the idea that last night’s Golden Globes Awards would avoid political grandstanding, but sure enough, there was Best Actor in a Comedy or Musical winner Christian Bale, who plays Dick Cheney in “Vice,” accepting his honor by saying that he was “cornering the market on charisma-free a—holes … What do we think, Mitch McConnell next?” [Pointer: Zoltar Speaks!]

If I were the producer or on the Golden Globes board, I’d ban him from future ceremonies. Bale, who is probably the best actor still acting now that Daniel Day-Lewis has retired, was just virtue-signaling to the left-biased Hollywood crowd, and willing to annoy a lot of his audience to do it. There’s nothing productive or profound about calling two public servants, one of them retired, “a-holes” on national television; it’s just uncivil and rude. Not only that, but Bale is a genuine hypocrite: Less than a month ago, the actor spoke glowingly about Cheney, telling Fox News, “He was a wonderful family man — he’s a great dad, he’s an avid reader, he has a brain like a vice and he constantly reads history.” It sounds to me like Bale cuts his opinions and words to fit the audience he’s addressing.

2.  From the Ethics Alarms “How Dare You Make Me Act Like A Jackass?” Files: The mainstream media has been using a Gallup poll showing that 16% of Americans polled say they want to leave the country as an indictment of President Trump. The spin is based on the narrative that anything negative is Trump’s fault, and anything positive that occurs is dumb luck, a late result of Barack Obama’s brilliance, or because Trump’s real objectives were foiled. In truth, the uptick in citizens saying they want to leave is a direct result of non-stop anti-American propaganda, in the schools, the colleges, in the news media, and from activists who pretend that the nation is an oppressive, autocratic, Fascist Hell where every woman is at risk of being raped, white supremacy is rampant, and African Americans are hunted down and shot on the streets for “living while black.” This state of mind has been seeded and cultivated entirely by “the resistance” and the ideologues who created it.

As several others have pointed out, Gallup’s summary that “a record number of Americans want to leave the U.S.” is fake news, and in multiple ways. There is no “number,” just a percentage of the group Gallup polled. That percentage, moreover, represents the alleged pollees who say they want to leave the U.S., not the ones who really want to, which would be demonstrated by some proactive steps to accomplish that objective. Women, under-30s and the poorest Americans make up the bulk of the 6% jump from the 10% of Americans who said they wanted to flee while Obama was President. I  attribute the result to 1) the despicable, constant fear-mongering by Democrats, as in the ridiculous claims that Brett Kavanaugh would send the nation’s women into “A Handmaiden’s Tale”-style sexual slavery; 2) the general civic ignorance of millennials, too many of whom who get their knowledge of national affairs from Stephen Colbert and social media, and who have been conditioned to think that trading liberty for nanny state socialism would be a rational trade;  3) the false narrative, pushed by the news media,  that President Trump is a racist; and 4) the fact that it is traditionally the progressives who threaten to leave the country whenever the Democrats aren’t in power, not conservatives when their star is waning. (Why is that?)

Ethical and civically literate Americans recognize that they are responsible for changing their nation for the better, whatever “better” is. Leaving is a cowardly and unpatriotic act, and my position is that if someone thinks losing an election is justification to leave for foreign shores, the U.S., its society and its politics are better off without them.

Bye!

Continue reading →

Sunday Morning Ethics Warm-Up, 1/6/2019: Snowflakes, Catnip, Coups And Fake Bills

/ Jack Marshall / 43 Comments

Good Morning!

[Here’s a Warm-Up warm-up that has nothing to do with ethics. In “Ben-Hur,” which I watched again last week, Charlton Heston’s character is know by three completely different names. One, of course, is Judah Ben-Hur. What are the other two?]

1. Virtue signaling and pandering are both inadequate to describe this. If only it were a joke—but it appears to be proof of institutional  brain rot.  The British army is reaching out to “selfie addicts,” “snowflakes,” “me me me millennials”—remember, I’m not making this up!—“class clowns”, “binge gamers”,and  “phone zombies”  celebrating the alleged virtues these juvenile behaviors demonstrate, such as self-belief, spirit, drive, focus, compassion and confidence. Here are two examples of the new posters:

Continue reading →

Ethics Quiz: The Improper Jury Instruction

/ Jack Marshall / 27 Comments

At least a dozen Pennsylvania murder convictions may be reversed because Judge Renee Cardwell Hughes included this description of reasonable doubt to instruct her juries:

“Each one of you has someone in your life who’s absolutely precious to you. If you were told by your precious one’s physician that they had a life-threatening condition and that the only known protocol or the best protocol for that condition was an experimental surgery, you’re very likely going to ask for a second opinion. You may even ask for a third opinion. You’re probably going to research the condition, research the protocol. What’s the surgery about? How does it work? You’re going to do everything you can to get as much information as you can. You’re going to call everybody you know in medicine: What do you know? What have you heard? Tell me where to go. But at some point the question will be called. If you go forward, it’s not because you have moved beyond all doubt. There are no guarantees. If you go forward, it is because you have moved beyond all reasonable doubt.”

U.S. District Judge Gerald McHugh ordered a new trial for a man convicted following this instruction, and Hughes may have used it in 50 cases.

This is why I am making this an ethics quiz: I have no idea why the instruction is wrong, or confusing. I’ve read McHugh’s opinion, and I still don’t understand what the alleged problem is, unless this judge just doesn’t want to anyone convicted. (He’s an Obama appointment, but I’m sure that has nothing to do with anything, for Chief Justice Roberts tells us so). The decision is here, and this the judge’s reasoning: Continue reading →

Now THIS Is A Frivolous Lawsuit!

/ Jack Marshall / 11 Comments

Sounds noble in theory, but it doesn’t always work when the one saying “no” is a judge.

Lawyers and the public mean different things when they call a lawsuit “frivolous.” The public and the news media mean that the suit is silly, desperate, based on a crazy theory or unlikely to succeed. Lawyers, however, know that suits that seem  silly, desperate, based on a crazy theory or unlikely to succeed sometimes win. Sometimes, they even change the law for the better. ABA Rule 3.1 explains,

Rule 3.1: Meritorious Claims & Contentions

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law….

Comment:The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. What is required of lawyers, however, is that they inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good faith arguments in support of their clients’ positions. Such action is not frivolous even though the lawyer believes that the client’s position ultimately will not prevail. The action is frivolous, however, if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.

The guy currently  suing me for defamation, for example, hasn’t quite crossed the “frivolous” line, though he is arguing that what is clearly opinion is an assertion of fact, contrary to all existing jurisprudence. His appeal, however, while batty, does make an argument that I assume in in good faith, that a Supreme Court case supports his definition of libel. It doesn’t, but he has the right to make an argument in the hope that some judge or appellate panel will agree. Of course, he is also not a lawyer, so he can’t be held responsible for violating legal ethics.

This guy can be, however: Continue reading →

Morning Ethics Warm-Up, 1/3/19: Morons, And More.

/ Jack Marshall / 66 Comments

Good morning!

Still working on the appellee brief in my defense against the frivolous law suit by an angry banned Ethics Alarms commenter whose boo-boo I bruised. How do you write a professional, respectful, effective rebuttal of a 70 page brief that is basically nonsense? I know how to argue against a real good faith legal assertion–indeed, my enjoyment of brief-writing nearly got me stuck in the traditional practice of law. But “this is deranged crap that doesn’t constitute a valid appeal and that wastes the time of everyone involved” isn’t a professional response, just a fair one.

1. “You know…morons!” At least two people—I can’t find the link for the second one, but it was a child—were wounded when spent bullets shot into the air by New Year’s Eve celebrants fell back to earth and hit them. This happens every year. Why do people think shooting guns into the sky is safe? In WW II, my father had to promise a court martial for any soldier under his command who shot a weapon into the air.  This is basic Law of Gravity stuff, but it seems to elude an amazing number of gum owners. I’m only aware of one move that ever featured a death from a falling bullet: “The Mexican,” a failed 2001 Brad Pitt-Julia Roberts comedy.

2. “You know…morons!” (cont.) The Netflix horror hit “The Bird Box,” which involves a blindfolded Sandra Bullock leading her similarly burdened children on an odyssey to escape an apocalyptic threat that only strikes when it is seen, has spawned a web challenge in which people are encouraged to try doing everyday tasks wearing blindfolds. This prompted a warning from Netflix:

“Can’t believe I have to say this, but: PLEASE DO NOT HURT YOURSELVES WITH THIS BIRD BOX CHALLENGE. We don’t know how this started, and we appreciate the love, but Boy and Girl have just one wish for 2019 and it is that you not end up in the hospital due to memes.”

Boy and Girl are what Bullock’s character’s children are called, because she is so certain they are doomed that she doesn’t want to name them. I am tempted to say that anyone so stupid as to try this challenge should not be discouraged, because their demise will only benefit the rest of us. But that would be mean.

True, but mean.

3. Follow-Up…The Federalist has more on the unfolding Steele Dossier scandal. I do not see how any result of the Mueller investigation can hold up in court, no matter how much the mainstream news media spins it, with the degree of procedural irregularity and prosecutor misconduct we already know is behind it. Presumably this is why the focus has shifted to the extremely dubious theory that Trump violated election laws by paying off a sex partner, something he would have probably done whether he was running for office or not, and also a transaction that didn’t involve campaign funds. The media keeps reporting the latter as if it is an unquestioned crime (apparently because Michael Cohen was induced to plead guilty to it), but it just isn’t a crime, and I believe in the end that theory will be thrown out of court too. Continue reading →

“Immoral And Ineffective”

/ Jack Marshall / 31 Comments

Hmmm. I have now, in a single day, heard two Congressional Democrats, in the course of discussing the so-called government shut down, describe the Trump border wall as “immoral and ineffective.” Does this mean that the phrase is an official, focus group tested Democratic talking point now, issued to the troops to be relentlessly repeated over and over again to end debates rather than illuminate them? I assume so, and thus it joins “comprehensive immigration reform,” “sensible gun laws,” and others. If I am right, it is a remarkably dishonest catch phrase. It’s also internally hypocritical.

Simply put, if the wall is ineffective, why is it immoral? And if the wall is immoral, why is being ineffective an indictment of it?

Arguing in the alternative like this is a red flag that signals that the advocate just wants to defeat the proposition, and doesn’t care how he or she does it.  The device originated in the legal profession, as a strategy to advance several competing and often mutually exclusive arguments with the goal of showing that regardless of interpretation there is no viable conclusion other than the advocate’s. Most often, the trick is used in criminal law: My client didn’t know the victim, and if he did, he was too far away that night to kill him, and even if he was the last one to see the victim alive, the evidence against him is circumstantial. In criminal law, the approach is justifiable, for the accused must be convicted beyond a reasonable doubt, and any doubt will do. The criminal defense lawyer isn’t seeking justice, or the best result for the community, just the best result for his client, as his (or her) clients defines it. It’s a better device to use in court briefs to other lawyers and judges than to a jury, who are likely to think, “Wait, does this lawyer care what the truth is?” The answer to that question is, of course, “no,” as long as the end result serves the interests of the lawyer’s client. If the client is Jack the Ripper, and the lawyer  arguing in the alternative allows him to escape conviction to kill again, the lawyer did the job required by his or her profession. The consequences of freeing the client literally is not the lawyer’s concern: if it is, then he or she is in the wrong profession. Continue reading →

Morning Ethics Warm-Up, 1/2/2019: A Drunken City Council President, A Head-Exploding Political Charity, NBC’s Strange Welcome To The New Year, And Facebook Calls Reality “Hate Speech”

/ Jack Marshall / 18 Comments

Good Morning!

1. First candidate for “Incompetent Elected Official Of 2019”! The Troy New York City Council president got drunk and then went behind the wheel to chased another motorist at high speeds for nearly 30 miles last week . State police arrested Carmella R. Mantello, 53, after troopers received a call from a terrified driver who told dispatchers that some crazy person was tailgating him and driving erratically. When troopers  pulled Mantello over, she denied following the man and claimed he was following her—interesting, since  troopers stopped her when she was behind the complaining motorist. She also refused to take a breathalizer test.

Later, Mantello  issued this statement:

“I understand the severity of my actions and take full responsibility. I apologize to my family, friends and constituents and am deeply sorry that I let you down,” she said. “I expect more from myself. Finally, I would like to personally thank the New York State Troopers for their professionalism in this matter and the service they render every day to keep our communities safe.”

The best way for her to honor professionalism and keep communities safe is to resign immediately.

Oh—I assumed that Mantello was a Democrat, since the news story didn’t mention her party affiliation. Nope! She’s a Republican.

2. You ain’t seen nothin’ yet!—get a load of THIS! Also, KABOOM! My head just exploded. Some ethics stories don’t need any analysis; they are res ipsa loquitur. I generally don’t devote pots stories when the despicable conduct is so obvious, but this one needs to be widely disseminated. From the New York Post: Continue reading →

Comment Of The Day: “Open Forum Ethics III,” Migrant Thread

/ Jack Marshall / 4 Comments

Mea culpa: I am only now catching up on all of the 144 comments in the December 19 open forum. Once again, the commentariat here covered Ethics Alarms with glory.

The first Comment of the Day from that post comes from a non-U.S. commentator, one of several here, whose perspective is often contrarian but always well-stated.

Here is Andrew Wakeling’s Comment of the Day on the post on the immigration/migrant thread in the post, Open Forum Ethics III:

There is something unsettling about foreigners (or rather those outside our community being accorded ‘rights’) that impose on ‘us’.

Migrants are drowning as they attempt to cross the Mediterranean and obtain a better life in Europe. I don’t blame the migrants for trying and some of them may well be escaping quite dreadful conditions. And as a European (at least until March 2019) I broadly support sustainable collective decency, admittedly being quite unclear how this should be done. I am not therefore unsettled by a European Court ruling that migrants rescued by EU vessels must be taken to a safe port. That seems to me to be a quite reasonable codification of a collective decision which I assume (without great confidence) has some democratic legitimacy. (ie. ‘We’ have decided.)

But I am more than unsettled by the claim, as in an NYT opinion piece today that migrant drownings show that: “European governments are avoiding their legal and moral responsibilities to protect the human rights of people fleeing violence and economic desperation”. Continue reading →

New Year’s Day Ethics Warm-Up, 2019: Outrageous Virtue Signaling And Other Misdemeanors

/ Jack Marshall / 14 Comments

Yes, happy 2019.

Thanks to all the readers, many commenting for the first time, who send reassuring and kind words in response to my musings last night. I wasn’t fishing for them, I swear.

1. Maybe this is why I’m in a bad mood…Here is the beginning of the 70 page (!) appellate brief I’m having to waste today answering, the work of the angry Ethics Alarms commenter whom I banned more than a year ago, and who apparently has nothing better to do than to file frivolous lawsuits:

Jack Marshall, the Defendant, is a craven, venal LIAR. What he did to Plaintiff …in this case was intentional/focused/targeted/defamatory lying, through-and-through. “Toxic mendacity” is a fair/appropriate characterization (“Orwellian psychosis” may possibly overstate the case). There was nothing legitimately/honestly “opinionated” about any of Marshall’s cynical noxious LIES, in any sensible sense (despite what the Judge pretended), as (re-)proven herein. Amongst the 575 defamatory acts pled/ alleged in our Comp (and supported in Opp, and at Oral Argument, and now repeated/proved yet again here in tabular
format in TblDefam), Marshall outright factually LIED ~29 times; while another ~32 times he uttered/wrote “materially false” pseudo-“opinions” based upon (hence implying) his earlier lies. Yet, the lower Judge’s grant of Rule 12(b)(6) Motion-to-Dismiss (“failure to state a claim”) falsely/blindly pretended Marshall’s publications were “pure opinions, innocent as the driven snow, grounded solely upon true facts.”6 That was a blatantly false/wrongful breach of good-faith judging….

2.  The nauseating virtue-signaling championship goes to…Barack Obama. How gullible and starry-eyed does someone have to be not to find this transparent and manipulative? The ex-President published his favorite movies, novels and songs of the year on Instagram. To my surprise, they reveal him to be woke! Intellectual! Devoted to the right social causes! Cool! And Black!

And if, say, one of his actual favorite movies this year was porn, or a slasher flick, do you really think he would include it? How about a Mickey Spillane novel, or a book by Bill Cosby? Call me cynical, but I assume that the list was devised by his PR staff, with his input. The list essentially tells us that Obama thinks most Americans are stupid saps, and the news media’s reaction to it—Isn’t he wonderful???—-shows that he’s probably right. Continue reading →