Law & Law Enforcement

Morning Ethics Warm-Up: 8/27/17

/ Jack Marshall / 73 Comments

GOOOD MORNING!

(he said through gritted teeth..)

1. I received a nice, polite e-mail from a new reader here who accused me of engaging exclusively in “partisan/political rants.” “Further,” he wrote,  “everything you say appears to be entirely one-sided (right/conservative/republican is good, left/liberal/democrat is bad).”

The man is an academic, so one might expect a little fairness and circumspection, but then, the man is an academic. His description is in factual opposition to the contents of the blog (I’m trying to think of the last Republican leader, conservative or otherwise, I designated as “good”), but I know from whence the impression arises: the fact that the entire American Left, along with its sycophants and familiars, the universities, show business and the news media, have gone completely off the ethics rails since November 8, 2016. I don’t know how else I am supposed to address that. It would have been nice, for balance’s sake, if a conservative cast of white actors in, say, a hit musical called “The Ray Coniff Story” had stepped out of character and harassed, say, Chuck Shumer, but this didn’t happen. If it had, I would have treated that breach of theater ethics exactly as I did the cast of Hamilton’s harassment of Mike Pence. (I would not, however, have been attacked for doing so by my theater colleagues, and no, I haven’t forgotten, and I’m not forgiving.)

If a GOP figure working for CNN as an analyst, say, Jeffrey Lord, had used his connections at the network to forward debate questions to Donald Trump and then lied about it when he was caught red-handed, I would have eagerly written about it in highly critical terms—but the Republicans didn’t cheat. Donna Brazile and the Democrats did. 

If Hillary Clinton had been elected President and Donald Trump and the Republicans formed an anti-democractic movement called “the resistance,” tried to use a single Federalist paper as a rationalization to change the rules of the election and then pressured performers not to allow the new President the privilege of a star-studded, up-beat inauguration to unify the nation, and if a large contingent of Republican Congressmen had boycotted the ceremony, saying that they did not consider Hillary as “legitimate President,” Ethics Alarms would have been unmatched in expressing its contempt and condemnation. If conservatives were trying to limit free speech according to what they considered “hateful,” a step toward dictatorship if there ever was one, I would be among the first to declare them a menace to society. They haven’t advocated such restrictions, however. Progressives have. The Mayor of Portland has called for a “hate speech’ ban. What party is he from? Howard Dean said that “hate speech” wasn’t protected. What party was he the Chair of? I forget. What was the party–there was just one— of the mayors who announced that citizens holding certain views should get out of town?

“Need I go on? I could, because the uniquely un-American, unfair and destructive conduct from Democrats, progressives and the anti-Trump deranged has continued unabated and without shame for 10 months now.  That’s not my fault, and I don’t take kindly to being criticized for doing my job in response to it. I have chronicled this as unethical, because it is spectacularly unethical, and remains the most significant ethics story of the past ten years, if not the 21st Century to date.

And the reluctance and refusal of educated and usually responsible liberals and Democrats to exhibit some courage and integrity and vigorously oppose this conduct as they should and have a duty as Americans to do—no, I am not impressed with the commenters here who protest, “Hey, I don’t approve of all of this! Don’t blame me!” as if they bear no responsibility—is the reason this execrable conduct continues. It is also why I have to keep writing about it.

2. I’m still awaiting the apologies and acknowledgement of my predictive abilities from all of my friends who chided me for suggesting that the Confederate flag and statuary-focused historical airbrushing mania would shoot down the slippery slope to threaten the Founders and more.  Continue reading →

The Joe Arpaio Pardon

/ Jack Marshall / 110 Comments

To nobody’s surprise, I hope, President Trump  pardoned the former Maricopa County, Arizona sheriff, a hero to many conservatives and anti-illegal immigration proponents (there is no ethical justification for not being anti-illegal immigration), who was facing up to 18 months in jail for criminal contempt of court, for defying a judge who had ordered him to stop profiling Hispanics.

As I wrote earlier, the President had no good ethical options in this situation. It was a binary choice, and whichever choice he made would be arguably unethical in one respect or another. Let me repeat what I wrote about this question just two days ago, before the President acted:

Let’s see:

  • Arpaio did defy a judicial order. Should a law enforcement official be treated especially harshly when he does this?

Yes.

  • The judicial order related to Arpaio’s practice of assuming that individuals of Hispanic descent were more likely to be violating the immigration laws in his jurisdiction than other citizens. Since his jurisdiction was rife with Hispanic illegals, was this an unreasonable assumption on his part? No. Was it still discriminatory? Sure. Is the balance between profiling, which in such situations is a valuable law-enforcement tool, and the importance of equal treatment under the law a difficult one legally and ethically? Yes. Does a sheriff have the right and authority to ignore the way this balance is decided one legal authorities define it?

No.

  • Is the determination of this balance often polluted by ideological biases, in this case, against enforcement of immigration laws?

Yes.

  • Do Donald Trump, and his supporters, and those Americans who may not be his supporters but who agree that allowing foreign citizens to breach our borders at will without legal penalties is certifiably insane, believe that Arpaio’s position on illegal immigration is essentially correct and just?

Yes.

  • Nonetheless, did his ham-handed methods give ammunition to open-borders, pro-illegal immigration, race-baiting activists like the one who told the New York Times,

“Trump is delivering a slap in the face to dignified, hard-working people whose lives were ripped apart by Arpaio. Arpaio belongs in jail, getting a taste of his own medicine. Trump wants to put Arpaio above the law, showing they are both about white supremacy.”

Yes.

  • Is sending Arpaio to jail a political imprisonment?

Yes, although he made it easy to justify on non-political grounds.

  • Are political prisoners the ideal objects of Presidential pardons?

Yes.

  • Would pardoning him send dangerous messages (it’s OK to violate judicial orders you think are wrong; the ends justifies the means; Presidents should meddle in local law enforcement, “extremism in defense of liberty is no vice”) as well as defensible ones ( judges and elected official enabling illegal immigration are a threat to the rule of law; Joe is an old man with a long record of public service who deserves mercy even though he was wrong…)

Yes.

  • Will such a pardon, especially as the news media is again spinning to make the case that Trump is sympathetic with xenophobes and white nationalists, further inflame an overly emotional debate that needs to be calmed, not exacerbated?

God, yes.

  • Is the most responsible course for Trump to stay out of this mess?

YES!

  • Will he?

Of course not.

Sure enough, Democrats, Trump-haters like Senator John McCain and my echo-chamber Facebook friends are denouncing the pardon as if the President had loosed Hannibal Lector on the world. In doing so, they really look ridiculous,  and might as well be wearing  “I hate Donald Trump and will scream bloody murder no matter what he does” in neon on their heads. Especially for Democrats, who have argued that non-violent criminals shouldn’t be imprisoned at all when they are young and black, the argument that an 85 year old man’s under-two year maximum sentence is an outrageous object of Presidential mercy and grace—that’s what a pardon is, you know–is the height of partisan hypocrisy.

The fact that Arpaio is 85 alone justifies a pardon by the standards Presidents have used since the beginning of the office. That his sentence is relatively short—many, many prisoners with far longer sentences have been pardoned by Trump’s predecessors–makes the pardon, if ill-considered, also de minimus, especially since there is no chance, literally none, that the old man, now out of office and retired, will have an opportunity to repeat the crime he was convicted of committing. A pardon is an act of grace by which an offender is released from the consequences of his offense, according to the U.S. Justice Department’s website. It does not say that the offender was not guilty, or that the law that was violated can be breached at will.  In 2013, President Obama pardoned Willie Shaw Jr., who was sentenced in August 1974 to 15 years in prison for armed bank robbery. Armed bank robbery is a lot more serious an offense than criminal contempt, but nobody argued that Obama’s pardon “demonstrates flagrant disregard for the rule of law in this country,” not even the most virulent anti-Obama Republicans. But that’s what Senator Diane Feinstein said Trump’s pardon of Arpaio was:

“Sheriff Joe Arpaio should not have been pardoned. He brazenly denied a federal judge’s court order to stop racial profiling and continued to do so until being convicted of criminal contempt. A pardon for that conduct demonstrates flagrant disregard for the rule of law in this country.”

By that a standard, any pardon is an insult to the rule of law. Does Feinstein endorse the brain-dead view of her fellow California Senator, Kamala Harris, who seemed to argue that criminals shouldn’t be pardoned? I suspect the standard they both embrace is that no conservative law enforcement official should even be pardoned for being over-zealous in enforcing a law that their party disgracefully has tried to have enforced as infrequently as possible.

This is the real hypocrisy of the critics of Trump’s pardon. Feinstein’s state is full of sanctuary cities that intentionally undermine and defy the rule of law, without a peep of protest from its two Democratic Senators. They want Arpaio to be immune from Presidential mercy, unlike the 534 draft- dodgers pardoned by Jimmy Carter, tax fugitive Marc Rich, pardoned by Bill Clinton afters ex-wife made large campaign contributions and donations to the Clinton Presidential Library, gangster union leader Jimmy Hoffa, and all the Confederate citizens and soldiers who took up arms against the United States.  They want him to be metaphorically hung up by his heels to appease their open-border, pr0-illegal immigration base, making the fervor to punish him purely political, and having little to do with respect for the rule of law, which their own position on illegal immigration proves that they don’t respect themselves.

Let me be clear. This isn’t a Rationalization #22 “it isn’t the worst thing” defense of the pardon. It is a “the attacks on this pardon are wildly disproportionate to its reality, and thus transparent political theater” indictment of the pardon’s critics. Almost every pardon can be called a rejection of the “rule of law,” if you don’t understand what the pardon power is, and politicians who have been undermining respect for  the very laws that Arpaio went over-board enforcing are the last people on earth who should make that argument. They are ridiculous in their hypocrisy.

Joe Arpaio was an arrogant, grandstanding bully and thug, and unworthy of his badge. I wouldn’t have pardoned him despite his age, but there were some good reasons for Trump to do so. It was almost worth doing just to prompt Trump’s foes and pro illegal immigration hypocrites into embarrassing themselves.

The larger ethical problem with this pardon is the one focused on by P.S. Ruckman on his Pardon Power Blog. He is correctly troubled by the fact that the usual process for Presidential pardons was not followed (Trump does not even have a pardon attorney on board yet), and that for a political ally like Arpaio to be the President’s first pardon (despite the fact that Obama didn’t pardon his first until well into his second year in office), sends a corrosive message:

Hundreds of persons have applied for clemency and have waited for years, some for 10 or 15. Imagine how demoralized they must feel now. Now, more gasoline will be poured on the classic misconception that clemency is only for famous persons, rich people, political supporters, insiders, the “connected.” It is, of course, a false narrative, but a powerful one. One that defames a wonderful check and balance and, in some instances, discourages politicians from doing anything. They err on the side of caution (they think) by showing mercy to no one, or to as few as possible.

Morning Ethics Warm-Up: 8/26/17

/ Jack Marshall / 17 Comments

Good Morning!

(My Dad was from Kentucky. He couldn’t stand Tom T. Hall…or Mitch McConnell)

1. I have been working on a legal ethics seminar for lawyers who represent seniors (I was told that the politically correct term among the groups was “older clients.” Older than what?) It is one of those areas of the law in which the usual ethics rules don’t work very well, or sometimes not at all. This anomaly requires a lawyer practicing in the field to be ready to embrace the Ethics Incompleteness Principle: to violate the letter of the professional ethics rules in the best interests of the client. For example, what does a lawyer do whose aging client lives with a son or daughter, and the lawyers sees signs of elder abuse? When the lawyer asks the client, he makes various excuses for his caretakers, and finally says that while he has been abused, it’s not serious and will only get worse if the lawyer says or does anything in response to it. Now what? The fact of the abuse, under the usual construction of the rules, is a confidence controlled by the client.

The emerging consensus is that the lawyer can ethically use the exception to confidentiality that allows an attorney to reveal a client confidence to prevent death or serious bodily injury to a “third party,” the client becoming “the third party” for his own protection.

2. A federal lawsuit was filed last week alleging that a Tennessee judge and sheriff violated inmates’ constitutional rights by instituting a program offering reduced jail time for criminals who agree to undergo vasectomies or get contraceptive implants. The suit claims the White County program amounted to “eugenics with a twist.” I don’t think it’s much of a twist; I’d say it’s eugenics, straight up. I’d assume CBS will love it: after all, eliminating criminal types is even better than eradicating Down Syndrome babies. Isn’t it?

3. Lots of people sent me this horrible story, about the cheerleader camp at a Denver area high school where young girls were being forced to do splits (it hurts me even thinking about doing splits) , with the camp’s instructor shown in a leaked video pushing down on the shoulders of a 13-year-old as she screamed for him to stop.

Boy, there is a lot of child abuse out there.

The Denver Board of Education said in a statement: “As the elected representatives for Denver Public Schools — and as the moms, dads and family members of D.P.S. students ourselves — we are deeply disturbed by the videos of cheer practices at East High School that came to our attention yesterday.”

Gee, it’s good to know that you are all disturbed that children are being tortured at schools that you are supposed to be overseeing.. This must mean you are competently doing your jobs. No, actually it doesn’t

“As the investigation continues,’’ it states, “our focus must be entirely on our students, families and educators.”

The school superintendent also said: “We have sent notification to our athletic directors emphasizing that D.P.S. does not allow the use of ‘forced splits’ or any other activity that puts a student’s physical or mental health at risk, or in which a student is forced to perform an exercise beyond the point at which they express their desire to stop.”

An Ethics Alarms note to that school system: Any athletic directors who have to be reminded that abusing children in their care, and continuing to make them perform painful acts after they have said that they don’t want to, is not something they should be doing shouldn’t be employed in the first place. Continue reading →

Comment Of The Day: “Morning Ethics Warm-Up: 8/24/17”

/ Jack Marshall / 32 Comments

The debate over what kind of tolerance is required and justified in a democracy inspired reader Chris Marschner to submit a thoughful and thought-provoking comment, as he has before, that takes the discussion in a diferent direction.  I’ll let you read it and have your own reactions; Chris needs no further preface.

Here is his Comment of the Day on the post,Morning Ethics Warm-Up: 8/24/17:

Let me begin with the question, what lies as the foundation of tolerance? Is it understanding, empathy, or a just a willingness to comprehend an alternative perspective? Perhaps it is all three. By definition, tolerance is a willingness to live and let live, so to speak. But, the notion of willingness to live and let live does not preclude the actions of those who seek to change minds through cogent rational argument.

I have listened at great length to those who oppose and support the destruction or removal of Confederate iconography in today’s world. If we start with the assumption that what is right and good will triumph over that which is bad and evil in time without the need to resolve the dispute violently we might move toward a more tolerant and enlightened social structure.

My thesis is neither a defense of nor a condemnation of societal issues that continue to pit one against another. I will merely juxtapose the historical issue which divided the nation into camps that found the practice repugnant and those that found no problem with it an a modern day issue that one group find morally repugnant while others do not and attempt to draw parallels to historical events that sanctified, or at least legitimized social behavior.

Again, I am trying not to cast any judgement on any behavior but to develop my thoughts I needed to find a modern day issue that a majority segment of our population finds morally repugnant and another minority segment sees as perfectly acceptable. I then asked myself the question to what lengths might the minority segment go should the majority segment impose its will by executive or judicial fiat? How much will the minority tolerate before it finds the political majorities imposed will too much to tolerate. What issue might create substantial animus toward the ruling segment that it too may seek to enjoin itself from laws of the land. What parallels in history do we see that might engender such animus and how might future generations view the loser if the debate escalated into a full on confrontation? Continue reading →

Morning Ethics Warm-Up: 8/25/17

/ Jack Marshall / 51 Comments

Good Morning, everyone!

[I thought I had posted this two hours ago! I’m sorry!]

1. Re President Trump’s latest anti-news media rant: American journalism’s abandonment of partisan neutrality, competence and professionalism has become the single greatest threat to the nation’s functioning democracy, along with the erosion of public trust that this has caused. I have previously endorsed President Trump’s earlier statement that the news media has become an enemy of the people it is supposed to serve. However, saying, as he did this week, that journalists don’t “love America” is incompetent and irresponsible.

But what else is new. Journalists just over-overwhelmingly hate him, and cannot muster the professionalism to do their duties fairly as a result. (Norah O’ Donnell actually interrupted Trump’s anti-journalism rant to call him a liar—nice.  A network news operation with professional standards would suspend her for that. ) To be fair to the President, his use of language and comprehension of it is devoid of nuance. I presume that to him, saying that the news media hates America, hates him, and is the enemy of the people all mean the same thing.

2. Let’s keep track of which journalists and politicians relate Hurricane Harvey to climate change, or cite the dangerous storm as more evidence that the “consensus” is correct. This is the first major hurricane in 12 years, in defiance of virtually all predictions and climate change models, which told us that the warming earth would lead to more frequent violent storms, not fewer. Of course, the sudden and unexpected dearth of hurricanes during the entire Obama administration (no, Super Storm Sandy was not a hurricane) also doesn’t prove that climate change is a crock. But every single individual, activist, meteorologist, reporter, talking head, Democrat and Al Gore Fan Club member that points to Harney and says, “See???” is proving that he or she isn’t interested in the truth, just in furthering an agenda.

3. We shouldn’t allow California to secede, but it will be tempting, if it ever comes to that. Continue reading →

Ethics Quote Of The Day AND Incompetent Elected Official Of the Month, Plus KABOOM! and “ARGHHHHHH!” : Rep. Nancy Pelosi

/ Jack Marshall / 21 Comments

“The Constitution does not say that a person can yell ‘wolf’ in a crowded theater. If you are endangering people, you don’t have a constitutional right to do that.”

—-Democratic House leader Nancy Pelosi in an interview with KRON4’s Pam Moore, as the party leader explained why she believed that alt-right advocates should not have the benefits of freedom of speech and assembly.

Observations:

  • This is a classic. Biff and his various incarnations in the “Back to the Future” trilogy must be kicking themselves.  They said,

 “Eight o’clock Monday, runt. If you ain’t here, I’ll hunt you and shoot you down like a duck.”
(“Mad Dog” Tannen’s Gang Member : “It’s “dog”, Buford. Shoot him down like a dog.“)

and

“Why don’t you make like a tree and get outta here?

and

“I’m not one to look a gift horse in the butt.”

and

“It’s time to race the music.”

and  Biff’s great-great-grandson Ziff Tannen said,

 “I’m going to make like a banana and skedaddle!”

And more. But “crying wolf in a crowded theater” is funnier—and dumber— than any of them. Continue reading →

Morning Ethics Warm-Up: 8/24/17 [UPDATED]

/ Jack Marshall / 55 Comments

GOOD MORNING!

1. I’m moving this to the top from its original placement at the end. I warned that the mania for retroactive statue-toppling and historical air-brushing was a deadly slippery slope to cultural chaos from the moment Dylan Roof’s rampage primed the Confederate flag banning push. I said that there was no clear stop on that slope, and that this was a massive ethical error that would quickly spin out of control.

I am accepting apologies and “You were right, I was wrong” messages at jamproethics@verizon.net. I will reply gracefully.

2. It’s a good thing, in some ways, that President Trump has no ethics alarms, or has them but doesn’t understand what all the ringing means, because if he did, he might realize that he has put himself in ethics zugswang in the matter of former sheriff Joe Arpaio, the anti-illegal immigration zealot who is facing up to six months in jail for defying a federal judge’s order to stop targeting Latinos based solely on the suspicion of their legal status. Trump has been urged to pardon Arpaio. Let’s see:

  • Arpaio did defy a judicial order. Should a law enforcement official be treated especially harshly when he does this?

Yes.

  • The judicial order related to Arpaio’s practice of assuming that individuals of Hispanic descent were more likely to be violating the immigration laws in his jurisdiction than other citizens. Since his jurisdiction was rife with Hispanic illegals, was this an unreasonable assumption on his part? No. Was it still discriminatory? Sure. Is the balance between profiling, which in such situations is a valuable law-enforcement tool, and the importance of equal treatment under the law a difficult one legally and ethically? Yes. Does a sheriff have the right and authority to ignore the way this balance is decided one legal authorities define it?

No.

  • Is the determination of this balance often polluted by ideological biases, in this case, against enforcement of immigration laws?

Yes.

  • Do Donald Trump, and his supporters, and those Americans who may not be his supporters but who agree that allowing foreign citizens to breach our borders at will without legal penalties is certifiably insane, believe that Arpaio’s position on illegal immigration is essentially correct and just?

Yes.

  • Nonetheless, did his ham-handed methods give ammunition to open-borders, pro-illegal immigration, race-baiting activists like the one who told the New York Times,

“Trump is delivering a slap in the face to dignified, hard-working people whose lives were ripped apart by Arpaio. Arpaio belongs in jail, getting a taste of his own medicine. Trump wants to put Arpaio above the law, showing they are both about white supremacy.”

  • Is sending Arpaio to jail a political imprisonment?

Yes, although he made it easy to justify on non-political grounds.

  • Are political prisoners the ideal objects of Presidential pardons?

Yes.

  • Would pardoning him send dangerous messages (it’s OK to violate judicial orders you think are wrong; the ends justifies the means; Presidents should meddle in local law enforcement, “extremism in defense of liberty is no vice”) as well as defensible ones ( judges and elected official enabling illegal immigration are a threat to the rule of law; Joe is an old man with a long record of public service who deserves mercy even though he was wrong…)

Yes.

  • Will such a pardon, especially as the news media is again spinning to make the case that Trump is sympathetic with xenophobes and white nationalists, further inflame an overly emotional debate that needs to be calmed, not exacerbated?

God, yes.

  • Is the most responsible course for Trump to stay out of this mess?

YES!

  • Will he?

Of course not. Continue reading →

Morning Ethics Warm-Up: 8/23/17

/ Jack Marshall / 44 Comments

Good Morning!

(BOY, there are a lot of especially stupid ethics stories today…)

1. This:

That’s right: an Asian-American broadcaster who never fought for the South during the Civil War has been robbed of a job assignment because his virtue-signaling, grandstanding mega-corporation wants to side with the statute-toppling Left. ESPN regrets that the NAME of one of its broadcasters has become an issue? Who made it an issue? ESPN, that’s who.

Nah, there’s no slippery slope! Nah, this is just about Civil War generals! Nah, the people behind the historical purge or reasonable…they won’t just keep looking for more ways to claim they are being offended!

Can you tell I am losing patience with the defenders, enablers and rationalizes of this toxic nonsense?

2. Or is this dumber? From issue scout Neil, who writes, “Watch the video. [Trump] gestures for the crowd to look up at the sky, then makes a show of looking himself (though CLEARLY not actually trying to see the eclipse). I must have seen at least a dozen other  people yesterday scan the sky in a similar fashion before accidentally getting blinded by an eye-full of rays. The man is inept beyond belief, but he’s not wearing a bib. God this  irritates me.”

These are the ways that that the newsmedia signals to anyone with an open mind and not drooling, gnashing and recoiling at the sight of water from end-stages Anti-Trump Brain-Eating Virus infection that it cannot be trusted, and has traded of its integrity, honesty, fairness and objectivity to lead the “Destroy the Elected President of the United States” effort. No, the President did not actually look directly into the sun and blind himself. In fact, I did exactly the same thing he did when I glanced up at the sun sideways for a nanosecond wondering why so many idiots were lying on the ground wearing 3-D glasses. This is the epitome of fake news—fake, because the intent of the item is to mislead, and because it is no more news than “President uses wrong fork at State Dinner.” No other President, ever, under any scenario, would be covered this way, and no news publication would ever print anything so dumb unless it was certain that its readers were gullible, deranged, and even dumber.

Prof. Glenn Reynolds: “If the press and the political opposition — but I repeat myself — were just sober, straightforward, and honest they could beat Trump easily. But then, if they were capable of that, we wouldn’t have gotten Trump to begin with.”

3. My wife reminded me that I have been flagging deception in obnoxious ways since long before ProEthics and Ethics Alarms.  When we were dating, she had a bowl of soup at a Georgetown campus hangout called The Tombs, and I had a cup of the same soup, for $1.50 less. I asked the waitress for a clean bowl and cup,  and poured water into the cup until it was at soup-level, and then poured that water into the empty bowl, which it filled. Then I asked her to get the manager, whom I asked to explain why a bowl cost more than a cup when the amount of soup was the same. he had no explanation of course.

You’ll be amazed how many restaurants do this. Continue reading →

Casting Ethics And “The Music Man”

/ Jack Marshall / 15 Comments

A recently closed summer production of “The Music Man” at the Berkshires’ Sharon Playhouse illustrates many of the ethics landmines overly ambitious directors and non-traditional casting can trigger.

New York director Morgan Green was hired to direct Meredith Willson’s  1957 classic. Until “Hamilton” came along, only two Tony winning musicals had a book, lyrics and music all written by one person: “The Music Man” and “Oliver!” “The Music Man” isn’t my favorite musical, but a strong argument can be made that it is the Great American Musical, celebrating small town Americana with Sousa-style marches, barbershop quartets, and the best ending in musical theater history (stolen, with great success, by “School of Rock.”) There is no need to mess with it, since the show is pretty close to perfect. I was taught that a production should be equally satisfying for an audience member who is seeing a show for the first time and for one who is seeing it for the last time.  A version that takes the show out of 1912 and litters the landscape with anachronisms and forced 2017 social and political references isn’t fair to either of these. This was, I presume from based on Jesse Green’s review, a “Music Man” for people sick of “The Music Man” (like Jason Green.) You know what? If a director is sick of a show, she has an ethical obligation to let someone direct who isn’t sick of it.

Naturally, there was the obligatory stunt casting of women in some men’s roles (but never men in women’s roles, of course), and  the non-traditional casting of a black actress as Marion (the Librarian) Paroo, the romantic lead originally created by the recently departed Barbara Cook in the original production.

I see no problem in principle with casting Marion as black. It’s certainly ahistorical, and the hint of a trans-racial romance in 1912 Iowa is unimaginable, but “The Music Man” is, or should be, about kids, romance, parades, sentiment and fun, none of which is impeded by non-traditional casting.

There is a problem, though. One of Marion’s big solos, in which she sings about her ideal man (whom her mother believes is too ideal to be real), is called “My White Knight.”

Oh-oh. Continue reading →

Ethics Dunces: The 8th U.S. Circuit Court of Appeals

/ Jack Marshall / 20 Comments

I don’t understand this ruling at all.

In 2011, Cooper Tire & Rubber Co. had locked out union workers. After the company later settled a contract dispute, they all returned to work except for Anthony Runion, who had been fired. Runion had shouted at a van carrying replacement workers onto the company’s grounds: “Hey, did you bring enough KFC for everybody?” and “Hey, anybody smell that? I smell fried chicken and watermelon,” the opinion noted, adding that most of the replacement workers were black.

In the 2-1 ruling for the fired worker, Judge William Duane Benton cited the law protecting unions, strikers and pickets, 29 U.S.C. § 157. Section 7 of the Act guarantees employees the right to “assist labor organizations . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 7
gives locked-out employees the right to picket. Section 8(a) prohibits an employer from interfering with, restraining, coercing, or discriminating against employees in the exercise of their Section 7 rights.

How would firing  a worker for uttering undeniable racially hostile verbiage in the process of striking? Benton writes, citing various cases in the line of labor decisions:

“One of the necessary conditions of picketing is a confrontation in some form between union members and employees.” Chicago Typographical Union No. 16, 151 NLRB 1666, 1668 (1965), citing NLRB v. United Furniture Workers of Am., 337 F.2d 936, 940 (2d Cir. 1964). “Impulsive behavior on the picket line is to be expected especially when directed against nonstriking employees or strike breakers.” Allied Indus. Workers No. 289 v. NLRB, 476 F.2d 868, 879 (D.C. Cir. 1973) (internal citation omitted). This court analyzes picket-line conduct under the Clear Pine Mouldings test: a firing for picket-line misconduct is an unfair labor practice unless the alleged misconduct “may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act.” NMC Finishing v. NLRB, 101 F.3d 528, 531 (8th Cir. 1996), citing Clear Pine Mouldings, Inc., 268 NLRB 1044, 1046 (1984), enf’d, 765 F.2d 148 (9th Cir. 1985). The test is objective.

Wait: racially prejudiced rhetoric is “impulsive behavior”? Not by non-racists, its isn’t. Non-racists don’t suddenly start talking like racists on impulse. Anthony Runion unmasked himself as a racist by his behavior on the picket line. It may not have been “picket line misconduct,” but it was certainly unacceptable workplace and employee conduct, with a strong indication of more to come. Benton wrote that there was no evidence the black “scabs” heard Runion’s racist words, though dozens of others nearby did, and that the comments were not directed at any individual. Wait again: is the judge arguing that using racial epithets in the workplace isn’t a firing offense as long as the offender can say, “I didn’t mean you” ?

The lone dissenting judge, Judge C. Arlen Beam  dissents by stating the obvious: Continue reading →