Law & Law Enforcement

A Concise, Clear, Elegant, And Willfully False Unethical Tweet Of The Month From Howard Dean

/ Jack Marshall / 29 Comments

Howard Dean wants to make sure the Left’s war on free speech and expression continues, so he decided to misinform trusting Democrats and progressives—who trust the damnedest people lately!—with a Big Lie level tweet. His immediate target was Ann Coulter, whose speaking gig at Berkeley was first cancelled because of the campus’s rampant embrace of “the heckler’s veto” (as well as the “the thug’s veto,” “the bully’s veto,” and”the rioter’s veto,” all increasingly au currant on the Left) by the school’s students, then cleverly re-scheduled by the University to a day when there would be no classes. [Full disclosure: I wouldn’t move from my living room into my dining room to hear Ann Coulter speak.] Dean is a former chairman of the Democratic National Committee, arguably the worst of a terrible lot, and is an expert on “hate speech”, or at least hateful speech, having engaged in it himself often. Notably, for example, he insinuated that President Trump was a cocaine user during the 2016 campaign because a badly set microphone picked up his sniffling during a debate.

The nice thing about the progressive definition of “hate speech” (it has no legal definition, which is also convenient) is that it only includes statements that progressives disagree with or find disruptive to their world view and fondly held beliefs. Hateful speech from Democrats is just the hard truth, so it isn’t “hate speech.” Hate speech from everyone else is unprotected, and should carry criminal penalties.

There is no question that Dean knows “hate speech,” whatever it is, is protected by the First Amendment, but it suits his purpose and his party’s to imbed the lie that it isn’t in the mushy brains of the easily confused. This will greatly assist the Left’s ongoing efforts to stifle debate and make any dissent with progressive cant as difficult as possible. That’s the plan.

And again: progressives and Democrats should be as offended by this kind of dishonesty by their leaders as I am. Why aren’t they? Do they think Dean is correct? Do they think he should be correct? Or is it just that they believe that the ends justify the means? Democrats? Progressives? Hello? Integrity? Honesty? The Constitution? Bueller?

What the hell is the matter with them?

Constitutional law expert and law professor Eugene Volokh mostly controls his exasperation as he tries to set Dean and his uneducated acolytes straight. He begins a thorough dismembering of Dean’s tweeted lie in the Washington Post thusly: Continue reading →

Comment Of The Day: “Ethics Dunce, Judicial Division: Arkansas Circuit Judge Wendell Griffen”

/ Jack Marshall / 11 Comments

The post about the absurd Arkansas judge who saw nothing wrong with taking part in some anti-death penalty protest theater shortly after halting some scheduled executions. Can we say “objectivity”? Sure we can!

The impetus for Steve-O-in NJ’s Comment of the Day was what could be called dicta in the original post about the dubious role models for judicial conduct currently sitting on the U.S. Supreme Court.

Here is Steve-O-in-NJ’s Comment of the Day on the post, Ethics Dunce, Judicial Division: Arkansas Circuit Judge Wendell Griffen:

I agree that SCOTUS needs an ethics code, but, in all fairness, did Eisenhower, Kennedy, Johnson, or Nixon ever attack the SCOTUS or a decision in a speech or an address? FDR was far more politically powerful than Obama ever could hope to be, but even he knew when to back off the SCOTUS. That said, I wonder if he knew from the get-go he was going to break the 2-term tradition and just wait the court out, as justices either died or retired and he replaced them with like-minded judges.

What do you think of an age limit for Federal judges, setting either 70 or 75 as a mandatory retirement age? Although Article III judges serve for the term of their good behavior, arguably that Article didn’t conceive of Federal Judges living well past 70 regularly and living and serving into their 80s and 90s uncommon but now certainly not unheard of. If we can revisit Presidential terms of office, which we already have, if we can revisit the Electoral College, which we already have once and some are asking us to again, and if many vocally want us to revisit both the First and especially the Second Amendments, all of these due to changing circumstances (breach of the 2-term custom, the emergence of political parties, alleged hate speech, and the evolution of firearms beyond single shot muskets) then arguably we can revisit Article III as well.

Continue reading →

About Fox News’ Fake Judge

/ Jack Marshall / 35 Comments

In a post on the Legal Ethics Forum, not as active as it once was but still one of the best legal ethics sites around, Legal ethicist and law professor Steve Lubet clarifies something I have always wondered about, and like a lazy slug, never investigated.

Fox News contributor Andrew Napolitano, most recently in the news for claiming that the British intelligence service GCHQ  colluded with President Obama to conduct surveillance on the Trump staff during the 2016 campaign, is always called “Judge Napolitano” during his appearances.  Lubet points out that he’s not a judge any more. Napolitano once served on the New Jersey Superior Court, but resigned in 1995 and has not held judicial office for more than two decades. It is apparently at Napolotano’s insistence that he is always addressed  as “Judge”  in Fox. His website, JudgeNap.com, refers to him as “Judge Napolitano” throughout, as does his bio on the Fox News site.

Lubet notes that The American Bar Association has held that  the use of  judicial titles by former judges practicing law is misleading and unethicalin connection with law practice.  ABA Formal Opinion 95-391 says that continued “use of the title is misleading because it may be misunderstood by the public as suggesting some type of special influence” or “to create an unjustified expectation.” In fact, said the ABA, “there appears to be no reason for such use of the title other than to create such an expectation.” Of course, Napolitano isn’t practicing law when he bloviates on Fox News, so it isn’t a Rules violation, but the Judge label is still misleading

The Ohio Rules of Professional Conduct, Lubet found,  goes further by decreeing that it is only ethical for a former judge to use the titles  “Judge” or “The Honorable” if they are preceded by the word “retired” or “former,” and the rule does not limit this caveat to ex-judges actively practicing law. Again, Napolitano is not out of compliance, because he is not subject to the Ohio Rules. That doesn’t make what he calls himself strictly accurate, or sufficiently accurate. (I confess, I have had a bias against such things ever since I suffered through a year with an insufferable  high school history teacher who called himself (and insisted that we call him)  “Dr. Arthur” because he had a PhD in history.) Continue reading →

Is “The Most Fabulous Story Ever Told” Being Produced By The Most Unethical Theater Company There Is?

/ Jack Marshall / 185 Comments

Atlanta’s Out Front Theatre Company’s production of “The Most Fabulous Story Ever Told”  opens on April 27, but Paul Rudnick’s 1998 silly comedy that recasts Bible stories with all gay characters is being protested as blasphemous. The outraged in this case is the conservative Catholic group America Needs Fatima, whose members are particularly offended by the spoof’s portrayal of the Virgin Mary as a lesbian. It has an online petition demanding that Out Front’s Artistic Director Paul Conroy cancel the production.

Sure. Like that’s going to happen.

“I fear God’s wrath will fall upon us if reparation is not made,” the hysterical screed concludes. Over 40,000 hysterics have signed it. Yes, I’m sure that God has nothing better to do than to punish humanity for a theatrical production of a 20 year-old comedy in Atlanta. The group then threatens to oppose the play “loudly, peacefully, and legally in as large a protest as we can help make possible” if the production goes forward. Idiocy, of course. Last I heard, nobody is forcing anyone to go to see the play, and the First Amendment is pretty clear about the ability of the law to censor performances based on content. The contention from the religious right in this case mirrors the Left’s fervent efforts at the moment to censor speakers they don’t agree with and “hate speech.”

If you don’t think that you will enjoy a play, the remedy is not to go see it. Simple as that. Trying to interfere with the production in any way, or to prevent those who want to see a production in which Adam and Eve become Adam and Steve, is unethical. It is also directly contrary to the principles the United States was founded to ensure.

Okay, that settles that.

Now about Out Front Theater Company….

Continue reading →

Ethics Dunce, Judicial Division: Arkansas Circuit Judge Wendell Griffen

/ Jack Marshall / 51 Comments

 

That’s the judge lying down. At least he wasn’t wearing his robe…

Arkansas circuit judge Wendell Griffen granted a temporary restraining order last week halting the Arkansas Department of Corrections from executing seven condemned prisoners within eleven days as it had planned, as Griffen barred the use of one of the ingredients in the lethal drug “cocktail.” A federal judge followed up quickly with anothee order likewise barring Arkansas from proceeding to execute anyone with a lethal injection. Mission accomplished,  Judge Griffen decided to reward himself by attending an anti-death penalty rally in which he participated with elan, playing a condemned prisoner lying prone on a lawn chair as if it was a gurney.

What fun! And what an idiot! No ethics alarms went off, despite the fact that he was flagrantly displaying his bias against the death penalty immediately after interfering with the state’s law enforcement based on a fair and objective interpretation of the law.

State officials were outraged, and argued that Griffen’s conduct proved that he was not capable of impartiality in capital cases. Ya think?

Yesterday the Arkansas Supreme Court pulled Griffen from all pending death penalty and lethal injection protocol cases. It also referred him to the state’s Judicial Discipline and Disability Commission to determine whether he violated the Code of Judicial Conduct.

Good. Continue reading →

Professor Who Most Needs To Get Over Himself Of The Month

/ Jack Marshall / 24 Comments

Gilbert Kalonde, a Montana State University assistant professor of technology education, says an employee at the Bozeman, Montana Wal-Mart wrongly listed his occupation on a fishing license as “toilet cleaner” rather than “pompous assistant professor.” This, the toilet cl…er, professor says, constitutes libel, and he is suing for damages because the license has held him up to “hatred, contempt, ridicule.”

Boy, you can say that again. I know I always judge people by what it says on their fishing licenses. Come to think of it, I just judge people harshly if they have a fishing license. Actually, I’m not sure I wouldn’t regard a toilet cleaner as more admirable than a college professor. True, he doesn’t teach at Wellesley….

Why would anyone get upset over something like this? I would be hauling out that license at parties. Yes, that’s not exactly sterling service he got, but it’s Wal-Mart. Besides, based on the law suit, I bet the prof was so insufferable–“See here, my good man, make sure you place the correct occupation on that document, lest my credentials are obscured!”—that the Wal-Mart clerk decided to teach him a lesson in humility. I guess it didn’t work.

The ethical values involved here are proportion, compassion, humility, and kindness, none of which Gilbert Kalonde appears to possess.

At least he has a sense of humor.

______________________

Pointer: Fark

Ethics Quiz On A Story I’m Betting Is A Hoax: The “Identical Twins” Married Couple

/ Jack Marshall / 31 Comments

I have now read three accounts in borderline news sources about a Mississippi married couple who went to a fertility clinic and discovered to their horror that they were “identical twins.” I’m assuming it is a fake news story, perhaps planted through collusion with the Trump campaign by Russian government operatives, and not just because identical twins cannot be different sexes. (Hey! Maybe one of them had  gender reassignment surgery! Now that would be a story!)

I suppose it’s possible; Robert Ripley found odder coincidences for decades, but never mind: let’s assume for the sake of ethics problem-solving practice that the story is true. (I’ll be stunned if it is.)

Your Ethics Alarms Ethics Quiz of the Day is…

What is the couple’s most ethical course now that they know they are siblings, or is there one?

Key question: Is this ick rather than ethics?

Trap: I’m not asking what’s moral.

It’s all yours…

Comment Of The Day: “More Ethics Observations On The United Flight 3411 Ethics Train Wreck”

/ Jack Marshall / 10 Comments

Public discussion and media reports is finally waning regarding United’s cascading botch of a full and fully seated flight in which the airline wanted to get four seats back and had neither the law, nor policy, nor sufficient justification to acquire them. Thus its agents lied, exceeded their authority, mistreated a passenger, called in police, and they further escalated the fiasco, badly injuring the victim in the process. (Their conduct was similar in some ways to that of the police officers who killed Eric Garner.)

Even now, however, many people still believe this arose from an overbooked flight. Some misguided pundits are still blaming Dr. Dao. The news media has not taken responsibility for its terrible reporting on this incident, and still hasn’t done a good job explaining what really happened. Meanwhile, Delta has taken advantage of United’s pain by announcing that it will pay up to $10,000 to bumped passengers in the future. And Southwestern won itself an all time record for audacious cheekiness with the above ad, which United deserves. [UPDATE: Apparently this is a hoax, not a real ad. Too bad.]

Here is brian’s Comment of the Day on this ethics train wreck in the sky:

The I don’t think you’re being overly cynical here. I have seen multiple responses from media, politicians, and the CEO all following the basic pattern, propose solutions that do not address what went wrong. A handful of employees acted incompetently, and United (and probably most airlines) didn’t think through their carriage contract, police were ill trained, and the culture of United is horrible in general. But instead of addressing any of those issues, they all have motivated reasons to misconstrue the issues and offer ‘solutions’ to problems that don’t exist.

Things that could be done:

1) CEO comes out and says we are going to train and empower our staff to deal with more and varied types of situations as they arise. We also recognize that our current customer facing staff do not have the appropriate level of customer service training, which is entirely the fault of management. We are going to fix this starting now. We have pulled together XYZ resources and will be meeting weekly for the next 12 weeks to generate a comprehensive plan to begin changing our culture. You can expect an interim report in 4 weeks.

2) CEO says, we are going to set up a true reverse auction, paying cash, for all situations when we have to either remove or deny a paying customer due to reasons beyond their control. We will train all gate staff and front line managers on how to conduct this easy and straight forward auction. We should have been doing it already, because the value of the additional seats we can sell by overbooking far outweigh the costs we incur from the small portion of riders who we must justly compensate for any inconvenience.

Continue reading →

Statue Ethics Stand-Off: “Charging Bull” vs. “Fearless Girl”

/ Jack Marshall / 52 Comments

The Wall Street art ethics controversy pitting a nearly 30-year-old sculpture of an angry bull against the upstart statue of a defiant little girl has fascinating cultural implications. The ethical solution to the confrontation are simple and undeniable, however, though the legal issues a bit less so. “Fearless Girl” has got to go.

Arturo Di Modica created “Charging Bull” in response to stock market travails during the late 1980s. The three-and-a-half-ton sculpture was placed near Wall Street in the dead of night,  and was embraced by the financial ditrict and New Yorkers as iconic public art. The artist copyrighted and trademarked his work, which he has said was meant to symbolize “freedom in the world, peace, strength, power and love.”

I don’t get the love part, but okay: the point is that the bull is a positive metaphor, not a sinister one.

The “Fearless Girl” statue was positioned this year, the night before International Women’s Day, in a direct stand-off with the bull. It had been commissioned by State Street Global Advisors, a financial firm based in Boston, as a public relations and advertising move and classic virtue signalling. State Street Global’s home page trumpets the new statue’s message of “the power of women in leadership” and uses it to urge “greater gender diversity on corporate boards.” The metal girl’s  cynical and self-serving origins don’t seem to bother the work’s fans though.

The problem is that the message of “Fearless Girl” requires the participation of the bull to make any sense and to have any power at all. Otherwise, it might as well be Pippi Longstocking.  In essence, the new statue appropriates Di Modica’s work, and violently alters it. The artist is a furious as a charging bull that what he intended as a symbol of capitalist power and national vigor has been transformed into a sexist representation of male domination. Di Modica and his lawyers demand that the statue be moved away from its bull-baiting position, arguing that State Street Global commissioned “Fearless Girl” as a site-specific work conceived with “Charging Bull” in mind. It thus illegally commercialized  Di Modica’s statue in violation of the artist’s intent and copyright. They also claim that the city  violated the artist’s  legal rights by issuing permits allowing the four-foot-tall tyke to face off with the bronze bull without the artist’s permission. Letters to the Mayor DiBlasio, Ronald P. O’Hanley, the president and chief executive of State Street Global; and Harris Diamond, the chairman and chief executive of McCann Worldgroup, State Street Global’s marketing agency demand the removal of “Fearless Girl” forthwith.

Ethically, “Fearless Girl” doesn’t have a leg to stand on. Continue reading →

From The “Saint’s Excuse” Files:The Catholic Church, Penn State, and Now Choate…What Have We Learned?

/ Jack Marshall / 18 Comments

Protect the hive. Always protect the hive…

The renowned private boarding school school Choate Rosemary Hall, alma mater of such luminaries as John Dos Passos, Edward Albee, Glenn Close, multiple Kennedys and dozens more of the rich, famous and powerful, , just revealed that at least twelve former teachers had sexually molested, and in one case, raped, students without the crimes being reported to police. The pattern continued over decades. In some cases, teachers were allowed to resign after being confronted with evidence of abuse, and administrators wrote still letters of recommendations for them after they were fired. The predators then went to other schools, sometimes in positions of power and authority.

After the similar institutional conduct revealed by the Catholic Church and Penn State, does anyone believe that this is a rare occurrence in institution, including the most prestigious—and virtuous!—ones? The lesson is that established, powerful, iconic institutions are programmed to protect themselves above others, and regard their own missions and continued vitality more precious than any single individual, even a child.

Revisiting one of the most important of the Ethics Alarms’ 92 rationalizations:

13. The Saint’s Excuse: “It’s for a good cause”

This rationalization has probably caused more death and human suffering than any other. The words “it’s for a good cause” have been used to justify all sorts of lies, scams and mayhem. It is the downfall of the zealot, the true believer, and the passionate advocate that almost any action that supports “the Cause,’ whether it be liberty, religion, charity, or curing a plague, is seen as being justified by the inherent rightness of the ultimate goal. Thus Catholic Bishops protected child-molesting priests to protect the Church, and the American Red Cross used deceptive promotions to swell its blood supplies after the September 11, 2001 attacks. The Saint’s Excuse  allows charities to strong-arm contributors, and advocacy groups to use lies and innuendo to savage ideological opponents. The Saint’s Excuse is that the ends justify the means, because the “saint” has decided that the ends are worth any price—especially when that price will have to be paid by someone else.

Continue reading →