The University of Connecticut has had a free speech-hostile policy since 2017. It reads in part,
“The University of Connecticut is permitted to, and will, limit expression in order to protect public safety and the rights of others.This includes expression that is defamatory, threatening, or invades individual privacy. Protected speech may also be reasonably regulated as to the time, place, and manner of the expression.”
It needs to go, and senior Isadore Johnson, a founder of UConn’s Students for Liberty (SFL) chapter wants to help get rid of it. Speaking with the libertarian magazine “Reason,” he told writer Ella Lubell.
“I think many universities, including UConn, take it for granted that students appreciate the protections and values of open discourse and discussion. Many students do not, and it is incumbent on the university to clarify and explain such values so students know what rights are protected. The right to argue vigorously and sometimes offensively is part of our civic culture, and students ought not be protected against that.”
This essay is closely related to yesterday’s post about the elderly defense lawyer who revealed in a memoir shortly before his death that the client he successfully defended against kidnapping charges in his most celebrated case was guilty. One commenter opined that it is unethical for a lawyer to defend a client whom the lawyer knows is guilty, which immediately reminded me to republish my explanation of this core element of legal ethics and the criminal justice from 2005. The commenter’s position is surprisingly common, even among law students. I’d bet that a majority of the American public is confused about the issue. That is more than a little scary, but it explains why, for example, the public was so blase about Derek Chauvin being convicted of murder under conditions that made fair trial virtually impossible. What follows is very slightly edited from the original version, which can be found here.
***
How can it be right for an attorney to defend in court an individual that he or she knows is guilty? The fact that so many Americans are perplexed by this after two centuries is an indictment of the legal profession, which has flunked its obligation to protect its role in protecting a crucial Constitutional right by making sure that it is understood by the pubic that right serves. About 20 years ago, then-Fox TV commentator Bill O’Reilly led a campaign to get California criminal lawyer Jeffrey Feldman disbarred because leaked plea bargaining sessions showed that he knew his client, child killer David Westerfield, was guilty of murder, even though Feldman was vigorously disputing his guilt in court. O’Reilly pronounced Feldman a liar. He was wrong, but his ignorance, in this matter at least, is excusable, but only because it so widespread.
To understand the criminal lawyer’s ethical responsibilities, begin with this: the Founders of the American republic believed that citizens in a fair and just society shouldn’t be imprisoned or punished just because the government decides they are guilty of something, whether it is murder, robbery, not paying taxes or, as with John Hancock and Samuel Adams, criticizing those in power. They wisely decided on a system that required the government to prove that an individual had committed a crime to the satisfaction of an unbiased jury. Not only that: they decided that a very high standard should be applied in determining legal guilt: “beyond a reasonable doubt,” or near certainty.
Why? Taking the cue from British legal scholar William Blackstone, who famously said that it was better to have ten criminals escape punishment than to have one innocent man imprisoned, uber-Founding Father Benjamin Franklin said that “ it is better one hundred guilty Persons should escape than that one innocent Person should suffer.” Achieving this ideal means keeping the government honest: no convictions based on false or planted evidence, unreliable or lying witnesses, or confessions extracted from the accused by torture, beatings, or other forms of duress even if the accused is, in fact guilty. All of that is essential for the system to work, if to work means “being fair and just.” If we permit the government to cheat in order to imprison a guilty individual, we have no way to stop it from cheating to imprison an innocent one. Indeed, it will be impossible to tell the difference.
Senator Rand Paul (R-KY), the U.S. Senate’s most passionate libertarian, was suspended from YouTube for expressing his strong opposition to Wuhan virus mandates and calling for widespread citizen resistance. This is res ipsa loquitur: Big Tech is using its corporate power to support government policies and prevent dissent. The argument that YouTube (that is, Google) is a private entity and not bound by the First Amendment is disingenuous, just as similar arguments defending Facebook, Twitter and other social media banning President Trump as well as posts that offer opinions and positions they don’t want the public to see. When corporations use their massive power and influence to suppress speech and control the flow of information, they pose an existential threat to democracy. When they exercise this power to advance the political agenda of a specific group, individual or party, that threat is worse. When they are censoring and distorting on behalf of the government, the threat is dire.
Paul released a rebuttal and condemnation of YouTube’s indefensible action, and it was also taken down by Our Video Masters. You can view it here, on Rumble. If I could embed it, I would.
Let me turn the floor over to Professor Turley, not as an appeal to authority, but because there is no reason for me to write in different words what he has said persuasively already:
It has been a hugely informative and entertaining knockdown, drag-out comment battle over vaccine hesitancy the last few days on not just one but two posts on the topic. It’s time to add another. One irony of long comment threads, which make me happy as a blog proprietor, is that many readers don’t have the patience to pick through them. I’m sometimes guilty of that myself.
First, I want to take exception to conflating hesitancy to take the COVID-19 vaccines and anti-vaxxers. There’s a huge difference between being skeptical about one particular vaccine and being skeptical about all vaccines. And conflating the two blurs the issues and dismisses out of hand legitimate arguments and concerns.
I stand in an odd position, because I oppose getting any of the COVID-19 vaccines, and I have been vaccinated. I took the double doses of the Moderna vaccine when it became available at my workplace. Was it to protect my family (my wife is pregnant with our fourth)? Not at all. We’re all healthy, and the odds of the coronavirus having any effect other than a harsh cold for my household is surprisingly small. Was it because my workplace pressured me into it? No, though I will cite that the 14 days paid sick time goes away if I snag a sufficiently large batch of SARS-CoV-2 and I’m not vaccinated.
So why did I get the vaccine? At the time, I believed it the right thing to do to help the efforts of reaching herd immunity. So what has changed since then? Let’s consider my thinking, meandering as it is.
My wife and boss, Grace, emailed me this morning with a list of major events that occurred on August 9th, remarking, “NOW THIS WAS AN INTERESTING DAY IN HISTORY !” Indeed it was: this is a major marker of ethically provocative events, each worth not just a post, but a debate, a book, and museum:
Richard Nixon’s resignation as the 37th President of the United States took place at noon on August 9, 1974, avoiding the personals shame and the national trauma of an impeachment and trial, back when an impeachment was still an impeachment (and not, as the Democrats recently transformed it, a purely partisan device to demonstrate hatred of the elected President). This put an unelected President into office, Gerald Ford, who soon after taking office announced that he was pardoning the man who appointed. This act forever defined Ford’s brief Presidency, and was either a courageous act of political sacrifice on his part, or part of a corrupt scheme to allow Nixon to escape criminal prosecution. (I believe the former description is the correct one.)
On 2014, a black teen, Michael Brown, was shot to death in Ferguson, Missouri, by a white police officer. The episode launched an ongoing Ethics Train Wreck that is still stopping for passengers and causing great destruction to this day.
It was on August 9, 1969, that members of Charles Manson’s “family” murdered five people in movie director Roman Polanski’s Beverly Hills, California, home, including Polanski’s pregnant wife, actress Sharon Tate. Less than two days later, the cult members killed again, murdering Leno LaBianca and his wife Rosemary in their home. The murders finally ended the myth of the “peace and love” Sixties while casting a shadow over the lives of many not butchered that night, from the Beach Boys to Doris Day to Hollywood, especially perhaps Polanski, who eventually became a living Ethics Train Wreck himself.
Speaking of the hippies, Henry David Thoreau’s “Walden, or, A Life in the Woods” was published on August 9, 1854 and became a staple in the intellectual arsenal of those advocating “dropping out” of society. “Dropping out” of society is unethical.
August 9, 2010 was the day that JetBlue flight attendant Steven Slater actually attracted praise for his “fuck you” exit from his job as a Jet Blue flight attendant. Not from Ethics Alarms, though…
And speaking of metaphorical “funk you’s,” on this day in 1936, African American track star Jesse Owens won his fourth gold medal of the Berlin Olympics in the 4×100-meter relay, thus foiling and infuriating Nazi leader Adolf Hitler plan to use the Games for “master race” propaganda.
Finally, though it should probably by first, it was on August 9, 1945, that the U.S. dropped a second atom bomb on the citizens of Japan, at Nagasaki, finally speeding Japan’s unconditional surrender. If the decision to drop the first atom bomb is controversial, the ethics controversy over the second is even more contentious.
1. Oh, let’s start with another Wuhan vaccination matter, this one from the Ethicist, who was asked,
My elderly mother is in an independent-living facility where all the residents have been vaccinated …Protocols are very strict, and no resident has gotten sick. [A] relative who lives nearby… is not vaccinated. This facility will soon mandate that all visitors be vaccinated, but my relative plans to dissemble in order to evade the requirement. Should I … tell the facility that my relative is not vaccinated?
Does she really have to get expert advice to figure this out? Continue reading →
…the policy would be that every member of the cast, staff and crew would have to be vaccinated and show proof of it. They would, of course, be free to refuse, which is their right. But they still would have no right to work on the production, and to endanger the health of others essential to the show’s success. You can’t rehearse with social distancing, nor with actors wearing masks.
I’ve seen viruses run amuck through casts and ruin shows. Your rights stop when they start adversely and unnecessarily affecting my business and projects. Take your own risks and good fortune to you, but don’t impose them on me.
(Incidentally, I would never produce or direct the show you see above. I consider it unethical to put shows on stage that I can’t stand watching and listening to myself.)
I hate to inflict that song on you (the singer/composer was the late Jess Cain, once the most popular disc jockey in Boston) but I have limited options. The 2021 Red Sox, who were sailing all season to what looked like a certain play-off slot , are suddenly in freefall, with the hitters not hitting and the pitchers not pitching. They face a double-header today, and a double loss would be disastrous. After the 1967 Red Sox “Impossible Dream” season, the best summer of my life, when a team of virtual kids won the closest pennant race in baseball history by a single game after finishing in a tie for last place the year before, WHDH, which then carried Boston’s games, put out the cheesy but wonderful commemorative album above, containing clips from broadcasts of the most memorable games and Cain’s song, tied together by Sox play-by-play announcer Ken Coleman reciting one of the worst pieces of doggerel ever heard by human ears. At one point, Ken recounted a desperate point in the team’s underdog quest, and, having set up the rhyme with “zero,’ intoned, “We have to have a hero.” Cue the Yaz song!
I’ve been thinking about the need for a hero, indeed more than one, quite a bit lately, in matters more consequential than the Red Sox season (well, for normal people anyway.) The Sox sure need one today. If he shows up, maybe it will be an omen…
Incidentally, Yaz deserved the song. Modern metrics show that his Triple Crown, Gold Glove, MVP 1967 season was the second best of all time. (Babe Ruth had #1, naturally.) Anyone who followed that 1967 season knew it before the numbers were crunched.
1. More free speech threats in the Biden Era, but Donald Trump was a threat to democracy…The Baltimore Symphony fired Emily Skala, 59, the orchestra’s principal flutist for more than three decades, because she shared social media posts expressing doubt on the efficacy of vaccines and facemasks. Fellow musicians, audience members and donors complained, so it was bye-bye Emily. Skala, no weenie she, will challenge her dismissal, and accuses the orchestra of creating a hostile environment where she was being attacked for expressing unpopular views. I’d say that is likely. Musicians as a group are about as progressive and open to conservative views as college professors.
Skala angered many of her colleagues for sharing posts questioning the results of the 2020 presidential election—Oooh, can’t have that! She was also criticized for saying that black families needed to do more to support their children’s classical music studies. Wow, this woman is a veritable Nazi! Amusingly, the New York Times cites as among the examples of social media “disinformation” that got her fired were “false theories suggesting that the coronavirus was created in a laboratory in North Carolina” and posts “raising concerns about the safety of vaccines.”
That’s funny: it wasn’t too long ago that suggesting that the virus originated in a Wuhan lab was considered disinformation. And didn’t Joe Biden and other prominent Democrats raise “concerns” about any vaccine produced under the Trump Administration?
I’m just spitballing here, but if only we had some heroic organization that defended free speech, regardless of what side of the political spectrum it came from. It could call itself…let’s see…the National Civil Liberty Protection Alliance, or something like that…
2. Believe it or not, this Russian lawsuit isn’t frivolous, just mind-meltingly stupid. Thanks to Curmie for passing along the saga of Ksenia Ovchinnikova, an Orthodox Christian in Omsk, Russia, who is suing McDonald’s on the theory that its ads made burgers seem so yummy and irresistible that they made her break her fast for Lent in 2019 after years of successfully avoiding meat. She wants 1,000 rubles ($14) as damages for “sustained moral damage.”
The reason this isn’t frivolous (at least not in the US) is because a lawsuit clears the bar if it seeks a new interpretation of existing law, no matter how wacky. Of course, a heroic lawyer would tell the woman, no matter what she offered to pay, “You’re out of your mind, and I’d rather eat my foot than disgrace my profession by taking such a ridiculous case. By the way, would you like this corndog?” Continue reading →
Wow, the ethics train wrecks that pulled out of the station on this date: Irag invading Kuwait in 1990, the conclusion of the disastrous Potsdam Conference in 1945, and the ascension of Adolf Hitler to dictator of Germany in 1934! Maybe we should just skip August 2 on the calendar like some buildings have no 13th floor…
1. This is good news, sort of…The American Civil Liberties Union of New Jersey announced that the obscenity charges against Andrea Dick for refusing to take down her “Fuck Biden” banners had been withdrawn by the town of Roselle Park, New Jersey. A municipal court judge had ordered Dick to take down the three flags, finding that they violated the town’s obscenity ordinance, which was ridiculous: the ordinance defines obscenity as anything that “appeals to the prurient interest; depicts or describes in a patently offensive way sexual conduct as hereinafter specifically defined, or depicts or exhibits offensive nakedness as hereinafter specifically defined; and lacks serious literary, artistic, political or scientific value.” Dick was not calling for a gang rape of Joe Biden. Moreover, his ruling was in direct opposition to the Supreme Court’s landmark 1971 ruling in Cohen v. California. We discussed the case here.
I say “sort of” from a Golden Rule perspective. I sure wouldn’t want her as a neighbor. This is squarely in the “right to be an unethical jerk” category. But the government tried to intimidate her out exercising her right to free speech, and whatever else she is, Dick is not a weenie.
She should give lessons.
2. Today’s American Olympics narcissists: Raven Saunders and Race Imboden. Even though they were directed by the nation they represent not to make political theater out award ceremonies in Tokyo, Saunders, a silver medal winner in the women’s shot put, and Imboden, a bronze winner in foil, went ahead with obnoxious grandstanding anyway. Imboden, who is a serial offender, had a symbol marked on his hand, while Saunders treated fans to this attractive display:
They were protesting injustice or something, as if anyone cares or should care what they think. It’s not their stage to abuse. Apparently there is a big debate over what the U.S. officials and Olympics authorities should do. Easy: send them home, take their medals, and ban them from representing the U.S. again. They were warned.
I don’t think that we need to debate the ethics of deranged mass shootings. The first one I was ever aware of occurred on this date in 1966. Charles Whitman, a former Eagle Scout and Marine, brought a stockpile of guns and ammunition to the observatory platform atop a 300-foot tower at the University of Texas. He had packed food and other supplies, and before settling in for 90 minutes of deadly target practice, killing some victims from as far away as 500 yards—he was a trained marksman—Whitman killed the tower receptionist and two tourists. He eventually shot 46 people, killing 14 and wounding 32 before being killed by police. The night before, on July 31, Whitman wrote a note saying, “After my death, I wish an autopsy on me be performed to see if there’s any mental disorders.” Whitman then went to his mother’s home to murder her, using a knife and a gun. He returned home to stab his wife to death.
Whitman’s story does raise medical ethics issues. He was seeing a psychiatrist, and in March told him that he was having uncontrollable fits of anger. Whitman apparently even said that he was thinking about going up to the tower with a rifle and shooting people. “Well, your hour is up, Mr. Whitman. Same time next week, then?” The intersection of mental illness with individual rights continues to be an unresolved ethics conflict 54 years later.In addition, the rare but media-hyped phenomenon of mass shootings has become a serious threat to the right of sane and responsible Americans to own firearms. See #5 below.
1. The King’s Pass in show business. A new book by James Lapine tells the antic story of how the Sondheim musical “Sunday in the Park With George” came to be a Broadway legend. Lapine wrote the book and directed the show. The cult musical—actually all Sondheim shows are cult musicals–eventually won a Pulitzer Prize ( you know, like the “1619 Project”) and bunch of Tony nominations. I was amazed to read that the show’s star, Mandy Patinkin, at one point walked out on the production and was barely persuaded to return. Lapine writes that he never fully trusted Patinkin again. Why does anyone trust him? In fact, how does he still have a career? Patinkin has made a habit of bailing on projects that depended on him. He quit “Chicago Hope,” and later abandoned “Criminal Minds,” which had him as its lead. To answer my own question, he still has a career because of “TheKing’s Pass,” Rationalization #11. He’s a unique talent, unusually versatile, and producers and directors give him tolerance that lesser actors would never receive. Mandy knows it, too, and so he kept indulging himself, throwing tantrums and breaking commitments, for decades. He appears to have mellowed a bit in his golden years.
2. Speaking of Broadway, the ethical value missed here is “competence”…There is more evidence that the theater community doesn’t realize the existential peril live theater is in (the medium has been on the endangered list for decades) as it copes with the cultural and financial wreckage from the Wuhan Virus Ethics Train Wreck. Just as theaters are re-opening, the Broadway theater owners have decreed that audience members will be required to wear masks at all times.
I have one word for that: “Bye!” Maybe some fools are rich, submissive and tolerant enough to pay $100 bucks or more for the privilege of being uncomfortable for three hours. Not me. My glasses fog up when I wear masks. I have been vaccinated; I’m fairly sure I was exposed to the virus before then and had minimal symptoms, and much as I believe in live theater, I will not indulge the politically-motivated dictatorship of virtue-signalling pandemic hysterics. The industry is cutting its own throat, but then theater has never been brimming with logic or common sense.
Warning: reading this story is likely to make you feel hopeless. For this is what the hyper-racialization and resulting division of American society breeds, and it can only go in one direction from here. Hint: it will not be a direction that will lead anywhere good.
A brief summary:
In Windsor, Connecticut—I once spent a summer there!—Amazon contracted to have a warehouse built, with the promise of jobs and economic revitalization.
Over the past three months, workers building the Amazon warehouse claimed to have found nooses, or ropes that looked like nooses, or “noose-like” ropes at the construction site.
Protests have been organized by activists who have never seen the alleged nooses. Demands are being made for police to find and charge the noosemakers. The presence of the nooses, if they are nooses, is being called a “hate crime” by the local NAACP.
Local community activists have organized several demonstrations to demand that Amazon take stronger action to ensure the safety of Black construction workers. One such demonstration included members from the Huey P. Newton Gun Club and the New Black Panthers, who showed up at the construction site carrying guns. The armed activists said they were there to defend the Black workers and make them feel empowered to speak their mind.
Amazon and the other companies involved claim they have done everything they can. They have delayed construction twice, adding security (to protect workers from the nooses, apparently) and cameras at the site and putting up $100,000 in award money for anyone who can provide information about the nooses.
The police say their investigation has determined that there were only two nooses, with six others being ropes with the kind of loop often used in construction projects.
Ethics Alarms 