1. Self-Promotion Dept. I’m heading off to New Jersey today, to present one of my musical legal ethics seminars—3 hours!—for the New Jersey Bar Association. The real star is my long-time partner in these shows, New York-based singer/musician Mike Messer, who channels Freddie Mercury, Bob Dylan (with harmonica!), Paul Simon, even Johnny Cash in the various song parodies. This one is called Ethics Rock Extreme, and ends, like all of my musical seminars, with a sing-along. Yes, we get lawyers to sing the chorus of the “Piano Man Parody”…
Sing us the Rules, you’re the ethics man
Sing us the Rules tonight!
We’re stuck in an ethics dilemma here
So tell us what’s wrong and what’s right!
(No, “Back in the USSR” is not one of the songs we do.)
2. First Amendment for me, but not for thee: In an embarrassing episode that is also telling, the Newseum has capitulated to a storm of protests from journalists and will no longer sell its popular “Fake News” mercahndise…like this shirt…
online or in its gift shop. “We made a mistake and we apologize. A free press is an essential part of our democracy and journalists are not the enemy of the people,” the Newseum announced Saturday in a groveling blog post. “Questions have also been raised regarding other merchandise. As an organization that celebrates the rights of people from all political spectrums to express themselves freely, we’ve historically made all types of political merchandise available for our guests to purchase. That has included former and current presidential slogans and imagery and merchandise from all political parties. We continue to do so in celebration of freedom of speech.”
Translation: “In celebration of free speech, we will acquiesce in the censoring of a particular expression of opinion on a humorous T-shirt, because it hurts journalists’ feelings.”
Again, I ask: why does anyone trust journalists and the organizations they represent? Continue reading →
“Apple does not tolerate hate speech, and we have clear guidelines that creators and developers must follow to ensure we provide a safe environment for all of our users. Podcasts that violate these guidelines are removed from our directory making them no longer searchable or available for download or streaming. We believe in representing a wide range of views, so long as people are respectful to those with differing opinions.”
—-A spokesperson for Apple last week, following confirmation that it had removed five out of six podcasts by far-right conspiracy theorist Alex Jones, including “The Alex Jones Show” and some of his InfoWars audio streams.
This is a terrifying statement…almost as terrifying as the fact that so many Americans won’t understand why it’s terrifying. Unless one does not understand the First Amendment and why its principles are the beating heart of American democracy, or unless you are an increasingly typical 21st Century progressive, who feels that the Left should have the power to decide what kind of speech is tolerable, Apple is telling us that it is going to use its immense power and influence over the distribution of ideas to suit its preferences regarding what people should see, hear, and think. Continue reading →
Sonny Gray, who should be punished today for a Twitter joke he made six years ago….
I’ve written about this new blight on the American scene three times since a creep trying to embarrass Milwaukee pitcher Josh Hader tracked down some offensive tweets he made in high school, causing Major league Baseball to sentence him to re-education. Not content with the MLB over-reaction, pompous, social justice warrior thought-control purveyors in the sports media like NBC Sports’ Craig Calcaterra and Bill Baer declaimed that he must be made an example of, shunned, cooked, and eaten, or something. Hader’s pathetic grovel to the mob was so amusing that two more baseball players were quickly subjected to The Hader Gotcha–that will be the Ethics Alarms label to this poison—with similar results (and more obnoxious virtue-signaling by Calcaterra and Baer). Atlanta Braves starter Sean Newcomb had his Twitter history searched by some resentful Dodger fan while he was pitching a near no-hitter against LA, with the result that Newcomb had to deny that he was a racist and a bigot. Next, some Washington Nationals hater did the same to shortstop Trea Turner, posting old Turner tweets from his college days at North Carolina State University. [The third time I wrote about the phenomenon was in a non-baseball context, when “Guardians of the Galaxy” director James Gunn was fired by Disney because a conservative hit man did a twitter dig and found some of his old tweets.]
Isn’t this great? You can be a sad and lonely schlub with a trivial, insignificant, powerless, witless existence, and yet bring a successful, rich, popular baseball player to his metaphorical knees! Just find and publicize some ill-considered, impulsive tweets sent when fame and fortune weren’t even twinkles in the future star’s eye, and the nascent athlete was trying to make do with the under-developed brain of a typical male under the age of 25. Why, it’s even better than dropping rocks on cars as they go under an overpass, or releasing computer viruses! What a rush!Continue reading →
…and dumber than most, too. U.S. District Judge Robert Lasnik of Seattle issued a temporary restraining order that blocks the Trump administration from refusing to try to block publication of blueprints to produce guns from 3D printers. Eight states and Washington, D.C. had sought the order. A company called Defense Distributed planned to publish the blueprints after the U.S. State Department agreed to settle a suit filed by the company in an agreement made public on July 10. The suit had claimed the State Department violated the First Amendment by warning in 2013 that publication of the blueprints violated export controls and could lead to a jail sentence for the company CEO, Cody Wilson.
It sure sounds like prior restraint to me, and I suspect, when this gets to the Supreme Court, which it inevitably will, that will be the conclusion.
This began as one more example of the Obama Administration playing fast and loose with the Bill of Rights. Now, it may well be, as the suit by the states alleges, that the Trump Administration didn’t handle its legal U-turn properly, it being, after all, the Trump Administration. Nonetheless, the government blocking the online publication of information, which is what a blueprint is, when no copyrights, patents or trademarks are being violated or national secrets revealed, seems like a pretty clear First Amendment violation.
Never mind, though. The story sparked a perfect storm of fake news, fear-mongering and incompetent journalism. The Times, among others, called the blueprints a “downloadable gun.” There is no such thing as a downloadable gun. You have a gun when you download a blueprint for a gun just like you have a house when you download a blueprint for a house. That term isn’t short-hand, it’s wrong: misleading, inaccurate, and really, really stupid. Other sources blamed President Trump and his administration for the fact that 3-D printer plans for guns were available. They have been available for years. Here are some downloads in case YOU want to have the plans for weapons that you will only be able to make if you happen to have some very expensive equipment. Continue reading →
Federal air marshals have begun following ordinary US citizens not suspected of a crime or on any terrorist watch list and collecting extensive information about their movements and behavior under a new domestic surveillance program that is drawing criticism from within the agency.The previously undisclosed program, called “Quiet Skies,” specifically targets travelers who “are not under investigation by any agency and are not in the Terrorist Screening Data Base,” according to a Transportation Security Administration bulletin in March.
The internal bulletin describes the program’s goal as thwarting threats to commercial aircraft “posed by unknown or partially known terrorists,” and gives the agency broad discretion over which air travelers to focus on and how closely they are tracked.
But some air marshals, in interviews and internal communications shared with the Globe, say the program has them tasked with shadowing travelers who appear to pose no real threat — a businesswoman who happened to have traveled through a Mideast hot spot, in one case; a Southwest Airlines flight attendant, in another; a fellow federal law enforcement officer, in a third.
Look at these guidelines regarding what kind of conduct and clues could justify investigating a traveler:
I am less concerned with the civil rights implications of such idiocy than I am with the fact that the policy makers responsible for airport security appear to be morons.
2. And it isn’t just the TSA. Remember when the IRS hired the same firm that had botched the design of the Healthcare.gov website? Now a recent Treasury inspector general’s report tells us that the IRS rehired more than 200 employees fired for misconduct in a little over a year. An earlier IG report indicates that this is a pattern dating back to 2009. It occurs, apparently, because the IRS does not provide officials responsible for hiring decisions with the information about employment history, so the IRS has rehired, among others…
A fired worker with several misdemeanor theft convictions and one count of felony possession of a forgery device.
11 employees previously disciplined for unauthorized access to taxpayer accounts.
An employee who was absent without leave for 270 hours—the equivalent of 33 work days.
An employee fired for physically threatening co-workers.
An employee fired for lying about previous criminal convictions on employment forms.
17 employees previously caught falsifying official documents.
Two IRS employees fired for poor performance were rehired within six months. In its response letter to the Inspector General’s Office, the IRS wrote that the IRS “determined its current process is more than adequate to mitigate any risks to American taxpayers, federal agencies, and its employees.”
Oh. All righty then!
Rep. Kristi Noem, (R-S.D.) has presented a bill, the “Ensuring Integrity in the IRS Workforce Act,” to the House that would prohibit the IRS from rehiring employees fired for misconduct or poor performance.
A recent question to the New York Times workplace column “The Workologist” perfectly illustrates a permanent flaw in sexual harassment law. Believe it or not, I have no recommendation regarding how to fix it. I don’t think it can be fixed.
I work at a blue-collar job, and I am one of four women in a crew of 40. The guys never touch or harass me, or any of the women, as far as I know.They do, however, constantly hug and grab and bump each other in a friendly way. It’s not unusual for one of the guys to go through a whole short meeting (a stand-up “huddle”) with an arm around another guy’s shoulder. No one ever touches me, and it’s not that I want them to. That would be weird. But I almost feel left out. Should I let this “bro contact” bother me?
I love it. Perfect. This is what using the law to dictate ethics can result in, and does result in frequently: hypocrisy, confusion, and a double-bind.
Let’s begin with the last sentence: “Should I let this “bro contact” bother me?” The whole point of “hostile work environment” sexual harassment law is to make sure no woman has to ask this question. A boss who responds to a female employee’s complaint of a hostile work environment-creating unwanted sexual attention in the office with “Don’t let it bother you!” has breached his or her duty under the law.
So what’s going on here? The men in the company have adopted the current fad (Yechhh.) of hugging each other to express a range of things—support, congratulation, sympathy, platonic affection—and quite properly do not hug the few women in their midst, lest one of the females, reasonably or not (or perhaps intentionally, to grab some power or cash) be made “uncomfortable,” take the physical contact as unwanted and sexual in intent, complain, and perhaps sue. By not hugging them, however, the men isolate the women, exclude them from the social fabric of the “team,” and, in essence, discriminate against them by signalling that they are “the other,” thus creating a hostile work environment.
Even if some of the women announced their consent to be treated as “one of the guys,” it would not solve the dilemma. One of those bro-hugs could still turn into a copped feel, or be perceived as crossing lines by the female huggee. Then there is the looming third party harassment problem: a woman who has not consented to being hugged might see her female colleagues being man-handled (but completely innocently, of course) and assume that consenting to unwanted physical contact was a condition of employment, or that they would be adversely affected if they did not agree to participate enthusiastically in the hug-fest. Not treating the women in the company like the men is discrimination; treating them the same is an open invitation to a sexual harassment lawsuit. Continue reading →
I love “Onward Christian Soldiers,” of course, but this is my favorite Arthur Sullivan-composed hymn…
1. Reminding me of the basic unethical and cynical nature of state lotteries...A middle-aged African American woman sits outside of our local 7-11 pretty much all day, seven days a week. I’ve written about her before, most recently when she let the door slam in my face despite our family occasionally giving her food, cigarettes and a ten-dollar bill now and then. This morning she bought 40 dollars worth of lottery tickets.
And if she hit the jackpot, she’d be back sitting out front and begging for money in a year or less.
2. My Facebook. theory. You noticed, I’m sure, that Facebook took a 100 billion dollar hit to its paper value in less than 48 hours last week. It all could have been avoided by honesty, transparency, humility, avoidance of virtue-signaling, and fealty to free speech.
Users should have been told, in automatic emails and in big, bold letters in disclaimers on the site, since too many of them are too dumb to figure it out, that anything they put on the free platform was fair game to be harvested, sliced, diced, used, sold, analyzed and exploited for any legal purpose, by any group, party, nation or organization, and if potential users didn’t like the terms, nobody was making them post.
Facebook should have avoided pretenses of virtue. It provides a useful means of networking and communication as well as cost-free mini-blogs to people unwilling to maintain real ones. It does so to make money, not to make a better world…especially since social media arguably makes a worse one.
It should have denied responsibility, in court if necessary, for “fake news” regardless of who created it. Any ad or “sponsored story” should have been so labelled, with Facebook’s position being “read and believe at your own risk. Check “facts” before you spread them around. It’s your responsibility, not ours.”
Facebook should have had faith and belief in the freedom of expression and speech, and not attempted to censor “hate speech” or “fake news,” neither of which are subject to precise identification and analysis without the corrupting influence of bias. Indeed, Facebook was obligated to support the First Amendment, as a major cultural force.
Facebook should have stayed apolitical. Instead, it joined the “resistance” freakout over Hillary Clinton’s loss, and signaled its virtue by agreeing with absurd and unsupported claims regarding the importance of fake and risible news stories on Hillary Clinton’s defeat.
Mark Zuckerberg is a classic example of a narrow, limited, juvenile savant whose one big idea gave him more power and influence than he was qualified to handle. Maybe losing all of that money will make him appropriately humble, but I doubt it. Such people almost never learn.
3. Is the U.S. State Department intentionally hassling trans women?This story makes a prima facie case that it is, and if that’s really what is going on, it is petty and wrong. It also is a classic Rashomon situation. Government bureaucracies are inherently inefficient, incompetent, and screwed up beyond all reason or toleration. (Oddly, progressives want more such agencies, with more employees. Go figure.) The story linked appears to show the system trying to make things difficult for a particular group, but the individual targeted only sees how she is being treated, so it appears like obvious discrimination. That, however, is a very subjective assessment.
A member of my family is in jail for a few months, and had been granted work-release privileges so he could continue his job and career. However, those in charge of the program were openly hostile to his efforts to complete the paperwork and arrangements. They kept changing the rules, increasing requirements, threatening him, and delaying the process. When he contacted his lawyer, he was told, “these people can do anything they want to, and get their satisfaction from boring, low-paying jobs by abusing people like you, meaning anyone who would normally be their equals or better, but who is now under their thumbs. You have no choice. Do what they want, or you will suffer. Simple as that.”
My jailed family member is white, male, educated, well-spoken and polite. Eventually, after he grovelled enough, everything was straightened out. “You know,” he said ,”It I were black, there is no way you could have convinced me that I wasn’t the victim of racism.”
It could be the same with the alleged trans discrimination in the passport system. When one of the alleged victims says, “Make no mistake, this was an intentional action by the State Department to withhold recognizing my gender,” she is being sincere and perhaps naive. It may have been an intentional action by low level State Department employees to be assholes because they could be. [Pointer: valkgrrl] Continue reading →
1. When “Everybody Does it” isn’t just a rationalization. I was asked by a law firm to render an opinion as to whether particular conduct was a violation of the legal ethics rules. A legal ethics opinion—bar associations issue these periodically to cover gray areas– in the jurisdiction said that it was, but the opinion was over 20 years old. The reasoning given in the opinion for declaring the conduct unethical was that the practice was “new to the jurisdiction” and might mislead or confuse the public.
Today, however, my research showed, the conduct is commonplace in that jurisdiction. Many, many law firms engage in it. What was new two decades ago is new no longer, and the reasoning for the opinion’s conclusion was based on conditions that no longer exist. Moreover, no firm has been punished for the conduct, and won’t be.
The firm was concerned that the legal ethics opinion had not been over-ruled or withdrawn. I said that it didn’t have to be. “Everyone” was engaged in the conduct it forbade, the bar had allowed “everyone” to do it, and if an issue was raised now, I am 100% certain that the old opinion would be withdrawn as no longer reasonable or germane.
2. One more human feature that makes ethics harder: the ability to simultaneously hold two contradictory and mutually exclusive beliefs.
I was watching one of the apparently inexhaustible supply of cable shows about haunting and paranormal investigations with my wife. This one climaxed in a session with a Ouija board, and the love of my life uttered, within seconds of each other, these two statements:
“It’s amazing how many otherwise intelligent people really believe in ghosts and demons.”
“Ouija boards! I wouldn’t allow one of those things in the house. I’m not taking any chances.
I have heard many other friends and acquaintances endorse both of these positions as well.
3. It is the study of how one discerns the truth, after all. Who needs it? They no longer teach ethics in our education system, and now apparently philosophy is on the way out. Claremont Graduate University in California will be closing the PhD program in philosophy and terminating two tenured faculty. Apparently the move was dictated by budget and “market considerations.” The Claremont colleges in Southern California are a distinguished and growing batch consisting of Pomona, Scripps, Harvey Mudd, Claremont-McKenna, and Pitzer. They still have a philosophy faculty, but I wonder for how long.
I was tempted to check the curriculum of these schools to see what kinds of courses were deemed worthy of support while a graduate degree in philosophy was not, but I decided that it would make my head explode. Continue reading →
1. Nah, that’s not a misleading title! An op-ed in the Times yesterday had the alarming header, “Trump’s New Target: Citizenship.” In fact, the piece was about the movement to end automatic U.S. citizenship for those born here of illegal immigrant parents, and the Trump administration policy of seeking to “denaturalize” foreign-born citizens who achieved citizenship status by withholding disclosure of previous crimes.
As with many aspects of the bizarre national immigration debate, support for continuing the first principle is hard to justify. It is a remnant of a time when there were no restrictions on U.S. immigration, so the birthright rule made sense. Now, when illegal immigration is a serious concern, the same principle creates a perverse incentive to break the law, and makes immigration law enforcement complicated and difficult. The second issue is more debatable. The New York Times has another “good immigrant” story, this time one that seeks sympathy for Norma Borgoño, a Peruvian immigrant who took the oath of citizenship in 2007. The Justice Department has moved to revoke Borgoño’s citizenship, claiming that she committed fraud when she applied for it. She apparentlyfailed to disclose that she had taken part in a serious crime several years before her application, then four years later, in 2011, pleaded guilty when she was charged for helping her employer defraud the Export-Import Bank of the United States of $24 million.
Writes the Times, “Since President Trump took office, the number of denaturalization cases has been growing, part of a campaign of aggressive immigration enforcement that now promises to include even the most protected class of legal immigrants: naturalized citizens.” That is a deceitful sentence, full of spin, as is the entire story. For “aggressive immigration enforcement” read “enforcement.” The U.S. has every right, and in fact a duty, to assess what kind of people it wants to allow to become citizens, and criminals need not apply—after all, we have enough of them already. The Times finds it significant that Borgoño hasn’t been charged with her crime when she applied for citizenship, but she was still a criminal, and the crime wasn’t stealing a loaf of bread, either. It also spins that her aiding a massive theft was “to no benefit of her own.” Oh! Then that’s OK, then! Presumably there was the benefit of keeping her job with her boss the felon, at very least.
The Trump administration isn’t “targeting citizenship,” but rather naturalized citizenship that was improperly granted, based on false representations.
2. The irresponsible neglect of the national infrastructure continues. I could write about this every day, and maybe I should. A microcosm of the national crisis is illustrated in the recent news that the New York City subway system is still falling apart, and even after the city spent about $333 million on emergency repairs its condition has barely improved. Waiting until transit systems, bridges, roads, railroad track, waterways, sewer and water pipes, airports, the power grid and the rest of the structures that support civilization start crumbling, stifling commerce and killing people is an idiotic and suicidal approach to a basic function of government, but that has been our national policy since the 1960s. President Trump has claimed that addressing this was a priority, and maybe it will be, but recent history suggests that nothing will be done of substance until there is a lot of sickness, death, and destruction. Continue reading →
1. Good norms, bad norms, good President, bad President…Good: the announcement that the President is “considering” terminating the security clearances of former Obama officials John Brennan, Jim Clapper, James Comey, Andrew McCabe, Michael Hayden, and Susan Rice. Well, mostly good; the message that the President is “looking into it” feels suspiciously like a “Shut up or else” threat. The President should just pull the clearances immediately.
How many of you never realized that people like Comey and Brennan kept their clearances after leaving their jobs? I didn’t, and what a dumb and irresponsible rule that is. Apparently Senator Rand Paul sparked the move by tweeting that Brennan’s ridiculous “treason” accusation warranted a loss of clearance. I’d go further: the demonstrable determination of all of the named former official to assist “the resistance” and oppose the policies and very existence of the Trump administration makes ending their access to classified information mandatory.
If someone has a non-partisan, reasonable argument why the President shouldn’t just do this immediately, I’d love to hear it, especially as it applies to Comey and McCabe, who were fired.
Unequivocally bad, as in irresponsible, incompetent, undignified, unprofessional and self-destructive, was Trump’s all-caps tweet threatening Iran after another one of that nation’s “mother of all wars” statements. Diplomacy by tweet is per se ridiculous and reckless, so saber-rattling by tweet is obviously worse. If there is a serious message to be sent, then the President should send it formally and in a professional manner. Since all-caps communications are annoying and offensive no matter where they appear, they are doubly so coming from a nation’s leadership. There is no way to interpret that Trump tweet in a way that is complimentary to the President.
2. This is one more reason my wife just told a GOP Congressional Committee fund-raising caller to never darken our phone-lines again: I really thought this story was a hoax, but unfortunately it is not. In the second episode of Showtime’s Who Is America?, Sacha Baron Cohen’s unethical “let’s humiliate people Democrats don’t like by tricking them” TV show, Cohen persuaded Jason Spencer, a Republican state representative from Georgia who apparently has the IQ of a sea sponge, to pull down his pants and scream “Nigger!” on camera.
Georgians must be so proud.
Cohen claimed to be an Israeli terrorism expert named Col. Erran Morad, and recruited Spencer for a training video on how elected officials can protect themselves from terrorists. Cohen as Morad asked Spencer to act like a Chinese tourist in order to take selfie-stick photos up a suspected terrorist’s burka, so he did. Cohen asked Spencer to scream the “N-word” because using the “forbidden” word would help ward off terrorists, so the idiot legislator did, and with alarming gusto. (Then Baron Cohen said, “Are you crazy? The ‘N-word’ is “noony,” not this word, this word is disgusting!”) Morad told Spencer that terrorists are so afraid of gay people that they think they will become homosexual if you touch them with bare buttocks, so Spencer obediently took off his pants and pressed his hindquarters against his Israeli trainer, shouting, “‘Murica!”
Not surprisingly, there are calls for Spencer to resign; he has already lost his primary. Of course he should resign; an idiot like him should never have been allowed to run as a Republican in the first place, nor should such dolts have won an election, and he won two. What Cohen does is unethical, but it does have its compensations. Spencer, for his part, whined that “It is clear the makers of this film intended to deceive me in an attempt to undermine the American conservative political movement.”
No, you irredeemable fool, idiots like you undermine the American conservative political movement, and always have. Continue reading →
Ethics Alarms 