Sunday Ethics Notes, 9/29/2021, And Does Ethics Analysis That Nobody Reads In The Forest Make Any Difference?

Tree falls no sound

Don’t mind me, it’s just that I’ve been feeling like I’m wasting my time lately….

1. Please stop sending me links to whatever perpetually disgusting and hypocritical HBO comic Bill Maher has said because he appears to be courageously buck woke cant and the boring partisan spin of almost every other TV comedian. Now he’s criticizing progressives because he’s smart enough to figure out (though they haven’t) that they completely beclowned themselves by hitching their credibility to Joe Biden and Kamala Harris. The King of Smug isn’t nearly as smart as he thinks he is, but he’s smart enough to see that the smarter rats will soon be fleeing the sinking ship. It doesn’t matter: Maher was one of the most vicious hate-mongers against President Trump and Republicans; he also advocated wrecking the economy to get rid of a President he didn’t like. Maher isn’t really a brave iconoclast, he just plays one on TV. I doubt that he has any principles that he wouldn’t discard without blinking, if it brought him some publicity and lengthened his already inexplicably long career as a public asshole.

2. Now, that doesn’t mean that Bill’s assessment isn’t correct for once, just that he aided and abetted those who stuck the country with Joe and Kamala and is therefore ethically estopped from flip-flopping now. Every single institution and individual who was part of this reckless, cynical and transparently irresponsible fiasco should be mocked, shamed, harangued and humiliated until death, especially the voters. Charles Cooke, a conservative NeverTrumper with the similarly Trump-bashing National Review, has written a very accurate essay on exactly what Democrats did, “that, in a desperate attempt to remove President Trump from office, the Democrats tailored themselves a straitjacket from which they will struggle mightily to escape.” They also stuck the United States and its citizens with a President and a Vice-President they knew were unfit for office so the party could gain power, placing the nation and its welfare at risk. Just like Bill Maher stating that wrecking the economy and putting Americans out of work was “worth it” if it resulted in Trump’s defeat, the Democrats (and the news media, but I repeat myself) decided it was worth it to place the nation’s fate for four years in the hands of what Cooke calls, in an understatement, “a pair of losers.” And they knew that was what they were doing. It is one of the worst betrayals of trust any American political party has ever engaged in.

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Ethics Hero: Prof. Jonathan Turley (And The Indefensible Whitewash Of The Shooting Of Ashli Babbitt)

michael-byrd-ashli-babbitt

Ethics Alarms already noted Jonathan Turley’s accurate and searing condemnation of the outrageous and sinister double standard applied to Lt. Michael Byrd, the Capitol Police officer who shot and killed Ashli Babbitt on January 6. Incredibly, the blatantly partisan wound on the illusion of our justice system’s integrity got worse after Turley’s first post on the topic. The investigation of the mind-meltingly stupid riot concluded that it was not coordinated, was not incited by Donald Trump, and was not an “insurrection,” just as any objective and reasonably informed citizen could have figured out by themselves. Then Byrd, whose identity had been shielded from the public (and oddly unrevealed by the mainstream media, who could have discovered and published it if they were still practicing journalism), gave a nauseating NBC interview in which he pronounced himself a hero, made the absurd claim that he had saved untold lives by shooting an unarmed woman, and, most significantly, revealed that he had no legal basis to use deadly force. (He also revealed himself to be unfit to be trusted with a weapon.)

This prompted Turley to write his second attack on the politicized cover-up. Turley, despite the names he is called by the aspiring totalitarians of the Far Left and the Trump-Deranged, is a Democrat and a lifetime liberal. Because of what can only be an abundance of character, he has not had his values warped by being marinated in the campus culture of his typically uber-woke institution, George Washington University. Not had he shied away from disparaging the illiberal and anit-Democratic antics of the Axis of Unethical Conduct (“the resistance,” Democrats and the mainstream media) during their four-plus year effort to destroy Donald Trump. He has been remarkably consistent, legally accurate, fair, and right in this, and has paid the price.

In the Virtues, Values and Duties page here (Have you ever visited? You should you know…) I list what I call “The Seven Enabling Virtues.” These are character traits that often are necessary to allow us to be ethical:

  1. COURAGE
  2. FORTITUDE
  3. VALOR
  4. SACRIFICE
  5. HONOR
  6. HUMILITY
  7. FORGIVENESS

Turley annoys me sometimes with his professorial reserve (developments that should send American screaming into the streets are just “troubling” or “problematical” in his typical lexicon), but he is well-girded in all of the seven. Every time he goes against the prevailing progressive narrative, he is called a Trumpist, a phony, a Nazi, and worse. His integrity and dedication to truth-telling has undoubtedly cost him speaking gigs, book sales and TV interviews on any network but Fox. Yet Turley has not backed down.

Turley’s recent article in The Hill regarding the Babbitt shooting is superb.

Highlights:

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Ethics Flea Market, 8/28/21: An Atheist Chaplain And Other Exotica [With Missing Link!]

flea market

1. As with the Giuliani suspension, I have grave doubts whether this ruling is apolitical. Judge Parker, a Michigan federal district judge, issued a 110-page order sanctioning Trump lawyers Lin Wood, Sidney Powell, and others for their filing and advocacy of a federal lawsuit that was one of several law suits alleging fraud and illegality in the handling of the 2020 election. The full opinion here, but lawyer Bruce Faughan has done a neat cut and paste job to produce a Reader’s Digest condensed version:

[A]ttorneys have an obligation to the judiciary, their profession, and the public (i) to conduct some degree of due diligence before presenting allegations as truth; (ii) to advance only tenable claims; and (iii) to proceed with a lawsuit in good faith and based on a proper purpose. Attorneys also have an obligation to dismiss a lawsuit when it becomes clear that the requested relief is unavailable.

For purposes of Rule 11, an attorney who is knowingly listed as counsel on a pleading, written motion, or other paper “expressly authorize[d] the signing, filing, submitting or later advocating of the offending paper” and “shares responsibility with the signer, filer, submitter, or advocate.” In this age of electronic filing, it is frivolous to argue that an electronic signature on a pleading or motion is insufficient to subject the attorney to the court’s jurisdiction if the attorney violates the jurisdiction’s rules of professional conduct or a federal rule or statute establishing the standards of practice.

Even if there are sanctions available under statutes or specific federal rules of procedure, . . . the ‘inherent authority’ of the court is an independent basis for sanctioning bad faith conduct in litigation. To award attorneys’ fees under this “bad faith exception,” a district court must find that (i) “the claims advanced were meritless”; (ii) “counsel knew or should have known this”; and (iii) “the motive for filing the suit was for an improper purpose such as harassment.” When invoking its inherent authority to sanction, “[a] court must, of course, . . . comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees.”

[L]itigants and attorneys cannot come to federal court asserting that certain acts violate the law based only upon an opportunity for—or counsel and the litigant’s suspicions of—a violation. The rule[s] continues to require litigants to ‘stop-and-think’ before initially making legal or factual contentions.

[A]n “empty-head” but “pure-heart” does not justify lodging patently unsupported factual assertions. And the good or bad faith nature of actions or submissions is not what determines whether sanctions are warranted under Rule 11(b)(3). Inferences must be reasonable and come from facts proven, not speculation or conjecture. Pursuant to their duties as officers of the court, attorneys typically do not offer factual allegations that have no hope of passing as evidentiary support at any stage of the litigation. Substituting another lawyer’s judgment for one’s own does not constitute reasonable inquiry.”

As an initial matter, an affiant’s subjective belief that an event occurred does not constitute evidence that the event in fact occurred. Plaintiffs are not entitled to rely on the discovery process to mine for evidence that never existed in the first instance. Attorneys are not journalists. It is not acceptable to support a lawsuit with opinions, which counsel herself claims no reasonable person would accept as fact and which were “inexact,” “exaggerate[ed],” and “hyperbole.” Nor is it acceptable to use the federal judiciary as a political forum to satisfy one’s political agenda. Such behavior by an attorney in a court of law has consequences.

An attorney’s right to free speech while litigating an action “is extremely circumscribed.” Something does not become plausible simply because it is repeated many times by many people. An attorney who willingly continues to assert claims doomed to fail . . . must be deemed to be acting with an improper motive.

The nation’s courts . . . are reserved for hearing legitimate causes of action. Individuals may have a right (within certain bounds) to disseminate allegations of fraud unsupported by law or fact in the public sphere. But attorneys cannot exploit their privilege and access to the judicial process to do the same. And when an attorney has done so, sanctions are in order. Here’s why. America’s civil litigation system affords individuals the privilege to file a lawsuit to allege a violation of law. Individuals, however, must litigate within the established parameters for filing a claim. Such parameters are set forth in statutes, rules of civil procedure, local court rules, and professional rules of responsibility and ethics. Every attorney who files a claim on behalf of a client is charged with the obligation to know these statutes and rules, as well as the law allegedly violated.

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Our Lying, Propaganda-Spreading, Untrustworthy News Media: The Miami Herald Headline

herald headline

I have to regularly update my resolve to not respond to one of my ethics-rotted progressive friends when they say to my face, “Nah, there’s no mainstream media bias! That’s just a conservative conspiracy theory,” “You’re not only an idiot, you’re an enemy of democracy.” It gets harder and harder by the day. This has been my ongoing struggle at least since the 2008 Presidential campaign, when the mainstream media kept mocking Sarah Palin’s alleged lack of qualifications to be Vice-President while never mentioning that Joe Biden was a babbling fool or that Barack Obama was objectively less qualified than Palin was.

The Miami Herald headline above isn’t unusual; there are these kinds of lies and public manipulation to assist partisan agendas that appear in the news media every day, all day long, and from more influential sources (boy, I nearly wrote “respected sources,” and no mainstream media source deserves respect) than the Herald. Nonetheless, the headline is unusually brazen.

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Now Featured In The Left’s Attack On Freedom Of Speech: Doctors Censoring Doctors

Gee, why would officious authoritarian egomaniacs who think they are God try to do something like that?

The New York Times reports that medical groups are agitating for state boards to discipline physicians spreading “misinformation.” The Federation of State Medical Boards, which represents the groups that license and discipline doctors, recommended last month that states consider suspending or revoking medical licenses of doctors who share false medical claims.

The American Medical Association says spreading misinformation violates the code of ethics that licensed doctors agree to follow. “”Misinformation” is defined by Ethics Alarms as opinions that do not comport with the majority opinion in the profession, with the added qualification that such non-conforming opinions are considered especially worthy of censorship if they offend the political Left, which is where the AMA hangs its metaphorical hat.

The medical association, like its allies, are increasingly unashamed aspiring totalitarians. In this post from April, I wrote about how the AMA issued a statement that it was “deeply disturbed” and “angered” by a recent Journal of the American Medical Association podcast that “questioned the existence of structural racism.” Though JAMA supposedly has editorial independence from the AMA, the association forced JAMA Editor-in-Chief Howard Bauchner to ask for the resignation of podcast host and deputy editor Dr. Edward Livingston because his statements and tweets were “inconsistent with the policies and views of AMA” and “structural racism in health care and our society exists and it is incumbent on all of us to fix it.”

“Structural racism in health care and our society exists and it is incumbent on all of us to fix it” is what the medical profession now calls a “fact.” What the medical profession’s censors are really after is lockstep ideological conformity, using the power to take away the means of contrarians to earn a living as a bludgeon. The Times article would be amusing it it wasn’t so ominous. How can a doctor or a journalist call anything said about the Wuhan virus and its friends “mis-” or “dis-” information, when so many “facts” have been promoted to the public by health experts and then been retracted, reversed, qualified or otherwise contradicted? Dr. Fauci admitted that he deliberately lied to the public about whether masks protected the public from infection. Do you think any state broad will try to take his license away? No, because he’s one of the good doctors, and his misinformation is a means to a just end.

I am pretty certain that any effort to silence medical professionals who espouse controversial opinions will be struck down even by liberal judges, and that the medical groups advocating censorship know it. What they are really trying to accomplish is prior restraint, intimidating non-conforming doctors into keeping quiet by raising the specter of discipline. It’s the ethical equivalent of extortion.

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Showdown At CVS

I’ve been looking for an excuse to use my favorite Ethics Alarms movie clip again [FYI: The library has been updated!]…

Against my usual proclivities, I am engaged in a war with the CVS that I am not going to back down from, stranding my family members there and leaving my my weapons behind to be used by terrorists. I found it odd that every time I made a purchase at the store, about twice a week, I was asked to “re-enroll” in a savings program that I had participated in for over a year. This required me to click “yes”(rather than “later”) at the end of my transaction. I finally asked a clerk what was up, an he said he would check. The result: checking “yes” did nothing. My membership could not be reinstated at that time. He could not tell me why.

So I asked to see the manager, a nice middle-age woman whom I have known there for years. She couldn’t explain why either. Finally she said, “It’s the machines,” and wrote down a phone number for me to call at CVS’s website. “Excuse me, but why to I have to call because your store’s machine’s don’t work?,” I responded. “I’m the customer, I’m misinformed for weeks, I don’t get discounts I’m supposed to get, and I have to fix your problem? I have to sit through automated phone systems and wait times? You are CVS’s agent. You work here. You’re paid for it. You fix the problem. Don’t foist it off on me. I’m the one being inconvenienced.” At this point, by some sadistic twist of fate, a large, aggressive, loud and belligerent young woman had entered the store near the front counter, and she started addressing me stridently.”Why are you harassing them?” she boomed out. “They aren’t CVS. They just work here.”

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Are Joe Biden’s Media Defenders That Stupid? Do They Think The Public Is That Stupid? Is The Public That Stupid?…And Other Ethically Relevant Questions

1. Here is the cutline from the New York Times editorial this morning, as the situation in Afghanistan worsens by the minute: “The U.S. should nudge the Taliban toward inclusivity, not root for their failure.” No, I’m not kidding.

In the letters section, there is no mention of Biden’s lies, his embarrassing bluster, or Afghanistan at all. The other op-eds? Charles M. Blow thinks the most important issue this week is “The Anti-Gay Agenda.” Paul Krugman is concerned that Californians may “throw away” the Leftist paradise bestowed on them by the Democratic Party—you know, a land where shop-lifting isn’t a crime, illegals are legal, and up is down (and vice-versa). (I did not read the column.) The third op-ed is about the threat to a mother’s right to kill her unborn child.

Hey, no need in joining all of those racist/sexist conservatives on Fox News in falsely claiming that the Afghanistan exit is a multi-dimensional human and political catastrophe! One of the ways the media circulates fake news is by how it prioritizes stories and buries developments unhelpful to their favored political party.

2. Eugene Robinson, the African-American Washington Post columnist who is both a Democratic Party hack and an embarrassingly mediocre analyst, writes of the unfolding chaos,

“That is tragic. But it would be true, I believe, whenever and however the U.S. mission ended. The images we’re seeing from Kabul are shocking, heartbreaking and embarrassing. But the real stain on our national honor was in making promises to Afghans that we never had the intention or even the ability to keep. Twenty years of U.S. blood and treasure gave Afghanistan not a secular democracy but its flickering illusion. And history will see this withdrawal, painful as it is to watch, not as ignominious but as inevitable.”

See? Just mouthing a talking point that has been decided upon by the Democratic Praetorian Guard, and that everyone in its media orbit has been instructed to parrot. I’d read the Post reader comments, but that shredder is already looking inviting to my head; I don’t want to take the chance. But I will say, “I told you so!” Remember? Althouse commenter Big Mike knocks Robinson’s garbage out of the park far more effectively than Althouse (this is why she tried banning commenters), writing:

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Shameless Self-Promotion Dept: “Legal Ethics Serenade”

mike-messer

Tomorrow at 9 am, I’ll be launching the latest ProEthics musical CLE (Continuing Legal Education) seminar for the New Jersey State Bar. It’s called “Legal Ethics Serenade,” and is being zoomed. As with my other musical presentations, the great Mike Messer accompanies himself on guitar and occasionally other instruments as he belts out parodies of rock and pop classics retooled to raise complex legal ethics issues. Mike has been my muse for more than a decade. This time, he’ll be doing versions of “I’m a Believer,” “Oh Darling,” “Hello Mary Lou!,” “50 Ways to leave Your Lover,” “I’d Like To Teach The World To Sing,” “Why Don’t We Di It in the Road?,” Elvis’s “Are You Lonesome Tonight?,” “You Were Always On My Mind,” and “Take Good Care of My Baby,” all followed by legal ethics musings by me, and, I hope, lively debate.

If any readers are New Jersey lawyers in search of ethics credits, the information is here.

We now return you to our usual programming…

Ethics Hero: UConn Student Isadore Johnson

Isadore Johnson

There is hope.

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.”

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