In Americans For Prosperity Foundation v. Bonta, Supreme Court Conservatives Again Defend The First Amendment As Its Left Approves Of Chilling Speech And Association

08-18-17 Free Speech

How did we get to the point where “liberals” want to chip away at the freedoms of speech and association while conservatives defend it? It’s weird: I’m old enough to remember when those mean old conservatives were always trying to silence dissent, not to mention vulgarity and violent TV shows and movies.

But in the final day of the Supreme Court’s term, the 6-3 conservative majority ruled that California—from which all terrible ideas now seem to flow— may not require charities soliciting contributions in the state to report the identities of their major donors. The law was opposed by very unconservative voices like those of ACLU to the NAACP Legal Defense and Educational Fund, and one would think that the alleged liberals on the court would immediately recognize how the law could and would chill free speech. Or don’t they pay attention to the incidents where CEOs have been run out of their jobs for contributing money to anti-gay marriage organizations, to name just one example? It would seem not. This is also weird, for the cancel culture has made simply stating an opinion that contradicts the Woke Borg perilous to one’s career, personal relationships and safety. Is it overly conspiracy-minded to suggest that progressives want it that way, particularly with their success at making wiggly-spined Americans who would make Patrick Henry retch grovel for forgiveness.

Chief Justice Roberts neatly summarized the importance of free association, writing,

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Morning Ethics Warm-Up, 7/2/2021: Remembering The Epic Second Day Of The Battle Of Gettysburg

Little Round Top

On July 2, 1863, during the second day of the Battle of Gettysburg with the fate of the Union and the United States hanging in the balance, Confederate General Robert E. Lee’s Army of Northern Virginia tried to break through the line of General George G. Meade’s Army of the Potomac at Cemetery Ridge, Culp’s Hill and Little Round Top. More than once that day, only luck and chaos prevented July 2 from marking the end of the nation as we know it, and from preserving slavery at least a little longer.

All accounts of the battle on July 2 are full of the word “confusion.” Robert E. Lee ordered Lieutenant General James Longstreet to attack by moving his troops up the Federal left flank while General A.P. Hill’s corps threatened the center of the Union line. If coordinated properly, General George Gordon Meade wouldn’t be able to move his troops to reinforce the Union left, where Lee instructed Lieutenant General Richard S. Ewell to make diversionary attacks and launch an all-out assault if possible. Lee’s plan, if successful, would force the Union army to surrender the positions it held on the high ground south of Gettysburg after the first day of the battle, and the entire Civil War might have been won by the South in a day.

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Friday Forum, Open For Business!

Lots going in the Mad, Mad, Mad, Mad World of Ethics, as usual, so here is the weekly invitation to readers to dive in unfettered by the host’s obsessions and predilections..

Jesus’s Wife: A Depressing Example Of Why American Institutions Are Not Trusted And Don’t Deserve To Be

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Most people younger than me don’t know (or care) that before he was the king of late night TV on “The Tonight Show,” Johnny Carson was the young, engaging host of a pseudo-quiz show called “Who Do You Trust?” I think of that show’s title when, as is increasingly the case, I encounter stories like this one, which is described in excruciating detail in a plaintive article in the Chronicle of Hight Education.. The main facts are these:

—A 2014 Harvard Theological Review article by Harvard Divinity School professor Karen L. King purported to have uncovered an ancient papyrus fragment in which Jesus refers to “my wife.” This, coming after the sensational best-selling novel “The Da Vinci Code” by Dan Brown and its subsequent film version starring Tom Hanks, both of which were based on a fanciful conspiracy theory regarding Mary Magdalene’s alleged relationship with Jesus Christ, understandably caused quite a stir in academia, theological circles, and the popular press.

––King’s article was deemed unlikely to the point of absurdity by many scholars from the moment it was published. “Almost everything we know,” one expert wrote, “about the nature of historical evidence points to forgery.”

—King had failed to take basic steps to vet the manuscript, which she’d provocatively named “The Gospel of Jesus’s Wife.” Worse, two of the journal’s three peer reviewers had decided the papyrus was a fake. Only one had not: an acclaimed papyrologist named Roger Bagnall. Bagnall, however, had helped King draft the very paper the journal asked him to review. This is called a conflict of interest, indeed a screaming conflict of interest. Not only had King identified him in the paper as her primary adviser, but Bagnall had been filmed declaring the papyrus’s authenticity for a forthcoming Smithsonian Channel documentary.

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A Follow-Up, An Apology, And A “Bite Me, Daily Wire!”

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The previous post was one of the relatively few in which Ethics Alarms was suckered by bad information. As always when this happens, I am awash with regret and shame. Here is how it now begins, in bold:

“This is the revised part. The retraction is that despite the headline and what I wrote below, Twitter didn’t suspend New York Times columnist Bret Stephens account for violating Twitter’s rules with his recent op-ed calling anti-white measures showing up in the Biden Administration and elsewhere what they are: racism. The Daily Wire, a conservative website that was founded by right wing gadfly Ben Shapiro, wrote the post based on “a Twitter user” as its source,” and I foolishly assumed that the site would have checked out the claim before posting on it. It turns out the Stephens’ account says it’s “suspended” because he suspended it himself, in 2019.

Thus I am made an accomplice to this confirmation bias chain reaction, and I resent it. This is the kind of crap I experienced more than once from Breitbart and The Gateway Pundit, both of which are no longer cited as sources on Ethics Alarms, and whose stories I will not believe unless I find a credible source that independently confirms it. Now I’m adding the Daily Wire to that blacklist. There are plenty of left-leaning sites on that list as well, but since it is virtually impossible to ensure that a story that reflects poorly on the allies of progressive propaganda hasn’t been obscured or deliberately distorted by the mainstream media, conservative media has to be trustworthy and professional, and far too often, it just isn’t. Situations like this make it easier for the mainstream media to call every report they wish would disappear “conservative disinformation.”

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RETRACTED And Revised: “Scared Yet? Twitter Censors A Times Op-Ed Columnist For Calling Anti-White Racism What It Is”

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This is the revised part. The retraction is that despite the headline and what I wrote below, Twitter didn’t suspend New York Times columnist Bret Stephens account for violating Twitter’s rules with his recent op-ed calling anti-white measures showing up in the Biden Administration and elsewhere what they are: racism. The Daily Wire, a conservative website that was founded by right wing gadfly Ben Shapiro, wrote the post based on “a Twitter user” as its source,” and I foolishly assumed that the site would have checked out the claim before posting on it. It turns out the Stephens’ account says it’s “suspended” because he suspended it himself, in 2019.

Thus I am made an accomplice to this confirmation bias chain reaction, and I resent it. This is the kind of crap I experienced more than once from Breitbart and The Gateway Pundit, both of which are no longer cited as sources on Ethics Alarms, and whose stories I will not believe unless I find a credible source that independently confirmed it. Now I’m adding the Daily Wire to that black list. There are plenty of left-leaning sites on that list as well, but since it is virtually impossible to ensure that a story that reflects poorly on the allies of progressive propaganda hasn’t been obscured or deliberately distorted by the mainstream media, conservative media has to be trustworthy and professional, and far too often, it just isn’t. Situations like this make it easier for the mainstream media to call every report they wish would disappear “conservative disinformation.”

Meanwhile, The Daily Wire just notes (a few minutes after I’ve posted relying on its fabricated story) that the post had been “corrected.” It was originally titled, “Twitter Suspends NY Times’ Columnist’s Account After He Denounces Equity as ‘Racism.” NOW it is headlined “NY Times Columnist Denounces Equity as ‘Racism’” which is both inaccurate and not news, since Stephens’ column is three days old. He also never called “equity”racism. That’s like something they would say on MSNBC to distort what was written. I thought the phrasing was strange and sloppy in the first version, but since the topic was Twitter’s censorship, I didn’t bother with it. Now, the misrepresentation is the subject of the whole post. Then, in the body of the piece, it now says, “On June 30, a Twitter reader erroneously claimed that Twitter had suspended Bret Stephens’ Twitter account.” What it should have said is “On June 30, a Twitter reader erroneously claimed that Twitter had suspended Bret Stephens’ Twitter account, and we, because we were looking for another reason to bash Twitter, believed him without checking. We apologize to our readers and any other websites, commentators or blogs who were misled due to our mistake.”

But I DO apologize (and thank to JutGory for the prompt alert). Confirmation bias also played a part in my gullibility: I do not trust Twitter, and what was represented is just a bit beyond what Jack Dorsey’s arrogant cyber-creature has done already. The last line of the post is still valid, though the rest was built on garbage: “Boy, am I glad I quit Twitter. But I’m ashamed that I didn’t do it sooner”

Like Bret Stephens.

The rest of what follows, except for that last part, is retracted.

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I didn’t see this one coming, because I am an idiot.

Two days ago, I wrote in the morning warm-up, (Item #2),

“Today [The New York Times] allowed Bret Stephens , one of the endangered species in their op-ed stable, a conservative, to write an anti-antiwhite racism piece under the Times’ main editorial gaslighting those who see Critical Race Theory for what it is. (On the opposite page, one of the Times’ usual far-left shills has another op-ed defending the teaching of Critical Race Theory in the schools, so the Times makes sure that Stephens is shouted down by his own paper, 2-1.) Stephens’ op-ed is called “The New Racism Won’t Solve the Old Racism,” which one would think is self-evident, but in the Year of the Great Stupid, it certainly is not. His “money quote” comes at the very end:

“Thoughtful liberals who think this is much ado about nothing should spend some time pondering how perfectly people like [ Mayor Lori Lightfoot, who has announced that she won’t be interviewed by white journalists] are now playing into right-wing stereotypes. They should also spend time wondering whether the ideal for which they have long fought — a society that, if not colorblind, can at least see past color — is being jeopardized by progressives who apparently can see only color. Whichever way, it shouldn’t be hard to see that trying to solve the old racism with the new racism will produce only more racism. Justice is never achieved by turning tables.”

Obviously, he’s racist, or so the totalitarianism-enabling censors at Twitter decided. Yesterday, Twitter suspended Stephens’ Twitter account which now just says, “Account suspended.” His opinion, you see, violates Twitter rules, primarily the unwritten one that holds that any statements that in any way undermine the credibility and effectiveness of the Left’s efforts to undermine the Constitution and core American values will be censored so as few citizens get to ponder non-conforming arguments as possible.

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Noonish Ethics Battles, 7/1/2021: “Remember Gettysburg” Edition

Gettysburg

July 1 marks the first day of the epic Battle of Gettysburg, which could fairly be celebrated as the beginning of the end for the Confederacy and slavery. Like so many pivotal moments in our history, this one came about by random chance, with Lee’s army and the newly installed Gen. Meade’s Army of the Potomac stumbling into each other in a Pennsylvania country town in 1863. For three days, a bloody and complicated battle engulfed the area, with so many ethics lessons in the process that I fear I won’t be able to cover all of them this week. [ Guest posts on the topic will be welcome!] I am hoping to visit the battlefield again this year—this week will be tough, unfortunately. I will definitely find time this week to watch Ted Turner’s excellent and even-handed film about the battle, highlighted for me by the performances of Jeff Daniels as Joshua Chamberlain, Tom Berrenger as Longstreet, and the late Richard Jordan as General Lewis Armistead, as well as the dramatization of Picket’s Charge, and the score by Randy Edelman.

1. Baseball sexual misconduct notes…A restraining order was taken out against Dodgers pitcher Trevor Bauer, last year’s National League Cy Young winner. Bauer is a sportswriter favorite for his outspoken social media presence and progressive politics, so this will be a blow to the sportswriting woke. The woman making the allegations had what started as a consensual relationship with the pitcher, but in a 67-page document, alleges that Bauer assaulted her on two different occasions, punching her in the face, vagina, and buttocks, sticking his fingers down her throat, and strangling her to the point where she lost consciousness twice, an experience she said she did not consent to. After the second choking episode, the woman awoke to find Bauer punching her in the head and face, inflicting serious injuries. She contacted police, and there is now an active investigation of Bauer by the Pasadena, California police department. If any of her account is true, Bauer faces serious discipline from baseball, which has been (finally) cracking down on domestic abuse by players in recent years.

Also yesterday, MLB suspended the former New York Mets general manager Jared Porter at least the end of the 2022 season.   Porter was fired from the Mets in January after an ESPN investigation revealed that he had harassed a female reporter in 2016 when he worked for the Cubs.

Craig Calcaterra, the lawyer sports pundit, supplied the facts here, and I am grateful for that. I would love to subscribe to his substack newsletter, but every issue I read includes Craig’s apparently incurable progressive bias where it doesn’t belong, and I’m just not paying for that. This time, for example, he cites the Bauer, Porter, and Bill Cosby stories to justify the proposition that “we believe [women] when they say what happened to them,” a stunning thing for a lawyer to say. How Kirsten Gillibrand of him! Later, as if this belongs in a baseball news letter, Craig cheers the death of Donald Rumsfeld as an architect of an “Illegal and immoral” war.

All war is immoral to some extent, but the Iraq War, while in hindsight a mistake, was not illegal except in left-wing talking points. Craig should know better, and maybe he does, but in any event, foreign policy and international law are not his areas of expertise. The degree to which wokism has rotted his brain also shows up in his inclusion of an insulting trigger warning before his account of the Bauer allegations: “Warning: the following contains allegations of sexual assault and violence that may be difficult to read.” Oh for heaven’s sake: “Finnegan’s Wake” is difficult to read. News is life: stop treating adults like children.

You can subscribe to Craig’s excellent baseball observations and juvenile political commentary here.

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Comment Of The Day: “Comment Of The Day: ‘Unethical Tweet Of The Month: The Portland Police Bureau'”

Police Trust

Woke up with a bang this morning at 4:45 remembering that I hadn’t posted this Comment of the Day on this Comment of the Day, (by Extradimensional Cephalopod ) regarding the Ethics Alarms commentary about the Portland police staving off another police shooting riot with a tweet saying, in essence, “It’s OK, the guy we shot was white!”

Here it is, by Humble Talent, who included a wistful nod to departed but not forgotten EA commenter Charles Green. This is, I believe, Humble Talent’s 35th Comment of the Day.

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“The urge to do violence without having first gathered all relevant facts comes from fear, which comes from mistrust. In order to build trust, you first have to set mutual expectations, and then demonstrate you will fulfill them even when it’s costly.”

This is a great way to look at it. It’s kind of unfortunate that Charles Green left the site, because as stubbornly, blindingly, partisan as he is, he is literally in the business of building trust, and I think it would have been interesting to hear his take on what the first steps towards establishing trust would look like.

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Down The Slippery Slope To Lawyer Censorship: First Giuliani, And Now This

silence

Rudy Giuliani, as discussed here, was just suspended from the practice of law on the basis of out of courts statements that the New York bar disagrees with, while representing a client they hate (Donald Trump), using a standard that has never been applied to a lawyer before.

Yet what was just done to South Carolina lawyer David Paul Traywick by the state Supreme Court was even worse, and more ominous. The Court ordered his suspension from the practice of law based on social media posts that were pure opinion, and that had no connection to the practice of law at all. Traywick lost his license for six months. He will also have to complete at least one hour of diversity education, undergo an anger management assessment, submit to an evaluation through the South Carolina Bar program Lawyers Helping Lawyers, and comply for one year with any treatment recommended by “re-education” authorities.

The Court felt justified punishing him after the South Carolina Office of Disciplinary Counsel received complaints from 46 people about Traywick’s Facebook posts. The posts were accessible to the public, and his profile identified himself as a lawyer while mentioning his law firm his law firm.

The Court found twelve posts by Traywick “troubling.”I will interject here that an individual’s statement on social media are none of a court’s business, indeed none of its damn business, unless they are libelous or criminal, or evidence in a case before it. None of the posts fit into those categories. Two of the posts nonetheless triggered the suspension:

  • On April 5, 2020, Traywick posted what the Court calls “an offensive comment regarding tattoos,” apparently so offensive the the opinion won’t even enlighten us to what it was. After whatever it was he was saying about tattoos, which could have only been an opinion, he  challenged his readers, “Prove me wrong. Pro tip: you can’t.” In a subsequent post in response to a comment, he wrote, “The general statement has exceptions, such as for bikers, sailors, convicts or infantry. But these college educated, liberal suburbanites. No, the rule was written for these boring mother fuckers. And they are everywhere. Fuck em. Especially these females, Jesus Christ!”
  • On June 3, 2020, at the peak of the George Floyd Freakout, they lawyer posted, also on Facebook,  “Here’s how much that shitstain’s life actually mattered: Stock futures up. Markets moved higher Monday and Tuesday. Fuck you. Unfriend me.“

By no stretch of the imagination or the Rules of Professional Conduct do those statements justify suspending a lawyer’s right to practice law. It is protected speech under the First Amendment. It does not involve the practice of law. The comments are profane, but profanity is not grounds for discipline out of a legal context. They are vulgar, but the same hold with those. They may offend readers, but nobody is forcing readers to follow this jerk. The lawyer appears, based on his comments, to be an asshole, but being an asshole is not a disqualification for practicing law. It is often an asset, some might say. He may have been lying, but not in any way that could be linked to his trustworthiness as a lawyer, and lies are also protected speech unless they constitute fraud or perjury.

Yet the Court wrote,

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On Bill Cosby’s Get-Out-Of-Jail-Forever Card…

Bill Cosby4

The Pennsylvania State Supreme Court has overturned Bill Cosby’s sex assault conviction, and the 83-year-old comedian/Jello pudding salesman/serial rapist will be released from prison with no chance of his having to go back, according to the ruling vacating his conviction issued yesterday.

Is that justice? Well, it’s a kind of justice, but only for Cosby. Pennsylvania’s highest court overturned his conviction because a previous prosecutor had granted him immunity from prosecution in order to force the Coz to admit to some of his criminal sexual activity. Cosby could not use the Fifth Amendment nor lie without risking perjury charges, so he made several incriminating statements on the record. These should not have been used to convict him later, but a different prosecutor determined that his office was not bound by the previous deal. But it was. Because Cosby’s statements were improperly used against him, the conviction was based on inadmissible evidence. This new ruling bars any retrial in the case.

Much as Bill Cosby deserves to rot in prison, upon reading the opinion, I see no way to criticize the decision. Even bad people have to be prosecuted and convicted the right way, and Cosby, who is about as bad as one can get, was not. I’m sure there is some reason why Cosby’s lawyer wasn’t able to block the use of his client’s damning but unusable testimony before Cosby had to spend time in jail, but so far, I can’t find it.

If a sociopathic predator like Bill Cosby can be freed on the basis of an unfair trial—and he can and should be—so can and should a brutal cop like Derk Chauvin, whose trial was also unfair, though for very different reasons. We shall see how far the integrity of the justice system goes.

Nobody is going to riot over Bill Cosby going free. That, I fear, might be the critical difference.