From The “I Told You So” Files: Judge Kopf Finally Decides To “STFU”

There go de judge!

There go de judge!

Last year, I wrote a post about the intemperate blogging of Judge Richard G. Kopf, a senior district court judge on the U.S. District Court for the District of Nebraska. Actually intemperate doesn’t quite describe it: in his criticism of the Supreme Court’s decision in the Hobby Lobby case (the Ethics Alarms discussion is here) he wrote, “As the kids say, it is time for the Court to stfu” and linked to the Urban Dictionary so his less cool readers would take his meaning. I wrote:

That he did this on his blog, Hercules and the Umpire, doesn’t matter. It was in print, in public, and he’s a Federal judge. The obscenity came in the context of Judge Kopf’s criticism of the recent Hobby Lobby decision, but the context doesn’t matter either. There is no context in which it would be appropriate, judicial and ethical for a member of the judiciary to tell the Supreme Court of the United States to shut the fuck up. Nor does it matter that he used the texting code stfu rather than spelling out the words.

For a Federal judge to be openly disrespectful, uncivil and abusive to the top of the nation’s judicial branch is an assault on the rule of law, and undermines public respect for our institutions…. If the objective is to speed a complete breakdown in public respect for our institutions, divisive partisans like Kopf  and Wilson are doing a bang-up job. Neither they, nor you, nor I will like where this will lead if our leaders and officials don’t come to their senses.

This post, of all posts (I don’t think my position is rationally assailable, frankly) managed to get three commenters banned from the blog, essentially by 1) arguing that the Roberts Court doesn’t deserve the usual respect due to any court, and 2) telling me to “stfu.”  All were Judge Kopf acolytes who weren’t going to stay here to contribute anything positive, just uncivil, arrogant progressive lawyers who the judge-blogger had trained well.

Last month, a year after his obscene riff on SCOTUS, Kopf slipped again, writing that  “Senator Ted Cruz is not fit to be President.” The post wasn’t obscene; in fact it was  funny: Kopf, who had a year earlier condemned the Supreme Court for bias, argued that Cruz was not fit to be President because…

“Any rational person understands that we must accept decisions we like and decisions we don’t like when we ask the highest Court in the land to decide difficult hot button questions for an entire country. Judicial retention elections are fine for Nebraska and all the other states that have developed unique and parochial histories and traditions. However, we are talking about a federal Constitution–one that protects and covers 320 million people from Maine to Hawaii. Given the fractious divisions in our country that exist now (and many times in the past) and the obvious geographical fissures among the states (Red State/Blue State), judicial retention elections, fueled by whether a majority likes or dislikes particular Supreme Court rulings at a given point in time, is a formula for chaos and for further dividing our country into factions, a well placed fear held by the Founders.”

Wait…who is this guy? Surely he bears no relation to the sneering, potty-mouthed anti-Supreme Court critic I wrote about the last time? Continue reading

“Everyday Feminism,” Trigger Warnings, And The Duty Not To Be Stupid

TRIGGER WARNING!!!

TRIGGER WARNING!!!

I have long posited the idea that we have a duty to be competent in the act of living, since incompetent members of society make the rest of us miserable. This means not rising beyond your own ability to be competent: an idiot who aspires to be Senator and who achieves his goal is not inspiring, but unethical.

Of course, people who don’t know they are stupid should be exempt from an unethical label: ironically, you can’t be an ethics dunce if you are truly a dunce. We also have a duty not to make our children, family members, friends, associates, fellow citizens and the culture dumber by reckless dissemination of idiocy.

Which brings us to this, from the earnest, apparently certifiably insane blog, Everyday Feminism. Trigger warnings, the recent progressive invention designed to shield overly sensitive members of our species from any idea, word, concept, thought, memory or theory that troubles them in any way lies right on the cusp of unethical, as it is at the threshold to censorship and thought control, as well as to stupidity itself. Everyday Feminism, however, charges over that line with hilarious excess. This could have easily been published by The Onion, but Everyday Feminism apparently means it.

The article was about triggering, so it had to have this warning:

This article discusses triggering in detail and mentions common topics of triggering (sexual assault, anxiety, health anxiety, depression, death, non-specific fears and phobias).

But the blog felt warning itself needed a trigger warning, and so it began with this:

Like this phenomenal article, Everyday Feminism definitely believes in giving people a heads up about material that might provoke our reader’s trauma. However, we use the phrase “content warning” instead of “trigger warning,” as the word “trigger” relies on and evokes violent weaponry imagery. This could be re-traumatizing for folks who have suffered military, police, and other forms of violence. So, while warnings are so necessary and the points in this article are right on, we strongly encourage the term “content warning” instead of “trigger warning.”

Continue reading

Anyone Who Tries To Use A 43 Year Old Essay To Smear Bernie Sanders Is An Unethical Jerk, And You Can Tell Them I Said So

Come to think of it, Gene's poetry was as bad as Bernie's porn,

Come to think of it, Gene’s poetry was as bad as Bernie’s porn,

It is all Richard Nixon-style smearing… designed for mouth-breathing audiences, bottom-of-the-barrel, unfair, irrelevant, democracy-polluting garbage that has no more of a legitimate place in campaigns than surreptitiously commandeered laptop camera photographs of the candidates naked. To say such miserable archeological dirt-digging violates the Golden Rule is giving it too much prestige; it violates the Brass Rule, the Tin Rule, and the Cheap Styrofoam Rule. It is the kind of revelation that thrills the jerks who applauded smut-merchant Larry Flynt when he offered a bounty for proof of adulterous affairs in the distant pasts of Republican members of Congress, to support the Lanny Davis “Everybody does it” defense of Bill Clinton’s Monica cover-up.

Mitt Romney was a bully in prep school, George Allen used the word “nigger” when he was a teenager, Jim Webb had sexy passages in his novels, Hillary Clinton’s honors thesis praised Saul Alinsky, Bill Clinton maneuvered to avoid serving in Vietnam, Rick Perry used to go hunting at a lodge rented by his father that was once called “Niggerhead” and a rock with the name on it was still visible even though it was painted over…yes, the Washington Post even gave a front page story to that last one. Ugh, yuck, pooie, gag, ichhhhhhh, ew.

So now we have learned that Bernie Sanders, who is 74 years old, wrote an essay about rape fantasies in 1972, when he was 31 years old. Just as he’s too old (realistically)  to be elected President now, he was too young to be elected President then. There’s a reason for that: the Founders believed that a man isn’t mature or experienced enough to be trusted with the job until he is at least 35. The most relevant aspect of Senator Sanders’ creative writing experiment might be that it suggests that Jimmy Madison and the gang were, as usual, right. Otherwise, so what? 43 years ago, I mistreated a wonderful, sweet girl I was dating, and I’m sure she hates me to this day. If my son behaved like I did, I’d ream him out. But that distant incident no more represents who I am today than my exploits on my high school tennis team. Sanders’ essay was written so long ago, it is far beyond the statute of limitations for prosecuting actual rape…you know, like what Hillary Clinton’s husband probably did to Juanita Broderick in Arkansas (Statute of Limitations: 6 years). Continue reading

Unethical Quote Of The Week: Theodore Beale, a.k.a. Vox Day

“I find it rather astonishing that anyone would be so naive as to imagine, in this day and Information Age, to think that it is a good idea to simultaneously a) be mentally ill and b) play attack dog on the Internet…if you have a mental illness and you are foolish enough to attack me, then you can be certain that I will exploit your weakness to whatever extent I happen to find useful or amusing…If you are weak, then for the love of God and anything else in which you happen to believe, do not attack the strong!”

This Ted Beale, alias Vox Day. Let us never speak of him again.

This Ted Beale, alias Vox Day. Let us never speak of him again.

Theodore Beale, writing as “Vox Day” on his blog, commenting on Popehat blogger Ken White’s post about his clinical depression, which was highlighted on Ethics Alarms here.

The whole post must be read to get the full flavor of Beale’s ego-soaked viciousness. It is also a good example of signature significance: only a self-professed “cruelty artist” would produce such offal, even once. Yes, being a cruelty artist is unethical.

Ken’s interest in gaming and science fiction has the unfortunate side-effect of making him aware of Vox Day, a science fiction writer who has built a following based on his espousal of misogyny, homophobia, and other vile causes metastasizing on the dark side of the far right. He also, obviously, believes in encouraging the stigma of mental illness, which marks him as ignorant.

My only guess as to why Ken bothered to scratch this human boil is that he was annoyed by Beale/Day’s sexist, racist machinations regarding the Science Fiction and Fantasy Writers of America (SFWA) and the.Hugo Awards. It all smelled of Gamergate to me, and like that convoluted mess, my interest in it (and ability to research it sufficiently to comment intelligently on it is best described by reference to George S. Kaufmann’s description of his interest in crooner Eddie Fisher’s love life:

Mr. Fisher, on Mount Wilson there is a telescope that can magnify the most distant stars to twenty-four times the magnification of any previous telescope. This remarkable instrument was unsurpassed in the world of astronomy until the development and construction of the Mount Palomar telescope.The Mount Palomar telescope is an even more remarkable instrument of magnification. Owing to advances and improvements in optical technology, it is capable of magnifying the stars to four times the magnification and resolution of the Mount Wilson telescope.Mr. Fisher, if you could somehow put the Mount Wilson telescope inside the Mount Palomar telescope, you still wouldn’t be able to see my interest in your problem.

Continue reading

No, Craig, Barry Bonds Wasn’t A “Great” Baseball Player. Bernie Madoff Wasn’t A “Great” Investment Manager, Either

Christy Mathewson, a genuine hero. Barry Bonds would have made him want to throw up.

Christy Mathewson, a genuine hero. Barry Bonds would have made him want to throw up.

I like and admire Craig Calcaterra, who blogs entertainingly and perceptively about baseball on the NBC Sports website. I suppose I’m a bit jealous of him too: he’s a lawyer who now earns his living blogging about something he loves.

But Craig has always been a bit confused about how to regard baseball’s steroid cheats (they are cheats, which should answer any questions, but somehow doesn’t for a lot of people), and predictably, I suppose, he couldn’t resist reacting to the early results of Major League Baseball’s “Franchise Four” promotion, in which fans vote (until mid-May) for “the most impactful players who best represent each Major League franchise” as well as some other categories, including “Four Greatest Living Players.” The early results have Hank Aaron, Willie Mays, Sandy Koufax and Tom Seaver leading in the “Greatest Living Players” category, so Craig snarked that this is sad, because “it must mean Barry Bonds has died in a tragic cycling and/or Google Glass accident and no one thought to tell me.”

No, Craig, this is what someone failed to tell you: cheaters in any profession are not “great” by definition. Great baseball players, like great lawyers, writers, doctors, scientists and Presidents, bring honor on their profession, don’t corrupt everyone around them, don’t force people who admire them to embrace unethical conduct and turn them into aiders and abetters, and accomplish their great achievements while obeying the law, following the rules, and serving as role models for everyone who follows them. Barry Bonds was not a great baseball player. He had the ability to be one, but not the character.

Hank Aaron, Willie Mays, Sandy Koufax and Tom Seaver never once disgraced their game while they wore a uniform, and indeed made baseball stronger and better while they played. Good choices all.

The disgrace is that San Francisco fans voted Bonds as one of that team’s “Franchise Four,”  dishonoring great Giants of the past like Juan Marichal, as well as New York Giants greats like Christy Mathewson, Bill Terry, Carl Hubbell, and Mel Ott, Hall of Famers  and lifetime Giants who played with honesty and sportsmanship. But Giants fans warped values are among the casualties of Bonds’ career…and one more reason he can’t be rated anything but a great villain.

Harry Reid Hatred And The Tit-For-Tat Addiction

mob enforcer

Once again, the ethically disabled in conservative punditry are forcing me to come to the defense of one of the most loathsome politicians extant. Senator Harry Reid’s announcement that he is leaving the Senate after his current term expires in 2016 has inspired a spate of baseless speculation that the serious facial injuries he sustained on New Years Day were not the result of an exercise equipment mishap, and may have been the souvenirs or a beating by Vegas mob goons to teach “Dirty Harry” to deliver the goods when the Godfather ask a favor.

As Basil Fawlty would say, “Oh, thank you! Thank you so VERY MUCH!” I love wasting a good hour of sock drawer organization explaining why its wrong to mistreat the likes of Harry Reid. Continue reading

The Wall Street Journal Steals From A Blogging Lawyer…Luckily For Them, A Nice One

A lawyer asks: Will Google Cars put me out of business? The Wall Street Journal  asks: Why shouldn't we make money off your answer?

A lawyer asks: Will Google Cars put me out of business? The Wall Street Journal asks: Why shouldn’t we make money off your answer?

I always do a double-take when I see that someone has “re-blogged” a piece from Ethics Alarms. Unless there is something in my WordPress agreement that allows other bloggers to lift my work and publish it as their content without my permission—oh, who knows, there probably is—this is a copyright violation, but worse than that, it’s wrong. Apparently they think that if they give attribution, that makes everything fine. Why would they think that? I’m writing for my blog, not anyone else’s. If a blogger wants to reprint all, most or some of my commentary in order to critique it, that’s fine ( WindyPundit is doing this right now). But lifting all or most of my work to fill space on your website, without my permission? Not fair, and not ethical.

This just happened to personal injury lawyer and estimable blogger Eric Turkewitz, but the culprit wasn’t a blogger, it was the Wall Street Journal. It took his post about Google Cars and just slapped it into the print and online editions of the paper. “Lawyer Eric Turkewitz writes that self-driving cars will hurt the business of many personal-injury attorneys,” said the sub-head under “Notable and Quotable.” Hmmm. Usually a writer gets paid to write features for a newspaper. I guess just lifting copy without permission is “Fair Use.”

No, First Amendment expert Marc Randazza points out in his typically irreverent way, it isn’t:

In this case, the Wall Street Journal used 44% of Turkewitz’ post, with no additional commentary, criticism, or discussion.  The WSJ could have called Turkewitz a moron for his views, and quoted the whole thing (theoretically).  Or, the WSJ could have given approval, more discussion, or turned the article into piece of art, with spray painted Che Guevaras and stencils of Paris Hilton, as a commentary on Turkewitz, tomato soup, and golf, or whatever.  But, they didn’t do any of that.  

So lets look at the §107 [Fair Use]factors

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The purpose and character of the use is certainly commercial and for profit. The WSJ sold its newspaper with Turkewitz’ work in it, and even put it behind its paywall online. Same exact use, except WSJ took what Turkewitz distributes for free, gathered it, and sold it.

The nature of the copyrighted work was Turkewitz’ original opinions and thoughts.

The amount and substantiality of the portion used? 44%. Pretty substantial. Remember, this is not dispositive, but if you used almost half of an original work, you better have a good reason.

The effect of the use on the potential market for the value of the copyrighted work? That’s sorta iffy. It isn’t as if Turkewitz sells his work. But, that is not a requirement. Turkewitz’ blog currency is readership. If you do some quick online searches for some of the content, sometimes the WSJ version comes up above Turkewtiz’ version. Not cool. Ultimately, the WSJ blew it here because they didn’t add anything to the original — they just lifted it and reposted it….

So the verdict? The Wall Street Journal is definitely guilty of copyright infringement for lifting a bloggers’ work without any justification.

It’s worse than that, however. Continue reading

New Link: Behavioral Legal Ethics Blog

One of these days I’m going to highlight some of the excellent websites and blogs among the Ethics Alarms links (to your left!), but for the moment I’m directing your attention to a new one: the Behavioral Legal Ethics Blog. The three professors who contribute to the blog describe it, accurately, like this:

“Behavioral Legal Ethics is a place for a wide-ranging discussion about the intersection between behavioral science, law and ethics.  The conversations will appeal to anyone interested in the ways in which empirical psychological research can inform questions about how legal institutions and practices encourage ethical behaviors in legal and non-legal actors.”

I had intended to add this superb blog to my links for some time. I confess that the fact that the current post quotes me did prompt me to finally act.

_________________

Pointer: Legal Ethics Forum

 

American Journalism’s Integrity Death Spiral, PART III: The Biased Rationalization for Liberal Media Bias Of Biased Liberal Blogger Josh Marshall, Who Doesn’t Understand the Concept Of “Bias” And Thus Both Excuses, Enables And Embodies It

computer-created_spiral

There wasn’t going to be a Part III to this theme until I stumbled upon a stunning post by popular liberal blogger Josh Marshall (no relation, I think, though my Dad claimed that all Marshalls were related) that 1) defended CNN Carol Costello’s despicable glee at a tape of Sarah Palin’s daughter describing what she said was an assault by a man, and 2) added an explanation for news media bias that blames Fox News, a neat, if stupid, piece of logical pretzel-making.

It’s an amazing post, one which should make any objective reader wonder how deep a rational writer could be sunk into ideological cement to author this and not realize how self-rebutting it is. Marshall shoots himself in the groin at the very beginning, using Costello’s unprofessional attack on Bristol Palin as an example of how paranoid the right is:

“So now, liberals, the media, Democrats, apparently anyone who thinks Palin is a buffoon of almost world historic proportions (which gets you to something like 80% of the country) are all abominable hypocrites for ‘laughing’ at what is now fairly preposterously portrayed as a violent assault against a woman. If you listen to the police interviews, which occurred just as the brawl had barely ended, all the witnesses beside Bristol said she attacked the homeowner. Indeed, even Bristol’s younger sister Willow backed up the these other witnesses’ account. She just said Bristol missed with her punches.”

The buffoon here is Marshall, and he’s misrepresenting what Costello did. She didn’t introduce the tape by pointing out what other witnesses said. She may not even have known about the police reports (which I have read, and they are not at all conclusive, which is why no charges were filed.) She just introduced an emotional recording of a young woman recounting how she was attacked, and said it was so enjoyable that her audience was obligated to thank her. It doesn’t matter what the facts were or turned out to be. What was outrageous was Costello displaying enjoyment at another human being’s distress, because it was Sarah Palin’s daughter. Marshall’s defense is also ignorant of context, not that he cares. Last month, Costello had angrily encouraged ESPN to suspend commentator Stephen A. Smith because he had suggested, in light of the Ray Rice-Janay Rice brawl video, that women who attack men in part bring abuse upon themselves. Now Marshall is saying that Costello’s lack of sympathy for Bristol Palin is justified because she allegedly tried to punch her assailant, but missed. Janay Rice didn’t miss, you know. Then again, she isn’t the daughter of a political figure Marshall and Costello detest.

Thus even before he offered his denial of left-media bias, Marshall had outed himself as a practitioner. Then he wrote this:

“Conservatives in the ’70s and ’80s looked at the mainstream media and saw it as liberal and against them. That was largely bogus but not entirely. The mid-late 20th century elite ‘media’ did generally buy into a series of cosmopolitan assumptions about public and private life. That worldview generally aligns more with liberalism than conservatism, but the two are by no means identical. And this did shape coverage in significant ways. But many conservatives genuinely believed that most people in media were and are little different from Democratic political operatives writing propaganda. So when they went to create “their” media, that’s basically what they created, a propaganda network.”

Marshall’s hallmark is making nonsense sound reasonable, and he outdoes himself here. Do you know what “buying into a series of cosmopolitan assumptions about public and private life” is called? Bias, that’s what. Marshall, true to his liberal-biased soul, frames this as just intelligence, education and sophistication, which is what the liberal elite use “cosmopolitan” to mean. It’s not bias! It’s just the truth, as smart people understand it, and dumb, redneck hicks don’t!

As Marshall appears not to grasp—and who knows? Maybe he doesn’t—bias arises from the acceptance of prior assumptions that prevent objective analysis and fair balancing of objectives, facts and opinions. Conservatives looked at the mainstream media and saw news content, news coverage, punditry and opinion journalism being determined by a profession that was over 80% registered Democrats and otherwise liberal, and dominated by people like Costello and Marshall, who were so far left that everything right of them, including moderate political positions, looked deranged and illegitimate. Conservatives (and objective liberals too)  saw bias, because bias is what there was. Marshall seems to think that bias has to be intentional and malicious to qualify as bias: he doesn’t understand the concept, which may explain why he doesn’t see how biased he is. The reason bias is so insidious is that the sufferer is often completely unaware of the bias, especially when, as in most mainstream journalism organizations, everyone suffers from the same biases. Continue reading

Ethics Dunce: Federal Judge Richard G. Kopf

"Oh dear...and he looks like such a NICE federal judge!"

“Oh dear…and he looks like such a NICE federal judge!”

Richard G. Kopf is a senior district court judge on the U.S. District Court for the District of Nebraska, and a blogger. He is also,I would say obviously, an Ethics Dunce. Why?

He told the U.S. Supreme Court to shut the fuck up.

He really did.

That he did this on his blog, Hercules and the Umpire, doesn’t matter. It was in print, in public, and he’s a Federal judge. The obscenity came in the context of Judge Kopf’s criticism of the recent Hobby Lobby decision, but the context doesn’t matter either. There is no context in which it would be appropriate, judicial and ethical for a member of the judiciary to tell the Supreme Court of the United States to shut the fuck up. Nor does it matter that he used the texting code stfu rather than spelling out the words.

For a Federal judge to be openly disrespectful, uncivil and abusive to the top of the nation’s judicial branch is an assault on the rule of law, and undermines public respect for our institutions. As lawyer and blogger Rich Hasen wrote, Continue reading