defamation

Stop Making Me Defend (Ugh) Roy Moore!

/ Jack Marshall / 7 Comments

Is Roy Moore the most repulsive public figure to warrant an Ethics Alarms “Don’t Make Me Defend…” posts? Oooh, tough call. I checked: the all-time leader in such posts is Donald Trump, with Joe Biden a distant second. Then we have Jack Phillips (the anti-gay baker), Sean Spicer, MSNBC’s Lawrence O’Donnell, Kathy Griffin, Sarah Huckabee Sanders, Joy Behar, Alex Jones, Lenny Dykstra, Woody Allen, Stacey Abrams, Chris Cuomo (twice!), Nicki Minaj, Tucker Carlson, Nancy Pelosi and Pete Rose. That’s tough and nauseating competition. What do you think?

But I digress. The occasion for my rallying to Roy’s side is the $8.2 million verdict in his favor in his defamation suit against the Senate Majority PAC for a negative TV ad characterizing some of the sexual misconduct accusations against him that helped derail Moore’s failed 2017 U.S. Senate bid in Alabama.

Senate Majority PAC funded a group called Highway 31 that ran a $4 million advertising blitz against Moore, concentrating on the accounts of his pursuit of teenage girls early in his career when he was a 32-year-old assistant district attorney. It is beyond reasonable dispute that Moore was creepy with young girls, even Joe Biden-like. However, defamation is when one states as fact something for which there is no factual evidence and that harms another’s reputation.

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Just Because Someone Is An Idiot Doesn’t Mean It’s Ethical To Make A Fool Out Of Him: The Roy Moore Libel Suit Dismissal

/ Jack Marshall / 2 Comments

The 2nd U.S. Circuit Court of Appeals at New York refused to revive a lawsuit filed by former Alabama Chief Justice and failed Senate candidate from Alabama Roy Moore (and his wife) against  comedian comedian Sasha Baron Cohen. Moore v. Baron Cohen  had its genesis when the “Borat” satirist and actor tricked Moore into traveling to Washington, D.C. to receive a fictional award for supporting Israel and to be interviewed for Israeli TV. It was all a set-up to ridicule Moore on an installment of Cohen’s Showtime production, “Who Is America?”

Cohen presented himself to Moore as an Israeli anti-terrorism expert with a high-tech military intelligence device ( he’s holding it above) that supposedly was able to detect pedophiles. Moore’s Senate run was crushed by credible allegations that he had sought relationships with underage teenage girls: the episode of the program in which the interview aired was introduced with news clips reporting those allegations, including one involving a fourteen-year-old girl at the time. In a cringeworthy confrontation, Cohen’s character waved “the pedophile-detector” over Moore as it beeped loudly. Moore then walked out of the “interview.” Moore and his wife sued for defamation and intentional infliction of emotional distress. Continue reading →

Unethical Quote Of The Week: Former New York Times Editor James Bennet

/ Jack Marshall / 6 Comments

Under oath!

” It’s extremely important for the editorial board to have a reputation to call balls and strikes without partisanship.

Former NYT editor James Bennet, who was responsible for the editorial now the object of a defamation lawsuit by Sarah Palin.

Wow. If that’s “extremely important,” the Times sure is doing a lousy job achieving its alleged objective. It was just this week when the Editorial slot in the paper was taken up by a piece headlined (in the print edition), “Can the Republican Party Be Saved?” (online headline: “When the Storming of the Capitol Becomes ‘Legitimate Political Discourse.“) The second headline is deceit: as I pointed out in the previous post, the recent GOP resolution condemning the two Republican House members who voted for an illegal Democratic Party impeachment and who are fully participating in a rigged partisan investigation designed to find a way to lock up Donald Trump and as many of his supporters as possible, never asserts that the Jan. 6 riot was “legitimate political discourse.” Never mind: that’s the latest false narrative fad, like the “Trump called white supremacists ‘fine people'” smear that one can still hear one’s Facebook friends cite to this day. Of course the Times is running with it.

It was the print headline that really struck me, though. This week, polls came out showing that Joe Biden’s support had slipped into the thirties with no end to the free-fall in sight, and that the Republicans were surging further ahead in the Congressional mid-terms survey. And the non-partisan Times’ question is whether Republicans can be saved! Only a thoroughly biased group of editors wouldn’t perceive how bad that kind of tunnel vision makes the paper look. But bias makes you stupid. In its most extreme cases, victims can’t even see how biased they are. Continue reading →

Not Just An Unethical Statement, But An Unbelievable One: The New York Times

/ Jack Marshall / 6 Comments

There’s nothing quite like starting the day with a head explosion.

A New York Times story today about the start of Sarah Palin’s libel suit against the New York Times—Conflict of interest? What conflict of interest?—contained this astounding statement:

The Times has denied those allegations, rebutting the notions that it would ever knowingly print something false…

The thrust of the Times objective, unbiased analysis of the lawsuit against the Times is that “Ms. Palin’s evidence is weak,” but she might win anyway, thus creating one more danger to democracy by weakening freedom of the press.

The evidence is weak? The Supreme Court decision in The New York Times Company v. Sullivan held that for public officials to prove defamation, they had to show not only that a news story was false and harmed their reputation, but that the story resulted from “actual malice,” involving printing a claim or allegation with “reckless disregard for the truth” or knowing it was false. Palin is suing because a Times editorial in 2017 stated that when Rep. Gabriel Giffords was shot by a lunatic in 2011, the crime had “clear[ly]“ been incited by a map circulated by  Palin’s political action committee showing 20 congressional districts that Republicans were hoping to win, including the one held by Giffords, labeled by stylized cross hairs. Continue reading →

Morning Ethics Warm-Up, 1/21/2022: Christmas’s And Meat Loaf’s End Edition

/ Jack Marshall / 12 Comments

Meat Loaf has died. The hilariously theatrical pop singer with the big voice was responsible for one of the great ethics songs: “Paradise by the Dashboard Lights.” It packed almost everything into one epic musical journey: temptation, non-ethical considerations vs. ethics, betrayal, consequences and cosmic retribution.

***

Absent a last-minute reprieve or a relapse of whatever it is that I’ve been battling, this looks like the final day for our especially lovely, inspiring Christmas tree. I always feel like I’m making the world a little meaner and less hopeful when I take it down. This post, from three years ago, still stands.

***

In U.S. ethics history, January 21 stands for one of the more significant pardons in American Presidential annals, because in 1977 Jimmy Carter pardoned all those young men, hundreds of thousands of them, who had fled to Canada rather than risk being drafted to fight in Vietnam. (Only half came back. I am tempted to say, “Good!,” but I won’t…) Those who left as a matter of principle and those who ran off because they wouldn’t have fought for their country under any circumstances (this was the era of “Better Red than Dead,” after all) were treated the same. It was a utilitarian trade-off, and whether the President’s decision was unethical (my Vietnam vet friends said it made them feel like suckers) or ethical (it definitely helped heal the national divisions over that misguided conflict), it was certainly brave and consequential. For example, that single act probably killed the draft as much as anything else.

***

Feel free to debate that issue here; I’m not up to it today myself. There won’t be the usual Friday Open Forum because there was one just two days ago (and it’s still open!). Full disclosure: in my fevered state, I really thought it was Friday when it was Wednesday.

1. This video is worrisome if it’s genuine, and it may not be. A young woman freaks out after getting a positive Wuhan variant test result, and acts as if she’s been sentenced to die on the rack and wheel. I fear this is what two years of politically-driven pandemic hysteria is turning our rising generations into: cowards, whiners, phobics and weenies. Her tearful lament ““The coolest characteristic about myself is that I haven’t gotten it!” is particularly nauseating. Continue reading →

“The Queen’s Gambit” Gambit

/ Jack Marshall / 3 Comments

the-queens-gambit-8b97b1d

In the final episode (mercifully) of the inexplicably popular Netflix series“The Queen’s Gambit,” an announcer delivering chess commentary while the show’s annoying fictional heroine, portrayed by Anya Taylor-Joy (above right), competes in a climactic tournament in Moscow says,“The only unusual thing about her, really, is her sex, and even that’s not unique in Russia.There’s Nona Gaprindashvili, but she’s the female world champion and has never faced men.”

That wasn’t true. Nona Gaprindashvili, the first woman to be named a grandmaster, faced and defeated many male players. Now 80 years old and living in Tbilisi, Georgia, Nona is furious about the false representation of her career. She’s suing Netflix in Federal District Court in Los Angeles, seeking millions of dollars in damages for what her lawyers claim is a “devastating falsehood, undermining and degrading her accomplishments before an audience of many millions.”

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Noon Ethics Munchies, 7/14/2021: On Cuba, Big Lies, Roy Moore, and More [Corrected]

/ Jack Marshall / 29 Comments

Munchies

1. The President gets a cheap shot...Commenting on Joe Biden’s generally hysterical speech about “voter suppression,” “Bonchie” writes on the conservative blog Red State,

“Of note here is that Biden is channeling Nazi propagandist Joseph Goebbels by using the phrase “big lie” to disparage Republicans who have concerns about the 2020 election. Yet, despite the phrase’s murderous, anti-Semitic past, the president seems to have no problem saying it repeatedly. In doing so, he echoed CNN’s Jake Tapper and others who have also been fond of the phrase.”

There is nothing wrong with using the phrase or the description. The device was championed by both Goebbels and Hitler, and is an accurate description of a propaganda tactic, an unethical but powerful one, used by both the Right and the Left. Whether the description is used fairly in any particular case is a separate issue. “Big Lies” is a very accurate description of the assault by the “resistance”/Democratic Party/mainstream media against Donald Trump—can you think of a better one?—which is why Ethics Alarms used it here and elsewhere.

What would be fair to note is that Biden has often been an eager employer of Goebbels’ favorite trick himself…as noted in this post.

2. Does anyone understand why Democrats are trying to downplay the current Cuban protests against the Communist government? This makes no sense to me. Thousands of anti-regime protesters took to the streets across the island over the weekend, waving American flags and chanting “Freedom!” and anti-government slogans. Cuba has been a repressive Communist regime since Fidel Castro pulled his bait and switch with the U.S. in 1959, but the most extreme elements in the Democratic Party, the proto-Marxists, have always thrown Cuba metaphorical kisses, like Michael Moore. Barack Obama reversed decades of U.S. policy by opening relations with Cuba without requiring any human rights concessions in return. One would think an outbreak of democracy on the island would be viewed as a good thing, but Biden’s paid liar, Jen Psaki, absurdly explained that the reason for the protests was “concern about rising COVID cases, deaths, and medicine shortages” rather than political oppression.

While Republicans have immediately announced their support for the Cuban people, Reps. Bobby Rush (D., Ill.), Steve Cohen (D., Tenn.), Barbara Lee (D., Calif.), Gwen Moore (D., Wis.) and the more 70 members of Congress, including “The Squad,” of course, signed a letter asking Biden to lift Trump sanctions Cuba in March. They have not had any comment on the demonstrations so far.

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In Texas, A Court Puts Some Teeth In A Much Abused Legal Ethics Rule

/ Jack Marshall / 1 Comment

Tiger

The American Bar Association’s Rule 3.6, Trial Publicity, states in part, “A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Although the rule is long-standing and included more or less identically in all state legal ethics rules, it is honored more in the breach than with compliance. One has to look no further than the justice-tainting comments by lawyers and prosecutors in such cases as the deaths of George Floyd, Freddie Gray, and Trayvon Martin, but lawyers shooting off their mouths on TV, social media or in the press is common in many other kinds of litigation. Often they are violating not just Rule 3.6, but 8.4 (Misconduct) as well. Among other things, that rule prohibits lying.

Thus the Texas Supreme Court ruling last week was welcome news. The court held that lawyer statements about a client’s allegations in press releases and social media are not protected by the judicial proceedings privilege or attorney immunity. The judicial proceedings privilege protects statements made in open court, depositions, affidavits and other court papers. Attorney immunity protects lawyers from liability to non-clients when lawyers act on behalf of their clients in a “uniquely lawyerly capacity.” That means when they are clearly and appropriately speaking on behalf of their clients, in their roles as advocates.

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Post-Zoom Hangover Ethics, 3-31-21….

/ Jack Marshall / 34 Comments

People, even lawyers, just do not interact much in remote seminars. It makes a three-hour session far more tiring, even though I’m sitting down, rather than stalking through the space. Thus I am blotto now, after a legal ethics session earlier today.

1. And THIS is the best paper in the U.S…Two headlines on the New York Times front page this morning my high school paper faculty advisor would have rejected…and he would have been right:

  • “Gaetz Said To Face Inquiry Over Sex With Underage Girl” The fact someone says it is not news. Is he “facing an inquiry” or isn’t he? “Three people briefed on the matter” isn’t a source: we’ve seen how accurate the Times anonymous sources are, especially when the subject is a Republican, a conservative, and a Trump supporter. Why the front page for a rumor? Slow news day? Hey, I’ve got an idea: How about an article about how Joe Biden called Georgia “sick” based on a complete misrepresentation?
  • “Taliban Believes The War’s Over And They Won.” This is psychic news again, my favorite fake news form. How does the Times know what the Taliban “thinks”? Who cares what it “thinks”?

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Quasi-Apology Of The Month: Attorney John Morgan

/ Jack Marshall / 15 Comments

Screen_Shot_2021_02_24_at_2.35.38_PM.6036aadd5594c

I’m not sure where this falls on the Ethic Alarms Apology Scale.

I admit that I’m never heard of John Morgan, but I am told he is a well known attorney in Orlando, Florida, and like so many trial attorneys, a character. Morgan keeps his name before the public in part by posting self-made videos on Twitter posted ( #Johnin60secs ) videos where he gives spontaneous running commentaries on life in general in the conversational and engaging style that makes him a successful litigator. It is a clever marketing approach: I’m pretty sure it gets around Florida’s strict lawyer advertising rules. For example, in one video he described his head as being “ the size of a watermelon,” which is obviously hyperbole. In a legal advertising, a lawyer can’t me make any false or misleading statement or one that can’t be verified.

But I digress. There is a danger any time anyone, no matter how glib or accustomed to speaking off-script, does so for public consumption, as the late Rush Limbaugh, acres of crushed”shockjocks,” Michael Richards and I, among others, can attest. And so it was that Morgan, in one of his videos, was riffing on fast food franchises, and said about Arby’s,

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