There were so many thoughtful and diverse comments on the post about the Great Cake Controversy that I could have justified four or five Comments of the Day. I chose two. This is the first, by the indefatigable Michael Ejercito. Here is his Comment of the Day on the post Back To The Bigoted Baker: It’s Complicated…More Than I Thought:
“Art is notoriously difficult to define. To that list, I could argue for the addition of gardeners, landscapers, bathroom floor tilers, interior designers, architects, website designers, marketing consultants, and on and on. Is a sign-maker an artist? A printer?”
This is a feature, not a fault, of the First Amendment. Courts must make findings of fact based on evidence and testimony. Courts did in fact do just that in Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 91995) and Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006).
In its amicus brief, the Department of Justice spent a total of six paragraphs detailing how public accommodations laws do not ordinarily implicate freedom of expression.
“Justice Kennedy became involved in some of this discussion about where to draw the lines — the ready-made/custom cake distinction, the speech/conduct distinction, and the distinction between selling a cake in a shop and supervising the cutting of a cake at a ceremony…”
It is a distinction that must be made.
It is a tenuous argument, at best, that the sale of sign-making supplies constitutes expression. Thus, Colorado’s laws properly apply to such, and it is unlawful to refuse to sell sign-making supplies because the purported customer is a Westboro Baptist or a militant Islamist. And religious discrimination laws must cover unpopular religions, or else it fails to achieve its own purpose. Continue reading →
The last time (in July) I dealt with the apparently thornier-than-I-thought issue of the Colorado baker who refused to sell a wedding cake to a gay couple, I assumed that the Supreme Court would treat this as a pure public accommodations case, and side with Colorado and the couple. I was wrong. Now it is beginning to look like baker Jack Phillips may even prevail, based on the justices’ comments during oral argument.
“The court’s conclusion is impossible to rebut. The cake the baker was asked to bake for the gay wedding differed not at all from one he would normally sell a straight couple. In truth, this had nothing to do with expression. He was just refusing to serve a gay couple because of their sexual orientation. Selling them a standard cake would neither constitute, nor would it be recognized as a “message” in support of gay marriage.
The Court agreed that a wedding cake with a customized message celebrating a same-sex marriage as such might implicate First Amendment speech issues, but “we need not reach this issue,” the court said. “We note, again, that Phillips denied Craig’s and Mullins’ request without any discussion regarding the wedding cake’s design or any possible written inscriptions.”
In other words, Phillips was gratuitously and unnecessarily being a cruel jerk. An alleged Christian who is unable to detect the basic Golden Rule application in treating fellow citizens with the minimal level of respect inherent in allowing them to buy a standard wedding cake requiring no “Yay Gay!” or “Charlie and David Forever!” messages in pink frosting deserves no sympathy or quarter from the law. Could the couple have just shrugged and found another bakery? Sure, they could have. Linda Brown could also have just shrugged and found an all-black school to attend, too.
The gay couple are not the villains here. Jack Phillips broke the social contract, as well as the law.”
Recent articles about the SCOTUS appeal have added some facts that I had missed, or not given sufficient weight. For example, Continue reading →
Battleship USS West Virginia sunk and burning at Pearl Harbor on Dec. 7, 1941. In background is the battleship USS Tennessee.
Good Morning, Bad Memories…
1 The duty to remember…The most amazing thing about Pearl Harbor was perhaps how lucky the United States was that the sneak attack by Japan, as devastating as it was, didn’t permanently cripple our ability to defend ourselves. Two links lead to explanations why. Here is a letter written by Admiral Nimitz, then in his eightieth year. to Admiral David L. McDonald, the present Chief of Naval Operations. The National Review provides the tale of how a forgotten Georgia Congressman, Democrat Carl Vinson saved the country and probably the world. An excerpt:
For nearly a decade before Pearl Harbor, Vinson had schemed and politicked in brilliant fashion to ensure that America was building a two-ocean navy larger than all the major navies of the world combined. Vinson had assumed in the mid-1930s that fascist Japan and Germany posed existential threats to the United States. For America to survive, he saw that America would need mastery of the seas to transport its armies across the Pacific and Atlantic.
2. ‘I wasn’t good enough, I wasn’t smart enough, and doggone it, nobody likes me!’ This appears to be the end for Senator Al Franken. If it’s not, the end is near and inevitable. His seventh new accuser was the tipping point, for some reason, though her story Franken denies—especially the part where the anonymous woman claims that after she ducked his attempt at a spontaneous kiss in 2006, he protested, “It’s my right as an entertainer! ” The soon-to-be-former Senator told Politico,
“This allegation is categorically not true and the idea that I would claim this as my right as an entertainer is preposterous. I look forward to fully cooperating with the ongoing ethics committee investigation.”
That “It’s my right” comment sounds to me like a desperate attempt to save face by making a joke out of an awkward situation, not a serious claim. If I’m right, then Franken’s statement is deceit: he’s saying that he would never claim such a right, but he isn’t saying that those words never came out of his mouth. Al’s slippery, mealy-mouthed, not-quite apologies are a large part of why he’s in this mess, as I wrote here.
Still, no one should be presumed guilty or face negative consequences for a public accusation by an accuser who refuses to go on the record. This is basic fairness and due process. Never mind: the Democratic women in the U.S. Senate are less interested in due process and fairness than grandstanding and standing for the proposition that women must be believed in cases of sexual assault, unless they were assaulted by Bill Clinton. I think that’s the rule, right?
They led a coordinated attack on Franken yesterday by 16 U.S. Senators, including Sen. Kirsten Gillibrand of New York—you know, the one who championed “Mattress Girl”?–who wrote in a 650-word statement,”While Senator Franken is entitled to have the Ethics Committee conclude its review, I believe it would be better for our country if he sent a clear message that any kind of mistreatment of women in our society isn’t acceptable by stepping aside to let someone else serve.”
That’s right, Senator, it’s better to send the message that due process is just a sham to make doing what you want to do look fair.
Two former colleagues of the woman independently corroborated her version of events, including Franken telling her he had the right to try to kiss her because he was “an entertainer.” The first former colleague interviewed by POLITICO said she was told of the incident in 2006, shortly after it happened. The second former co-worker said she was made aware of the encounter sometime in 2009 or 2010.
What? Those women didn’t corroborate the the accuser’s “version of events”! How can any journalist write such junk? How could an editor let it pass? All they can do is corroborate that the woman said this happened, not that her account is accurate or true.
But again, never mind. This is The Terror. Al’s a man, Democrats have been caught in the web of hypocrisy they started spinning when Clinton was President, and his metaphorical blood must cleanse them. Continue reading →
1 It’s a tradition, but still an embarrassment to democracy...Why isn’t this res ipsa loquitur, as in “so indisputable it ought to be embarrassing”? Rep. John Conyers, whose proclivity to engage in sexual harassment in full confidence that neither left-leaning reporters in the know (like Cokie Roberts ) nor his party’s leaders nor the victims themselves, would blow a whistle on a “civil rights icon” like him, is finally announcing a forced retirement. But he is attempting to anoint his oldest son, John Conyers III, as his successor. III has no special qualifications for elected office. He is a hedge fund manager and a business consultant whose famous father is part of his appeal to clients. The original John Conyers was used as a stepping stone to power by another unqualified family member using his name, III’s’ mother, former Detroit City Councilwoman Monica Conyers, was sentenced to 37 months in prison for bribery. She was released in 2013.
In a profanity and vulgarity-laced video III posted last year, he said in part,
“Third and fourth generations of Conyers running for office. It’s really crazy. My grandfather did an incredible job, man. Fuck. A lot of people stand on the sidelines of their own lives. It’s like you just watch that shit go by like, no, I don’t think I’m going to get in the game – that shit is short, man. Whatever you do, make sure you vote….Voting feels so good, like even if your person doesn’t win, like, it feels good. The craziest part about it all is that my dad really walked with Martin Luther King and got arrested for this shit, like, damn this shit is deep fam. I casted my vote and I was hype as shit, like, I voted, like, this is awesome and I am really thankful for people that died for that for me. Any race, whatever, it’s important to vote but I mean, like, especially African-Americans man, go vote because people really died for this shit. If you don’t know shit about a candidate, man, and you just want to vote like you can write your own name in there, but like the action of going to vote is so important.”
Or just vote for someone with a last name you recognize! He sounds like a winner to me! One hurdle: Democratic Michigan State Sen. Ian Conyers, the congressman’s great-nephew, announced his intention to run for the open seat.
This is a long, long blight on American democracy that makes me wonder if we’re really up to it. The number of voters in both parties who are so shallow, lazy, and foolish as to assume that merely being related to a famous or popular leader is sufficient reason to elect him or her is disgraceful, but it has always been thus. Among those who never would have made it into a high office without this factor are Mary Bono, Jesse Jacskon, Jr. (currently in prison), Lindy Boggs, Lurleen Wallace, Margaret Chase Smith, Robert Taft, George W. Bush, Bobby Kennedy, Ted Kennedy, Robert Kennedy Jr, Joseph Kennedy III, Joe Kennedy II, Kathleen Kennedy Townsend—anyone named Kennedy, really—current Rep. Doris Matsui (D-Cal.), Al Gore, and Hillary Clinton. There are many, many more.
A last name is not a qualification for office. Why should that even have to be pointed out in a nation founded upon the rejection of royalty?
The topic of the evening was fake news and government manipulation of it, as the Clinton era film about a phony war being launched by a President to distract from a scandal is a fascinating one to ponder through the rear view mirror. Hoffman, one of the stars of the film, recently became one of the few dubious victims of a #MeToo-er, as he was accused of groping and sexually harassing a 17-year old woman on the set of another film in 1985. Unlike most of the celebrities and power-brokers run over by the Harvey Weinstein Ethics Train Wreck, Hoffman has not had other accusers surface. He denies the woman’s characterization of what happened, and so have others, like the director of the movie in question, the filmed version of Hoffman’s Broadway turn as Willie Loman in “Death of Salesman.”
I have read fans of Oliver saying that Hoffman should have assumed that Oliver would grill him on the allegations, to which I say, “Only if Hoffman realized what a knee-jerk progressive creep Oliver is.” I think the actor assumed that Oliver was an honorable professional, and as a moderator wouldn’t hijack the discussion to embarrass Hoffman and burnish his feminist creds.
To Hoffman’s credit, he stood up to the abuse of position by Oliver and defended himself. At one point, there was this exchange:
HOFFMAN: “Do you believe this stuff you read?
OLIVER: Yes. Because there’s no point in (the accuser) lying.”
HOFFMAN: Well, there’s a point in her not bringing it up for 40 years.
OLIVER: Oh Dustin…
I would have said,
“Don’t “Oh, Dustin” me, you arrogant, posturing ass. The fact that a complaint isn’t made for that much time automatically makes it dubious. It places the accused in an impossible position; evidence has evaporated, and memories have faded. There are many reasons to lie. To get publicity, To get revenge for some real or imagined slight. To bring down someone famous or powerful. To join a mob—and regardless of the fact that the post-Weinstein focus on legitimate sexual misconduct in the workplace has created needed awareness and exposed long-time abusers, it is a mob, with all of the capacity a mob has to harm the innocent in its self-righteousness. You are playing to the mob right now, and willing to unjustly smear me to do it. You’re a disgrace.”
John Ziegler quoted a Hollywood writer who knows Hoffman and is convinced he is innocent, who said,
“Someone should tell John Oliver he’s the true heir to Joe McCarthy!Sex abuse baiting has replaced red-baiting. The ‘Sexual Blacklist’ reigns supreme. Guilty until ruined!”
Let me also remind readers that my hypothetical illustrating how a woman might retroactively decide that what she did not regard as sexual harassment years ago was harassment now was mocked by both the moderator and a Georgetown law professor during the NPR panel I participated in last week.
I am right, they are biased.
The more I think about that exchange, the more ticked off I get….
This question was asked of the New York Times’ “Workologist” (It’s stuff like this that keeps me subscribed despite the paper’s disgraceful partisan bias and unocnscionable manipulation of the news):
I recently had a manager ask me if I have “prayed about” a particular situation at the office… this statement crossed a personal line with me. I am very private about my religious life. Do you have any recommendations on how I could handle this?
The question immediately reminded me of “Breach,” the film about the capture of spy Robert Hannsen (Chris Cooper), who was always urging his clerk (actually the undercover FBO agent recruited to unmask him) to pray. The “Workologist” (Rob Walker) begins by pointing out the obvious: a boss can’t demand that you pray, or fire you for refusing to. Then he adds,
Your manager can’t discriminate against you on the basis of religion, but your company can’t discriminate against him, either — by, say, forbidding him to ever mention prayer. In general, companies are supposed to make an effort to accommodate the religious practices of employees, although this can be weighed against the potential burden on the employer…Faith-related workplace conflicts and litigation have become more common in recent years. So it might be better to think about this incident in the broader context of personal expression and identity…
your best move is to make your own boundaries clear — yet also try to avoid an outright conflict. The fact that you already consider him your “worst manager” might make that difficult. But simply declaring his question inappropriate or offensive won’t help.
Instead, try something like “Well, I’ve thought about it,” and either leave it there or, if that doesn’t seem to connect, add something like “But I’m not comfortable talking about what I do or don’t pray about.” This should be delivered in a friendly-to-neutral tone. You’re not making any judgments — and neither should he.
[T]hese accusations can be weaponized, just like rape accusations on campus. Sexual harassment law can be used as a sword as well as a shield, and if provided the chance, I can explain how and give real life examples. One is Anita Hill…
The fact that sexual harassment has to be unwelcome sexual attention in the workplace is not generally understood. It also is unique: what other acts are deemed unlawful, regardless of intent, based on how the object of those acts chooses to react? This feature is why sexual harassment law is viewed by many women and men as inherently unfair. It literally means—I have a skit I use in training that illustrates this—that if actors George Clooney and Steve Buscemi behave exactly the same toward an object of their affections in a workplace setting, and the woman involved finds George attractive and Steve not so much, Steve has engaged in sexual harassment, but George hasn’t.
“When ethics fail the law steps in,” and this is a case where the law is a terrible substitute for ethics. Men like George, and, yes, Trump and even Harvey, are convinced that their touches, hugs, gropes and kisses won’t be unwelcome, and so they don’t think of themselves as harassers. For poor Steve, Al, Louis and other homely non-billionaires, it’s worth a shot, in their mind.
Meanwhile, what is “welcome”? … Is the conduct by a man with a grope or a kiss sexual harassment whenever the woman decides she would have rather it hadn’t happened? That is the issue raised by these late allegations. Let’s say a woman was [ spontaneously ] kissed by Donald Trump, and afterwards, she said to her friends, “That was cool! Donald Trump kissed me, just like that!” Then he’s running for President, and everyone she knows hates the guy, and now she thinks, “Yuck! That creep kissed me! I was one of those women he was bragging to Billy Bush about! He harassed me!”
Is that fair? Is that right? Can a man be retroactively guilty of sexual harassment because a woman’s perception of what happened changes over time?
These and other issues were just raised in one of the latest witch hunt accusations, the claim by a former 2016 campaign staffer of Rep. Ruben J. Kihuen (D-Nev), once a rising Democratic Party star,that he harassed her.
Unlike many of the other notable men who have been run down by the Harvey Weinstein Ethics Train Wreck, Kihuen, at least so far, has been accused of the most common and least horrible form of sexual harassment. The allegations would support the case that Kihuen created a hostile work environment for his subordinate by unwelcome sexual advances. “Samantha” says that she rejected multiple sexual overtures by Kihuen, including once when when he suggested they get a room together in a hotel. She also says that in two instances he began touching her thigh, and asked if she was open to cheating on her boyfriend. She says these attentions made her so uncomfortable—that’s a hostile work environment!—that she quit as his campaign finance director after only five months on the job.
If an employee made these complaints to a business’s HR department, there would be an investigation. No job action could be taken against a supervisor based on her word alone. If there was no substantiation, the supervisor denied it and no similar accusations had been made by other employees, no company could or should fire the accused individual. Moreover, until an investigation is complete, the position must be that the supervisor is innocent, and will not be penalized pending an investigation. Any other handling of such an episode is unethical: unfair, harmful, and wrong.
Kihuen denies that he engaged in harassment. Yet Nancy Pelosi, she who insisted less than a week ago that “due process” must play out before Rep. John Conyers should have to resign after multiple accusations from women, now says that Kihuen must resign based on one woman’s allegation, before any investigation.
This is true witch hunt stuff. Nothing has been proven. By this standard, a woman can kill a man’s career with an accusation. That is a lot of power. Power corrupts. Pelosi wrote, Continue reading →
Did you miss The Great Pie Controversy? Then sit down, children, and hear the tale…
It all began when White House spokesperson Sarah Hucklebee Sanders posted a photo on Thanksgiving showing a pecan pie she baked for Thanksgiving. Above is the 2:40 p.m. tweet. The next day, American Urban Radio Networks Washington bureau chief April Ryan tweeted her doubts that the pie was real, implying that Sanders was a liar. She needed to “show it to us on a table,” Ryan demanded, and had to see “folks eating it and a pic of you cooking it.”
Now, let us pause and ponder what would make someone react like that to a simple declaration that someone had baked a pie for Thanksgiving. Why would anyone set out to embarrass and impugn an individual’s honesty over something so innocuous, based on no evidence or good reason at all? This isn’t journalism. It ‘s just meanness, motivated by sheer bias and hate. Conduct like that is so contrary to the Golden Rule that it constitutes tarnish.
And, of course, Ryan’s demands were also stupid and unreasonable. How would Sanders, where she so inclined, produce photos of guests eating a pie after it had been eaten?
Never mind. This example of disgusting and gratuitous reporter enmity was quickly picked up by the anti-Trump journalism establishment as an actual news story. Continue reading →
1 Straight to the top of the charts…When we put together the definitive list of President Trump’s Top Ten (Top 100? Top 1000?) stupid, undignified and self-wounding tweets, yesterday’s sequence of unsubstantiated videos–from a radical right wing British group— of alleged violence by Muslims has to be on the list. I could counter that the eruption of indignation by the vast majority of people who can comprehend what’s wrong with this is a bit annoying from the progressive side—the official Obama Administration position that Islam is a lovely religion of rainbows and unicorns and that Muhammad doesn’t instruct his followers from the grave that infidels are scum and deserve to die is far more dangerous than Trump’s hate-tweets—but that would obscure the key point. Trump’s retweeting is ugly, unnecessary, undignified, looks bigoted, and plays into the hands of the worst of his enemies, who express themselves like this.
Now we have to listen to that dishonest and contrived 25th Amendment garbage again, which never quite stopped anyway. Once again, the President has blown more wind into the sails of anti-democratic hypocrites like Ezra Klein, who argues for a Constitution and Separation of Powers-wrecking version of impeachment to get rid of Trump. No, Trump hasn’t gone crazy: he’s exactly the man we elected, and exactly as able to do his job as he ever was. Tweeting irresponsibly is not a high crime and misdemeanor. Being Donald Trump is not a high crime and misdemeanor.
But the President is playing with fire by encouraging the large political movement that would criminalize not agreeing with their world view. That’s as indefensible as it is idiotic.
2. This much is clear. It is now clear that NBC only fired Matt Lauer because an explosive Variety exposé was on the way, and it was a close call at that. It is pretty clear that the mystery of why NBC rejected journalist Ronan Farrow’s investigative reporting on Harvey Weinstein has been solved: NBC had its own lurking sexual misconduct cover-up to worry about. It is, or should be clear from Variety’s reporting that the astounding brazenness of Lauer’s conduct had to be common knowledge among Lauer’s colleagues and NBC executives, and that they unethically applied The King’s Pass, deliberately allowing Lauer to abuse and terrorize female employees, some of whom played along to get along. TMZ uncovered an old interview in which Katie Couric happily revealed that one consequence of working with Matt was that she got her butt pinched a lot. Nobody paid attention, in part because our pathetic news media buried it. Continue reading →
1 The Dumbest Moore Defense Ever Told! Debating with Chris Cuomo on CNN yesterday morning, Breitbart senior editor Joel Pollak made the following argument in defense of Alabama GOP Senate candidate Roy Moore:
“You know, in 1973 Ringo Starr hit number one on the Billboard charts with the song, ‘You’re 16, you’re beautiful, and you’re mine,. He was 30-something at the time singing about a 16-year-old — you want to take away Ringo Starr’s achievement?”
He really did.
2. Sally Yates and James Comey are happy, anyway. Leandra English, the deputy director of the Consumer Financial Protection Bureau, argues that the Dodd-Frank Act makes her the lawful the acting director of the agency in a lawsuit she has filed against President Trump, who also has the law on his side. He appointed Mick Mulvaney, currently Trump’s director of the Office of Management and Budget, as acting director to replace Richard Cordray, who appears to have resigned explicitly to foil the President’s ability to appoint his own choice to head the CFBP. Now there is mess triggered by a rare, genuine example of two statutes with authority over the same situation.
The Justice Department’s Office of Legal Counsel issued a legal opinion that says the Dodd-Frank Act does not displace the President’s authority to appoint under the Vacancies Reform Act. Either statute can be invoked. “We cannot view either statute as more mandatory than the other,” the opinion says. “Rather, they should be construed in parallel.”
Of course, employees of the Executive Branch are ethically obligated to defer to the President of the United States, but this President is handicapped by a thick muck of arrogant holdovers from the Obama Administration, who think it is appropriate to sabotage and undermine a leader whom they do not approve of. This is indefensible.
The lack of the basic deference and respect all elected Presidents should be able to depend upon that so many of the previous administration’s personnel have displayed is an indictment of the Democratic Party’s principles, integrity, fairness, patriotism and respect for process. This is how this story should be reported, too, and would be, by a competent and ethical news media. Continue reading →
To be fair, the Justice wasn’t much of a cartoonist…
In today’s warm-up, I briefly discussed the acquittal earlier this moth of NYPD officer Wayne Isaacs in the shooting an unarmed black motorist. It was a weird case. Isaacs was off duty, and prompted a driver to apparent road rage by cutting him off in traffic. The motorist, according to Isaacs, walked up to his car and struck him, and fearing that his assailant was armed, the officer drew his pistol and fired.
I don’t know if it was a coincidence or by design, but on the day of the acquittal progressive cartoonist Barry Deutsch, who once did battle (and well) at Ethics Alarms, posted this cartoonat his blog:
In the same post, he also called the late Justice Rehnquist a racist, which he was not, and made the demonstrably false statement that most police shootings involve blacks, but never mind that.
You have to really detest police and the principle of guilt beyond a reasonable doubt to regard such a cartoon as fair or enlightening. (Ethics Alarms is on record as declaring political cartoons an inherently unethical form of punditry.) No cop has been acquitted of shooting an unarmed 9-year-old kid in self-defense, and the cartoon is factually wrong that such a claim by a police officer would get him acquitted. Moreover, the case Barry is apparently referring to, Graham v. Connor, does not involve a shooting, and Rehnquist’s opinion for the majority doesn’t say what the cartoon says it does. In addition, the opinion in the case primarily relied upon by the majority in Graham, Tennessee v. Garner, wasn’t written by the Rehnquist, but by Justice Byron White. It also specifically involved police shooting at fleeingsuspects.
Thus the cartoonist a) doesn’t know what he’s talking about b) misleads his readers ( the blog is an echo chamber if there ever was one), and c) smears Justice Rehnquist. Continue reading →
Ethics Alarms 