1. Self-Promotion Dept. I’m heading off to New Jersey today, to present one of my musical legal ethics seminars—3 hours!—for the New Jersey Bar Association. The real star is my long-time partner in these shows, New York-based singer/musician Mike Messer, who channels Freddie Mercury, Bob Dylan (with harmonica!), Paul Simon, even Johnny Cash in the various song parodies. This one is called Ethics Rock Extreme, and ends, like all of my musical seminars, with a sing-along. Yes, we get lawyers to sing the chorus of the “Piano Man Parody”…
Sing us the Rules, you’re the ethics man
Sing us the Rules tonight!
We’re stuck in an ethics dilemma here
So tell us what’s wrong and what’s right!
(No, “Back in the USSR” is not one of the songs we do.)
2. First Amendment for me, but not for thee: In an embarrassing episode that is also telling, the Newseum has capitulated to a storm of protests from journalists and will no longer sell its popular “Fake News” mercahndise…like this shirt…
online or in its gift shop. “We made a mistake and we apologize. A free press is an essential part of our democracy and journalists are not the enemy of the people,” the Newseum announced Saturday in a groveling blog post. “Questions have also been raised regarding other merchandise. As an organization that celebrates the rights of people from all political spectrums to express themselves freely, we’ve historically made all types of political merchandise available for our guests to purchase. That has included former and current presidential slogans and imagery and merchandise from all political parties. We continue to do so in celebration of freedom of speech.”
Translation: “In celebration of free speech, we will acquiesce in the censoring of a particular expression of opinion on a humorous T-shirt, because it hurts journalists’ feelings.”
Again, I ask: why does anyone trust journalists and the organizations they represent? Continue reading →
…and dumber than most, too. U.S. District Judge Robert Lasnik of Seattle issued a temporary restraining order that blocks the Trump administration from refusing to try to block publication of blueprints to produce guns from 3D printers. Eight states and Washington, D.C. had sought the order. A company called Defense Distributed planned to publish the blueprints after the U.S. State Department agreed to settle a suit filed by the company in an agreement made public on July 10. The suit had claimed the State Department violated the First Amendment by warning in 2013 that publication of the blueprints violated export controls and could lead to a jail sentence for the company CEO, Cody Wilson.
It sure sounds like prior restraint to me, and I suspect, when this gets to the Supreme Court, which it inevitably will, that will be the conclusion.
This began as one more example of the Obama Administration playing fast and loose with the Bill of Rights. Now, it may well be, as the suit by the states alleges, that the Trump Administration didn’t handle its legal U-turn properly, it being, after all, the Trump Administration. Nonetheless, the government blocking the online publication of information, which is what a blueprint is, when no copyrights, patents or trademarks are being violated or national secrets revealed, seems like a pretty clear First Amendment violation.
Never mind, though. The story sparked a perfect storm of fake news, fear-mongering and incompetent journalism. The Times, among others, called the blueprints a “downloadable gun.” There is no such thing as a downloadable gun. You have a gun when you download a blueprint for a gun just like you have a house when you download a blueprint for a house. That term isn’t short-hand, it’s wrong: misleading, inaccurate, and really, really stupid. Other sources blamed President Trump and his administration for the fact that 3-D printer plans for guns were available. They have been available for years. Here are some downloads in case YOU want to have the plans for weapons that you will only be able to make if you happen to have some very expensive equipment. Continue reading →
Boy I’m tired of falling for this kind of click-bait on the conservative news websites.
“Hillary Clinton Says Supreme Court Nominee Brett Kavanaugh Will Bring Back Slavery” shouted the headline on a story at PJ Media by Tyler O’Neill. Uh, no, that’s not really what she said. This is; Clinton told the American Federation of Teachers (AFT) at its national convention:
“Let me say a word about the nomination of Judge Kavanaugh to the Supreme Court,” “This nomination holds out the threat of devastating consequences for workers rights, civil rights, LGBT rights, women’s rights — including those to make our own health decisions. It is a blatant attempt by this administration to shift the balance of the Court for decades and to reverse decades of progress,” the former Democratic presidential nominee declared. I used to worry that they [the Republicans] wanted to turn the clock back to the 1950s. Now I worry they want to turn it back to the 1850s.”
Says O’Neill, maybe with a straight face: “Clinton was clearly suggesting that Trump and Kavanaugh want to return to the days when slavery was legal in the South.”
1. Is it unethical to never be satisfied, or just human? Or just American? The Boston Red Sox are winning too much, and I don’t recognize my team. Over the weekend, literally for the first time in my life, I found myself feeling sorry for an opposing team and its fans. The poor Kansas City Royals (who are, I know, in the process of tanking) looked hopeless as the Red Sox swept a three game series. KC, not long ago a World Series champion, looks like it will lose 105 games or more. My team has always been the underdog. I don’t want to root for crypto-Yankees.
2. Yeah, I wish the President would just announce his SCOTUS pick and not make it into a circus.
3. Another Ethics Alarms Lost Post…A Carolyn Hax advice column from March missed getting the post I intended at the time, and I just stumbled across the old file. A woman who had planned a huge wedding was jilted by her fiance shortly before the big date, as he ran off with an old flame. She asked Carolyn if she was wrong to be angry at invited friends and relatives who wanted her to reimburse them for non-refundable airline tickets, and to never want to have any contact with them again. Hax said that such people don’t deserve anything better, and ought to be written off in perpetuity.
That was an easy call for the relationship columnist, but I found myself reflecting on other matters, like whether I have any friends and relatives who could be expected to behave that atrociously, venally and compassionlessly (relatives yes, friends, no, I think). Another question: what’s the matter with people, and how do they get this way? Someone you care about is slammed with a life catastrophe, and your first reaction is to demand that she pay for your inconvenience?
There has been a regrettable proliferation of the sub-category of fake news that I call “future news” since the news media fully embraced “the resistance” after the election of Donald Trump. Future news had stuck its camel’s nose into the tent of real news as journalists started reporting climate change predictions as facts rather than speculation. Now future news is standard fare, even in headlines. “Cohen Ready To Flip On Trump” was popular today. “North Korea May Not End All Nuclear Activity.” Of course, the Mueller investigation has created endless future news, and the mainstream media has worked over time to make the public think that the smoking gun that would impeach Trump was just about to be revealed.
I detest future news, and most of the time, it is unethical, a slimy way for journalists to use innuendo and speculation as a substitute for reality. See, news is what has happened or is happening. Future news increasingly is what reporters want to happen, which is generally “bad things involving Donald Trump.”
Just for giggles, though, let’s play the future news game. Here’s my headline:
Democrats May Fail To Take Over House, Lose Seats In Senate.Continue reading →
(On an especially dead weekend on Ethics Alarms. But ethics never sleeps…)
1. But I thought everyone wants open borders!The Harvard-Harris poll on illegal immigration, North Korea, trade and tariffs, and the Russia investigation certainly isn’t reflected in the news reports. But then, we can’t trust polls, and we certainly can’t trust Harvard.
I suppose the theory behind yesterday’s protests is that the squeaky, angry wheel gets the insane national policy. My guess is that this particularly squeaky, angry wheel gets a Republican Congress.
2. Nah, there’s no mainstream media bias! (Cont.) Yesterday’s New York Times op-ed page managed to contain two of the more outrageous anti-Trump screed of recent vintage. One, by Dave Eggers, attacks “the cultural vacuum in the White House.” I suggest reading this one as a template for anti-Trump propaganda, and the kind of dishonesty underlying so much of it. He begins,
Since his inauguration in January 2017, there have been no official concerts at the White House (the Reagans had one every few weeks). No poetry readings (the Obamas regularly celebrated young poets). The Carters began a televised series, “In Performance at the White House,” which last aired in 2016, where artists as varied as Mikhail Baryshnikov and Patricia McBride performed in the East Room. The Clintons continued the series with Aretha Franklin and B. B. King, Alison Krauss and Linda Ronstadt.
But aside from occasional performances by “The President’s Own” United States Marine Band, the White House is now virtually free of music. Never have we had a president not just indifferent to the arts, but actively oppositional to artists. Mr. Trump disparaged the play “Hamilton” and a few weeks later attacked Meryl Streep.
Normally, this is where I’d quit reading—when the writer deliberately distorts the facts and employs deceit to make his case. The President disparaged the cast of “Hamilton,” not the show itself, after its performers unethically ambushed Vice President Mike Pence, who was then only another audience member, and should have been respected as one. I have launched (let’s see) three theater companies and two professional performing groups, and I disparaged that cast as well. Meryl Streep, the well-known pal of Harvey Weinstien, went on national television and gratuitously insulted the President, who does not turn the other cheek. He didn’t attack Streep because she is an artist. He attacked her for being a grandstanding partisan shill.
He engages in this kind of deceit throughout, such as when he writes, in conclusion,
“Admittedly, at a time when Mr. Trump’s policies have forcibly separated children from their asylum-seeking parents — taking the most vulnerable children from the most vulnerable adults — the White House’s attitude toward the arts seems relatively unimportant. But with art comes empathy. It allows us to look through someone else’s eyes and know their strivings and struggles. It expands the moral imagination and makes it impossible to accept the dehumanization of others. When we are without art, we are a diminished people — myopic, unlearned and cruel.”
Funny: art hasn’t made Eggers less dishonest and deceitful. The illegal immigrants at the border were not “asylum-seeking,” because they didn’t follow the procedures for seeking asylum. They were apprehended foreign citizens trying to sneak into our country and claiming that they were seeking asylum to hamstring border enforcement, and were using their children as human shields, placing the Trump administration into the Catch-22 of either waiving the laws or giving open-borders activists a club to beat it with—as the Times knows, since it has explained this dilemma itself. To attribute pure law enforcement decisions to the dearth of piano and cello concerts in the White House is forced even by the Times’ standards. Mostly Eggers is just revealing the classist snobbery underlying much of the elitist attacks on President Trump.
As an artist, and someone who has worked in the arts and indeed would have made it my career if it were financially feasible, I could not care less how many concerts a President hosts, or how many artists he fetes. I want him to do his job, and I don’t particularly care to be paying for his glitterati nights, either.
A President’s taste in art and culture doesn’t affect the public one whit. I don’t think I would pay a dime to hear any of President Obama’s hip-hop artists or rappers. Meanwhile, Clinton having “Aretha Franklin and B. B. King, Alison Krauss and Linda Ronstadt” at the White House didn’t make him empathetic enough not to exploit Monica Lewinsky. Jack Kennedy was a stone-cold sociopath: what did he learn from dining with “Arthur Miller, Tennessee Williams, Robert Lowell, Geraldine Page and George Balanchine”?
Hitler loved fine culture so much he had his Nazis steal thousands upon thousands of invaluable works of art across Europe, because he wanted a new explosion of creativity among the German people. Boy, if that made the Germans less “cruel,” imagine what they might have been like without their art!
The Hill tells me that Democratic pollster Mark Penn claims that a vast majority of Americans don’t really support sanctuary cities. The one-time chief strategist for Hillary Clinton‘s 2008 presidential campaign says that a poll he took revealed that 84 percent of Americans favor turning undocumented immigrants over to federal agents.
“I asked them, ‘Do you think notifying ICE [Immigration and Customs Enforcement] would in fact increase crime because it would inhibit people from reporting crimes or does it decrease crimes because it takes criminals off the street,’ and they overwhelming said ‘decrease,’ ” Penn told Hill.TV’s “Rising.” “When someone’s arrested, they expect someone will notify federal immigration authorities just as they would expect someone who violates state tax law will find out that they notified the IRS,” the pollster said. This is supposedly summed up by The Hill’s headline, “Ex-Clinton aide: 84 percent of Americans support turning undocumented immigrants over to authorities.” Continue reading →
1. How prescient of me to headline yesterday’s warm-up “Deranged” before Justice Kennedy announced his retirement and the progressive/Democratic/ mainstream media/social media freakout commenced!
2. Duh. Since nobody seems to be writing about how perfectly this proves the Trump-inflicted brain damage on the Left, allow me:
Justice Kennedy is 81. As my dad used to say when he entered his 8th decade, he’s in the red zone, and can drop dead at any second. Did Democrats really assume he would keep working forever?
Their shock at this is ridiculous and unbelievable. WHAT? An 81-year-old judge is retiring?
This is a wonderful example of how people assume that everyone else thinks as they do. The Trump-Deranged have reached the point where they would saw their pets in half to undermine the President, so they assume that Kennedy feels the same way.
There is no evidence that he does, in part because, unlike Ruth Bader Ginsberg, who has periodically trumpeted her contempt for the President, he has been judicially discrete and professional.
It is per se irresponsible for an 81-year-old in a challenging job with national impact not to step down before he or she becomes incompetent, or drops dead. Scalia was irresponsible not to retire. Ginsberg should retire (she is 84). Breyer is two months short of 80: he should retire.
Outside of judges, we have multiple members of Congress, notably Pelosi and John McCain, who are being unethical by not stepping aside.
The bottom line is that nobody should be freaking out, because everyone should have been prepared for it.
3. We get it! You are vicious, juvenile, angry, rigis and irrational people. The Daily News nicely sums up the calm, analytical, reasoned reaction by the Left:
1. Nah, there’s no mainstream media bias…This is one of the times that I am sorry that the Trump Deranged on Ethics Alarms have temporarily withdrawn from the Comment section battles, as I would love to hear their self-indicting rationalizations.
Here was this morning’s New York Times, big black headline:
JUSTICES BACK TRAVEL BAN, YIELDING TO TRUMP
Outrageous in every way. The Court did not “yield” to anyone or anything but the law as it stands and has stood for centuries. As Constitutional Law expert Eugene Volokh succinctly put it, “The federal government may pick and choose which foreigners to let into the country (at least setting aside foreigners who have are already been granted residence), even based on factors — political beliefs, religion, and likely race and sex — that would normally be unconstitutional.” He explains:
This used to be called the “plenary power” doctrine, referring to the principle that the government has essentially unlimited power when it comes to at least this aspect of immigration law, unlimited even by the Bill of Rights. It is not based on the constitutional text; textually, the First Amendment would apply to all exercise of Congressional authority, whether under the Commerce Clause or the District of Columbia Clause or the Necessary and Proper Clause under Congress’s power over immigration. But, right or wrong, it is based on longstanding American legal history; and the majority adheres to that history.
Historically, this has even be used to authorize Congress to discriminate based on race (query whether the Court would today condemn this as “irrational”; more on that below). It has long been seen as authorizing Congress to discriminate based on country of citizenship, without investigation into whether such discrimination might actually be motivated by ethnic hostility. And, most relevant to today’s decision, it was seen in Kleindienst v. Mandel (1972) as authorizing discrimination based on political ideology, which would otherwise be forbidden by the First Amendment….The Court rejected the First Amendment claim:
Recognition that First Amendment rights are implicated, however, is not dispositive of our inquiry here. In accord with ancient principles of the international law of nation-states, the Court in The Chinese Exclusion Case (1889), and in Fong Yue Ting v. United States (1893), held broadly, as the Government describes it, that the power to exclude aliens is “inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers—a power to be exercised exclusively by the political branches of government ….” Since that time, the Court’s general reaffirmations of this principle have been legion. The Court without exception has sustained Congress’ “plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.” Boutilier v. Immigration and Naturalization Service (1967). “[O]ver no conceivable subject is the legislative power of Congress more complete than it is over” the admission of aliens. Oceanic Navigation Co. v. Stranahan (1909)….
As a result, the Court held that, if decisions to exclude aliens could ever be set aside, this would be so only if there was no “facially legitimate and bona fide” reason to exclude the alien. In Mandel’s case, the dissent noted, those reasons — labeled by the government as Mandel’s “flagrant abuses” during his past visits to the U.S. — “appear merely to have been his speaking at more universities than his visa application indicated.” The dissent argued that “It would be difficult to invent a more trivial reason for denying the academic community the chance to exchange views with an internationally respected scholar.” But the Court didn’t investigate whether the government’s true motive might have been the Administration’s disapproval of Mandel’s political ideas, rather than the supposed violation of past visa conditions; the requirement of a “bona fide” reason did not appear to require an investigation into the government’s true motivations, but rather simply focused on whether the “facial[]” reasons seemed sufficient:
In summary, plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established. In the case of an alien excludable under [the provision involved in Mandel], Congress has delegated conditional exercise of this power to the Executive.
We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.
The majority’s decision in Trump v. Hawaii basically applied this logic to another clause of the First Amendment — here, the Establishment Clause (which normally bars discrimination based on religious denomination, including the use of neutral rules in a discriminatorily motivated way) rather than the Free Speech Clause….
1. The TIME “Welcome to America” cover. This is probably worthy of a full post, but I’m really sick of this topic, and losing respect for so many previously sane and reasonable people who have become blathering “Think of the children!” zombies that I want to spit.
TIME, that dying, irrelevant, completely left-biased news magazine, grabbed one last moment in the sun with this cover:
It nicely symbolizes the media dishonesty and public manipulation regarding the border mob of children, with or without parents. I assumed that the cover was symbolic art: obviously this stand-off never occurred. But TIME used a photo of a real Honduran girl who we were told in other media reports and viral social media rants was crying because she had been separated from her mother when mom was arrested for trying to enter the country illegally. As CBS reported today, though, the little girl was really crying because her mother was apprehended at eleven o’clock at night crossing illegally into the US, the tot was tired and thirsty. She was never separated from her mother at all. Here’s the original photo:
Perfect. Fake news, through and through. If TIME wanted to make a symbolic image, the magazine was obligated to either make it clear that it was art only. Using a photo that had already been falsely represented in the news media to represent exactly what it had been falsely claimed to represent advanced a lie. Here is the original photo:
Denis Javier Varela Hernandez, 32, said that he had not heard from his wife Sandra, 32, who was with his two-year-old daughter Yanela Denise, for nearly three weeks until he saw the image of them being apprehended in Texas.
In an exclusive interview with DailyMail.com, Hernandez, who lives in Puerto Cortes, Honduras, says that he was told yesterday that his wife and child are being detained at a family residential center in Texas but are together and are doing ‘fine.’ …
He revealed that his wife had previously mentioned her wish to go to the United States for a ‘better future’ but did not tell him nor any of their family members that she was planning to make the trek.
“I didn’t support it. I asked her, why? Why would she want to put our little girl through that? But it was her decision at the end of the day….‘I don’t have any resentment for my wife, but I do think it was irresponsible of her to take the baby with her in her arms because we don’t know what could happen.”
2. Charles Krauthammer. Unfortunately, this is what I will most remember about the conservative columnist and commentator who died yesterday. After the first Republican candidates debate, the one in which Megyn Kelly called out Donald Trump on his habitual misogyny, Krauthammer, today being lauded for his brilliance and perception, stated unequivocally that Trump had proved himself “not ready for prime time,” and that hos poor performance in the debate had effectively ended his candidacy. Continue reading →
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