“Cockholster” Update: Still Unethical, Not Illegal

Or to put it another way, Stephen Colbert’s ugly, vulgar and uncivil slur against President Trump may have been unfunny, biased, demeaning to the audience and the network (CBS), and corrosive to political discourse and the culture—it was all of these—but he didn’t violate any regulations or laws.

Yes, it’s always legal to be smug, pandering, hypocritical jerk.

The FCC spokesman confirmed the commission was not launching an investigation regarding the episode in which Colbert broke new ground in gutter language on network TV.For one thing, the “Late Show With Stephen Colbert”  is exempt from the FCC’s policies on profanity and indecency because its indecent rules only apply to TV and radio shows airing between 10 p.m. and 6 a.m.,  when children are supposedly not in the audience.

That would not save Colbert if his words were judged legally obscene (and thus not protected speech), but Colbert’s comments would not be found obscene under established court standards. Concludes Constitutional law expert (and Supreme Court appointee-in-waiting) Eugene Volokh:
Continue reading

Stay Classy, Congressman Vela! The Texas Democrat Uses Trump As An Excuse To Sink To A New Low In Public Discourse

Oh, fine.

Oh, fine.

Yes, incredible as it seems, even lower than Marco Rubio implying that Donald Trump has a small penis.

It’s a long, unprofessional, roller coaster of valid arguments, unethical contentions and muddled reasoning that U.S. Rep. Filemon Vela, (D-Brownsville) stuffed into his open letter to Donald Trump. He calls Trump a racist, he implies that anyone who illegally crosses the border should be welcomed with open arms unless he’s a criminal; he incorrectly calls Trump’s suspicions about his Hispanic judge’s biases bigoted, when they are merely expressions of Trump’s ignorance regarding what constitutes a judicial conflict of interests. Time to showboat for the district constituency, I guess: you can read the whole letter here.

Like Rubio, however, Vela debased his office, Congress, his district and himself by attacking Trump in a vulgar and undignified manner, saying in his grand finale:

“I will not presume to speak on behalf of every American of Mexican descent, for every undocumented worker born in Mexico who is contributing to our country every day or, for that matter, every decent citizen in Mexico. But, I am sure that many of these individuals would agree with me when I say…

‘Mr. Trump, you’re a racist and you can take your border wall and shove it up your ass.’”

How nice. Continue reading

Dress Code Ethics: The Jet Blue Affair

Maggie flying (above) and performing (below)

Maggie flying (above) and performing (below)

JetBlue has a line in its contract of carriage that gives its employees the power to refuse to fly passengers who try to board a plane wearing clothing that is “lewd, obscene, or patently offensive.” Based on that vague standard, Seattle-based burlesque performer Maggie McMuffin was refused seating on a JetBlue flight from Boston’s Logan International Airport last month when the airline’s gate agents refused to let her board  until she changed her shorts. Maggie told a local CBS affiliate that an airline employee said her outfit was “not appropriate” according to the flight crew and pilot. Now Maggie is taking advantage of the situation to get some cheap publicity and maybe an interview or two, while embarrassing JetBlue. You can read more details in Slate’s story here.

Ah, dress codes! They are conduct rules put in place by businesses and institutions because some people have no manners, sense of place, consideration for others or respect, and these codes never, ever, work in the long run, because some people have no manners, sense of place, consideration for others or respect.

Once upon a time, children, adults going out into public dressed with taste and modesty as an expression of respect to others, including strangers, that they might meet. The Sixties destroyed this cultural consensus by questioning manners, decorum, conformity, dignity, and respect for others, especially anybody over thirty. Do your own thing! Let it all hang out! Today, a half century later,  people nonchalantly wear flip-flops to the opera and church, while the obese passenger sitting next to you on an airplane may be wearing a tank-top, and hasn’t  bathed in a week.

Of course Maggie McMuffin—I’m sure that’s her real name—wasn’t dressed appropriately to fly. (That’s her outfit above to the left–I assume she was wearing her head…) She was definitely dressed appropriately to draw attention to herself as burlesque performers (a.k.a “strippers”) are wont to do, and that was her intent. The JetBlue agreement, however, doesn’t say its employees can kick you off the plane for dressing inappropriately—like in a scuba suit, a bunny costume, or as Dracula. It says “lewd, obscene, or patently offensive.”  Whatever you can say about Maggie’s travel garb, it isn’t “lewd, obscene, or patently offensive.” JetBlue was wrong: unfair, incompetent, foolish. Unethical. Continue reading

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

Ethics Quote of the Month: Dan Savage

“If being gay is a choice, prove it. Choose it. Choose to be gay yourself. Show America how that’s done, Ben, show us how a man can choose to be gay. Suck my dick. Name the time and the place and I’ll bring my dick and a camera crew and you can suck me off and win the argument.”

—Columnist and gay rights advocate Dan Savage, responding to Dr. Ben Carson’s assertion on CNN that being gay is a choice, and that men choose to become gay as a result of prison experiences.

"Hmmm...I'm straight, but that Dan Savage looks mighty good. Maybe I should choose to gay...."

“Hmmm…I’m straight, but that Dan Savage looks mighty good. Maybe I should choose to be gay….”

Some observations:

1. Savage works in shock rhetoric the way Rodin worked in marble. Yes, the response to Carson is uncivil and vulgar. As such, it is as good an example as one could find of the importance of not banning words, even the obscene, ugly and hurtful ones. They are certainly subject to abuse, like all words. Still, they have legitimate and valuable uses.

2. Unfortunately, because Savage’s own conduct in the gay rights wars has been unyieldingly abusive, contemptuous and hateful, he only amuses his own constituency, and persuades no one who needs persuading. Yet his comment deftly unmasks the absurdity and ignorance of Carson’s. If it had come from a critic who was regarded as objective and not habitually offensive for the sake of being so, Savage’s attack would have impact beyond those who already have made up their minds about Ben Carson.

3. Thus the lesson of Savage’s assault is that incivility’s effectiveness, like its justifiability, is inversely related to its rarity. Continue reading

“It’s Unethical To Be A Weenie,” Part III: Hypersensitive Law Students

[Part I is here; Part II is here]

“Today’s lecture is on WHAT???????”

This belongs in an emerging sub-category: future legal weenies. We have already seen black law students insisting that they be able to defer exams because the Eric Garner death has them too preoccupied to concentrate, and other law students protest an “insensitive” exam question involving the Ferguson riots. This trend does not bode well for the ability of citizens to receive competent representation in years to come. The latest entry was revealed by Harvard law professor Jeannie Suk, who registers her observations  in the New Yorker.  Suk says rape law is becoming impossible to teach and may be dropped from criminal law courses because many students can’t handle the stress of the subject matter. Criminal law professors at several schools confirmed that they are no longer teach rape law because they fear student complaints.  Suk writes, “Many students and teachers appear to be absorbing a cultural signal that real and challenging discussion of sexual misconduct is too risky to undertake—and that the risk is of a traumatic injury analogous to sexual assault itself.” Continue reading

“It’s Unethical To Be A Weenie,” Part I: The Lipreading NFL Fans

Preface: The Rise of the Weenies

Tom Brady, mid-

Tom Brady, mid-“Fuck!”

Everywhere we look, it seems, we see the United States culture being threatened by weenies and the rise of Weenyism. In a nation founded on the principles of self-reliance and individual liberty, built and shaped by stunningly brave men and women who hacked civilization out of an uncertain and perilous wilderness, there is a growing mass of citizens—the cancer imagery is intentional—who are committed to giving the government near total control over every conceivable danger, threat, peril, offense, inconvenience or annoyance, real or imagined, as the role of individual Americans devolves into pointing and saying, “There! Fix that! I don’t like that! Arrest them. Fine him.” Increasingly, the primary motivation for public policy is fear, planted by activists and politicians to panic, terrify and mobilize the weenie base, who are ever eager to trade individual freedom for protection against, well, almost everything.

I know I am hyper-sensitive to the weenification problem right now, having spent three weeks reviewing the history of the American West and its portrayal by Hollywood in preparation for my Smithsonian Associates program last week on how the Hollywood Western shaped American culture. Around the same time that the Sixties exploded, the culture’s unified acceptance of traditional American values began to collapse, just as the primacy of the Western as an entertainment genre declined. Now weenyism is in its ascendency. There are those who claim that the name of a distant football team causes psychological trauma to Native Americans who don’t follow football. Blogger Andrew Sullivan (a candidate for Head Weenie) asserts that the United States should have the “courage” to do nothing about ISIS and allow it to run amuck (the ultimate goal of the Weenies: an Orwellian “Weenies Are Heroes” motto). Feminists insist that women are so vulnerable to male sexual predations on campus that due process, fairness, common sense and much of the respect as equals their predecessors fought for must be surrendered, in a new system that begins with the presumption that all men are potential rapists and all women simpering, helpless victims, even when they say “yes.” College students and other are demanding that books, stories, essays and blog posts contain “trigger warnings” to alert weenies that words and topics in the text might give them the vapours. Needless to say—I hope—this not a healthy development for the United States, or  our culture.

The resistance to Weenyism ought not to be a partisan issue. The obligation to help the weak, disadvantaged and powerless become stronger, overcome their handicaps and acquire power is part of the American tradition too. Somewhere, however, this obligation was distorted by the realization that in a system where the government is looking for victims to justify its existence, Weakness Is Power (Orwell again). Weenies—fearful, risk-averse, passive-aggressive citizens who shrink from conflict, confrontation and the messy process of democracy— have realized that they can mobilize power to satisfy their narrow biases and interests, often at the expense of their fellow citizens’ right to liberty and the pursuit of happiness. Now the culture is tilting away from the uniquely American model that encouraged individuals to fight their own battles and succeed or fail on the merits of their causes and their own determination and skill, to one that rewards the perpetually offended, victimized, and passively unsuccessful.

It is unethical to be a weenie, and equally unethical to allow Weenieism to overcome what has been an American cultural strength.

Part I: The Lipreading NFL Fans

Several TV viewers who watched the NFL’s  New England Patriots-Green Bay Packers made official complaints to the Federal Communications Commission because they could see Patriots quarterback Tom Brady saying “fuck” repeatedly on the sidelines in frustration over his own play.  They couldn’t hear it, mind you: they were just able to read his lips. This was so horrible that they felt that the Federal government needed to investigate and take remedial action.

One complaint was from an Indianapolis parent who wrote that their “6 year old children know how to read lips.” Another was from a Pennsylvania grandparent who complained to the FCC,  “My 8 year old grandson was watching the game with me and even commented that he should not have said that.”

The Horror. Law professor Jonathan Turley opined on his blog,  “I do not believe that this was a good thing for a NFL QB to be doing.” Well, sure: he should be picking his nose of grabbing his crotch, either, but this isn’t scripted, and its a football game.  The whistle has to be blown for Federal retribution for mouthed obscenities to nobody in particular, as these sensitive parents and grandparents happily allow their delicate charges to cheer men in the process of maiming themselves and risking that their children will be changing their fathers’ diapers in the disturbingly near future?

The really frightening thing is that our regulatory morass encourages such attempts at censorship. 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

#!@&! Ethics Dunce and Incompetent Elected Official of the Month: L.A. Mayor Eric Garcetti

"Stay classy, Los Angeles!"

“Stay classy, Los Angeles!”

Let me see: What epic event would justify an elected leader, public figure and inherent role model intentionally doing his best to undermine beleaguered efforts by parents, teachers, employers, Federal regulators and ethics blog authors to protect the vital cultural values of civility and respect from the onslaught of the boorish, inconsiderate and inarticulate who would make obscenity part of everyday discourse?

World peace? Curing cancer? Ending poverty? Nah. The occurrence so significant that Los Angeles’s mayor thinks it justifies his use of the vague and slovenly adjective “fucking” in a planned statement is  the L.A. Kings’ Stanley Cup victory. You know…pro hockey? Where they bat that little rubber thing around the ice?

Occasionally, public figures like Joe Biden (but he has…well, you know…issues) have accidentally tossed f-bombs into unwilling ears canals, but never before has an elected official set out to do so. It is irresponsible, and demonstrates how America is increasingly electing children to high office. If the Mayor of L.A. thinks that a hockey game victory provides a sufficient pass to issue officially sanctioned vulgarity to America, what chance do parents and teachers have when they try to instill manners—that is, routine respect for those we interact with— into their young charges? Answer: less of a chance than they had before Mayor Garcetti opened his smug, pandering, dirty mouth. Continue reading

Now THIS Is Incivility!

"Thank you, counselors. We will proceed to fucking closing statements."

“Thank you, counselors. We will proceed to fucking closing statements.”

I just saw a  local Boston TV ad for Ace Tickets. The slogan at the end was “Sit your Ace down!” So clever! Just throw gratuitous vulgarity into a commercial during a baseball game, doubtlessly viewed by many children, because it’s inherently amusing. The message is that vulgarity is cool, clever and acceptable. Other messages in the media, both in advertising and in pop culture, convey the same permissive standards regarding obscenity. Over on the Drudge Report, a much-admired news aggregator for  political junkies, especially on the right, no mention of Anthony Weiner’s annoying candidacy for Mayor of New York is made without a cheap “weiner” joke. Today, Drudge noted that Weiner was “inching up” in the polls. Get it? HAR!  Just under that “gag,” the news that men favored Weiner in polling was headlined “Male Enhancement.” Soooo witty!  The U.S. is being transformed into one huge junior high school. After growing up in such a vulgar, undignified, sleazy environment, the next generation won’t be prone to inadvertently use words like “fuck” and “shit” in public forums such as live award shows and TV interviews, like our current politicians, newscasters and celebrities. They’ll just use them intentionally, all the time. Won’t that be cool? I’m sure David Letterman thinks so. Cool Dave had A.J. Clemente, he of uttering “fucking shit” on the airways in his debut as a news anchor, as a guest on his show. Dave suggested to A.J. that his ex-bosses were jerks to fire him. Good point Dave! A.J. was just ahead of his time. In a decade or so, “fucking shit” may be the sign-off of the next generation’s Walter Cronkite.

Maybe less than  a decade. Note this account, in a court opinion, of a lawyer’s conduct before a magistrate: Continue reading