prior restraint

Censorship “For The Greater Good” Loses A Round In Massachusetts

/ Jack Marshall / 3 Comments

Good.

In a unanimous ruling, the Supreme Judicial Court in Massachusetts (that’s like the state Supreme Court in a normal state) held that free speech rights were wrongly infringed upon by a lower court’s non-disparagement order forbidding the husband or wife from posting about their divorce on Facebook and other social media sites until their child turned 14. The child at issue was a toddler when the ruling was handed down.

It is disturbing to me that judges lack sufficiently Americanized ethics alarms to squelch the temptation to issue rulings like the one overturned.  Sure, kids are harmed by their parents saying terrible things about each other, but there is nothing special about such communications on social  media. Parents harm their kids by screaming at each other in the kitchen. That’s life.

“We conclude that the nondisparagement orders at issue here operate as an impermissible prior restraint on speech,” the Supreme Judicial Court ruled. Though the  judge “put careful thought into his orders in an effort to protect a child caught in the middle of a legal dispute who was unable to advocate for himself… there was no showing of an exceptional circumstance that would justify the imposition of a prior restraint, the nondisparagement orders issued here are unconstitutional.”

 Two Norfolk Probate and Family Court judges issued the original bans when the ugly divorce between Ronnie Shak and his former wife, Masha  Shak, who shared one son born in 2017, spread to social media.
 Continue reading →

Ethics Quiz: Alternate History Ethics

/ Jack Marshall / 30 Comments

In 2017, “Game of Thrones” creators David Benioff and D.B. Weiss announced that HBO  would carry their new original series “Confederate,” an alternate history show taking place in  an alternate reality where the South won the Civil War, creating a new nation in which slavery remains legal and continues as a modern institution. (yes, presumably they knew this was unlikely, bordering on impossible. )Their release added, “The story follows a broad swath of characters on both sides of the Mason-Dixon Demilitarized Zone — freedom fighters, slave hunters, politicians, abolitionists, journalists, the executives of a slave-holding conglomerate and the families of people in their thrall.”

While I generally dislike alternate history fiction (unless it involves extravagant revenge on unequivocal villains, like in “Inglorious Basterds” or “Once Upon A Time In Hollywood,)” the genre, done well, has the potential to be enlightening and provocative, like Amazon’s The Man in the High Tower,” a series based on Philip K. Dick’s novel about a world in which Germany and Japan defeated the U.S. in World War II.

Now, however,  we learn:

…. HBO president Casey Bloys officially confirms to TVLine that the…long-gestating, controversial slavery drama Confederate will not be moving forward.

The 2017 announcement was greeted by the same people who want to see all statues of slave-holders and Confederate soldiers melted down (and the Confederate flag regarded with the same revulsion as the Nazi swastika) as a dangerous white supremacy plot. Benioff and Weiss even felt they had to make it clear in interviews that they knew “slavery was wrong.” Here’s an example of the social media brickbats the announcement of the series spawned in 2017: Continue reading →

Ethics Dunce: The North West Hendricks School Corporation

/ Jack Marshall / 5 Comments

How can organizations, especially schools,  think this kind of thing is acceptable, much less ethical? Who are the lawyers advising these people? Where do they think they’re living?

In Indiana, the North West Hendricks School Corporation’s “ Parent Code of Conduct ” says that parents should not use social media to make “rude or offensive comments” regarding school staff members or the school itself. Parents also cannot use social media to “campaign against or fuel outrage against individual staff members, the school or policies implemented by the school or district.” Violating the policy means that a parent can be removed from the school premises and banned from entering school grounds forevermore.

This is one of those unenforceable provisions that exist to intimidate and deceive those ignorant parents who were so badly educated (perhaps in the North West Hendricks School Corporation ) that they can’t spot an unconstitutional rule when they see one. No public school can tell parents what they can or can’t say on social media. This is a pure First Amendment violation, so blatant that it even roused the local ACLU from its accustomed slumber.

The ACLU of Indiana was asked about its assessment of the restriction on parents’ speech, and  legal director Ken Falk replied,

“I think this is flagrantly unconstitutional. The overarching problem is you have the government saying if we don’t like what you’re saying, we can punish you — but the government is not allowed to do that. That’s why we have the First Amendment.”

The rule has been in the Parent Code since 2016, but nobody reads these things. It is coming to the fore now because the district is currently keeping a teacher on its payroll despite allegations of sexual misconduct toward a student. Some parents have been discussing the situation on Facebook, and wonder about the school’s response. The district made a point of  handing out copies of the Parent Code of Conduct at a December school board meeting, and it was taken by many as a warning. Continue reading →

Ethics Dunce State: California (Who Else?)

/ Jack Marshall / 17 Comments

We don’t need further evidence that the Golden State has jumped the ethics shark, has general contempt for the Bill of Rights and is in thrall to Alinskyite “ends justify the means” rationalizations, but here it is anyway. California state lawyers tried to defend in federal court an old law, California Penal Code §26820, which read:

No handgun or imitation handgun, or placard advertising the sale or other transfer thereof, shall be displayed in any part of the premises where it can readily be seen from the outside.

Now, don’t ask me how a law like lasted as long as it has; the thing is 95 years old. But it’s embarrassingly unconstitutional. That’s prior restraint by definition. If a first year law student, or a well-educated college student (if thee are such things), reads that law, the First amendment alarms have to start ringing. Why wouldn’t California just repeal such a law, quietly, so as not t embarrass the state? Why wouldn’t California, like a state with some integrity that supports  core U.S. values, just concede to the Court that the law is a dud, and not oppose the claim that it is illegal? I think we have to assume that is because the culture of this particular state has rotted through. It doesn’t support core U.S. values like the freedom of speech, which might be the most vital of them all. Continue reading →

The Hitler Joke, Our Rights, And Our Nation

/ Jack Marshall / 49 Comments

Prologue

When I was a junior in high school, I played Ko-Ko in  the Gilbert and Sullivan Club’s production of “The Mikado.” The head of the music department directed, a Jewish teacher named Mr. Einsig. He had the staging notes for all of the Gilbert and Sullivan works from the director who had gained great acclaim from his work with the Boston Light Opera Company, and I must admit, I cribbed many of that director’s ideas myself, through Mr. Einsig.One effective  staging concept was for the encores to “The Flowers That Bloom in the Spring.” Each one was performed as a different ethnic parody, with Ko-Ko singing translated lyrics. It began with Japanese, of course, then French, a Brooklyn dialect, and the biggest hoot of them all, German. I performed it, in my kimono, with an over-the-top Hitler imitation, complete with mustache, ending with an emphatic “Heil” gesture.

It brought down the house. Ten years later, at Georgetown University Law Center, I played Ko-Ko again, did the same Hitler parody again, and brought down the house again. Nobody complained. My late father, crippled for life in the fight against Hitler, detected nothing wrong with the routine. He also loved “Hogan’s Heroes,” with the show’s reluctant, inept, heiling Nazis, and the other Heil-filled spoofs of Hitler by Chaplin, Mel Brooks, and even the Three Stooges.

Now here is what happened to a private school teacher: read the whole, awful thing here. The short version: he was gesturing while explaining something in class, and noticed that his arm was raised Nazi-style, and said, “Heil Hitler,” jokingly. There was no question whether he was serious or not: everyone knew he was joking, and why he was joking. He even stopped and explained to the class that Once Upon A Time, in less enlightened eras, it was considered amusing to mock Hitler and the Nazis.

Ben Frisch, the teacher, a practicing Quaker  whose father was Jewish and who had two great-grandmothers  killed at Auschwitz, was fired by the private school anyway. The school principal who fired him explained his reason to the New York Times magazine  by saying, “One of our pledges is to make all of our students feel safe. And that is something that I take very, very seriously.”

Says the Times reporter in part in reaction to this: Continue reading →

Afternoon Ethics Warm-Up, 8/29/2018: Amazingly, There Are More Important Ethics Developments Than How Long The White House Flag Was At Half-Mast…

/ Jack Marshall / 26 Comments

Gooooood Morning!

1 It’s not just bias–ignorance also makes you stupid, Part I. On Fox News this morning, they were breathlessly talking about the importance of stopping the publishing of those evil blue-prints of 3-D printable guns. Why, last year, a plastic gun got through TSA security, and it was loaded! And those 3-D printed guns are cheaper than ever! (nobody mentioned that making a 3-D gun that shoots is still incredibly expensive.)

The report was like science fiction, and the woman in a protesting group who said that these guns needed to be stopped NOW! should have had her head wreathed in tin foil. Did Fox discuss the First Amendment issues? No. Did Fox explain that anyone can make their own gun without a 3-D printer? No. Did Fox explain anything relevant to the actual case? Of course not. Did Fox point out that the judge who just issued the injunction admitted that his action abridged speech? No, not that either.

And no, the other news networks weren’t any better.

2. California is ending cash bail. Good. It may backfire, but a statewide experiment somewhere is needed. Bail may be a necessary evil, but the long-time criticism of the system as being biased against the poor has validity, if not a solution. Not every idea Jerry Brown has is bad, just most of them. My guess is that this will be a PR and political disaster, but hey, I don’t live there. The first time a “non-violent” accused criminal kills someone while on his own recognizance, the someone won’t be anyone in my…oops, I forgot, I have a nephew and a niece in California. Well, they’re rabid Democrats and progressives, so they have consented to the risk, I guess.

Amusing reaction: The bail-bondsmen say that they’ll leave the state if this policy stays. Well, of course. Why wouldn’t they leave? What kind of a threat is that?

3. It’s not just bias–ignorance also makes you stupid, Part II A poll says that a majority of the public can’t name a single member of the Supreme Court, despite a large majority believing that the Court’s decisions greatly affect their daily lives. Worse, most of the public thinks the Court is a partisan body, like Congress, because most of the public doesn’t know the difference between the Supreme Court and an ice cream cones, and virtually none of the public has read a single Supreme Court opinion all the way though in their entire lives. No wonder  the Democrat fear-mongering about Judge Kavanaugh is regarded as a smart tactic. Ignorant people are the easiest to con. Conned people warp our democracy.

That’s why it is unethical to be ignorant. Continue reading →

Ominous Anti-Free Speech Quote Of The Year: U.S. District Judge Robert Lasnik

/ Jack Marshall / 37 Comments

“The Court declines to wade through these issues based on the limited record before it and instead presumes that the private defendants have a First Amend ment right to disseminate the CAD files. That right is currently abridged, but it has not been abrogated. Regulation under the AECA means that the files cannot be uploaded to the internet, b ut they can be emailed, mailed, securely transmitted, or otherwise published within the United States. The Court finds that the irreparable burdens on the private defendants’ First Amendment rights are dwarfed by the irreparable harms the States are likely to suffer if the existing restrictions are withdrawn and that, overall, the public interest strongly supports maintaining the status quo through the pendency of this litigation.”

—U.S. District Judge Robert Lasnik, in his preliminary injunction issued today blocking the federal government from allowing publication of the blueprints of 3-D printable guns.

The injunction will stand until final resolution of the multi-state lawsuit seeking to keep the blueprints offline. Lasnik had issued a temporary restraining order in the case July 31, prompting this post, which states the Ethics Alarms position still:

“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.”

If Lasnik’s langauge about “abridged, but it has not been abrogated” doesn’t send chills down your spine, I guess that means you’re a typical progressive or Democrat these days. The First Amendment says that “Congress shall make no law…abridging the freedom of speech,” meaning that the judge here admits that his ruling and the law suit are efforts to cut another chunk out of our core national values. But hey, it’s all cool! The ends justify the means, and we all know that guns are bad. That Second Amendment thingy? Once we take down the First, the Second will be a piece of cake.

As was discussed at length in the excellent thread on the previous post, it’s a long, long way, not just from May to December, but also from having the blueprint of a #-D printable gun and actually having a gun. Does the judge full comprehend that? I doubt it very much. If there is one theme that runs through judicial decisions and opinion involving rapidly evolving technology, it is that most judges and too many lawyers don’t understand the technology well-enough to regulate it or make coherent policy.

I still think this is such an obvious example of prior restraint that the Supreme Court will knock it down, especially after Kavanaugh joins the Court, and I hope I am wrong that the anti-Second Amendment liberal wing will unite in dissent, but I believe that is likely.

Sigh.

Ought I to say this? What the hell….

I am increasingly coming to believe that what is really at stake in the upcoming elections is the Bill of Rights, and perhaps our democracy itself.  The “resistance’s” attempt to undo the election of President Trump is just part of a long-term, concerted assault on our institutions, by a growing faction that believes that freedom and liberty are too dangerous to be left in the wrong hands, and must be constrained—abridged, so to speak—by those who know best.

Them.

________________________

Pointer and Source: ABA Journal

Regarding Twitter, Free Expression, Alex Jones, Social Media Censorship, And “Fake News”

/ Jack Marshall / 18 Comments

zipper on mouth

The journalism ethics site Poynter begins a story today , “Over the past couple of years, Twitter has done the bare minimum to fight fake news, avoiding the kind of negative press that has plagued Facebook in the process.”

Talk about a bad start. No social media platform is qualified to “fight fake news” except to allow participants to make their own cases regarding what is fake news and what isn’t. They can and do indulge in incompetent, biased and often partisan censorship, covering their tracks by employing “factcheckers” that themselves can’t be trusted not to indulge their biases and political agendas, of course. That’s what Facebook has been doing, and, proving that there is justice in the universe, suffering for it.

Twitter hasn’t been censoring what it calls fake news; it’s just been using double standards to ban conservatives for “hate speech” when parallel leftist rhetoric gets past the gate-keepers. Federalist writer Elizabeth Kantor, for example, was kicked off twitter for this tweet in tongue-in-cheek support for the new racist New York Times editor:

“@sarahjeong This whitey is cheering you on as you fight off the Twitter mob. Down with deplatforming! Plus, it’s clarifying abt. what kind of paper the NYT wants to be . . .”

Twitter told her had engaged in “hateful conduct” that violates Twitter’s terms of service: “Violating our rules against hateful conduct.You may not promote violence against, threaten, or harass other people on the basis of race, ethnicity, national origin…”

Jeong, however, who had started the hashtag “#CancelWhitePeople” as well as many other anti-white, anti-male Twitter content, remains a valued Twitter user.

Twitter not only is partisan and biased, it also has no integrity. What upset Poynter is that Twitter didn’t join Apple, Facebook and others in their Sunday Night Purge of right-wing wacko Alex Jones. The fact that it banned Kantor for one innocuous political tweet and not her target for dozens of racist ones doesn’t seem to bother Poynter’s unethical ethicists, just that it hasn’t joined the effort to silence Jones online.  Twitter, its says, is failing its duty to combat “misinformation.”

Here was the message from the Twitter CEO, communicated, naturally, in a series of tweets:

We didn’t suspend Alex Jones or Infowars yesterday. We know that’s hard for many but the reason is simple: he hasn’t violated our rules. We’ll enforce if he does. And we’ll continue to promote a healthy conversational environment by ensuring tweets aren’t artificially amplified. Truth is we’ve been terrible at explaining our decisions in the past. We’re fixing that. We’re going to hold Jones to the same standard we hold to every account, not taking one-off actions to make us feel good in the short term, and adding fuel to new conspiracy theories. If we succumb and simply react to outside pressure, rather than straightforward principles we enforce (and evolve) impartially regardless of political viewpoints, we become a service that’s constructed by our personal views that can swing in any direction. That’s not us.Accounts like Jones’ can often sensationalize issues and spread unsubstantiated rumors, so it’s critical journalists document, validate, and refute such information directly so people can form their own opinions. This is what serves the public conversation best.

In an earlier tweet from another Twitter account, Twitter stated,

“As we have stated publicly, we strongly believe Twitter should not be the arbiter of truth nor do we have scalable solutions to determine and action what’s true or false.”

Bingo. Continue reading →

Unethical Quote Of The Month: Apple, Or “Stop Making Me Defend Alex Jones!”

/ Jack Marshall / 22 Comments

“Apple does not tolerate hate speech, and we have clear guidelines that creators and developers must follow to ensure we provide a safe environment for all of our users. Podcasts that violate these guidelines are removed from our directory making them no longer searchable or available for download or streaming. We believe in representing a wide range of views, so long as people are respectful to those with differing opinions.”

—-A spokesperson for Apple last week, following confirmation that it had removed five out of six podcasts by far-right conspiracy theorist Alex Jones,  including “The Alex Jones Show” and some of his InfoWars audio streams. 

This is a terrifying statement…almost as terrifying as the fact that so many Americans won’t understand why it’s terrifying. Unless one does not understand the First Amendment and why its principles are the beating heart of American democracy, or unless you are an increasingly typical 21st Century progressive, who feels that the Left should have the power to decide what kind of speech is tolerable, Apple is telling us that it is going to use its immense power and influence over the distribution of ideas to suit its preferences regarding what people should see, hear, and think. Continue reading →

Afternoon Ethics Jolt, 8/1/2018: When You Cross Fake News, Dishonest Journalism, Anti-Gun Hysteria, Ignorance And “The Resistance,” What Do You Get?

/ Jack Marshall / 34 Comments

 A new freakout!

…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 →