We have been discussing the shocking abandonment of journalistic principles by the New York Times in its recent apology for publishing a column by a United States Senator and forcing out an editor who had the audacity to publish an opposing view of the current protests. The newspaper effectively declared echo-journalism to be its new mission. Now another opinion writer and editor, Bari Weiss, has resigned after what she called an “illiberal environment” where she has been harassed and abused by other reporters without any intervention from the management. In a scathing resignation letter, Weiss called the Times a “Digital Thunderdome.”
Below is my column in the Hill newspaper on the commutation of the sentence of Roger Stone and the objections from various commentators and politicians that it was an unprecedented abuse of this constitutional power. The political outcry was predictable but it was also accompanied by an ahistorical treatment in Congress and the press. Many leaders lined up to cast the first Stone comment on how it was an unprecedented act despite their own relative silence during past abuses of presidential clemency. Speaker Nancy Pelosi declared that the commutation was “an act of staggering corruption” for someone who “could directly implicate him in criminal misconduct.” House Intelligence Committee Chairman Adam Schiff declared that the commutation left him “nauseous.” Of course, Pelosi, Schiff, and other Democrats seemed to have greater stability and intestinal fortitude after Bill Clinton’s pardoning of his own brother (Roger Clinton), a fugitive Democratic donor (Marc Rich), or his longtime friend (Susan McDougal) who was convicted in an investigation that implicated both Bill and Hillary Clinton. Likewise, Mitt Romney seemed to echo Toobin’s view (below) in declaring this an “unprecedented, historic corruption” when “an American president commutes the sentence of a person convicted by a jury of lying to shield that very president.” However, Romney long heralded his respect and support of President George H.W. Bush despite Bush’s executive clemency actions for six former senior government officials implicated in the Iran-Contra scandal, including former Secretary of Defense Caspar Weinberger. Bush himself was implicated in that scandal and some alleged was protected by their silence. Nevertheless, this Society of Historical Revisionism appears to be expanding with members expressing utter shock at the notion of a president abusing the pardon power. There were no calls for investigations or new legislation from these politicians at the time. So, to paraphrase John 8:7, let he or she “without sin among you,” cast the first Stone criticism.
Here is the column:
A New York City education council meeting recent attracted national attention after one member of the council (and its past President), Robin Broshi, accused another member, Thomas Wrocklage, of racism after he was seen in a zoom meeting bouncing a black child on his lap. The video below is rather breathtaking but the incident has led to countervailing claims of racism and slander. As is often the case, we tend to jump on any novel torts claims and this is a good example of the tension between opinion and slander, particularly in such overheated (indeed radioactive) moments in public debates. It is unfortunately an increasingly common legal question in today’s rage-filled politics. The video of his meeting has now been shown throughout the world. However, it has some interesting elements as a pedagogical tool for understanding the underlying applicability of tort liability, or lack thereof.
House Speaker Nancy Pelosi declined to condemn the destruction of a statue of Christopher Columbus in the city of Baltimore (where she was born and raised) yesterday in the latest example of politicians enabling such mob action with their silence. When asked about a mob pulling down the statue and dumping it in the harbor (with no interference from police), Pelosi simply declared “People will do what they do.” Indeed, they will when leaders refuse to condemn their conduct. Her comment explains why a recently arrested supporter of Antifa declared that they are winning in the campaign to destroy statues and memorials. Update: Maryland Governor Larry Hogan blasted Pelosi for being out of touch with her comments. Rather than pander to the most extreme elements of these protests, Hogan insisted “while efforts towards peaceful change are welcome, there is no place in Maryland for lawlessness, vandalism, and destruction of public property.”
We have been discussing the targeting of professors who voice dissenting opinions about the Black Lives Matter movement, police shootings, or aspects of the protests around the country from the University of Chicago to Cornell to Harvard to other schools. However, student face even greater pressure to conform to a new orthodoxy enforced on our campuses. An example is conservative Georgetown University junior Billy Torgerson who was the subject of a formal resolution of condemnation by the Georgetown University Student Association as well as a call for a bias complaint to the university. The reason is a column posted on his own website entitled “A Nation Of Virtuous Individuals” in which he espouses widely held conservative views of the law and patriotic views of the country.
Many years ago, I had the pleasure of speaking at Tsinghua University, considered one of the best educational institutions in China. I was impressed as faculty at the university struggled to remain intellectually active under the repressive controls of the Communist regime. It is a perilous existence as academics fear that they will write anything that annoys the government. Now, one of the best known law professors in China, Xu Zhangrun, has been arrested. Xu predicted the crackdown after he recently wrote a piece criticizing the government’s response to the coronavirus. His colleagues have been forced into silence at the risk of their own arrest. The arrest comes at a time when many are concerned about the loss of free speech in this country, not by the government but private companies and universities. I have chastised faculty around the country for their silence in the face of the increasing intolerance for opposing views on campuses and actions against professors raising dissenting views of the current protests. Indeed, many have joined in the call for such punitive measures. Xu is an example of the courage that academics in places like China have shown in the face of imminent threats to their liberty and even their lives.
We have previously discussed the destruction of statues and the refusal of mobs to allow society as a whole to decide what statues should be removed. That debate is now occurring though the destruction has continued often with little comment, let alone action from universities or local governments. This includes the Columbus statue in Little Italy in Baltimore which was torn down and thrown into the harbor with no action from the police. In an opinion piece published in The New York Times, Lucian K Truscott IV, has called for the tearing down of the Thomas Jefferson memorial. As a descendant of the former President, his call has attracted considerable attention. At the same time, leaders like Sen. Tammy Duckworth (R., IL.), a leading candidate to be the vice presidential candidate with former Vice President Joe Biden, has said that she is open to the idea of tearing down the statue to George Washington. There are also recent demands to remove the statues of Abraham Lincoln.
The problem with never admitting a mistake as President is that it requires others to defend it no matter how indefensible. That is the problem with declaring that “99 percent” of U.S. coronavirus cases are “totally harmless” is that statistics are tricky things that often demand actual proof. Mark Twain once said “facts are stubborn things, but statistics are pliable,” just not this pliable. Rather than just admit that the President overstated this point, the White House proceeded to try to prove the unprovable with predictably ridiculous results. Even the President’s top health advisers refused to support the statement. It is another example of the expenditure of unnecessary energy and focus to avoid admitting a mistake. One can still maintain that most people exposed to this virus show mild or no symptoms without dying on this statistical hill (with graphs that actually show that the statistical claim is wrong).
Below is my column in The Hill on the increasingly common rationalization that looting and property damage is a long-standing tradition first embraced by the Sons of Liberty in the Boston Tea Party. That historical analogy was very popular in the days before the Fourth of July. A professor made the comparison on CNN on the Fourth. The view is widely raised in universities like the column in the University of Arizona’s Daily Wildcat newspaper declaring “The Boston Tea Party was when we first saw looting as a form of protest in America. White people acting out in anger is literally celebrated in our history books.” Likewise, at the University of Dayton last week, a column stated “There is something to be said when our White founders destroying British property in the Boston Tea Party is glorified in every textbook, but burning down a Target for the rights of African Americans to simply breathe is damned in the media.”
It is a revisionist historical argument that is as convenient as it is wrong. While the Framers would have supported the vast majority of protesters who engaged in peaceful demonstrations for reform and racial equality, the Sons of Liberty would have been the first to denounce the concept of wanton property destruction or looting as a means for social change.
Here is the column:
We have been discussing the free speech issues raised by efforts to terminate professors who criticize the Black Live Matter Movement or aspects of the protests following the killing of George Floyd. However, there is another such controversy with the inverse fact pattern. Claira Janover has been fired as an “incoming government and public business service analyst” at Deloitte after posting a video that suggested that she would stab people who said “all lives matter.” Yesterday, we discussed a dean at the University of Massachusetts who says that she was fired for using such a line in an email. Ironically, Janover shows the same intolerance for anyone with an opposing view, but the case still raises some of the same free speech issues that we have previously discussed, including the punishment of individuals for their social media postings.
In Washington, U.S. District Judge Timothy J. Kelly has ruled against the Trump Administration in its important “third-country asylum rule” — prohibiting undocumented immigrants from claiming asylum in the United States if they did not first try to claim it in a country they passed through on their way to the U.S. border. The ruling is yet another example of how basic failures to follow procedure or submit supporting evidence has hampered the rollout of major policy initiatives. Kelly was not questioning the underlying deference to the Administration or the ultimate merits. Rather as in the recent loss before the Supreme Court under DACA (or the Deferred Action for Childhood Arrivals program), the court found that the government had failed to satisfy the minimal requirements of the Administrative Procedure Act, or APA. Since the start of the Administration, there has been a lack of attention to detail and basic procedure that has resulted in a series of technical violations. It has incurred losses that were not only avoidable but easily avoidable with adherence to the governing case law on the APA.
In a Fox interview last night, the stepmother of ex-Atlanta police officer Garrett Rolfe raised what clearly sounds like a claim of defamation against her former employer Equity Prime Mortgage in Atlanta. Melissa Rolfe says that she was fired after her step son was charged with the murder of Rayshard Brooks. Her firing has been in the news, but the legal standing of Rolfe seemed questionable to challenge the termination. She appears to be an “at will” employee who can ordinarily be fired, as it is often said, for “good reason, bad reason, or no reason at all” (absent the violation of a statutory or constitutional protection). However, it appears that she may be contemplating a lawsuit based not on the termination by Equity Prime Mortgage but how the company explained the termination after it was criticized for allegedly firing Rolfe simply because of her son. That could present an interesting defamation action and a cautionary tale for companies in dealing with such high-profile matters.