Category: Robin Ridless

The 'Case Study' against Trump and the Threat of Nazi Psychiatry


The cry-in-their-beer plaint in Politico recently by Bandy X. Lee and Leonard L. Glass, co-editors of the anthology The Dangerous Case of Donald Trump, has a tell.  It argues that the mental health professionals in their anthology, in promoting a certain view of the president’s behavioral health, are not violating the ethical canons of their profession.  Yet the denial doesn’t link to the contested rule – or rather, it links selectively and partially, to a secondary gloss that appears to support the co-editors’ position, which is that the mental health contributors to the anti-Trump anthology are righteous rebels against an unreasoning and callous bureaucracy. 

Hardly.  The Goldwater rule – to step back – is a provision in the code of ethics of the American Psychiatric Association (APA) prohibiting member-psychiatrists from diagnosing public figures without personally examining them.  It is designed to prevent psychiatrists from misusing their “science” to propagandize.  If psychiatrists could throw their weight around in political battles, they could sell themselves to the highest bidder.  Not to say they haven’t, but the rule puts up an impediment.

That’s where Lee and Glass’s P.R. comes in.  Psychiatrists on the faculties of Yale and Harvard, respectively, they claim that a March 2017 opinion by the APA unduly expanded the longstanding Goldwater rule.  In direct contradiction to this characterization, the APA said the issued opinion “reaffirms” it.  This is a basic difference. 

Lee and Wolff use the difference to suggest that the authors in their raucously anti-Trump anthology (27 practitioners all told) are acting consistent with their “duty to the public” and that it is management who is deviating from precedent by “gagging” them.  This is uncorroborated and will probably stay so – first, because there is no such thing as a “duty to the public” (more on that below), and second, it isn’t unusual for a professional organization to issue opinions like the one the APA published in March fleshing out its specific principles.  If the APA wanted to alter one of its standing rules, presumably, it would have said so.  It could then have ushered in an orderly transition.  The notorious background of the rule’s adoption bespeaks the need for special care in this area. 

What is this controversial history that non-specialists know little about?  The rule was established in 1973, after Barry Goldwater won a defamation lawsuit against FACT magazine for an article impugning his mental state and fitness for office.  The armchair diagnosis was assembled with the help of working psychiatrists, who had been sent a questionnaire about their observations of Goldwater’s public conduct during his 1964 presidential run.  For the story of how the media destroyed the reputation of a good man and its obvious parallels to Donald Trump, see this excellent piece in City Journal.  What is important here is that the machinations of the defendant in that case, a famous, politically influential editor, were so egregious that Goldwater was able to pull off a win.  Since he was a public figure held to the near impossible evidentiary standard of “actual malice,” the odds were against him.

So with Goldwater’s victory, with egg on its face, the APA passed the rule as a prophylactic measure.  It has served ever since as an antidote to those free-wheeling professionals who would as soon harm the profession as see their faces in Vanity Fair.  Now a ring of mental health practitioners palpitating for the limelight are flouting the rule to do a hit job on Trump.  They are arguing that Trump’s erratic personality presents a special hazard justifying their disobedience, which they refuse to call disobedience because of the alleged unfairness of the “new” interpretation. 

A plain reading of the APA guidance is enough to show that the restraints the APA is imposing on its members are acceptable time, manner, and place speech restrictions.  But even if the Goldwater rule was radically extended last March, there’s a case to be made, based on research emerging decades after the Goldwater takedown, that due to psychiatry’s long, ignoble and regrettable history of prostituting itself to the power classes, the original Goldwater Rule didn’t go far enough.  Far from hampering psychiatrists from doing their civic duty, as it is now claimed, the rule might have had with more stringent limitations to begin with.  It is safe to say the recent clarification and construal by the APA provided a needed supplement.

The research I just referred to is revelant to our historical moment, though it is determinedly ignored by these star psychiatrists acting as high-level apologists for the Trump impeachment movement.  In the early 2000s, a slew of studies came out showing that psychiatrists were the original architects of Nazi genocide through their early philosophical and scientific support of child euthanasia and other moral abominations.  Somewhat later, psychiatrists played a key role in legitimizing Nazi horrors by furnishing medical rationales.  Far from being “passive enablers,” as Lee and Glass trendily put it in a reference to the unclean hands of these psychiatrists, they sadistically facilitated and augmented Nazi crimes.  Not so unlike the current group, they claimed that their interventions at the highest level of politics were advantageous to society. 

Further, since World War II, the psychiatric profession’s record hardly argues for complete vindication.  Its record of involvement in social engineering, collaboration with the insurance industry to medicalize normal behavior, and rabid factionalism leaves much to be desired.  Internationally, mental health professionals have infamously collaborated in the pathologization of political opponents in the Soviet Union, China, and Apartheid South Africa. 

This spotty past underscores the importance of a robust Goldwater Rule.  Yet the Politico article asks us to credit the appeal of a small group of self-promoters who, even in the view of the heads of the relevant professional associations, are using their clinical experience as an illicit weapon of political intrigue.  The article asks us to accept that they are mavericks breaking free, sacrificing the approval of their betters in order to tell the truth about Donald Trump.  Of course, the group frames its ethical breaches in selfless terms.  What ideologue doesn’t? 

This goes beyond psychiatrists providing cover for a political coup.  It risks harm to the doctor-patient relationship.  The APA and other mental health associations have repeatedly voiced concerns about this.  They point out that when laypeople see mental health professionals indulging publicly in irresponsible partisanship, they are likely to have misgivings about the profession as a whole.  Patients and would-be patients might doubt the scientific rigor and personal integrity of the professionals with whom they have occasion to interact.  Indeed, hearing Bandy Lee and Leonard Glass culling data for their assessment of the president from the chintzy tell-all of “the journalist Michael Wolff,” who could blame them?

Lee and Glass get around the exposure they’re creating for their more prudent colleagues by ignoring it.  Instead, they prate about their duty to the public to expose the imminent threat posed by Trump’s behavior to our collective safety and well-being.  Thing is, as mentioned earlier, in the legal realm, no such prescribed duty to the public exists.  The psychiatrists who invoke one are either flattering themselves with a noble-sounding conceit or making their martyrdom up out of whole cloth.  Innkeepers have duties under the law.  So do seatbelt manufacturers and an assortment of others.  Shrinks who write careerist bestsellers do not.

Unable to point to a tort-law basis for this “duty to question” (the exact language of this alleged duty changes with varying presentations), the article references, without citation, a prior “ethics code” that “obligates psychiatrists to ‘participate in activities contributing to … the betterment of public health.'”  Okay, that’s fine.  The same could be said to be incumbent upon any good citizen.  But this generalized expectation to work for the public good is a far cry from the Machiavellian gambit of  detecting “signs” of “danger” in one’s political enemies and then day-tripping to D.C. to “confidentially” share one’s findings with “legislators.”  Notably, one of the major researchers in Nazi psychiatry asserts that it was precisely this sort of  intoxicating sense of mission to direct society’s fate that led psychiatrists in the Third Reich to lose sight of the welfare of individual patients and spearhead their evil schemes.

No, what we have here is a disgruntled elite longing to recover a sense of its former prestige and authority.  Even the title of the book, The Dangerous Case of Donald Trump, plays on the scientific term case study to paint these authors as having superior perception and judgment.  But it’s no use.  The public has already demonstrated its loss of faith in technocrats whose intellectualist tinkering promises perfection but never succeeds in making life better for anybody but the people doing the tinkering in the first place.

As psychiatrists, Lee and Glass should be able to accept the change.  Okay, sure, they are upset under Trump at their loss of imputed omniscience.  We get it.  Still, someone ought to gently counsel them that no amount of grandiosity and magical thinking is going to restore their former glory.

The cry-in-their-beer plaint in Politico recently by Bandy X. Lee and Leonard L. Glass, co-editors of the anthology The Dangerous Case of Donald Trump, has a tell.  It argues that the mental health professionals in their anthology, in promoting a certain view of the president’s behavioral health, are not violating the ethical canons of their profession.  Yet the denial doesn’t link to the contested rule – or rather, it links selectively and partially, to a secondary gloss that appears to support the co-editors’ position, which is that the mental health contributors to the anti-Trump anthology are righteous rebels against an unreasoning and callous bureaucracy. 

Hardly.  The Goldwater rule – to step back – is a provision in the code of ethics of the American Psychiatric Association (APA) prohibiting member-psychiatrists from diagnosing public figures without personally examining them.  It is designed to prevent psychiatrists from misusing their “science” to propagandize.  If psychiatrists could throw their weight around in political battles, they could sell themselves to the highest bidder.  Not to say they haven’t, but the rule puts up an impediment.

That’s where Lee and Glass’s P.R. comes in.  Psychiatrists on the faculties of Yale and Harvard, respectively, they claim that a March 2017 opinion by the APA unduly expanded the longstanding Goldwater rule.  In direct contradiction to this characterization, the APA said the issued opinion “reaffirms” it.  This is a basic difference. 

Lee and Wolff use the difference to suggest that the authors in their raucously anti-Trump anthology (27 practitioners all told) are acting consistent with their “duty to the public” and that it is management who is deviating from precedent by “gagging” them.  This is uncorroborated and will probably stay so – first, because there is no such thing as a “duty to the public” (more on that below), and second, it isn’t unusual for a professional organization to issue opinions like the one the APA published in March fleshing out its specific principles.  If the APA wanted to alter one of its standing rules, presumably, it would have said so.  It could then have ushered in an orderly transition.  The notorious background of the rule’s adoption bespeaks the need for special care in this area. 

What is this controversial history that non-specialists know little about?  The rule was established in 1973, after Barry Goldwater won a defamation lawsuit against FACT magazine for an article impugning his mental state and fitness for office.  The armchair diagnosis was assembled with the help of working psychiatrists, who had been sent a questionnaire about their observations of Goldwater’s public conduct during his 1964 presidential run.  For the story of how the media destroyed the reputation of a good man and its obvious parallels to Donald Trump, see this excellent piece in City Journal.  What is important here is that the machinations of the defendant in that case, a famous, politically influential editor, were so egregious that Goldwater was able to pull off a win.  Since he was a public figure held to the near impossible evidentiary standard of “actual malice,” the odds were against him.

So with Goldwater’s victory, with egg on its face, the APA passed the rule as a prophylactic measure.  It has served ever since as an antidote to those free-wheeling professionals who would as soon harm the profession as see their faces in Vanity Fair.  Now a ring of mental health practitioners palpitating for the limelight are flouting the rule to do a hit job on Trump.  They are arguing that Trump’s erratic personality presents a special hazard justifying their disobedience, which they refuse to call disobedience because of the alleged unfairness of the “new” interpretation. 

A plain reading of the APA guidance is enough to show that the restraints the APA is imposing on its members are acceptable time, manner, and place speech restrictions.  But even if the Goldwater rule was radically extended last March, there’s a case to be made, based on research emerging decades after the Goldwater takedown, that due to psychiatry’s long, ignoble and regrettable history of prostituting itself to the power classes, the original Goldwater Rule didn’t go far enough.  Far from hampering psychiatrists from doing their civic duty, as it is now claimed, the rule might have had with more stringent limitations to begin with.  It is safe to say the recent clarification and construal by the APA provided a needed supplement.

The research I just referred to is revelant to our historical moment, though it is determinedly ignored by these star psychiatrists acting as high-level apologists for the Trump impeachment movement.  In the early 2000s, a slew of studies came out showing that psychiatrists were the original architects of Nazi genocide through their early philosophical and scientific support of child euthanasia and other moral abominations.  Somewhat later, psychiatrists played a key role in legitimizing Nazi horrors by furnishing medical rationales.  Far from being “passive enablers,” as Lee and Glass trendily put it in a reference to the unclean hands of these psychiatrists, they sadistically facilitated and augmented Nazi crimes.  Not so unlike the current group, they claimed that their interventions at the highest level of politics were advantageous to society. 

Further, since World War II, the psychiatric profession’s record hardly argues for complete vindication.  Its record of involvement in social engineering, collaboration with the insurance industry to medicalize normal behavior, and rabid factionalism leaves much to be desired.  Internationally, mental health professionals have infamously collaborated in the pathologization of political opponents in the Soviet Union, China, and Apartheid South Africa. 

This spotty past underscores the importance of a robust Goldwater Rule.  Yet the Politico article asks us to credit the appeal of a small group of self-promoters who, even in the view of the heads of the relevant professional associations, are using their clinical experience as an illicit weapon of political intrigue.  The article asks us to accept that they are mavericks breaking free, sacrificing the approval of their betters in order to tell the truth about Donald Trump.  Of course, the group frames its ethical breaches in selfless terms.  What ideologue doesn’t? 

This goes beyond psychiatrists providing cover for a political coup.  It risks harm to the doctor-patient relationship.  The APA and other mental health associations have repeatedly voiced concerns about this.  They point out that when laypeople see mental health professionals indulging publicly in irresponsible partisanship, they are likely to have misgivings about the profession as a whole.  Patients and would-be patients might doubt the scientific rigor and personal integrity of the professionals with whom they have occasion to interact.  Indeed, hearing Bandy Lee and Leonard Glass culling data for their assessment of the president from the chintzy tell-all of “the journalist Michael Wolff,” who could blame them?

Lee and Glass get around the exposure they’re creating for their more prudent colleagues by ignoring it.  Instead, they prate about their duty to the public to expose the imminent threat posed by Trump’s behavior to our collective safety and well-being.  Thing is, as mentioned earlier, in the legal realm, no such prescribed duty to the public exists.  The psychiatrists who invoke one are either flattering themselves with a noble-sounding conceit or making their martyrdom up out of whole cloth.  Innkeepers have duties under the law.  So do seatbelt manufacturers and an assortment of others.  Shrinks who write careerist bestsellers do not.

Unable to point to a tort-law basis for this “duty to question” (the exact language of this alleged duty changes with varying presentations), the article references, without citation, a prior “ethics code” that “obligates psychiatrists to ‘participate in activities contributing to … the betterment of public health.'”  Okay, that’s fine.  The same could be said to be incumbent upon any good citizen.  But this generalized expectation to work for the public good is a far cry from the Machiavellian gambit of  detecting “signs” of “danger” in one’s political enemies and then day-tripping to D.C. to “confidentially” share one’s findings with “legislators.”  Notably, one of the major researchers in Nazi psychiatry asserts that it was precisely this sort of  intoxicating sense of mission to direct society’s fate that led psychiatrists in the Third Reich to lose sight of the welfare of individual patients and spearhead their evil schemes.

No, what we have here is a disgruntled elite longing to recover a sense of its former prestige and authority.  Even the title of the book, The Dangerous Case of Donald Trump, plays on the scientific term case study to paint these authors as having superior perception and judgment.  But it’s no use.  The public has already demonstrated its loss of faith in technocrats whose intellectualist tinkering promises perfection but never succeeds in making life better for anybody but the people doing the tinkering in the first place.

As psychiatrists, Lee and Glass should be able to accept the change.  Okay, sure, they are upset under Trump at their loss of imputed omniscience.  We get it.  Still, someone ought to gently counsel them that no amount of grandiosity and magical thinking is going to restore their former glory.



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Fusion GPS Gets a Rude Awakening


In the wake of the ruling, Fusion’s lawyer vowed to keep fighting, but the transfer since then of the 70 documents at issue mooted any possible appeal.  While the dispute is now resolved, in an age of “notional accuracy” in reporting, Judge Leon’s decision bears emphasis.  For a refreshing change of pace, it stands as a mini-case study in the fecklessness of flash.  It is a little jewel of a decision in a grand tiara of legal maneuverings that sparkles with the value of nerdy lawyering over media-driven cant.

Which chronically retold lies or misunderstandings caused Fusion’s fall last week from the constitutional-defensive moral high ground it took in protesting the handing over of its bank records with clients who, according to the House Intel Committee, had Russian companies as their clients?  They are simple.  They relate to the original formation of the House Intel Committee’s probe into Russian collusion, as well as of the House Ethics Committee’s investigation of committee chairman Representative Devin Nunes.

The latter ethics investigation was brought last April in response to accusations filed against Nunes by “several left-wing activist groups” with the Office of Congressional Ethics.  The complaints, of which Nunes has since been cleared, alleged that he had made unauthorized disclosures of classified information.  These related to his briefing of the White House and press, before he spoke to the committee, about certain documents provided to him by administration officials purporting to show evidence of questionable unmasking by Obama administration officials.  In response, Nunes volunteered to temporarily relinquish the running of the Russian investigation.

Afterward, he stepped away, as promised.  But in the months that followed, Dems complained that the Republican-dominated committee probe was tainted, despite Nunes’s “recusal,” due to his continuing interference in the investigation.  What was the nature of this interference?  He continued to issue subpoenas on tributary matters – for instance, those relating to emerging new reporting on the Uranium One deal.  All this happened before the showdown last week over the Fusion subpoena, but what is noteworthy is that the motion attempting to block the subpoena reprised Democrats’ version of committee events.

Indeed, Fusion swallowed whole the Dems’ negative propaganda from last spring in its effort to thwart the committee’s examination of its financial transactions.  Specifically, it contended in its motion to the district court that the committee never collectively passed the required formal public resolution authorizing its investigation into Russian collusion.  Further, since Nunes had “recused” himself from the investigation, such as it was, in issuing the subpoena to TD Bank, he acted ultra vires, or “outside the scope of his authority.”

Now, compare this legal theory to the exact wording of Nunes’s April 2017 announcement of his stepping aside in the wake of the then newly filed ethics charges:

Despite the baselessness of the charges, I believe [that] it is in the best interests of the House Intelligence Committee and the Congress for me to have Rep. Mike Conaway, with assistance from Reps. Trey Gowdy and Tom Rooney, temporarily take charge of the committee’s Russia investigation while the House Ethics Committee looks into this matter.

And then this all-important fillip:

I will continue to fulfill all of my other responsibilities as [c]ommittee [c]hairman, and I am requesting to speak to the Ethics Committee at the earliest possible opportunity in order to expedite the dismissal of these false claims.

That is exactly what happened.  But as already mentioned, the Dems, and in particular California’s Rep. Adam Schiff, continued to assert that Chairman Nunes (a) recused himself from the committee’s probe and (b) continued to “disrupt” the committee’s work by “issuing subpoenas on his own,” though he had relinquished his authority as committee chairman.  Both of these characterizations were expressly wrong, based on the exact wording above of Nunes’s public announcement – wording, it turns out, that was not in the least haphazard or empty political-speak, but rather a precise roadmap of the powers Nunes would retain.

But this was not spelled out – until last week.  Without apology, Nunes continued to issue subpoenas, including a new and more expansive one to Fusion based on the news that had been emerging in the press in the months since the committee had begun investigating.  When this hit home, Fusion regurgitated the Dems’ misstatements to the court.  The catch was that such allegations must be referred to and compared against the set of rules governing the matter to which they relate.

This, Judge Leon pointed out, could be found in the rules of the House of Representatives, which devolve authority, including subpoena authority, upon each committee to set its own rules over the areas over which it has oversight.  Since the House Intel Committee’s responsibilities include oversight of “the activities of the intelligence community,” its own committee rules controlled.  These, in turn, plainly required two things: first, for the formation of any investigation, the approval of the chairman and the ranking minority member, and second, for the exercise of the subpoena power, the authorization and signature of the chair.

It now becomes obvious why Nunes formulated his temporary absence from the investigation the way he did.  By specifically not recusing himself, and by explicitly retaining the chairmanship, he ensured in one fell swoop the retroactive validity of the formation of the investigation and its continuing subpoena issuances.  Since the ranking minority member was Adam Schiff, who at the time of the investigation formation was calling for blood, both the chairman and the ranking minority member were on record as proffering the required approval.  And by issuing subpoenas in his capacity as chair (from which he had not recused himself), Nunes guaranteed the enforceability of the committee’s subpoenas, a status they would not have had if he had allowed himself to be cowed.

Why and how Fusion thought it could convince a judge of Nunes’s lack of authority to issue the contested Fusion subpoena is a bit of a wonder.  A good guess is that it never read the pertinent sets of black-letter rules.  Either that or the principals were so smitten with their role in the grand scheme of all things Russian that they brought this action without fully grasping that the rules actually matter.  On the contrary, the rules, like the public record of Nunes’s completely kosher temporary abdication, not only mattered, but were dispositive.  As Judge Leon wrote in his ruling, “[i]ndeed, the Subpoena would be invalid without Chairman Nunes’s signature[.]”

It is also conceivable that Fusion’s motion, with its easily dispatched grounds for a preliminary injunction, was just part of a larger stonewalling pattern that is only now coming to an end.  If so, a pattern within the pattern of delay and obfuscation recently noted by Chairman Nunes in a letter to Rod Rosenstein regarding the DOJ and FBI is suggested here, where shopworn legal theories seemed to have been recycled from the Trump administration’s enemies.  But he who laughs last…  And it is surely worth a guffaw or two that Fusion’s last argument, that its “confidential client relationships” would be leaked by the committee, thereby violating its First Amendment freedom of association, was rejected by the court on the basis that Fusion had no proof that the committee was responsible for past leaks.

A final word about Fusion’s First Amendment and due process claims.  These are noteworthy because the defense of “privilege” was raised repeatedly during Glenn Simpson’s compelled testimony, the transcript of which was just released by Senate Judiciary Committee member Dianne Feinstein.  (See in particular here and here.)  Again, Judge Leon made mincemeat out of this prong of the preliminary injunction motion asserting that the subpoena was impermissibly broad.  He cited a completely different and harder to meet standard applicable to judicial review of congressional investigations (versus general subpoenas) than was cited in Fusion’s letter to Senator Grassley erecting its First Amendment and due process bulwark.  According to the judge, the committee had more than established the required nexus.

As for Fusion’s related assertion that it had the First Amendment freedom-of-association right to protect its client list, Judge Leon blew this away with his own line of cases.  These distinguished among political, economic, religious, and cultural groups like the NAACP, who are entitled to First Amendment privacy, and the vendors that transact with groups, who are not.  So much for Fusion’s “privilege.”  (The released Simpson testimony raises separate questions about whether Fusion internally treated the subpoenaed information confidentially, but that did not come up.)

One thing is for certain: now clarity has been reasserted.  Even so, congressional Dems will continue to insist that Nunes “recused” himself and is obstructing the Russian collusion investigation.  That’s about as correct as the Washington Post piece, published five days before Judge Leon’s decision, confidently prognosticating that Nunes’s investigation of Fusion was “destined” to remain tied up in court.  Does anyone in the MSM ever admit when he is wrong?

Note to Fusion GPS: If you’re going to mouth off to the media and ignore the public record, you’d better be prepared to have your confidential documents subpoenaed.

That’s the takeaway from last week’s ruling by Judge Richard J. Leon, district court judge from the U.S. District Court for the District of Columbia, denying Fusion GPS’s request for a preliminary injunction against TD Bank.  The injunction would have stopped the bank from complying with a subpoena for bank documents served by the House Intelligence Committee relating to the oppo research firm’s financial transactions with media and political clients from the period coinciding with its retention of Christopher Steele to compile the Russian dossier.  The judge rejected the firm’s arguments, in no small part because grandstanding by its principals and by prominent Democrats directly contradicted the firm’s claims to be a victim of First Amendment and due process violations.

In the wake of the ruling, Fusion’s lawyer vowed to keep fighting, but the transfer since then of the 70 documents at issue mooted any possible appeal.  While the dispute is now resolved, in an age of “notional accuracy” in reporting, Judge Leon’s decision bears emphasis.  For a refreshing change of pace, it stands as a mini-case study in the fecklessness of flash.  It is a little jewel of a decision in a grand tiara of legal maneuverings that sparkles with the value of nerdy lawyering over media-driven cant.

Which chronically retold lies or misunderstandings caused Fusion’s fall last week from the constitutional-defensive moral high ground it took in protesting the handing over of its bank records with clients who, according to the House Intel Committee, had Russian companies as their clients?  They are simple.  They relate to the original formation of the House Intel Committee’s probe into Russian collusion, as well as of the House Ethics Committee’s investigation of committee chairman Representative Devin Nunes.

The latter ethics investigation was brought last April in response to accusations filed against Nunes by “several left-wing activist groups” with the Office of Congressional Ethics.  The complaints, of which Nunes has since been cleared, alleged that he had made unauthorized disclosures of classified information.  These related to his briefing of the White House and press, before he spoke to the committee, about certain documents provided to him by administration officials purporting to show evidence of questionable unmasking by Obama administration officials.  In response, Nunes volunteered to temporarily relinquish the running of the Russian investigation.

Afterward, he stepped away, as promised.  But in the months that followed, Dems complained that the Republican-dominated committee probe was tainted, despite Nunes’s “recusal,” due to his continuing interference in the investigation.  What was the nature of this interference?  He continued to issue subpoenas on tributary matters – for instance, those relating to emerging new reporting on the Uranium One deal.  All this happened before the showdown last week over the Fusion subpoena, but what is noteworthy is that the motion attempting to block the subpoena reprised Democrats’ version of committee events.

Indeed, Fusion swallowed whole the Dems’ negative propaganda from last spring in its effort to thwart the committee’s examination of its financial transactions.  Specifically, it contended in its motion to the district court that the committee never collectively passed the required formal public resolution authorizing its investigation into Russian collusion.  Further, since Nunes had “recused” himself from the investigation, such as it was, in issuing the subpoena to TD Bank, he acted ultra vires, or “outside the scope of his authority.”

Now, compare this legal theory to the exact wording of Nunes’s April 2017 announcement of his stepping aside in the wake of the then newly filed ethics charges:

Despite the baselessness of the charges, I believe [that] it is in the best interests of the House Intelligence Committee and the Congress for me to have Rep. Mike Conaway, with assistance from Reps. Trey Gowdy and Tom Rooney, temporarily take charge of the committee’s Russia investigation while the House Ethics Committee looks into this matter.

And then this all-important fillip:

I will continue to fulfill all of my other responsibilities as [c]ommittee [c]hairman, and I am requesting to speak to the Ethics Committee at the earliest possible opportunity in order to expedite the dismissal of these false claims.

That is exactly what happened.  But as already mentioned, the Dems, and in particular California’s Rep. Adam Schiff, continued to assert that Chairman Nunes (a) recused himself from the committee’s probe and (b) continued to “disrupt” the committee’s work by “issuing subpoenas on his own,” though he had relinquished his authority as committee chairman.  Both of these characterizations were expressly wrong, based on the exact wording above of Nunes’s public announcement – wording, it turns out, that was not in the least haphazard or empty political-speak, but rather a precise roadmap of the powers Nunes would retain.

But this was not spelled out – until last week.  Without apology, Nunes continued to issue subpoenas, including a new and more expansive one to Fusion based on the news that had been emerging in the press in the months since the committee had begun investigating.  When this hit home, Fusion regurgitated the Dems’ misstatements to the court.  The catch was that such allegations must be referred to and compared against the set of rules governing the matter to which they relate.

This, Judge Leon pointed out, could be found in the rules of the House of Representatives, which devolve authority, including subpoena authority, upon each committee to set its own rules over the areas over which it has oversight.  Since the House Intel Committee’s responsibilities include oversight of “the activities of the intelligence community,” its own committee rules controlled.  These, in turn, plainly required two things: first, for the formation of any investigation, the approval of the chairman and the ranking minority member, and second, for the exercise of the subpoena power, the authorization and signature of the chair.

It now becomes obvious why Nunes formulated his temporary absence from the investigation the way he did.  By specifically not recusing himself, and by explicitly retaining the chairmanship, he ensured in one fell swoop the retroactive validity of the formation of the investigation and its continuing subpoena issuances.  Since the ranking minority member was Adam Schiff, who at the time of the investigation formation was calling for blood, both the chairman and the ranking minority member were on record as proffering the required approval.  And by issuing subpoenas in his capacity as chair (from which he had not recused himself), Nunes guaranteed the enforceability of the committee’s subpoenas, a status they would not have had if he had allowed himself to be cowed.

Why and how Fusion thought it could convince a judge of Nunes’s lack of authority to issue the contested Fusion subpoena is a bit of a wonder.  A good guess is that it never read the pertinent sets of black-letter rules.  Either that or the principals were so smitten with their role in the grand scheme of all things Russian that they brought this action without fully grasping that the rules actually matter.  On the contrary, the rules, like the public record of Nunes’s completely kosher temporary abdication, not only mattered, but were dispositive.  As Judge Leon wrote in his ruling, “[i]ndeed, the Subpoena would be invalid without Chairman Nunes’s signature[.]”

It is also conceivable that Fusion’s motion, with its easily dispatched grounds for a preliminary injunction, was just part of a larger stonewalling pattern that is only now coming to an end.  If so, a pattern within the pattern of delay and obfuscation recently noted by Chairman Nunes in a letter to Rod Rosenstein regarding the DOJ and FBI is suggested here, where shopworn legal theories seemed to have been recycled from the Trump administration’s enemies.  But he who laughs last…  And it is surely worth a guffaw or two that Fusion’s last argument, that its “confidential client relationships” would be leaked by the committee, thereby violating its First Amendment freedom of association, was rejected by the court on the basis that Fusion had no proof that the committee was responsible for past leaks.

A final word about Fusion’s First Amendment and due process claims.  These are noteworthy because the defense of “privilege” was raised repeatedly during Glenn Simpson’s compelled testimony, the transcript of which was just released by Senate Judiciary Committee member Dianne Feinstein.  (See in particular here and here.)  Again, Judge Leon made mincemeat out of this prong of the preliminary injunction motion asserting that the subpoena was impermissibly broad.  He cited a completely different and harder to meet standard applicable to judicial review of congressional investigations (versus general subpoenas) than was cited in Fusion’s letter to Senator Grassley erecting its First Amendment and due process bulwark.  According to the judge, the committee had more than established the required nexus.

As for Fusion’s related assertion that it had the First Amendment freedom-of-association right to protect its client list, Judge Leon blew this away with his own line of cases.  These distinguished among political, economic, religious, and cultural groups like the NAACP, who are entitled to First Amendment privacy, and the vendors that transact with groups, who are not.  So much for Fusion’s “privilege.”  (The released Simpson testimony raises separate questions about whether Fusion internally treated the subpoenaed information confidentially, but that did not come up.)

One thing is for certain: now clarity has been reasserted.  Even so, congressional Dems will continue to insist that Nunes “recused” himself and is obstructing the Russian collusion investigation.  That’s about as correct as the Washington Post piece, published five days before Judge Leon’s decision, confidently prognosticating that Nunes’s investigation of Fusion was “destined” to remain tied up in court.  Does anyone in the MSM ever admit when he is wrong?



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The Evils…No, the Virtues of Seduction



Both left and right seem to be taking the same tack in redefining female nature.  The results are not pretty.



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The Morality Sweepstakes



I have a theory.  It is not that the scales have fallen from our eyes about sexual harassment.  It’s that the cultural left has run out of game. 



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SCOTUS and Wedding Cakes: Don't Celebrate Yet


A few days’ passing and thorough reading of the oral argument transcript for Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission leave me less optimistic than commentators such as Amy Howe at Scotusblog and David French at National Review.  While it was heartening that Justice Kennedy called out one of the Colorado civil rights commissioners for a statement apparently expressing animus toward religion, with the chief justice going so far as to suggest that this necessarily tainted the court’s earlier ruling against Jack Phillips, and Justice Alito cynically pointing out that none of the other commissioners disavowed the commissioner’s unseemly statement then or has since, still, the line-drawing the conservative justices seemed to be searching for remained fuzzy.

Would a ruling in favor of Phillips gut civil rights protections, as opponents relentlessly and hyperbolically argue?  It wouldn’t.  The conservative justices seemed to know that it wouldn’t.  Yet no one could really say how the ruling could be fashioned to prevent it. 

If the court is going to hang Phillips’s protection on free speech, that potentially sweeps with a broad brush.  It lays Phillips’s position open to the repeat attack that bigots can use religion as a pretext to discriminate against protected groups.  It also opens the door to run-of-the-mill craftspeople who wish to avoid compliance with anti-discrimination laws by hiding behind claims of communicative conduct.  But as the Justice Department’s General Francisco pointed out, the solution is not to shun new adaptations in the law; it is to figure out how to make “the cut” that all First Amendment cases must initially make.

To that end, one clear difference here from all the hypotheticals with which Justices Ginsburg and Sotomayor besieged Kristen Waggoner, from the Alliance Defense Fund, is this: it’s the combination of deeply held religious beliefs and the specific performance in the creation of unwanted messaging that distinguishes Phillips’s cause.  It is their tandem significance – religion and speech as a conduit for the specifically tailored, creative expression of sincere convictions – that evokes our outrage at the state’s coercion.  That is why the indignation comes from not just religious supporters, but also those vitally attuned to language, visual and literal, in their commercial endeavors.  Such people are most often creatives.

Unfortunately, chaotic attempts at hard line-drawing between the liberal justices and Ms. Waggoner and General Francisco failed to distill these unique characteristics of the case into the abstract rule that Justice Gorsuch was fairly begging for.  The attempts culminated with a question by Justice Alito about architecture, to which Ms. Waggoner, under pressure to answer, said no, buildings would not qualify as implied speech under their theory.  Justice Alito expressed amazement that a cake would be covered, but the “Laurentian Steps” (by Michelangelo) would not be. 

This torturous misdirection compounded the initial wrong turn.  Checklists shouldn’t be the point.  Even copyright law recognizes distinctions between standard functional elements of a building, which cannot be copyrighted, and distinctively individualistic features, which can be.  It isn’t a stretch to say that if the latter are suffused with deeply held values – as, say, in the work of an architect like Tadao Ando – it doesn’t matter what category the work falls into.  Its special commission should be left to the discretion of the creator or speaker.  Expressive conduct of a high order can be a kind of secular religiosity.  

Coming up, then, with an organizing principle should have been both easier and more subtle than Waggoner and Francisco scrambled to suggest.  If intellectual property law (whose foil is the First Amendment) can draw distinctions between mundane originality and the type of work that carries a personal message, work that is even imprinted with the “beingness” of the message’s author, then why not here?  Indeed, it is hard to understand why, beyond an abbreviated mention of Mastrovincenzo v. the City of New York, Waggoner and Francisco didn’t advert more to the Second Circuit’s sophisticated discussion of commercial wares with a “dominant expressive purpose” in the context of their immunity from government regulation in this New York street vendor case.  Instead, the discussion degenerated into jokes about whether food, because of its impermanence, could be “art.”  What about Navajo sand paintings?

Part of this failure to import a more graduated First Amendment approach might have stemmed from a giant stumbling block the respondents put in the way of traditional analysis.  It was uncovered by Waggoner toward the end of her speaking time.  She pointed out that however much the Court might struggle to demarcate the line between conduct and expressive conduct, or art and speech, or communicative and utilitarian objects, when all is said and done – and we know this to be true from their rhetoric – the other side doesn’t care a fig about any of it:

What’s deeply concerning is that [protected expression] is not the theory that Respondents are submitting to this Court today.  They believe that they can compel speech, of filmmakers, oil painters, and graphic designers in all kinds of context.

Forget the niceties.  Forget the unavoidable First Amendment inquiries into what type of speech is at issue.  Entrust the nuances of heartfelt belief to a state agency, which will control everybody, because, of course, everybody (read: religious conservatives) at his core wants solely to act on his basest instincts to discriminate against and harm the dignitary interests of gays.  Sound familiar?

For their part, Colorado solicitor-general Frederick Yaeger, on behalf of the Commission, and ACLU lawyer David Cole for Craig and Mullins maneuvered around the whole sticky business.  They did this by asserting that any message related to a protected group is discriminatory.  It wasn’t a good answer, but it was an answer: the only right the business owner has is to refuse to lend his talents to a message that, in Cole’s words, “is apart from the identity of the customer.” 

Notwithstanding its streamlining of the problem, this proposal simply avoids what the First Amendment is designed to protect: unpopular speech.  If the baker would write, “God bless the union of Ruth and Marty” on a cake, he could be compelled to write, “God bless the union of Dave and Craig.”  The only difference, according to Craig and Mullins, is the “identity” of the customer.  Expression in this context can mean only one thing:  discriminatory animus.  Thus do the respondents render moot, on the specious basis that “identity” determines meaning, Phillips’s compelled speech objection. 

But talk about disturbing: the respondents actually go farther.  They not only advocate for compelling speech, but are willing to emasculate the business owner’s power of speech altogether.  The business owner is not just being told what he must say.  He is being told by institutional authority what he in fact did say:

[W]e don’t ask is it expressive from the perspective of the baker or is expressive from the perspective of the – of a customer.  We ask what’s the state’s interest in regulating?  What is the state doing? 

And then, in response to a question by Justice Alito about whether such “regulation” applies to the writing on the cake:

It doesn’t matter whether it’s speech or whether it’s not speech.

As for Hurley v. Irish-American Gay Group of Boston, the Supreme Court case proscribing compelled speech, Mr. Cole is ready there, too, with a solution that would shrink the Hurley ruling’s reach to naught:

[W]here the state is regulating only expression, no conduct at all, just a banner that’s in the parade, the Court takes a different view, but where expressive conduct is involved … the analysis this Court uses with respect – to expressive conduct is is the state regulating the conduct for some reason other than what it expresses or is it regulating what it expresses?

Got that?  If you can prove that you are speaking in a zero-conduct vacuum, you get to choose your words.  (Better not scratch your nose!)

Conventional wisdom says Phillips’s free speech claim is a workaround for a free exercise of religion claim, a way to end-run adverse judicial precedent.  The respondents’ countermoves show just how nearsighted that strategy is.  Uninhibited speech and religious exercise are profoundly intertwined.  The predicted victory for Phillips on narrow fact-based grounds stemming from the Commission’s animus would not only fall short of being a victory for religious liberty, as commentators have noted.  It would be a setback for free speech.

A few days’ passing and thorough reading of the oral argument transcript for Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission leave me less optimistic than commentators such as Amy Howe at Scotusblog and David French at National Review.  While it was heartening that Justice Kennedy called out one of the Colorado civil rights commissioners for a statement apparently expressing animus toward religion, with the chief justice going so far as to suggest that this necessarily tainted the court’s earlier ruling against Jack Phillips, and Justice Alito cynically pointing out that none of the other commissioners disavowed the commissioner’s unseemly statement then or has since, still, the line-drawing the conservative justices seemed to be searching for remained fuzzy.

Would a ruling in favor of Phillips gut civil rights protections, as opponents relentlessly and hyperbolically argue?  It wouldn’t.  The conservative justices seemed to know that it wouldn’t.  Yet no one could really say how the ruling could be fashioned to prevent it. 

If the court is going to hang Phillips’s protection on free speech, that potentially sweeps with a broad brush.  It lays Phillips’s position open to the repeat attack that bigots can use religion as a pretext to discriminate against protected groups.  It also opens the door to run-of-the-mill craftspeople who wish to avoid compliance with anti-discrimination laws by hiding behind claims of communicative conduct.  But as the Justice Department’s General Francisco pointed out, the solution is not to shun new adaptations in the law; it is to figure out how to make “the cut” that all First Amendment cases must initially make.

To that end, one clear difference here from all the hypotheticals with which Justices Ginsburg and Sotomayor besieged Kristen Waggoner, from the Alliance Defense Fund, is this: it’s the combination of deeply held religious beliefs and the specific performance in the creation of unwanted messaging that distinguishes Phillips’s cause.  It is their tandem significance – religion and speech as a conduit for the specifically tailored, creative expression of sincere convictions – that evokes our outrage at the state’s coercion.  That is why the indignation comes from not just religious supporters, but also those vitally attuned to language, visual and literal, in their commercial endeavors.  Such people are most often creatives.

Unfortunately, chaotic attempts at hard line-drawing between the liberal justices and Ms. Waggoner and General Francisco failed to distill these unique characteristics of the case into the abstract rule that Justice Gorsuch was fairly begging for.  The attempts culminated with a question by Justice Alito about architecture, to which Ms. Waggoner, under pressure to answer, said no, buildings would not qualify as implied speech under their theory.  Justice Alito expressed amazement that a cake would be covered, but the “Laurentian Steps” (by Michelangelo) would not be. 

This torturous misdirection compounded the initial wrong turn.  Checklists shouldn’t be the point.  Even copyright law recognizes distinctions between standard functional elements of a building, which cannot be copyrighted, and distinctively individualistic features, which can be.  It isn’t a stretch to say that if the latter are suffused with deeply held values – as, say, in the work of an architect like Tadao Ando – it doesn’t matter what category the work falls into.  Its special commission should be left to the discretion of the creator or speaker.  Expressive conduct of a high order can be a kind of secular religiosity.  

Coming up, then, with an organizing principle should have been both easier and more subtle than Waggoner and Francisco scrambled to suggest.  If intellectual property law (whose foil is the First Amendment) can draw distinctions between mundane originality and the type of work that carries a personal message, work that is even imprinted with the “beingness” of the message’s author, then why not here?  Indeed, it is hard to understand why, beyond an abbreviated mention of Mastrovincenzo v. the City of New York, Waggoner and Francisco didn’t advert more to the Second Circuit’s sophisticated discussion of commercial wares with a “dominant expressive purpose” in the context of their immunity from government regulation in this New York street vendor case.  Instead, the discussion degenerated into jokes about whether food, because of its impermanence, could be “art.”  What about Navajo sand paintings?

Part of this failure to import a more graduated First Amendment approach might have stemmed from a giant stumbling block the respondents put in the way of traditional analysis.  It was uncovered by Waggoner toward the end of her speaking time.  She pointed out that however much the Court might struggle to demarcate the line between conduct and expressive conduct, or art and speech, or communicative and utilitarian objects, when all is said and done – and we know this to be true from their rhetoric – the other side doesn’t care a fig about any of it:

What’s deeply concerning is that [protected expression] is not the theory that Respondents are submitting to this Court today.  They believe that they can compel speech, of filmmakers, oil painters, and graphic designers in all kinds of context.

Forget the niceties.  Forget the unavoidable First Amendment inquiries into what type of speech is at issue.  Entrust the nuances of heartfelt belief to a state agency, which will control everybody, because, of course, everybody (read: religious conservatives) at his core wants solely to act on his basest instincts to discriminate against and harm the dignitary interests of gays.  Sound familiar?

For their part, Colorado solicitor-general Frederick Yaeger, on behalf of the Commission, and ACLU lawyer David Cole for Craig and Mullins maneuvered around the whole sticky business.  They did this by asserting that any message related to a protected group is discriminatory.  It wasn’t a good answer, but it was an answer: the only right the business owner has is to refuse to lend his talents to a message that, in Cole’s words, “is apart from the identity of the customer.” 

Notwithstanding its streamlining of the problem, this proposal simply avoids what the First Amendment is designed to protect: unpopular speech.  If the baker would write, “God bless the union of Ruth and Marty” on a cake, he could be compelled to write, “God bless the union of Dave and Craig.”  The only difference, according to Craig and Mullins, is the “identity” of the customer.  Expression in this context can mean only one thing:  discriminatory animus.  Thus do the respondents render moot, on the specious basis that “identity” determines meaning, Phillips’s compelled speech objection. 

But talk about disturbing: the respondents actually go farther.  They not only advocate for compelling speech, but are willing to emasculate the business owner’s power of speech altogether.  The business owner is not just being told what he must say.  He is being told by institutional authority what he in fact did say:

[W]e don’t ask is it expressive from the perspective of the baker or is expressive from the perspective of the – of a customer.  We ask what’s the state’s interest in regulating?  What is the state doing? 

And then, in response to a question by Justice Alito about whether such “regulation” applies to the writing on the cake:

It doesn’t matter whether it’s speech or whether it’s not speech.

As for Hurley v. Irish-American Gay Group of Boston, the Supreme Court case proscribing compelled speech, Mr. Cole is ready there, too, with a solution that would shrink the Hurley ruling’s reach to naught:

[W]here the state is regulating only expression, no conduct at all, just a banner that’s in the parade, the Court takes a different view, but where expressive conduct is involved … the analysis this Court uses with respect – to expressive conduct is is the state regulating the conduct for some reason other than what it expresses or is it regulating what it expresses?

Got that?  If you can prove that you are speaking in a zero-conduct vacuum, you get to choose your words.  (Better not scratch your nose!)

Conventional wisdom says Phillips’s free speech claim is a workaround for a free exercise of religion claim, a way to end-run adverse judicial precedent.  The respondents’ countermoves show just how nearsighted that strategy is.  Uninhibited speech and religious exercise are profoundly intertwined.  The predicted victory for Phillips on narrow fact-based grounds stemming from the Commission’s animus would not only fall short of being a victory for religious liberty, as commentators have noted.  It would be a setback for free speech.



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'Make Them Bake Cake': The Bizarre Arguments against Bakers' Free Speech Rights


Last week’s New York Times piece by Jennifer Finney Boylan, “The Masterpiece Cakeshop Case Is Not About Religious Freedom,” floored me with the number of distortions it crowded into a few paragraphs.  I can only conclude that the left’s discourse and values have become so wayward and impoverished that they would rather criminalize creativity than take on the serious issues the Supreme Court will be hearing on December 5.

Boylan begins with a dark narrative about the pharmacy Boylan frequents, “run by a conservative Republican.”  (Is there any other kind?)  Will he refuse to fill the demanded prescription, Boylan quails, “given my condition”?  What condition is that? I wondered, as clearly each reader was meant to – compulsive self-dramatizing syndrome?

Thus begins Boylan’s parade of horribles.  If Phillips wins in his appeal from lower court decisions, sick babies will die, HIV patients will be turned away from treatment clinics, pre-Civil Rights abominations will become the order of the day.  Except none of these scenarios is backed up with citations from the court papers.  There’s a good reason for that.  They’re not in there.  But after all, what do facts matter when it comes to the left’s self-suffering legerdemain?

Does Colorado’s state public accommodations law as applied to Jack Phillips’s refusal to accept a commission for a cake for two men trying to marry each other regulate speech or conduct?  Under First Amendment law, the latter is permitted.  The former, with minimal exceptions, is not.

That is the threshold question. 

Phillips argues he was being forced to convey an unwanted message by providing a custom-made cake for Craig’s and Mullins’s ceremony.  One of the cases Phillips and the Justice Department as amicus rely on is the Supreme Court’s 1994 ruling in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.  It held that a private sponsor, a veterans’ group, was not required to admit an LGBGT group to its St. Patrick’s Day parade because that would require the group to alter its message, which did not embrace approval of gay pride.  The same doomsday predictions we hear in advance of Tuesday’s oral argument were adumbrated there, too.  None of them came true.  But why learn from history? 

What about the actual case?  Disagreeing with Phillips’s characterization, Craig and Mullins and the Colorado Civil Rights Commission (respondents) claim that CADA permissibly regulates conduct, not speech.  The targeted conduct is the provision of a good or service.  According to them, the nature of the good or service is irrelevant.  Phillips’s action is discriminatory, plain and simple.  His claim that CADA is unconstitutional as applied to him is just a pretext for his religion-inspired reactionary hatred.

Boylan echoes this reductionism, and then some.  But while Craig and Mullins are bound to the papers and what they actually say, Boylan is not.  Boylan singlehandedly reinterprets pages of argument and counter-argument analyzing CADA, discussing precedents, and building on agreed upon facts with magical revision: 

There are two important things to know about the religious freedom/wedding cake case.  One is that it’s not about religious freedom – it’s about religious exemption.  The other is that it’s about a whole lot more than wedding cakes.  

While CADA does in fact grant religious exemptions, that is not what Phillips is seeking.  As David French at National Review notes, it is the other way around.  Craig and Mullins are demanding an across-the-board application of Colorado’s public accommodations law that amounts to a state exemption from the First Amendment. 

But Boylan is right about Masterpiece being about a whole lot more than wedding cakes (as though the Supreme Court would grant certiorari to a case that didn’t have far-ranging implications).  The undisputed facts show that Phillips serves customers attracted to members of their own sex all the time.  He limits his rejection of their requests to cakes for ceremonies meant to be weddings.  In other words, Phillips maintains, and his actions corroborate, that he is selectively choosing not whom to serve, but what product to offer.  He bases this refusal on his religious beliefs in light of the nature of the specific product he produces – the demands it takes on his time; the drawdown it makes on his creative energies; and, perhaps most important, the dissonance that would result if he were forced to deploy his talents robotically in the name of dogma.  

The real question, therefore, is not whether Boylan can get estrogen at his pharmacy because he thinks he is a woman.  (We finally get let in on the secret of his condition!)  It is, in my view, not even about religion.  It is about preserving some anarchic sweet spot in our increasingly alienated, doctrinaire, one-size-fits-all society – a space devoted to whimsy, invention, and psychic independence.  That is what creativity requires.  Just ask the artists whom Stalin banished to Siberia and certain death for no worse crime than painting more like the American abstract expressionist Willem de Kooning than Stalin’s stable of Soviet Realist lackeys.  When the government starts requiring creatives to perform in the service of the one true ideology, vision withers.

Not that any lockstep leftists nowadays would notice.  This is why the soulless Boylan can glibly misrepresent the question of whether Jack Phillips’s wedding cakes are “art.”  The entirety of the argument in Boylan’s seeming make-it-up-as-you-go discussion comes down to sleight-of-hand: Phillips can’t win on the issue of faith, so he defaults to calling his “nice-looking cakes” art.  That’s simply incorrect. 

The possible First Amendment implications of CADA are not at issue.  They have already been admitted by respondents, including the Colorado Civil Rights Commission.  Indeed, the commission declined to enforce CADA against bakers who refused to serve religious customers asking for a special-order wedding cake with words from Leviticus on it on just these grounds.  The unresolved question here is not whether the First Amendment may apply.  It is whether it does where there is no express written message – only an implied one. 

Technically, if the cakes are deemed “art” rather than “implied speech,” according to ample case law, their expressiveness is absolutely protected.  Art, unlike implied speech, doesn’t have to convey a “succinct and articulable” message.  It is “pure expression” and can simply be.  Perhaps it is no coincidence that the Hurley court used the express inarticulateness of Jackson Pollack’s abstract expressionist paintings as an example of this principle.  In any case, the point is, even if the cakes are not “art,” the constitutional challenge doesn’t go away.    

Even granting, moreover, that there is room to disagree over the artistic status of Phillips’s “masterpieces,” Boylan’s caution that “that argument demands that the court get into the business of defining art itself” is mind-boggling.  The courts are asked to decide on the nature of expression and its protectability literally all the time.  Can a tattoo parlor be singled out in a zoning law, or does it engage in protected speech?  Is a cropped copy of a Walker Evans photograph thievery or fair use (sanctioned by the First Amendment exception to copyright)?  How do you define obscenity?  Boylan’s idea that the Supreme Court shouldn’t be asked to distinguish between Phillips’s elaborately designed ritual object and, as Boylan puts it, a “well-manicured lawn” is so out of whack that even the respondents don’t venture it.

At the end of the article, Boylan acknowledges that his old-timey pharmacist never treated him with anything but “kindness and respect.”  It is almost as if he is disappointed that reality hasn’t lived up to his counter-factual histrionics.  Although this type of commentary is what we have come to expect from the Times, it is worth adding that it is cheap – dirt cheap.  Anybody at all who sees fit to suspend the facts can make a “slippery slope” argument.  Fortunately, we still live in a country where the supreme court of the land attends to more than horror-baiting.

Last week’s New York Times piece by Jennifer Finney Boylan, “The Masterpiece Cakeshop Case Is Not About Religious Freedom,” floored me with the number of distortions it crowded into a few paragraphs.  I can only conclude that the left’s discourse and values have become so wayward and impoverished that they would rather criminalize creativity than take on the serious issues the Supreme Court will be hearing on December 5.

Boylan begins with a dark narrative about the pharmacy Boylan frequents, “run by a conservative Republican.”  (Is there any other kind?)  Will he refuse to fill the demanded prescription, Boylan quails, “given my condition”?  What condition is that? I wondered, as clearly each reader was meant to – compulsive self-dramatizing syndrome?

Thus begins Boylan’s parade of horribles.  If Phillips wins in his appeal from lower court decisions, sick babies will die, HIV patients will be turned away from treatment clinics, pre-Civil Rights abominations will become the order of the day.  Except none of these scenarios is backed up with citations from the court papers.  There’s a good reason for that.  They’re not in there.  But after all, what do facts matter when it comes to the left’s self-suffering legerdemain?

Does Colorado’s state public accommodations law as applied to Jack Phillips’s refusal to accept a commission for a cake for two men trying to marry each other regulate speech or conduct?  Under First Amendment law, the latter is permitted.  The former, with minimal exceptions, is not.

That is the threshold question. 

Phillips argues he was being forced to convey an unwanted message by providing a custom-made cake for Craig’s and Mullins’s ceremony.  One of the cases Phillips and the Justice Department as amicus rely on is the Supreme Court’s 1994 ruling in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.  It held that a private sponsor, a veterans’ group, was not required to admit an LGBGT group to its St. Patrick’s Day parade because that would require the group to alter its message, which did not embrace approval of gay pride.  The same doomsday predictions we hear in advance of Tuesday’s oral argument were adumbrated there, too.  None of them came true.  But why learn from history? 

What about the actual case?  Disagreeing with Phillips’s characterization, Craig and Mullins and the Colorado Civil Rights Commission (respondents) claim that CADA permissibly regulates conduct, not speech.  The targeted conduct is the provision of a good or service.  According to them, the nature of the good or service is irrelevant.  Phillips’s action is discriminatory, plain and simple.  His claim that CADA is unconstitutional as applied to him is just a pretext for his religion-inspired reactionary hatred.

Boylan echoes this reductionism, and then some.  But while Craig and Mullins are bound to the papers and what they actually say, Boylan is not.  Boylan singlehandedly reinterprets pages of argument and counter-argument analyzing CADA, discussing precedents, and building on agreed upon facts with magical revision: 

There are two important things to know about the religious freedom/wedding cake case.  One is that it’s not about religious freedom – it’s about religious exemption.  The other is that it’s about a whole lot more than wedding cakes.  

While CADA does in fact grant religious exemptions, that is not what Phillips is seeking.  As David French at National Review notes, it is the other way around.  Craig and Mullins are demanding an across-the-board application of Colorado’s public accommodations law that amounts to a state exemption from the First Amendment. 

But Boylan is right about Masterpiece being about a whole lot more than wedding cakes (as though the Supreme Court would grant certiorari to a case that didn’t have far-ranging implications).  The undisputed facts show that Phillips serves customers attracted to members of their own sex all the time.  He limits his rejection of their requests to cakes for ceremonies meant to be weddings.  In other words, Phillips maintains, and his actions corroborate, that he is selectively choosing not whom to serve, but what product to offer.  He bases this refusal on his religious beliefs in light of the nature of the specific product he produces – the demands it takes on his time; the drawdown it makes on his creative energies; and, perhaps most important, the dissonance that would result if he were forced to deploy his talents robotically in the name of dogma.  

The real question, therefore, is not whether Boylan can get estrogen at his pharmacy because he thinks he is a woman.  (We finally get let in on the secret of his condition!)  It is, in my view, not even about religion.  It is about preserving some anarchic sweet spot in our increasingly alienated, doctrinaire, one-size-fits-all society – a space devoted to whimsy, invention, and psychic independence.  That is what creativity requires.  Just ask the artists whom Stalin banished to Siberia and certain death for no worse crime than painting more like the American abstract expressionist Willem de Kooning than Stalin’s stable of Soviet Realist lackeys.  When the government starts requiring creatives to perform in the service of the one true ideology, vision withers.

Not that any lockstep leftists nowadays would notice.  This is why the soulless Boylan can glibly misrepresent the question of whether Jack Phillips’s wedding cakes are “art.”  The entirety of the argument in Boylan’s seeming make-it-up-as-you-go discussion comes down to sleight-of-hand: Phillips can’t win on the issue of faith, so he defaults to calling his “nice-looking cakes” art.  That’s simply incorrect. 

The possible First Amendment implications of CADA are not at issue.  They have already been admitted by respondents, including the Colorado Civil Rights Commission.  Indeed, the commission declined to enforce CADA against bakers who refused to serve religious customers asking for a special-order wedding cake with words from Leviticus on it on just these grounds.  The unresolved question here is not whether the First Amendment may apply.  It is whether it does where there is no express written message – only an implied one. 

Technically, if the cakes are deemed “art” rather than “implied speech,” according to ample case law, their expressiveness is absolutely protected.  Art, unlike implied speech, doesn’t have to convey a “succinct and articulable” message.  It is “pure expression” and can simply be.  Perhaps it is no coincidence that the Hurley court used the express inarticulateness of Jackson Pollack’s abstract expressionist paintings as an example of this principle.  In any case, the point is, even if the cakes are not “art,” the constitutional challenge doesn’t go away.    

Even granting, moreover, that there is room to disagree over the artistic status of Phillips’s “masterpieces,” Boylan’s caution that “that argument demands that the court get into the business of defining art itself” is mind-boggling.  The courts are asked to decide on the nature of expression and its protectability literally all the time.  Can a tattoo parlor be singled out in a zoning law, or does it engage in protected speech?  Is a cropped copy of a Walker Evans photograph thievery or fair use (sanctioned by the First Amendment exception to copyright)?  How do you define obscenity?  Boylan’s idea that the Supreme Court shouldn’t be asked to distinguish between Phillips’s elaborately designed ritual object and, as Boylan puts it, a “well-manicured lawn” is so out of whack that even the respondents don’t venture it.

At the end of the article, Boylan acknowledges that his old-timey pharmacist never treated him with anything but “kindness and respect.”  It is almost as if he is disappointed that reality hasn’t lived up to his counter-factual histrionics.  Although this type of commentary is what we have come to expect from the Times, it is worth adding that it is cheap – dirt cheap.  Anybody at all who sees fit to suspend the facts can make a “slippery slope” argument.  Fortunately, we still live in a country where the supreme court of the land attends to more than horror-baiting.



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Has Ben Shapiro Been Watching Too Much Judge Judy?


Ben Shapiro is one of a number of conservative journalists recently bent on assuring us we’re at liberty to disregard due process of law in formulating our verdict on Roy Moore.  We have his permission, he tells us, because we’re deciding on political issues whose disposition won’t result in sending anyone to jail.  But this misunderstands what due process is and strips us of much needed protections.

Protections? you may ask.  Wherefore do we need protections if the state is not involved in our decision to, say, condemn someone we feel has been proven to our satisfaction to be a child-molester?  Simple.  We need the institutional model of due process as a reminder to shield us from brow-beating rhetoric like Shapiro’s that would structure our choices for us and insult our morality and intelligence if we don’t acquiesce to its forced conclusions.

There are many reasons due process is relevant to our responses to the allegations against Roy Moore.  But first, contrary to popular portrayals, let it be said that due process is not a “concept.”  It is an umbrella term referencing a constitutionally derived bundle of rights and time-proven procedural requirements that shape any governmental process of judgment that may deprive an individual of life, liberty, or property.  It is a threshold matter, not one factor in a series, as depicted in Shapiro’s list of arguments.  This means it predetermines what fairness will look like and binds equally all parties to a dispute to its prescribed standards.

How fundamental due process is was brought home to me, ironically, only after many years of practicing Big Law.  When I became a solo practitioner, I was in the unaccustomed position of counseling individuals and micro-businesses.  A shocking question was put to me by many of my clients: if my adversary sues me in court, how will I know about it?  What guarantee do I have that he won’t go before a judge and persuade him before I get a chance to tell my side? 

My clients were not naïve, mind you.  They were successful and educated.  They had simply never been involved in a legal dispute before.  Since I took for granted (and regarded as a pain in the rear end) the extraordinary number of detailed rules relating to “notice” to the other side that apply to each and every action taken before the bench, I hadn’t until then given a thought to their anxieties.  Nor had I appreciated how well the law’s safeguards address them and their right to be heard.  Our insecurities run deep, with good reason.  So before Mr. Shapiro dismisses the intelligently designed architecture of restraint associated with due process, before he miniaturizes its principles, he might pause to give thanks for the ways it erects a bulwark between us and brute power.

Speaking of brute power, there is something even more troubling here, and it resides in Ben’s very left-sounding admonitions that if we don’t give the right answer to the questions as he has posed them, we’re condoning “by default” terrible crimes or doing an injustice to the accusers.  There is something grisly and familiar about his attempt to intellectually boss us around, to bully us into believing, on his authority alone, that his version of complete knowledge (“here’s what we know so far”) must command our deference.  Those who insist in this fashion that they are in possession of the truth, even in the active presence of emerging contradictory facts and counter-interpretations, aren’t just displaying a lack of humility.  They are caricaturing the legal process.  They are self-appointed triers of fact whose air of importance is parasitic on the gravity of the law. 

In other words, people who talk at us as though they’re delivering a closing statement at a trial are playing at being both jurors and prosecutors.  Why else the hectoring gestures and language (“It’s a yes or no question!”) that might have been cribbed from a script of Law and Order?  In pronouncing pseudo-verdicts, such people are attempting to shut down doubt by vesting in themselves the dignity and consequentiality that comes with being officers of the court, which is what jurors are.  Thing is, they do all this without assuming any of the duties.   

Don’t get me wrong.  Discovering that Al Franken is the creep I always felt he was is deeply gratifying.  Hearing Democrats repent of their support for Hillary Clinton and (what I would call) her accomplice liability in her husband’s abuses of women doesn’t get any better.  Revisiting Nina Burleigh’s attempt to equate feminism with procuring for powerful men (What man would believe he should perform sexual favors on a political leader whose agenda he supported?) affords bittersweet relief.  If nothing else, now is not then.  Burleigh’s frisson over being cruised by a lascivious president stands revealed for the piteous vanity it is.  She used the “Women’s Movement” to self-deal, trading ideological favors for the benefits of aligning with the powerful and letting women who weren’t so lucky or simply had more integrity to pay the cost. 

There were other female bagmen.  She wasn’t alone.  Some of us remember what it was like to have our indignation overridden by “feminists.”  The Roy Moore question is not that.

But, hey, weighing in on scandalous revelations can be fun.  Why not?  Maxine Waters’s staging around the filing of articles of impeachment against the president is pure show biz.  Heck, the excuse to hold a Las Vegas-style extravaganza, with herself in the role of Celine, may have been the point of filing the articles in the first place.  (How else to publicly play out your fantasies if you’re not Al Franken?)  Likewise playing TV jurors.  On a healthier note, mimicking the drama of the truth-seeking process gives vent to our indignation, exercises our powers of deduction, and promotes interaction.  It may even result in actual valuable discussion and engagement. 

I can dig it.  But let’s not lose sight of how far the court of public opinion falls short of the real thing.  The least we can do where someone’s reputational assets are in the balance is acknowledge that without the discipline of law, our confidently delivered judgments may well be…how shall we put it?  Narcissistic?  Not for nothing did Edmund Burke, foreseeing the pitfalls of excessive self-love, warn that “individuals do better to avail themselves of the general bank and capital of nations.”

The usual response to this from non-lawyers is, But the law is not infallible.  It is time-consuming and expensive.  It allows the culpable to get off on technicalities (such as the fact that the statute of limitations has run on many of these allegations).  The guilty sometimes go unpunished.   

And so they do.  And so the law recognizes its own imperfections by imposing finality on its adjudications and the ability to seek recourse anyway.  And so it protects us from coercion (including the coercion of totalitarian rectitude) even though sometimes we must live with ambiguity and the possibility that suffering goes unredeemed.  

Get used to it, Ben.

Ben Shapiro is one of a number of conservative journalists recently bent on assuring us we’re at liberty to disregard due process of law in formulating our verdict on Roy Moore.  We have his permission, he tells us, because we’re deciding on political issues whose disposition won’t result in sending anyone to jail.  But this misunderstands what due process is and strips us of much needed protections.

Protections? you may ask.  Wherefore do we need protections if the state is not involved in our decision to, say, condemn someone we feel has been proven to our satisfaction to be a child-molester?  Simple.  We need the institutional model of due process as a reminder to shield us from brow-beating rhetoric like Shapiro’s that would structure our choices for us and insult our morality and intelligence if we don’t acquiesce to its forced conclusions.

There are many reasons due process is relevant to our responses to the allegations against Roy Moore.  But first, contrary to popular portrayals, let it be said that due process is not a “concept.”  It is an umbrella term referencing a constitutionally derived bundle of rights and time-proven procedural requirements that shape any governmental process of judgment that may deprive an individual of life, liberty, or property.  It is a threshold matter, not one factor in a series, as depicted in Shapiro’s list of arguments.  This means it predetermines what fairness will look like and binds equally all parties to a dispute to its prescribed standards.

How fundamental due process is was brought home to me, ironically, only after many years of practicing Big Law.  When I became a solo practitioner, I was in the unaccustomed position of counseling individuals and micro-businesses.  A shocking question was put to me by many of my clients: if my adversary sues me in court, how will I know about it?  What guarantee do I have that he won’t go before a judge and persuade him before I get a chance to tell my side? 

My clients were not naïve, mind you.  They were successful and educated.  They had simply never been involved in a legal dispute before.  Since I took for granted (and regarded as a pain in the rear end) the extraordinary number of detailed rules relating to “notice” to the other side that apply to each and every action taken before the bench, I hadn’t until then given a thought to their anxieties.  Nor had I appreciated how well the law’s safeguards address them and their right to be heard.  Our insecurities run deep, with good reason.  So before Mr. Shapiro dismisses the intelligently designed architecture of restraint associated with due process, before he miniaturizes its principles, he might pause to give thanks for the ways it erects a bulwark between us and brute power.

Speaking of brute power, there is something even more troubling here, and it resides in Ben’s very left-sounding admonitions that if we don’t give the right answer to the questions as he has posed them, we’re condoning “by default” terrible crimes or doing an injustice to the accusers.  There is something grisly and familiar about his attempt to intellectually boss us around, to bully us into believing, on his authority alone, that his version of complete knowledge (“here’s what we know so far”) must command our deference.  Those who insist in this fashion that they are in possession of the truth, even in the active presence of emerging contradictory facts and counter-interpretations, aren’t just displaying a lack of humility.  They are caricaturing the legal process.  They are self-appointed triers of fact whose air of importance is parasitic on the gravity of the law. 

In other words, people who talk at us as though they’re delivering a closing statement at a trial are playing at being both jurors and prosecutors.  Why else the hectoring gestures and language (“It’s a yes or no question!”) that might have been cribbed from a script of Law and Order?  In pronouncing pseudo-verdicts, such people are attempting to shut down doubt by vesting in themselves the dignity and consequentiality that comes with being officers of the court, which is what jurors are.  Thing is, they do all this without assuming any of the duties.   

Don’t get me wrong.  Discovering that Al Franken is the creep I always felt he was is deeply gratifying.  Hearing Democrats repent of their support for Hillary Clinton and (what I would call) her accomplice liability in her husband’s abuses of women doesn’t get any better.  Revisiting Nina Burleigh’s attempt to equate feminism with procuring for powerful men (What man would believe he should perform sexual favors on a political leader whose agenda he supported?) affords bittersweet relief.  If nothing else, now is not then.  Burleigh’s frisson over being cruised by a lascivious president stands revealed for the piteous vanity it is.  She used the “Women’s Movement” to self-deal, trading ideological favors for the benefits of aligning with the powerful and letting women who weren’t so lucky or simply had more integrity to pay the cost. 

There were other female bagmen.  She wasn’t alone.  Some of us remember what it was like to have our indignation overridden by “feminists.”  The Roy Moore question is not that.

But, hey, weighing in on scandalous revelations can be fun.  Why not?  Maxine Waters’s staging around the filing of articles of impeachment against the president is pure show biz.  Heck, the excuse to hold a Las Vegas-style extravaganza, with herself in the role of Celine, may have been the point of filing the articles in the first place.  (How else to publicly play out your fantasies if you’re not Al Franken?)  Likewise playing TV jurors.  On a healthier note, mimicking the drama of the truth-seeking process gives vent to our indignation, exercises our powers of deduction, and promotes interaction.  It may even result in actual valuable discussion and engagement. 

I can dig it.  But let’s not lose sight of how far the court of public opinion falls short of the real thing.  The least we can do where someone’s reputational assets are in the balance is acknowledge that without the discipline of law, our confidently delivered judgments may well be…how shall we put it?  Narcissistic?  Not for nothing did Edmund Burke, foreseeing the pitfalls of excessive self-love, warn that “individuals do better to avail themselves of the general bank and capital of nations.”

The usual response to this from non-lawyers is, But the law is not infallible.  It is time-consuming and expensive.  It allows the culpable to get off on technicalities (such as the fact that the statute of limitations has run on many of these allegations).  The guilty sometimes go unpunished.   

And so they do.  And so the law recognizes its own imperfections by imposing finality on its adjudications and the ability to seek recourse anyway.  And so it protects us from coercion (including the coercion of totalitarian rectitude) even though sometimes we must live with ambiguity and the possibility that suffering goes unredeemed.  

Get used to it, Ben.



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Excusing Rape in the Name of Art



The left will stumble all over itself to excuse Hollywood rapists, but Christian bakers – that's quite another story.



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