BeldarBlog

Free exercise of religion, cultural relativism, principled distinctions, and foreskins

This report troubles me (link in original; hat-tip Althouse):

A German rabbi is facing charges for performing a circumcision, less than two months after a Cologne court outraged Jews and Muslims by outlawing the procedure.

Rabbi David Goldberg has become the first rabbi to face possible legal action for performing the ritual after an unidentified doctor filed a criminal complaint against the spiritual leader, alleging "bodily harm" to the child involved, the Times of Israel reported.

The German equivalent to our Constitution and Bill of Rights — their "Basic Law" — contains sweeping language based upon, and apparently equivalent to, the Free Exercise Clause of our own revered First Amendment. Will it be interpreted to give Rabbi Goldberg a defense? And if not, how much more are we bothered by that specifically because this is happening in Germany?

Because I've been to law school, however, I have voices in my head which insist on complicating this issue even further. "What about so-called 'female circumcision' as practiced in some cultures? If the Free Exercise Clause, or its German counterpart, prevents the state from prosecuting Rabbi Goldberg for performing male circumcision, would it not also protect those engaging in 'female circumcision'?"

"But," my pre-law school ethical self retorts, "what they call 'female circumcision' is really just genital mutilation. It's not comparable."

"Po-TAY-to, po-TAH-to, Beldar," replies my inner law professor. "So say concerned citizens of San Francisco about male circumcision. Can these enlightened people from the City by the Bay be wrong?"

Heavens forfend!

But if I can't eliminate those voices, I can at least hush them for a while: "Enough of the false equivalencies! I am comfortable that I can draw a principled distinction between these two things. I am confident that I am not guilty of hypocrisy in holding one to be a constitutionally protected liberty, and the other a barbaric and cruel practice inflicted to subordinate one gender to the other."

"Sez you," say the voices.

"Yes," I mutter to myself, "sez me, exactly. Yes, there are indeed cultures which promote genital mutilation of children. But mine doesn't, and shouldn't, and in my confident if ultimately somewhat subjective judgment, my culture is, as a consequence of that, better than it otherwise would be. Sez me."

On GOP fundraisers who support gay marriage

Today's Washington Post included an article by Dan Eggen entitled "While GOP opposes gay marriage, key donors fund the other side." Mr. Eggen notes that while the official GOP party platform will include support for a proposed federal constitutional amendment banning gay marriage, a number of prominent Republican fundraisers are nevertheless putting their support, and their considerable fundraising capacities, in service of the contrary position. Indeed, there is even "a new super PAC focused on supporting Republican congressional candidates who favor marriage equality" that's drawing multi-million contributions from some prominent Republican contributors.

Eggen describes this as evidence of a "growing rift" within the GOP on issues of sexual preference, but he also asserts that "support for same-sex unions remains an outlier among Republicans." In my evaluation, both of these statements are technically correct, but they miss and indeed conceal a larger and more important context:

Eggen appears to think this is new news. And he appears to think that there's only a "rift" within one party on such social policy. If so, he's wrong on both accounts.

In fact, each's party's platform will contain again this year — as they have since the mind of living man reacheth not back — policy positions that may indeed reflect the views of a majority of convention delegates, but that are much less fervently or consistently held by the voters who will cast ballots for that party's candidates.

The classic and still-valid example on the Democratic side will be the Democratic Party's official embrace of government-financed abortion on demand. There actually are still substantial numbers (quite literally millions) of pro-life Democrats who oppose abortion as a matter of broad principle; they've been rudely conditioned to keep their views mostly to themselves within the supposed party of tolerance, but they actually do exist, and a few of them still are "on record" with that position. Short of that, there are quite a few Democrats (and quite a few Republicans, including me) who are weakly and reluctantly pro-choice, but who genuinely and sincerely still believe in the Bill Clinton formulation that abortion should be safe, legal, and rare — a last resort whose moral complications must be acknowledged. And there are indeed Republican daughters who end up having abortions. There are Democratic daughters who end up bringing their unborn children safely to term, even though inconvenient or unplanned, even if they support the "right to choose" as a general matter, but out of personal reverence for that which distinguishes a human embryo or fetus from a "lump of tissue."

And likewise, on the questions of gay marriage and sexual orientation more generally, there are both Republicans and Democrats scattered all along the spectrum. There will be married gay Republicans who vote for Romney-Ryan. There will be Democrats who stay home because they're disappointed that Obama has endorsed gay marriage. There are voices even within the gay rights movement who caution against overreaching through court decisions, and who (correctly in my judgment) point to the recent repeal of "Don't Ask/Don't Tell" as the better model for gradual and politically legitimate changes in social policy. 

And actually, Dick Cheney and I are part of a sizeable plurality in the GOP who oppose any government discrimination on the basis of sexual preference, but who are unwilling to engage in the pernicious and unprincipled fiction that the U.S. Constitution somehow already addresses sexual preference. Cheney and I have held that position for many years, whereas Barack Obama only came around to the first part of it a few weeks ago. So the new news is supposed to be that there are Republicans who — gasp! — support same-sex marriage as a policy matter? You'd think the recency of Obama's conversion might have merited more than the brief and passing mention that it got in this article, but I suppose we've always been at war with Eastasia.

Nope, when the WaPo reports on something like this story that deviates from the Democratic Party narrative, it suits the WaPo's purposes to pretend that this is the new news, and that these people are mere "outliers." Otherwise, they can't use fear to move votes. Otherwise they can't pretend that these controversies are going to be resolved, once and for all time, definitively and forever, based on this November's election. Otherwise they can't distract voters from the shambles which this Administration has made of our national economy and the government fisc.

Americans really can't be neatly sorted so neatly into boxes. But that doesn't stop the mainstream media and the political meme-spinners from trying.

And that doesn't mean we have to fall for it.

Beldar scoops NYT on analysis of Edwards trial

History will reflect that today, during the fourth day of jury deliberations in John Edwards' criminal trial on campaign finance fraud charges, the New York Times finally figured out the most likely key to the John Edwards trial — "a rigorous disagreement between the defense and prosecution in the courtroom over whether the law requires that influencing an election be the sole reason for giving money, as the defense team interprets the law, or only one of the reasons, as the prosecution sees the case."

Let the record also reflect, however, that readers of BeldarBlog were so advised on Thursday, May 17, 2012, before the jury began its deliberations.

Like the first analyst quoted by the Times, I agree that these jury instructions are also likely to be the most promising potential basis for an appeal if the jury convicts Edwards. I'm not yet persuaded, however, that the instructions were defective. To the contrary, on this specific issue I'm quite confident that Judge Eagles' instructions are substantially correct: This is an issue of first impression, with no prior appellate opinions to resolve the issue, but nothing in the language of the statute supports the defense contention regarding "sole reason," and there's no reason for a court to read that extra requirement into the elements of the crimes the statute defines.

Tony's mitigation

As I wrote last week, I respectfully disagree with Ann Althouse that Rep. Anthony Weiner (D-NY) ever had any substantial legal exposure to Twitter or Facebook or yfrog on some sort of defamation claim based on his oft-repeated lies claiming his accounts with those services had been "hacked."

So the only thing I have to say this week is this: With his tearful press conference this week, he's now effectively mitigated whatever potential defamation damages exposure he might arguably have had if Prof. Althouse was right: Nobody in the known world now believes that someone hacked his accounts, and there's no possibility of continued damage to Twitter's or Facebook's or yfrog's reputations as a result of this whole debacle.

Smart move, Tony!

(In fact, maybe mitigating his defamation damages exposure was his real motivation to "pretend" to have lied, instead of him being motivated to "pretend" to have lied because he's now the victim of that blackguard Breitbart's blackmail schemes! Yeah, that's the ticket! Alert the media! Someone email Joy Behar!)

Has Rep. Weiner defamed Twitter & Facebook?

Prof. Althouse has an interesting post about the alleged (*cough-cough*) simultaneous hacking of the Twitter and Facebook accounts of U.S. Rep. Anthony Weiner. I, for one, believe that Rep. Weiner is lying through his teeth about the "hacking." But I either fail to follow Prof. Althouse's thinking, however, or else I respectfully disagree with her about an observation she's made in updates to her post (link & ellipsis hers):

AND: If Weiner is lying about his accounts getting hacked, he could be sued by Twitter (and the other companies) for defamation.

ALSO: NBC News reports "Lewd Photo Sent Over Rep. Weiner's Hacked Twitter Account... his Twitter account was hacked." Not that Weiner makes that claim, but an outright assertion that his account was hacked. Twitter is getting slimed here. Does it deserve it?

My disagreement with her is almost certainly not over the relevant law. The specific definitions vary somewhat from state to state, and the common law of libel and slander have been tweaked some by state legislatures and even federal constitutional interpretations. Nevertheless, as a general rule, in order to be defamatory, a statement must not only be false, but must also be harmful in a particular way to particular interests. For example, section 73.001 of the Texas Civil Practice & Remedies Code defines a libel as —

a defamation expressed in written or other graphic form that tends to blacken the memory of the dead or that tends to injure a living person's reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or reputation or to publish the natural defects of anyone and thereby expose the person to public hatred, ridicule, or financial injury.

Similarly, section 559 of the Restatement (Second) of Torts provides:

A communication is defamatory if it tends to so harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.

I simply don't see how what Rep. Weiner's reported to have said — even if false — would harm Twitter's or Facebook's reputation.

Twitter and Facebook should bear no responsibility — legal or even causal — if Rep. Weiner simply chose a low-security password that someone guessed. Nor should they be responsible if, for example, Rep. Weiner used the same high-security password for several accounts and his password was stolen through some wrongdoer's hacking of one of those other services (either with or without the contributing negligence of that other service).

Simply put, unless one takes the view that every unauthorized use of an account must always and necessarily be the fault of the service which hosts that account, a statement that someone's account was hacked does not necessarily imply something harmful to the service's reputation. And I respectfully submit that such would be a patently unrealistic view — even though some people might jump to that conclusion if they have not thought through the alternatives.

The law treats this as a threshold issue to be decided by the judge "as a matter of law," even though it's necessarily based on an appreciation of what does or doesn't affect one's reputation in the community. So I'm curious:

Assume that you are the judge faced with Rep. Weiner's pretrial motion to dismiss Facebook and Twitter's (hypothetical) lawsuit on grounds that, as a matter of law, his statements did not expose Facebook or Twitter to the required sort of reputational harm. What's your ruling?

Click Here for PollOnline Survey
Conjoint Analysis
| Polls
| Mobile Surveys

| Feedback Tab
View MicroPoll

"Marketers, it turns out, are just really good at giving us stories we want to steal"

I was fascinated by Jonah Lehrer's article at Wired entitled Ads Implant False Memories, the ending sentence of which I've quoted in the headline above. (Hat-tip Prof. Oren Kerr at Volokh Conspiracy.)

Follow-up bonus questions:

Trial advocates are, in some respects, another sort of "marketer," and the most effective ones are inevitably good story-tellers. Could lawyers find a way to take advantage of the phenomenon described in this article?

And if we could, would it be ethical?

Beldar quibbles with McCarthy to show that Holder's conflicts are even worse than McCarthy's revealed

Andrew C. McCarthy led the team of federal prosecutors who obtained convictions in 1995 against Sheik Omar Abdel Rahman (a/k/a "the Blind Sheik") and eleven others in connection with the 1993 World Trade Center bombing. Since he left the Justice Department in 2003, he's been among the most articulate critics of those who'd respond to international terrorism as if it were merely a civilian criminal offense. As someone who's actually done as well as can be done in such cases in our civilian criminal courts, I accord him credibility on this topic that's roughly the size, shape, and mass of the Rock of Gibraltar. I rarely find myself disagreeing with what he's written as a contributor to National Review and other conservative outlets.

I agree entirely, for example, with Mr. McCarthy's verbal thrashing of Attorney General Eric Holder in an NRO column from yesterday entitled Holder vs. Holder. In it, Mr. McCarthy explains why Eric Holder is a particularly leaky vessel into which to entrust the profound obligation of serving as chief counsel for the United States of America, and in particular why that's so when it comes to prosecuting/fighting the Global War on Terrorism (a term that Holder himself, like his master at the White House, has disavowed).

My one quibble is with a shortcut that Mr. McCarthy has taken in this opinion article — one which I think actually detracts from its overall persuasiveness.

Mr. McCarthy begins thusly:

Why does the Obama Justice Department seem to have trouble mounting a full-throated, compelling legal defense of Osama bin Laden’s killing? The problem for Eric Holder the attorney general could be Eric Holder the private attorney.

In 2004, Mr. Holder chose to file an amicus brief on behalf of Jose Padilla, the al-Qaeda terrorist sent to our country by bin Laden and Khalid Sheikh Mohammed to carry out a post-9/11 second wave of attacks. In the brief, Holder argued that a commander-in-chief lacks the constitutional authority to do what his boss, the current commander-in-chief, has just done: determine the parameters of the battlefield. By Holder’s lights — at least when the president is not named Obama — an al-Qaeda terrorist must be treated as a criminal defendant, not an enemy combatant, unless he is encountered on a traditional battlefield.

It would be useful if staffers at congressional oversight hearings passed around copies of Holder’s Padilla brief. It is a comprehensive attack on Bush counterterrorism, an enthusiastic endorsement of the law-enforcement approach in vogue during the Clinton era (when Holder was deputy attorney general under Janet Reno, who also signed on to the Padilla brief). This might explain why Holder sometimes has difficulty answering seemingly easy questions. That’s what happened this week, when the Senate Judiciary Committee quizzed the attorney general on the lawfulness of the U.S. military’s targeted killing of bin Laden.

I have a problem with that line of argument. It's wrong, and dangerous, to presume that a lawyer privately supports every element of every cause, or every aspect of every defendant, whom he champions in court. And I know Mr. McCarthy knows this principle, and I believe he likely believes in it. Mr. McCarthy went around this hurdle — ignored it — when it's fairly easily overcome in this specific case, however:

Holder didn't take on Padilla as a paying client because he (Holder), like every lawyer, needs to put bread on his family's table. Holder didn't in fact represent Padilla at all, and the Second Circuit brief to which Mr. McCarthy refers wasn't filed by Mr. Holder in his capacity as a lawyer, pro bono or otherwise, for anyone. Holder wasn't among counsel of record in the case.

Rather, Holder — with Janet Reno and two other former Clinton Administration lawyers — were themselves the "amici curiae," literally "friends of the court," who sought and received permission to address the Second Circuit on legal issues relating to Padilla's pending appeal. The lawyers who actually signed and filed the brief, acting in the role as counsel to the "amici curiae" including Holder, were from Arnold & Porter — one of the main (but mainly friendly) cross-town rivals of the Washington, D.C. firm at which Holder was then employed, Covington & Burling.

So attributing the views in this brief to Holder personally is entirely appropriate: The "mouthpieces" who may or may not have agreed with the "clients' position," but who figuratively and literally "signed off" on the brief, were the Arnold & Porter lawyers. Holder, although he had no stake in the case other than as a bystander and "friend of the court," was himself their client. Holder wasn't insisting on being heard by the Second Circuit through counsel because he was at the same risk of imprisonment or death that Padilla himself was in. Rather, Eric Holder, as a private lawyer whose only special credibility arose from his past government service, went out of his way to align himself with Padilla not as an advocate, but as a fellow principal interested in the same matters (albeit in the limited capacity of an amicus). 

It's thus entirely fair — and indeed, much more fair than with other legal briefs in which Holder was merely a paid, or even volunteer, advocate for some client — to attribute the views in this amicus brief to Holder personally. Once the A&P lawyers agreed to represent these "amici curiae," the A&P lawyers were obliged to diligently advocate for Holder's (and his felllow amici curiae's) interests. They spoke not for themselves, but for Eric Holder — and it is to him that their arguments and positions must be attributed. Otherwise, the clients upon whose behalf the brief was filed lacked any authority even as a "friend of the court" to be heard at all.

Holder can't, in other words, hide behind the usual — and oftentimes entirely legitimate — beard that "I was only representing my client's interests, and I don't necessarily agree personally with everything I said on the client's behalf." Rather, everything said in the amicus brief in the Padilla case was said specifically on behalf of Holder; he was the client of the lawyers who wrote and filed it.

Holder's own law degree and licensure and experience is also important, however, because it utterly deprives him of any possibility of saying now, "Oh, I really didn't grasp all the implications of the legal arguments my lawyers from Arnold & Porter were making on my behalf." Even moreso than the average client who lacks legal training and skills, it's not just a conclusive legal presumption that the Arnold & Porter lawyers were fairly and accurately representing Holder's views, it's a practical fact. It's simply inconceivable that this brief could have been filed without Holder (and Reno and the other two Clintonista lawyers) having a chance to review and participate substantively in the editing of its contents.

I suspect Mr. McCarthy would agree with all this, and perhaps he omitted it in the interests of concission. I lack his gift for that, but I also have a very strong attachment to the underlying general rule that for the Rule of Law to function, the lawyers participating in its administration must be free from the strictures that would come from attributing personally to them every principle or cause they've supported as an advocate.

King & Spalding's craven ethical collapse in withdrawing from a politically controversial representation

During a period of brief temporary insanity near the end of the 20th Century, I considered returning to the BigLaw corporate litigation practice. I was privileged to be granted a job interview with a partner from the then-new Houston office of Atlanta-based King & Spalding.

The firm enjoys an excellent reputation as one of America's top law firms, and it would be on anyone's short list of prestigious big firms headquartered in the American south. My occasional brushes with its lawyers during my dozen years of BigLaw practice — typically on big cases in which it and my then-firm represented cooperative co-defendants — gave anecdotal confirmation that reputation was justified.

The firm did not offer me a job, which I quickly realized was fortunate for them and me both. I nevertheless enjoyed the interview, and I particularly remember one particularly frank theme of it: The firm's Houston office was expected to parallel the entire firm's practice areas and client list, specifically including its long-standing and sometimes controversial representation of corporate clients considered socially toxic (and sometimes literally toxic). This included, prominently, tobacco companies, asbestos companies, pharmaceutical companies, various other chemical and industrial companies, and so forth.

I was asked — forthrightly and appropriately — whether that would give me any moral or ethical problems. I said I'd represented lots of target defendants in the past, often in hostile venues. I said that I was secure in my own ethical compass and integrity, and thus not over-concerned that I might be subverted into any impropriety by any client or colleague. I said that I believed in my own ability to stick to the rules in an adversary system which permits even the wicked to hire the best advocates available. I explained my appreciation, from past experience, that a lawyer has parallel but distinct duties: He or she must act as a zealous advocate for clients in public. But he or she must also serve as a private counselor, which includes helping troubled companies comply with their legal obligations and resolve their disputes on fair terms.

These were truthful answers, and I believe the same things today. These things are fundamental premises for anyone who aspires to be any client's champion in our adversary system.

*******

I was reminded of that interview yesterday upon reading of the circumstances of Paul Clement's resignation as a partner in King & Spalding's Washington office. (Yes, besides litigation, that branch office exists in part to lobby for many of those same toxic companies.) My reaction to the story was surprise, then dismay and disappointment. Clement is a star who will prosper wherever he practices. And I'm sure there must be many K&S lawyers, including many partners, who'd have rather seen handled things differently in hindsight. But the firm's management speaks for the firm, and the downstream lawyers' ratification, reluctant or otherwise, is more or less implicit in their continuing to show up for work every day.

King & Spalding now owns this precedent. It has raised a white flag of surrender, rather than stick to its commitment to this particular controversial client. Therefore its commitment and resolve with respect to any and every controversial client in the future must be weighed against this betrayal.

I never thought I'd have occasion to use the word "gutless" to describe King & Spalding or any of its partners. But yeah, that's the one that fits. It's hardly an Atticus Finch moment for the old firm.

*******

And then I came upon this blunt and provocative assessment from Glenn Reynolds:

Just remember: King & Spalding is now responsible for the views of any client it chooses to represent, now that it’s clear they’re being vetted for political correctness.

Maybe K&S' client list has changed radically since my interview back then. Casual googling and the current firm website suggest not, however. If someone's more curious and diligent than me, there's always PACER. The firm has a genuine claim to a national practice in both trial and appellate courts, state and federal — so there would be lots of courthouses to check.

"Oh," you may say, "there are differences among these noxious clients. Some are much worse than others." And that is true. But the time to consider those differences — the time to decide whether conflicts or mere "taste" issues would interfere with diligent representation — is before agreeing to take on the particular case and client.

As a lawyer, the whole concept of being a fiduciary necessarily implies that you've weighed, and resolved, any moral, ethical, or other personal subjective issues before you accepted the representation. Thereafter, you reserve and suppress your personal judgments, and you scrupulously guard against their potential interference with the objectivity and diligence you owe each client.

Once a lawyer and his firm have agreed to be hired, and have indeed been hired, and have publicly announced as much, and have thoroughly embarked upon their representation of that client in that matter, both lawyer and firm are ethically and morally committed. Neither firm nor lawyer is free to disavow their commitments to controversial clients on grounds that the firm no longer likes being involved in the particular controvery which brought the client to them in the first place. That would be like the doctor who's supervising your chemotherapy suddenly deciding, mid-infusion, that "Chemicals are icky!" and jerking the needle that could save your life out of your arm.

How much damage will this do to King & Spalding in the long run? As trial lawyers here in Texas are wont to say: "That gun kicks as hard as it shoots, pardner." King & Spalding will survive, and may thrive, but I suspect it will come to regret pulling this particular trigger.

---------

Note to commenters: Please stay on or near the topic of K&S' reversal of its original commitment to represent the Bipartisan Legal Advisory Group of the United States House of Representatives in defense of Section III of the Defense of Marriage Act. That doesn't require long arguments about the merits of that defense, the constitionality of DOMA, federalism, or the propriety of gay marriage in general; save that for other posts, please. This post is about legal ethics, and the fact that the issue arises out of this particular context isn't especially material because, yes, it could just as easily instead be about tobacco, guns, asbestos, lead paint, et cetera — and we're not going to debate any of those in connection with this post either.

---------

UPDATE (Tue Apr 26 @ 8:10 a.m.): I've blogged before about John Adams and his famous representation of the British soldiers who committed the "Boston Massacre." But for another example of a famous lawyer championing controversial causes or clients, ponder this historical factoid and its potential relevance:

The lead appellate lawyer who defended segregated schools before the Supreme Court in the consolidated appeals decided by Brown v. Board of Education — the lawyer who lost to Thurgood Marshall — was John W. Davis of New York City's Davis, Polk & Wardwell. William Henry Harbaugh's Lawyers Lawyer: The Life of John W. Davis is among the best portraits of a practicing trial and appellate lawyer that I've ever read. And every time I pass the old Rice Hotel in downtown Houston, I'm reminded that the Democratic Party nominated Davis as its presidential candidate during its convention there in 1924.

A legendary figure in his day, Davis argued before the U.S. Supreme Court 140 times. And either in Harbaugh's book or elsewhere, I recall reading that Marshall did not begrudge Davis his role, and indeed, that Marshall said it was appropriate that such an important case be championed by the best advocates available in order that the resulting decision have its maximum credibility.

Perhaps you believe that the DOMA is as repugnant as school segregation and Jim Crow. If so, then, you may think that Paul Clement today occupies a role comparable to Davis' in Brown. Were he alive to do so today, though, Thurgood Marshall would patiently explain to you that it is precisely their steadfast performance of their duties to even controversial clients that made Davis, and make Clement, a "lawyer's lawyer."