Archives for August 2007

August 28, 2007

taking inventory of the irony

Immediately after every Republican gay sex scandal, we have an opportunity to inventory the irony, which usually involves an excited tromp through Lexis. Most Republicans vote against gay marriage bills, so that's often the first thing uncovered. Some publicly rail against the evils of gay marriage. Some were apoplectic over Clinton's indiscretions in the mid-90s. But Republican Senator Larry Craig hits the hypocrisy trifecta:

Voted against gay marriage bills:

Craig voted for the failed measure [a constitutional amendment banning gay marriage] July 14, 2004. He also has opposed allowing gays or lesbians in the military and voted against extending civil rights protections to homosexuals in the workplace.

"You can have a civil union, but you can't commandeer the institution of marriage. That's very special, religious, culturally, and you can't go there."

MR. RUSSERT: Larry Craig, would you want the last word from the Senate be an acquittal of the president and no censure?

SEN. CRAIG: Well, I don’t know where the Senate’s going to be on that issue of an up or down vote on impeachment, but I will tell you that the Senate certainly can bring about a censure reslution and it’s a slap on the wrist. It’s a, “Bad boy, Bill Clinton. You’re a naughty boy.” The American people already know that Bill Clinton is a bad boy, a naughty boy.

"I've been in this business 27 years in the public eye here. I don't go around anywhere hitting on men, and by God, if I did, I wouldn't do it in Boise, Idaho! Jiminy!"

• Craig placed his bag on the floor of the stall.
• Craig tapped his foot.
• Craig reached toward the floor where his hand became visible to the person (the undercover officer) in the next stall.

posted by scott pilutik at August 28, 2007 10:53 AM

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August 21, 2007

The Morality of the Atheist - Same as it Ever Was

A familiar pattern arises in every atheism v. religion debate (which arises in a host of contexts, but I'm generalizing a great deal here so I'll not restrict myself to one); reduced to its essentials, the argument looks like this:

Christian: Because atheists believe don't believe in God, they believe in nothing. They owe no allegiance to a higher power and therefore do not subscribe to a universal morality. Morality is entirely relative to the atheist -- he makes his own rules.

I could go on, but it's a tired exercise. The argument is easily countered a number of ways: regions where atheism predominates (like Western Europe) share the greatest concern for human rights; science is beginning to strongly suggest that we each have, to varying degrees, an ingrained moral sensibility, and studies have routinely demonstrated that the outcomes of moral hypotheticals given to test subjects have no correlation to whether the test subject is religious or non-religious.

Brian Tamahana delves deeper into this subject here, but I want to extract a simple thought experiment that demonstrates his larger point more succinctly:

Imagine that your longstanding belief in God is destroyed owing to some precipitating event (say, an inexplicable, arbitrary, unjust, tragedy happens to a family member). In the dark of the night, you come to the conclusion that you no longer believe in God. The next day, when you venture into the world, will you suddenly feel tempted to freeload off your friends, cheat strangers, stop taking care of your children, or steal from, rob, rape, or kill someone? Of course not. You considered all of these things immoral the day before, and you will still see them as such. You may well experience the throes of an existential crisis (asking yourself what matters in life), but that will not of itself penetrate or dissolve your routine moral beliefs.

I bring this up because it seems insane to me that we're still having this debate, especially since we've had this debate before. Up until around the Civil War, most states prohibited atheists from testifying in court. The reasoning then is remarkably similar to the present-day musings of modern Fundamentalists:

The theory held that, since they did not fear the retribution of any god at all, they could not be trusted to tell the truth. Thus, in the early common law, the atheist was excluded because he did not fear the judgment of God, and the defendant was excluded because everyone feared the judgment of man.

- Paul W. Kaufman, Disbelieving Nonbelievers: Atheism, Competence, and Credibility in the Turn of the Century American Courtroom, 15 Yale J.L. & Human. 395 (2003).

posted by scott pilutik at August 21, 2007 07:05 PM

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August 20, 2007

stuart pivar v. seed media group, llc and paul z. myers

Via Brent Rasmussen comes word that one of my favorite bloggers, PZ Myers is being sued for defamation over a pair of scathing book reviews written by Myers only a month or so ago.

I managed to get my hands on the full complaint. Pivar’s claim hinges entirely on Myers referring to Pivar as a “crackpot” -- Pivar argues that this is “libel per se.” Libel per se means libel on its face, without requiring any other facts (in contrast with “libel per quod”, where the libel can only be understood as libel if more was known to the reader).

There are only a few categories of libel per se -- (a) a false statement as to the defendant’s professional abilities; (b) a false statement as the defendant’s affiliation with a party (e.g., KKK); (c) imputations of a loathsome disease; or (d) imputations of criminality.

Pivar is obviously focused on the first category. His complaint even helpfully points to a case where the term crackpot was used defamatorily (McFadden v. United States Fid. & Guar. Co., 766 So. 2d 20 (Miss. Ct. App. 2000)). Pivar’s reliance on this case is misplaced for a few reasons.

In Mcfadden, an insurance adjuster (the defendant) told a woman injured in a car accident that it would retract her coverage if she continued to utilize the medical services of a particular “crackpot” or “quack” doctor (the plaintiff). The trial court directed a verdict for the insurer defendant on both claims -- tortious interference and slander. The appellate court remanded on the slander claim, suggesting that a jury *could* possible find that the adjuster intended to disparage the doctor’s professional abilities. It’s not clear what happened after this, but presumably it settled for some figure.

Before I explain why McFadden is easily distinguishable from Pivar’s complaint, it’s worth noting that McFadden’s complaint is a very close case -- it would probably fail in other courts and before most juries. The defense raised by the insurer in McFadden has some merit -- the insurer and the insured shared an interest (even if it was adversarial) and these types of characterizations arise ordinarily enough that it would likely be considered heated bluster in most jurisdictions, as opposed to an intent to degrade and undermine the plaintiff’s professional capabilities. Unmentioned in the opinion, but still somewhat relevant, it seems to me, is the generally privileged nature of medical advice, even advice given by non-medical persons. The rules of evidence recognize a medical advice hearsay exception, although for an admittedly different reason (trustworthiness). Still, an adversary’s alleged slander could be motivated by a genuine concern for a patient’s care, and so should be categorically kept off limits.

Notably also is the Southern District of NY judge Pivar drew when he filed the suit -- Shira Sheindlin. Sheindlin is an extremely able judge who once found the Military Honor and Decency Act -- a law that would restrict the sale or rental of sexually explicit material on U.S. military bases and ships -- to be unconstitutional, declaring that a democratic society “must tolerate a vast range of discourse, much of it in bad taste and offensive.” That doesn’t necessarily mean anything, but it’s not a bad indicator as to where Sheindlin sits on the first amendment.

Getting to Pivar’s complaint, McFadden raised an entirely separate legal question than the one Pivar raises. McFadden’s plaintiff was a doctor whose reputation was allegedly slandered by an insurance provider to the doctor’s patient. The doctor, under the apparent facts, never sought publicity. Pivar is at least a limited purpose public figure, and probably even a public figure, since the allegedly defamatory comments arose in the context of a review of Pivar’s book. American courts apply different standards of both proof and damages depending on who the defamed is, ranging from politicians (least protected), celebrities (nearly as unprotected as politicians) to incident-specific public figures (private individuals who lose protection when the allegedly defamatory comment pertains to their involvement in an event into which they injected themselves) to private individuals (you and me). In other words, the doctor in McFadden had a much greater expectation that the law would redress his being called a crackpot than does Pivar.

Additionally, context works against Pivar, because of how the term ‘crackpot’ was used in each instance. The insurer was speaking directly to a patient considering her own medical situation and Myers was reviewing a book. It seems more probable that the insurer – speaking directly to the patient – was not speaking from expertise but from a financially interested place. Neither lack of expertise nor financial interest matter necessarily – but their presence undercuts the notion that the insurer was expressing an opinion, which is almost always considered protected speech. Only where defamation is factually implied inside an opinion does the opinion become actionable. Myers wrote a detailed, informative review on a subject in which he has expertise, and his conclusion that Pivar is a crackpot was not a factual implication smuggled inside an otherwise protected opinion. It was just his opinion.

Perhaps, too, the term “crackpot” is so vague as to be a possibly unfalsifiable. How can one defend against a claim that he/she knew the plaintiff was not a crackpot? What is a crackpot in a world where every newspaper carries an astrology column? The term (with nothing more) is so bandied about as to be diluted and meaningless under any defamation standard (which all primarily rely on whether the plaintiff's reputation has been damaged in the community).

In any case, I wouldn't expect this transparent attempt to quash criticism to last long on Sheindlin's docket.

posted by scott pilutik at August 20, 2007 06:10 PM

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August 10, 2007

Hindu-gate followup

The American Family News Network (AFN) is reporting:

A conservative Idaho lawmaker [Bill Sali (R)] believes America's founding fathers would not have wanted a Muslim elected to Congress or a Hindu prayer delivered in the U.S. Senate.

posted by scott pilutik at August 10, 2007 11:48 AM

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