Compelling Honesty

It’s interesting how many people indignantly wrap themselves in the Free Speech provisions of the First Amendment in order to justify behaviors that–properly understood–aren’t really speech at all.

In all fairness, it can be difficult to distinguish between actions that are intended to communicate a message (protected) from actions that are committed through speech (not protected).

If you describe that cubic zirconium you are selling as an expensive diamond, the fact that your fraud involved the spoken word won’t turn your deception into a free speech issue. On the other hand, if you burn an American flag (assuming it’s yours to burn), you are clearly doing so in order to convey a message. (The content of that message is precisely why people get so angry.)

This little exercise in First Amendment philosophy is an introduction to an interesting case involving Crisis Pregnancy Centers.

Crisis pregnancy centers (CPCs) are pro-life organizations that often offer women incorrect, incomplete or misleading information about their reproductive options.

In response, some localities have passed legislation requiring CPCs to make disclosures to their clients. California, for example, passed the Reproductive FACT Act in 2015. Under this law, CPCs must notify clients of public resources available to prevent or terminate pregnancies. It also mandates that CPCs inform their patients if they are not licensed as a medical facility.

Anti-choice advocates have taken issue with these requirements. The National Institute of Family and Life Advocates has sued California’s attorney general on behalf of CPCs. In November 2017, the U.S. Supreme Court decided it would hear the case.

The question the Court will have to decide is deceptively simple: does requiring Crisis Pregnancy Centers to disclose accurate information that counters or undermines their beliefs violate their First Amendment right to free speech?

At first blush, the idea of requiring speech to be truthful seems like a great idea. (Fox “news” anyone?) In practice, it’s difficult if not impossible to separate opinion from flat-out lying. After all, most lies aren’t as obvious as those constantly being told by Donald Trump and Sarah Huckabee Sanders. In the case of Crisis Pregnancy Centers, however, the intent to mislead is pretty transparent.

A 2016 paper published in the Journal of Pediatric and Adolescent Gynecology found that nearly half of the 85 websites surveyed promoted abstinence-only sexual education. Over 60 percent of these websites provided negative facts about condoms, including minimizing their efficacy and suggesting they break often, and less than 10 percent encouraged the use of condoms to prevent sexually transmitted infections.

A larger examination of 254 CPC websites, published in Contraception in 2014, found that 80 percent provided at least one item of false or misleading information — most commonly, claiming links between abortion and mental health concerns.

A study published in 2017 in Women’s Health Issues focused on the websites of crisis pregnancy centers in Georgia. It reviewed all of the accessible websites of the CPCs in the state and found that more than half had “false or misleading statements regarding the need to make a decision about abortion or links between abortion and mental health problems or breast cancer.” Eighty-nine percent of sites did not indicate that their centers do not offer contraceptives or direct patients to resources where they might find them.

There is considerably more abortion research at the link.

The question that the Justices will have to weigh, however, is unrelated to the issue of reproductive choice–although attitudes about abortion will undoubtedly play an outsized role.

The legal issue to be resolved will apply in areas far removed from reproductive rights. What level of harm to the public justifies government interference with an advocacy organization’s communications? Do the lies being peddled rise to the level of fraud, as in our cubic zirconium example? Or should the risks to the “consumers” of these services be governed by the doctrine of caveat emptor–let the buyer (or in this case, the pregnant woman) beware? Should the imposition of government sanctions require intent–that is, should a finding of culpability require evidence that the people making the false claims know better?

I personally think that organizations willing to lie to women who are already distraught are despicable. But legal analysis must consider the consequences of a decision based upon that sort of emotional reaction.

Can the Supreme Court craft a decision that limits the ability of dishonest folks to prey on vulnerable women, without handing government a cudgel with which to beat the merely opinionated? And if so, what should be the burden of proof?

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No Ice Floes Handy?

According to legend, when their elderly became burdensome, Eskimos put them on ice floes and let them drift out to sea.

If I thought that Trump and his “best people” could read, I’d suspect they were emulating the Eskimos.

A week or so ago, a friend who no longer lives in Indianapolis was in town, and met my husband and me for breakfast. During the “catching up” talk that takes place when old friends haven’t seen each other for a while, we asked him what his wife was doing. He said she’d been working part-time as an advocate for nursing home patients–a position required as a condition of federal grants for nursing home care–but that the Trump Administration had eliminated the requirement, along with a number of other regulations intended to protect the sick and elderly residents of such institutions. So she was looking for another job.

I was pretty incredulous; why would even this benighted administration refuse to protect helpless old folks against the well-documented abuses encountered in numerous substandard nursing homes?

Turned out, however, our friend was right. I saw this article from The Hill not long after our conversation:

The Trump administration is reportedly rolling back the use of fines against nursing homes that have been cited for violations such as neglect or mistreatment.

The move comes after the nursing home industry requested the change in the Medicare program’s penalty protocols, The New York Times reported over the holiday weekend.

The American Health Care Association had argued that inspectors were too focused on finding wrongdoings at nursing homes instead of assisting the facilities.

A 2001 Congressional investigation uncovered reports of serious, physical, sexual and verbal abuse in a third of the nation’s nursing homes. That led to more monitoring and additional regulation. Since 2013, nearly 6,500 nursing homes have been cited  for one or more serious violations. Approximately two-thirds of those were fined by Medicare.

Nevertheless, the personnel installed by Trump at the Center for Medicare and Medicaid Services argued that the regulations and fines were counterproductive.

“Rather than spending quality time with their patients, the providers are spending time complying with regulations that get in the way of caring for their patients and doesn’t increase the quality of care they provide.”

A lawyer from the Center for Medicare Advocacy disagreed, observing that the revised regulations and diminished penalties have “pretty much emasculated enforcement, which was already weak.”

So let’s see….this administration wants tough penalties for street crime and drug use and illegal immigration, because Trump and Sessions say punishment is a deterrent to socially undesirable behaviors. But we don’t need to fine or otherwise punish the owners of nursing homes that mistreat their vulnerable inhabitants. (Sorry–I know the word “vulnerable” has been banned.) We can  gently suggest they desist, and maybe those bedsores will go away by themselves….

The regulations no longer being enforced weren’t imposed by some abstract, rule-happy big government bureaucrat; they were put in place because of evidence that far too many nursing homes were abusing and neglecting their elderly, incapacitated patients, and doing so with impunity.

Someone needs to explain to me just how forbidding elder abuse “gets in the way of quality care.”

Actually, ice floes might be more humane….

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A Warning About The Overton Window

Well, Happy New Year!

The year 2018 is likely to be pivotal for America; in November, we will see whether outrage is sustainable–whether Trump has continued to be embarrassing and dangerous enough to keep large majorities of Americans active in the political resistance.

A lot can change in eleven months. Outrage can be exhausting. Propaganda can change public opinion. Voter suppression tactics can be ramped up. Racism, xenophobia and misogyny can be normalized and justified.

And then there’s this: Vox has recently warned readers about the Overton Window.

“Don’t normalize this” has become a kind of rallying cry during President Trump’s first year in office — a reminder to not get too acclimated to Trump’s norm-breaking and erratic behavior.

But the real danger of the Trump presidency might have less to do with Trump’s abnormality and more to do with how “normal” he makes other Republicans look by comparison.

It’s a timely warning, because let’s face it: next to the antics and ignorance of this Administration, behavior that once would have shocked us seems pretty tame by comparison.

There’s a concept in political theory developed by Joseph P. Overton which suggests that there’s a “window” of acceptable ideas and policy proposals in public discourse. Everything inside the window is normal and expected, while everything outside the window is radical, ridiculous, or unthinkable. And Overton argued that the easiest way to move that window was to force people to consider ideas at the extremes, as far away from the window as possible. Because forcing people to consider an unthinkable idea, even if they rejected it, would make all less extreme ideas seem acceptable by comparison — it would move the “window” slowly in that direction.

A great deal of that damage has already been done.

Trump’s presidency has forced news networks to grapple with conspiracy theories, right-wing trolls, and dishonest government spokespeople — making them a regular fixture of our national political debates. And that grappling has moved the Overton Window in ways that will warp our politics long after Trump’s presidency comes to an end.

This is the phenomenon that allows us to look at seriously radical politicians and fail to recognize how far they are from what used to be the mainstream. It is the sort of “normalization” that allows us to consider Senators and Representatives “moderate,” despite their consistent support for Trump and his warped agenda, simply because they smile occasionally and refrain from throwing verbal feces.

As odious as Trump and his crew of institutional vandals are, our immediate–and imperative– task is to defeat and replace his complicit Congressional enablers. We can’t let the Overton Window diminish our recognition of their culpability.

If there is a massive Democratic wave in November, it will do three things: it will be a stinging repudiation of Donald Trump; it will hasten the day when the GOP returns to its roots and some semblance of sanity; and–counter-intuitive as it may seem–it will also be a wake-up call to Democrats, because it will signal the continued operation of democratic accountability.

We have eleven months to resist normalizing the bizarre. Eleven months to make sure that vote suppression tactics don’t work. Eleven months to recruit, encourage and support good candidates. Eleven months to begin what will be a long process of restoring sanity and responsibility to American government.

What’s that old saying? This is the first day of the rest of our lives…

Happy 2018. Let’s make it count.

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A Shining City, Not A Walled Fortress

Tonight is New Year’s Eve. The years do seem to go faster the older I get….(As my husband likes to say, “Life is like a roll of toilet paper. The closer you get to the end, the faster it turns.”)

This year’s New Year’s Resolution isn’t my usual list (lose weight, read more, be nicer to assholes). No, this year, my one and only resolution is to do everything in my (limited) power to make America America again.

This inspirational column by Ruth Marcus says it all, and says it far more eloquently and forcefully that I could. Marcus makes the essential point that one can loathe Donald Trump while loving America–that in fact, loving America pretty much requires detesting and resisting our accidental President.

I will share a couple of her observations, but I really, really hope you will click through and read the column in its entirety. (Maybe even print it out and frame it….)

Here, for me at least, is the comforting paradox of the age of Trump: I have never respected a president less, nor loved my country more.

This sentiment may startle. It may rankle, even. It comes in a week that witnessed the passage of the worst domestic policy legislation of my lifetime, followed by the now ritual but always repulsive lauding of President Trump. First by the Cabinet courtiers summoned for that purpose; next by Republican lawmakers willing to lay it on just as thick — even more nauseating, because they know better than the servile flattery of their words and because they occupy, theoretically anyway, a coequal branch.

After listing many of the ways this President has disgraced and embarrassed the nation, Marcus writes

Has there been a more embarrassing year for the United States? Thinking Americans cringe at what foreign countries and their leaders make of us and our president, with his reckless upending of international agreements, his bigoted and poorly executed travel ban, his unashamed ignorance, his reckless tweets, his endless susceptibility to flattery.

I particularly loved this observation:

Once we took for granted, as a given of American democracy, such fundamental values as freedom of the press, the rule of law, the separation of powers, the independence of the judiciary. Now we have a president who veers between failure to understand their importance and deliberate efforts to undermine them.

He is similarly heedless of the qualities that have always made America great, most notably its willingness not only to enshrine these values at home but also to play a leadership role in nurturing them abroad. Trump’s America is bristlingly insular and driven by zero-sum selfishness. Mine is welcoming, idealistic and generous — a shining city, not a walled fortress.

That last line particularly resonates with those of us who know our American history. Even the Deists among this nation’s founders joined their more “biblical” compatriots in believing that they were bequeathing to the world a “shining city on the hill,” a country that would be a beacon of liberty and justice.

Marcus concluded with a timely reminder of the difference between patriotism and nationalism.

Those of us on the more liberal side of the political spectrum have too often and too easily ceded the mantle of patriot to conservatives. Indeed, there can be an off-putting, chest-thumping aspect to traditional, bumper-sticker patriotism: “My country, right or wrong.” “America, love it or leave it.”

George Washington, in his farewell address, advised fellow citizens to “guard against the impostures of pretended patriotism.” It is hard not to recall that admonition when listening to Trump’s faux-patriotic posturing against kneeling NFL players and his demand that they show “total respect for our national anthem, for our flag, for our country.”

Real patriotism would be to recognize, as the Supreme Court did three decades ago in overturning a criminal conviction for burning the American flag, that “we do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.”

It has never been more important for real patriots to fight for the America of our moral aspirations. As Marcus says, “our fundamental fight is not against Trump. It is for America.”

Happy New Year.

Let’s get to work.

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Institutional Arson

As I have noted previously, Michael Gerson is one of the very few principled conservative Republicans who have not traded in their ethics (to the extent they had them) for partisanship advantage in the Trump era.

I have become a semi-regular reader of Gerson’s columns, not because I necessarily agree with his policy preferences (in many, if not most cases, I don’t), but because he is intellectually  consistent and honest, and his opinions are for that reason worth considering.

In an otherwise unremarkable recent column for the Washington Post, Gerson used a phrase that struck me. The column itself addressed the all-too-obvious GOP effort to delegitimize Robert Muller and his investigation of Russian interference in the 2016 election.

This quote will convey Gerson’s general approach to that issue–an approach with which I agree wholeheartedly:

Some of Trump’s defenders are claiming, in effect, that the FBI is engaged in a “coup d’etat” (the words of Florida Republican Rep. Matt Gaetz) — a politically motivated attempt to reverse the results of the 2016 election. Their evidence? That some senior investigators donated to Democrats, supported Hillary Clinton and called Trump an “idiot.”

If that last charge were considered a disqualification, we would have the political equivalent of the Rapture (including, apparently, some of the Cabinet).

It was the sentence immediately following this quote that struck me:

Trump Republicans are willing to smear a man of genuine integrity, and undermine confidence in federal law enforcement, for reasons they must know are thin to the point of transparency. This is beyond cynicism. It is institutional arson.

Institutional arson.

That is a perfect description of the current administration’s approach to governing– although, even as I was typing the words “approach to governing,” I realized how misleading that phrase is; it gives Trump and his merry band of vandals far too much credit. Trump is interested in exercising power–and clearly uninterested in governing.

Gerson is certainly  correct when he asserts that the strategy employed by Trump supporters against any institution (the courts, the media, law enforcement) that threatens to expose the administration’s deception and corruption is profoundly anti-conservative.

Genuine conservatives have a point when they claim that Trump voters were not conservatives as we have long understood that term. As data has emerged about the motives of those voters, it appears that racial resentment, coupled with disdain for the enterprise of government and general anger at the “way things are going” fueled a desire to elect someone who would “blow it all up.”

If voters wanted to “blow it all up,” they voted for the right candidate. The only consistent thread in this erratic and ignorant Presidency has been Trump’s obsession with overturning anything his predecessor did. If destroying Obama’s legacy requires damaging the institutions of government, or snatching healthcare away from millions of Americans, or trashing America’s image abroad –well, that’s okay with Trump. No wonder people have dubbed him Agent Orange.

As Gerson noted,

Other presidents would be restrained by the prospect of social division and political chaos. For Trump, these may be incentives. He seems to thrive in bedlam. But the anarchy that sustains him damages the institutions around him — a cost for which he cares nothing.

If history and sociology teach us anything, it’s that anarchy doesn’t work. Institutions–even flawed ones– are vitally important to social stability, and they are a lot easier to destroy than to rebuild.

Ironically, the people who voted for institutional arson are the most likely to get burned.

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