17 July 2005

Dissenting Opinions

There have been several very disquieting news articles in various newspapers lately concerning George III's intolerance for dissent, whether among individuals or in the media.1 A well-considered editorial in today's Seattle Times remarks:

If the White House could not refute the facts of Wilson's charges, they could extract a personal and political toll. Wilson's article ran July 6, 2003, and Rove was on the phone chatting away days later. Did he break the letter of the law? We'll learn soon enough. Did he use his position to confirm and spread information to smear and punish a dissenter? There appears to be no doubt.

(fake paragraphing removed for clarity) This, though, is far from the most damning criticism of Karl Rove et al. in papers today. Consider Roger Pulver's "All Hail the Land of the Free—Or Else!:"

The United States of America is all akilter. The country once boasted a vast array of published and broadcasted opinion that existed in a healthy and vigorous atmosphere of polemical discourse. There was a general consensus that a true balance in dialogue was essential to democracy; that no single orientation, left or right, had a monopoly on truth. But now, thanks to the Bush administration's constant onslaughts on any viewpoint that differs from its own, the light of genuine polemical discourse has been dimmed to near darkness.

(fake paragraphing removed for clarity) That this particular comment was printed in a newspaper in a country with a centuries-long tradition of not just decrying dissent, but killing dissenters, just adds weight of some kind to the argument. Admittedly, of late Japan's press has at least been willing to criticize certain types of corruption and misconduct of those in power, but one can't even say that's been a tradition even since MacArthur forced a US-style Constitution on Japan in the aftermath of the Second Thirty Years' War.

Another example of suppression of dissent2 comes from scrutiny being imposed on William Lerach and his plaintiffs'-side class-action law firm. As the NYT describes the situation,

Supporters of the law firm say that between Milberg Weiss's political leanings and the close ties that Enron and Halliburton enjoyed at the White House, the investigation smacks of a political hit. Nonsense, say others. "Milberg Weiss says the Justice Department investigation is politically motivated and I think that's just ridiculous," said Mr. Anderson, the lawyer for the Chamber of Commerce. "I reject that argument out of hand. I just don't think the system functions that way." Grover Norquist, president of Americans for Tax Reform and a principal architect of political conservatives' efforts to overhaul the tort system, concurred, saying that aiming at one law firm would not produce the kind of fundamental changes that he and his sympathizers in the White House seek. "I have no idea how this came to light or what brought it to the government's attention," Mr. Norquist said. "If they're imagining this is somebody's idea of achieving tort reform, they're wrong."

(fake paragraphing removed for clarity) I don't have to defend the law firms or individual lawyers here; in fact, I don't. The firm I worked at in Chicago was also a plaintiffs'-side class-action firm, but dealt in consumer matters and not securities—and did not engage in this kind of behavior. The point, though, is this: Has anybody looked across the v. at defense practices? Or is that just a rhetorical question?

The common thread here is the apparently inability of those who have power to accept criticism from those who don't, or their representatives. There's plenty of blame to go around—one finds conflicts of interest and despicable behavior on the left and on the right—but at least at this time, the most egregious abuses appear to be coming from the Establishment. Whatever that may be. Most particularly, the Establishment appears to believe that it need not follow rules of conduct that it would apply to its critics, and these two threads just illuminate that.

  1. I'm afraid that this is yet another parallel between the current American President and his eighteen-century "English" namesake. On the other hand, that was far from unusual among the English rulers of the time, elected or otherwise; fortunately, it's at least unusual enough among American rulers of our time that it at least garners notice.
  2. I make no judgment on the accuracy of the allegations against Lerach and his firm (past and present), except to note that they would not exist (or at least would not be necessary) but for the profession's inability and unwillingness to regulate itself. See R. Prof. Conduct 1.7(b), 1.8(e); Code Prof. Resp. DR 1–102(A)(4), 2–106, 3–102; Cal. R. Prof. Conduct 1–320. That alleged kickbacks to clients are covered so obscurely only reinforces my point. Criminal charges, however, are clearly unnecessary… particularly when compared to the administrative enforcement mechanism that does 95% of the work in the securities industry itself.