Being “Progressive” means never having to think in principles


Author: Timothy Sandefur

Writer Edward Ericson of City Paper blogs, has posted a criticism of my earlier post about the Skilling decision that combines an amusing number of fallacies and outright falsehoods. Let’s take a look:

1) Ericson claims that PLF is a “pro-corporate think tank”; in fact PLF is neither pro-corporate nor a think tank. (Of course, even if we were, that would be irrelevant ad hominem, and deserves no further consideration.)

2) Ericson tries to portray PLF as defending people who commit fraud, when it is as clear as it could possibly be that PLF’s participation in the Skilling case was not in defense of Mr. Skilling. Indeed, the brief was filed “on behalf of neither party,” and it does not address Mr. Skilling’s actions at all. Page 3 of the brief states that PLF “take[s] no position on…whether the particular Defendant in this case violated that statute. But regardless of how the Court answers those questions, criminal and civil defendants—including white collar and business defendants—deserve the protection of the Due Process Clause’s prohibition against vagueness.”

3) Ericson claims that PLF argues “that any law that cannot be gotten around with the help of a clever lawyer is fundamentally unsound.” This is untrue. It is precisely the fact that clever lawyers can manipulate vague laws like the “honest services fraud” statute that makes such laws dangerous. When a statute is more precisely worded, clever lawyers are less able to manipulate it. But the “honest services fraud” statute is so broadly worded that clever lawyers can use it to do whatever they want. And this is a danger to innocent people. This is our concern—as anyone can see, who is not trying to lie to his readers.

4) Rather than discuss the arguments PLF makes in the brief, Ericson writes that “Jeff Skilling was paid something like $100 million or $200 million* during the last few years of Enron…” and so forth. Fine. But, again, none of that is relevant to the question at issue here, which is whether or not the “honest services fraud” statute, and other laws, are so broadly worded that people must guess at their meaning. Honestly, neither I nor anyone else here cares what happens to Jeffrey Skilling. As I wrote for Forbes, “[Skilling] and his company may indeed have defrauded people, but the question here isn’t whether Enron broke the law, it’s what actions will federal prosecutors target next? Or are there boundaries to protect innocent citizens from being branded criminals?” But Ericson isn’t interested in the truth—he just wants to play straw man.

5) Cutting through Ericson’s misleading rhetoric, one gets to what seems to be his defense of the tort of public nuisance: “it is perfectly legal (or should be, according to the Pacific Legal Foundation) to design and market one’s business toward drug dealers and their entourages, under the unassailable legal theory that it’s not my fault if my customers habitually stab passers-by or get into shootouts with the cops in front of my bar!” I don’t know what case he’s talking about. But the cases I talk about are cases such as the state of California suing America’s car manufacturers for making and selling cars (which is perfectly legal) on the grounds that it’s a nuisance—or environmentalists suing oil producers on the grounds that producing and selling oil (which is perfectly legal) is a nuisance—or attorneys general suing paint companies for making and selling lead paint (which was perfectly legal when it was being done)—or government agencies suing gun makers for making and selling guns (which is perfectly legal)—all on the grounds that these things are nuisances.

“Public nuisance” is simply an epithet that lawyers use to describe things they don’t like. In the past, the same clever lawyers Ericson so dislikes used this vague concept to shut down everything from rock concerts to adult bookstores to civil rights protests. Nowadays it’s used by crusading “progressives” to steal money from legal businesses and the people who invest their money in those businesses.

Contrary to Ericson’s truly absurd idea that “the ‘conservative’ movement has captured the courts, as well as most of the country’s other institutions” (certainly news to the conservative movement, if there even is such a thing), courts have been quite happy to entertain these legally baseless and unconstitutional lawsuits.

Vagueness in the law is an invitation to arbitrary rule, and whatever one thinks of Jeffrey Skilling, the use of vague and arbitrary law in his case sets a dangerous precedent for everyone. As Christopher Hitchens (hardly a “conservative”) writes in his new memoir, Hitch-22,

The conventional word that is used to describe tyranny is ‘systematic.’ The true essence of dictatorship is in fact not its regularity but its unpredictability and caprice; those who live under it must never be able to relax, must never be quite sure if they have followed the rules correctly or not. (The only rule of thumb was: whatever is not compulsory is forbidden.) Thus the ruled can always be found to be in the wrong. The ability to run such a ‘system’ is among the greatest pleasures of arbitrary authority….

But to understand that fact, and discuss it fairly, one would have to think in principles, something Edward Ericson shows no capacity for or interest in doing.

Update: Tim Lynch has more here.