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Talk-show Hosts Amok:

That's the title of my latest Rocky Mountain News media column, addressing the numerous problems of Bill O'Reilly and of the Denver talk show "Caplis & Silverman" in their coverage of a panel that spoke at Boulder High School last April. For a good collection of primary sources, and links to some of the media coverage, the BVSDwatch website is a good start. My column only scratched the surface of the disinformation that has been created on this controversy. Later this week, the Independence Institute will be publishing a detailed Issue Paper on the many and very serious ethical violations by the O'Reilly and Caplis & Silverman on the topic.

Hattio (mail):
I don't know the back story. But if your description is even close to accurate (and I assume it is) Bravo.

And I'd say that even if the panelist HAD been promoting sex and drugs. Free speech for all.
6.3.2007 8:49pm
Fub:
Professional wowser that he is, I'm surprised O'Reilly didn't vent moral outrage because the school requires students to practice annual matriculation, and often in the presence of mixed faculty.
6.3.2007 9:47pm
plunge (mail):
O'REILLY: But Do you understand what the New York Times wants, and the far-left want? They want to break down the white, Christian, male power structure, which you're a part, and so am I, and they want to bring in millions of foreign nationals to basically break down the structure that we have.
6.3.2007 10:41pm
wm13:
Ethical violations? I wasn't aware that journalism was a business with accrediting bodies or government licenses, so how can it have ethical violations? Even taking everything Mr. Kopel says at face value, the reporters of whom he complains don't seem to be behaving any differently from the way the Harvard faculty did with respect to Larry Summers, so what is this nonsense about "ethical violations"?
6.3.2007 11:23pm
Charlie (Colorado) (mail):
wm13, Kaplis &Silverman are practicing attorneys.

I'll grant that as a layman, I've often wondered if "legal ethocs" was an oxymoron, but there is an official code.
6.3.2007 11:40pm
Charlie (Colorado) (mail):
Dammit. "legal ethics".

Anyway, Dave, I'm looking forward to your position paper; I heard that line (quoted above) from O'Reilly and thought ... well, I won't say what I thought, this being a reasonably civil environment, but it wasn't good.
6.3.2007 11:43pm
wm13:
Charlie, the rules of legal ethics don't apply to attorneys engaged in public discourse, writing newspaper columns, etc. I can lie like a Duke University professor, distort like Paul Krugman, etc., and never be disciplined, unless I do those sorts of things in the course of providing legal services.
6.3.2007 11:55pm
Rick Wilcox (www):
wm13:

8.4(c) of the Colorado Rules of Professional Conduct carries no such restriction that an attorney's deceit and misrepresentation occur only while representing a client, nor is it restricted to criminal behavior on the part of the attorney. Hence, could it not be interpreted to mean "don't BS on the airwaves" in general?



[DK: My point about ethics was media ethics. I wouldn't favor looking to the Colorado Rules of Professional conduct for were applicable for lawyers acting in a non-legal role in the media, although as you point out, those rules may well be legally applicable.]
6.4.2007 1:11am
A. Zarkov (mail):
Dave Kopel starts his column by taking inspiration from a Spiderman Comic. Then he tells that the Bolder Valley School District really didn't really force its high school students to attend a lecture where drugs and sex were promoted. That's a relief. When I heard the excerpts on TV, I thought, "… this is too bad to be true, but who knows." I'm glad there's a transcript, but reading it makes me a little suspicious because the discourse seems too polished to be a faithful reproduction of what was actually said. Nevertheless, let's take it at face value. Joel Becker, clinical psychologist (a bad sign already) said,

I'm going to encourage you to have sex, and I'm going to encourage you to use drugs appropriately. (applause and cheering from audience) And why I'm going to take that position is because you're going to do it anyway. So, my, my approach to this is to be realistic, and I think as a psychologist and a health educator, it's more important to educate you in a direction that you might actually stick to.
In my opinion this is an irresponsible statement to make to high school students. It tells the students that we adults don't really expect them to act with civic virtue. But even worse, he goes on to say,

I want to encourage you to all have healthy sexual behavior. Now what is healthy sexual behavior? Well, I don't care if it's with men and men, women and women, men and women, however, whatever combination you would like to put together.
This is an explicit endorsement of homosexuality. According to this data, on a population-weighted basis, most of the world rejects this endorsement. Let's also remember that Pew is a left-of-center organization that was hijacked by the 1960s counter-culture types. But even its poll says 42% of Americans disapprove of homosexuality. Don't their attitudes count for something? How about giving the other side a chance to present their case against homosexuality?


[DK: I agree with you that, as the School Board determined, the panel was in violation of Board polices what a broad variety of views be presented on controversial subjects. You cite a good example of an alternative perspective that should have been presented on the panel. That doesn't excuse the talk radio hosts for misrepresenting other content of the panel.]
6.4.2007 1:45am
Maureen001 (mail):
Ah, but those ratings!
6.4.2007 3:51am
Ship Erect (mail) (www):
It tells the students that we adults don't really expect them to act with civic virtue.

I'm certain they hear that message enough from society already.

This is an explicit endorsement of homosexuality.

Homosexuality has a pretty narrow definition: attraction to the same gender. "Whatever combination you would like to put together" is a bit different, no?
6.4.2007 4:27am
A. Zarkov (mail):
DK:

"That doesn't excuse the talk radio hosts for misrepresenting other content of the panel."

I agree completely. They quoted out of context and sensationalized the whole event. Nevertheless the principal could have appeared on TV and presented his side of what actually happened. Even at the "ambush," he could have responded better than he did.
6.4.2007 5:15am
A. Zarkov (mail):
"I'm certain they hear that message enough from society already."

But they don't, and that's the source of a lot of conflict in the US today. Who other than some religious institutions and the Boy Scouts advocate civic virtue? And need I remind people that the Boy Scouts themselves are under constant attack by the same organizations that scoff at the idea of civic virtue.

"Whatever combination you would like to put together" is a bit different, no?


He said, "Well, I don't care if it's with men and men, …" That sure sounds like homosexuality to me. What else would you call it?
6.4.2007 5:22am
Public_Defender (mail):
Charlie, the rules of legal ethics don't apply to attorneys engaged in public discourse, writing newspaper columns, etc. I can lie like a Duke University professor, distort like Paul Krugman, etc., and never be disciplined, unless I do those sorts of things in the course of providing legal services.
Wrong. Very, very wrong. I admit that disciplinary authorities frequently have too narrow a view of the First Amendment, but as attorneys, we face restrictions that non-attorneys don't face, even outside the courtroom.

(Sorry for leaving this as unsupported assertion v. unsupported assertion, but I have to leave to do the legal research for my clients' cases.)
6.4.2007 5:39am
wm13:
Public_Defender, find me a single case anywhere in the United States where a lawyer has been disciplined for behavior of the sort Mr. Kopel is complaining about here (i.e., journalism that allegedly distorts the facts). You can't, and you know it.
6.4.2007 7:25am
Bruce Hayden (mail) (www):
I don't catch their show that much, but prefer it to the sports talk on 850 KOA between 4 and 7. As noted, both C&S are practicing attys. More specifically, they are now primarily plaintiffs' attorneys, but I think they may do a bit of criminal defense. They are, by trade, advocates.

Normally, their show is somewhat like Hannity and Coombs (however you spell their names), with Caplis on the right, and Silverman on the left - except that Dan and Craig are probably more articulate, and Craig seems to make the liberal points better than Alan does on H&C.

But sometimes, they get on a quest, like this one, and both shift into their litigation/ advocacy/ prosecutorial modes. The most famous was their crusade against Ward Churchill. And they are in one right now.

The other thing to keep in mind is that many here in Colorado think of Boulder as a never-never land that is still filled with the hippies it attracted back in the 1960s and 1970s. Sex, drugs, and rock and roll. So, if something like this happens in the BVS, no surprise. If the school board there thinks that it is fine, BFD. Of course they are fine with it - it is Boulder.

I suspect that the reason that Caplis is on O'Reilly so much any more is that they are fellow warriors in the culture wars. They are both Catholic (Dan often mentions his faith in defending his views). Neither believes that sex ed should be taught without strong emphasis on abstenance, and definately that drugs should not be taught in school. Yes, maybe DARE doesn't work, esp. in Boulder, but what does? Probably not what BVS allowed in this forum.
6.4.2007 10:14am
Bruce Hayden (mail) (www):
I must note though that if the Independence Institute is jumping in against C&S, it is a big thing. The think tank that David does work for is not known for its liberal positions. Rather, it is considered somewhat to the right, with Jon Caldera as President, and one of the Coors family on the Board. For more information see their Web page (I2I.ORG).
6.4.2007 10:20am
wm13:
Bruce Hayden, even the briefest examination of the Independence Institute website reveals that it is a libertarian organization, not likely to be sympathetic to social conservatives of the sexual abstinence, anti-drug persuasion.

Given how little political clout libertarians have, I really doubt that the Independence Institute can get anyone disbarred, no matter how much distorted news reporting the person does.
6.4.2007 11:19am
Bob from Ohio (mail):
Libertarians in favor of sex and drugs. Who knew?
6.4.2007 11:35am
Duncan Frissell (mail):
Dave,

Your article raises, for me, the question of why a libertarian would send a child to a slave school in the first place.

What goes on in the slave pens of BHS is no worse than the fact that they exist in the first place.

Why would you subject your child to years of left-wing garbage?
6.4.2007 12:07pm
Bill Poser (mail) (www):
wm13,

It is quite possible to be in breach of ethical standards even if these standards are unwritten or have no legal force. Obivously ethical standards of the sort that lawyers are subject to have a greater impact, but they are not the only kind. In other professions, violation of ethical standards may lead to anything from disapprobation to expulsion from professional societies and inability to obtain research funds.
6.4.2007 1:00pm
SeaDrive:
A. Zarkov: Do you REALLY want to adopt all the views of the world on a population-weighted basis? If not, picking out this one that reinforces your own view is demagoguery, or worse. Probably worse.
6.4.2007 1:17pm
Duncan Frissell (mail):
It's not an ethical breach to complain about the curriculum or functions hosted by a public school. Once you set one up, all its activities are political and hence open to political discussion. If you don't like it, abolish government education.

If one has 'government health', health becomes political. And on and on.

Commies will, no doubt, urge a curriculum promoting fornication, adultery, atheism, world federaism, psychological castration of boys, America-hatred, etc. Libertarians or conservatives (of which, O'Reilly is neither) will have their own ideas. All perfectly appropriate subjects for discussion.
6.4.2007 1:20pm
wm13:
Bill Poser, all kinds of things lead to disapprobation and expulsion from professional societies. Is it unethical for a university professor to be a Republican? (Because it certainly leads to disapprobation.) Before I could admit that there is such a thing as an ethical violation in journalism, you would have to show me a governing body that recognizes and enforces a particular set of norms that are distinct from the unexamined preferences of its members. Put another way, if I want to file a complaint against Paul Krugman for writing things that are false, where do I go?

In fact, there is no place I can go for that purpose, which the use of the word "ethics" makes no sense here.
6.4.2007 1:51pm
A. Zarkov (mail):
SeaDrive:

"A. Zarkov: Do you REALLY want to adopt all the views of the world on a population-weighted basis? If not, picking out this one that reinforces your own view is demagoguery, or worse. Probably worse."

I referred to world population surveys to show that disapproval of homosexuality is a worldwide phenomenon, to emphasize that disapproval is hardly a fringe position. This should not be surprising because the three Abrahamic religions condemn it. But if we concentrate on just the US, we find disapproval by 42% of the population. Is that chopped liver? If we are supposed to expose students to a variety of ideas, why shouldn't they hear an opposing viewpoint? Moreover, as I said before, I don't trust Pew on this survey. I regard the 42% as a lower bound.

Instead of flinging insults, tell me why you believe an opposing viewpoint should be shut out of public discourse?
6.4.2007 2:34pm
markm (mail):
wm13: You're taking far too narrow a definition of "ethics". It doesn't mean formal rules backed by a process for enforcement, but rather doing what is right - which need not be enforced by anything, for people that have been brought up right.

Telling the truth in a news broadcast would fall under this. Aside from guilt, the penalty for lying (or careless inaccuracy) is that if you do it often enough, the viewers will find out and stop watching, or at least stop considering you as a news source rather than an entertainer. (Since the offenders here were Bill O'Reilly and a local talk show, maybe they've long ago slipped over to the "entertainment" side...)
6.4.2007 2:43pm
SeaDrive:
You asked:

"Instead of flinging insults, tell me why you believe an opposing viewpoint should be shut out of public discourse?"

But you want to shut out some viewpoints yourself, as you previously said

"In my opinion this is an irresponsible statement to make to high school students."

Further, suggesting that your method of arguement is demagoguery falls pretty far short of "flinging insults."
6.4.2007 3:07pm
Randy R. (mail):
Zarkov: "But even its poll says 42% of Americans disapprove of homosexuality. Don't their attitudes count for something?"

Actually, no they don't. People cannot change their sexual orientation, as has been proven again and again. Part of the point of sex education is that you shouldn't try to be what you are not, unless you want to turn into someone like former Gov. McGreevey, who tried to be straight and instead ruined the lives of two women who married him during his pretense.

It's much better for society and for individuals that if they are gay, they shoudl accept themselves as gay. Who cares if other people disapprove? It isn't their life.
6.4.2007 3:23pm
Randy R. (mail):
" If we are supposed to expose students to a variety of ideas, why shouldn't they hear an opposing viewpoint? "

And what viewpoint is that? That if you are gay, 42% of the world's population will hate you? Don't worry, gay kids get that message every single day in school already. They certainly don't need you to remind them of it. That's one reason why suicide is the leading cause of death among gay teenagers. But hey, I suppose you think better dead than gay, right? Afterall, nothing gets the religious right so angry as a happy out gay person. But give them a tormented closeted case, like Rev. Taggard, and they're pretty darn happy with him. Until he explodes, of course.

It still very true today: nothing makes a religious fanatic more angry than the thought that someone, somewhere, is living a perfectly happy life.
6.4.2007 3:47pm
Special Guest:
It tells the students that we adults don't really expect them to act with civic virtue.

Huh? How is having unprotected sex and using drugs irresponsibly acting with civic virtue? The point of reality-based sex and drug education is precisely meant to instil the civic virtues of moderation, responsibility, and tolerance. I'm really freakin sick of the abstinence-only people claiming that they are the only ones with any claim to virtue.
6.4.2007 4:14pm
Gordo:
Kudos to Boulder High. And shame (again, and again, and again, and again) on O'Reilly.
6.4.2007 4:30pm
Duncan Frissell (mail):
nothing makes a religious fanatic more angry than the thought that someone, somewhere, is living a perfectly happy life.

But I thought there was some link to church attndance and happiness:

Analysis: Religion, Family, and the General Social Survey

1. Religion, Marriage, and Overall Happiness. Table 4 indicates that weekly religious attendance and marriage are both associated with higher reports of happiness among U.S. adults. In fact, more than 48 percent of adults who are married and weekly churchgoers report that they are very happy, compared to just 20 percent of adults who are unmarried and do not attend church weekly. Adults who are married but not regular churchgoers and adults who are regular churchgoers but are not married fall in between these two groups in their reported levels of happiness. Gender differences in overall happiness are not very large.
6.4.2007 5:15pm
wm13:
markm, Prof. Volokh has documented on many occasions that the "Bushisms" column in Slate magazine is distorted, misleading and unfair. You are telling me that as you use the words, Jacob Weisberg is guilty of "ethical violations"? That is not how most people use those words.
6.4.2007 5:36pm
Harry Eagar (mail):
What Bill Poser and markm said.

As a newspaperman, I can assure you that there are ethical standards, that workers in the field are punished for transgressing them -- often by getting fired, and not infrequently by being unable to get another -- and that we argue all the time about difficult and complex situations.

I wouldn't do business with anyone whose idea of ethics was 'only what's written out by a professional association.'
6.4.2007 5:43pm
Randy R. (mail):
Duncan: "But I thought there was some link to church attndance and happiness."

I was paraphrasing HL Menken.

What I meant (and presumable Menken) is that some religious people, usually right wingers, have a rather narrow viewpoint of what is considered proper 'fun.' Anyone who deviates from this narrow def. is to be doomed to hell, and should repent. Or at the least, be ashamed of their fun and be punished for it somehow. (Hence the statemenst about AIDS being God's judgment upon homosexuals. Since AIDS has now moved to many black people, especially in Africa, I guess God is making a judgment upon them solely because of their race. But I digress).

If going to church means you are a happy person, I'll all for it. But if not going to church means you are also a happy person, I'll all for that as well. But many people are not. That's my point.
6.4.2007 7:09pm
Recovering Law Grad:
O'Reilly is a joke.
6.4.2007 7:45pm
Rob R.:
I just caught the last minute or so of Dave's appearance on the O'Reilly Factor.

I'm sure that his left-leaning and left-wing co-panelists on Colorado Inside Out -- and the folks at Media Matters -- would be surprised to learn that a right-wing spokesperson considers Dave a "secular progressive."
6.4.2007 9:39pm
Public_Defender (mail):
The model ethical rules (in force in many, if not most, states) prohibits acts of dishonesty even in private life. All the bar need do is show that the lawyer/talk show hosts were dishonest, and they could face discipline.

I think the bar should tread very carefully in First Amendment matters, but they still have authority to drag a lawyer through the disciplinary process if they think the lawyer has been dishonest.

Kopel alleges that what the lawyers/talk show hosts said misrepresented what really happened. That's dishonest. Could the local bar prove intentional dishonesty here? I don't know.
6.4.2007 9:40pm
Recovering Law Grad:
I too saw DKs appearance on O'Reilly. O'Reilly, once again, showed what he is: a hyper-agressive, intellectually dishonest demagogue.
6.4.2007 10:46pm
wm13:
Harry Eager, I love the idea of a group of philosopher-journalists in white robes sitting around discussing whether the search for the beautiful and the true would be best served by pictures of A-Rod and the blonde, or Kitty Kelley's claim that Nancy Reagan and Frank Sinatra were having an affair in the White House, or whatever the MSM is serving up as the leading story of the day, but I simply don't believe a word of it.

Public_Defender, my girlfriend's a lawyer, and she cheated on me. Can we get her disbarred?
6.4.2007 11:00pm
Clayton E. Cramer (mail) (www):
I'm disappointed that O'Reilly joined this misdirected rampage. I've read the transcripts, and while the way in which some of the speakers demonstrated that they were "cool" was by use of language that O'Reilly (and many adults) would have found inappropriate, the messages that they were advancing could have been said in different forms by Dr. James Dobson (although the ACLU would be filing a suit to punish the school in that case): that the illegal drugs are likely to be a serious problem for kids; that premature sexualization of a relationship is dangerous from both the standpoint of emotional and physical health; that teenagers who use birth control sometimes still make mistakes, leading to an abortion that one of the speakers acknowledged still bothers him.

If anyone should be attacking what happened there, it would be liberals, since all of their idols were being attacked by the speakers.
6.5.2007 12:13am
Clayton E. Cramer (mail) (www):

Public_Defender, my girlfriend's a lawyer, and she cheated on me. Can we get her disbarred?
Interesting question. Adultery is a criminal offense in Idaho. (And yes, it isn't a dead law--I know someone who was briefly worried about being prosecuted for this, but neither he nor the young lady had sufficiently clear memories of what they did while drink for a criminal prosecution.) Would a misdemeanor conviction for adultery be grounds for disbarment in Idaho?
6.5.2007 12:17am
therut:
If acts of dishonesty are unethical for lawyers then at least 99% or more should be disbarred or sactioned. Good grief. I know of no lawyer including those in the family that are not dishonest. It is part of the trade.
6.5.2007 12:36am
Harry Eagar (mail):
wm, you appear not to understand the concept 'ethics.'

There is no ethical issue over reporting things you may think are trivial.
6.5.2007 1:00am
Public_Defender (mail):
Public_Defender, my girlfriend's a lawyer, and she cheated on me. Can we get her disbarred?

I remember a case from my law school where a lawyer got disciplined for lying to cover up an affair.
6.5.2007 6:56am
Special Guest:
If anyone should be attacking what happened there, it would be liberals, since all of their idols were being attacked by the speakers.

That's a ridiculous smear. Liberals are in favor of responsibility and choice, and in making your own, informed decisions about sex outside of marriage. Social conservatives want to condemn nonmarital sex, period. Liberals want people to have sex (or not) safely and happily, on their own terms and according to their own personal values. In short, liberals don't believe that sex is bad.
6.5.2007 10:20am
Bruce Hayden (mail) (www):
I wasn't originally sure who had the right in this, even after David's column in the RMN. But last night, I did manage to watch O'Reilly lose it a couple times, and was quite impressed by David there. Also, I was impressed that "arch" conservative Clayton Cramer came to David's defense (Clayton has some good quotes there).

I did find the mention of Colorado Inside Out to be interesting. My mother loved the show, and we would all watch it together when we were over. David did come across there as the "conservative" there, which was always quite humorous to all of us (even she was a registered Republican).

The reason this is all so humorous to me is that I consider David fairly moderate, on average, right in the middle. When compared to the flaming liberals on that CO political show, he comes across as fairly conservative. But compared to O'Reilly? Just the opposite. As Einstein kind of said, its all relative.
6.5.2007 10:43am
Clayton E. Cramer (mail) (www):


If anyone should be attacking what happened there, it would be liberals, since all of their idols were being attacked by the speakers.


That's a ridiculous smear. Liberals are in favor of responsibility and choice, and in making your own, informed decisions about sex outside of marriage. Social conservatives want to condemn nonmarital sex, period. Liberals want people to have sex (or not) safely and happily, on their own terms and according to their own personal values. In short, liberals don't believe that sex is bad.
You are describing a form of liberalism that I don't recognize from living in California.

Social conservatives don't think sex is bad, either. They do believe that sex outside of marriage is a poor idea, and that sex with children should be unlawful. I guess that makes them narrow-minded.
6.5.2007 1:48pm
Clayton E. Cramer (mail) (www):

The reason this is all so humorous to me is that I consider David fairly moderate, on average, right in the middle. When compared to the flaming liberals on that CO political show, he comes across as fairly conservative. But compared to O'Reilly? Just the opposite. As Einstein kind of said, its all relative.
O'Reilly isn't even particularly conservative. He's gone out of his way to be non-judgmental about homosexuality, for example, and we know what he thinks about sex outside of marriage, based on his behavior. He's more of a populist than a conservative.
6.5.2007 1:49pm
Randy R. (mail):
Yes, of course! All liberals think that sex with children should be mandatory! And if you are happily married, you should be required to have an affair just because!
6.5.2007 1:51pm
Duncan Frissell (mail):
O'Reilly is also pro choice and agin the death penalty. Populist not conservative.
6.5.2007 3:39pm
Al Faken (www):

O'Reilly is a liar.

Conservatives are liars.

Therefore, O'Reilly is a conservative.
6.5.2007 9:43pm
Clayton E. Cramer (mail) (www):

Yes, of course! All liberals think that sex with children should be mandatory! And if you are happily married, you should be required to have an affair just because!
It is certainly the case that many liberals think the age of consent should be much lower--like 12, and some want it abolished. And it is also the case that when a woman in California tried to get an initiative on the ballot to recriminalize adultery, the news media (overwhelmingly liberal) made fun of her. They found the concept right up there with burning witches.
6.5.2007 9:46pm
Clayton E. Cramer (mail) (www):

Yes, of course! All liberals think that sex with children should be mandatory! And if you are happily married, you should be required to have an affair just because!
It's a bit surprising that liberals don't subscribe to those views--so much of the rest of their doctrine is built around mandatory stuff. Like requiring a print shop owner to print same-sex wedding announcements. Like threatening to send people to prison for speaking against homosexuality. Like jail without bail for distributing anti-homosexuality flyers.

It's a good thing for homosexuals that in 1960 American society was prepared to be more open-minded than homosexuals are prepared to be today.
6.5.2007 9:53pm
Colin (mail):
It is certainly the case that many liberals think the age of consent should be much lower--like 12, and some want it abolished. And it is also the case that when a woman in California tried to get an initiative on the ballot to recriminalize adultery, the news media (overwhelmingly liberal) made fun of her. They found the concept right up there with burning witches.

Similarly, it is certainly the case that many conservatives think that homosexuals should be punished--like imprisoned, and some want them stoned to death. And it is also the case that when legislators from California challenged the legitimacy of the war effort, some bloggers (overwhelmingly conservative) made fun of them. They found the concept right up there with permitting witches to live.

I am constantly disappointed, but no longer surprised, at your petulant refusal to think outside of the glaring stereotypes you keep propping up in lieu of actual facts.

Ranting like this obscures any legitimate point you might have, and makes you look like any other internet crackpot. You're a published author; is it too much to ask that you behave like an adult?
6.6.2007 12:44pm