Squashed

“The process is broken.”

I’m still simmering over this old Morning Edition story lamenting Florida’s foreclosure process. Before declaring a process is broken, a responsible journalist ought to ask two questions:

1. What are the goals of the process?
2. Are those goals being accomplished?

If the answer to that second question is “yes,” the process isn’t broken. It doesn’t mean it’s a good process—but identifying the reason for the process is important if you’re going to ask whether there might be a better way to go about it.

In this case, the story unreflectively blames a “cumbersome legal process” and “unscrupulous foreclosure [defense] attorneys.” There doesn’t seem to be much desire to discuss whether that process has prevented people from losing their homes who should not lose their homes. Or whether those “unscrupulous” attorneys have meritorious claims. If the homeowners actually defaulted on the loan, lenders actually followed the rules, and the lenders actually showed up and competently presented their case—it could be over in a tenth of the time it takes. But for some reason things keep dragging out and homeowners keep winning these suits. Perhaps there’s a better explanation than “process is broken.” It could be that the indigent homeowners just have magical attorneys who are way better than anything the lenders money can buy. Or maybe the homeowners actually have a case worth vindicating.

Home health workers aren’t covered by minimum wage and overtime law

This is a travesty.

For anybody who doesn’t know, there is a lot of demand for home health aids. Home health aids are a critical component of efforts to help older Americans stay in their homes. In addition to being cost-effective, living at home has huge health and quality of life benefits for seniors. Home health work can be a difficult job with long and inflexible hours. It also pays terribly. And there is little job security. When the person cared for passes away, the home health aid is out of work.

Apparently due to an interpretation of some 1974 amendments to the Fair Labor Standards Act, home health aids are put in the same category as casual babysitters. So that’s a rule to change.

Free Speech and the Defamation of Religion

The general rule in the U.S. is that you’re allowed to say what you want to say. The corollary is that you can respond to whatever somebody else says however you want, so long as you don’t break other laws. You can debunk, boycott, or ignore what somebody says. But you can’t punch him in the nose. Even if you want to.

So when we’re talking about what can be done about travesties like this film that is inciting protests around the world,, the answer is 1) it’s pretty clearly protected by the First Amendment, and 2) that protection is deeply embedded in the Constitution and we’re not going to change that.

There are some exceptions to the general “say what you want” rule—but none of them apply.

Defamation is an exception—but in this case it means something reasonably specific. Essentially, if you go around saying or writing false things about a person or group that harm that person or group, you can be sued, provided that person or group can bring a lawsuit against you. In this case, 1) historical figures are going to have trouble doing that, and 2) that person or group may be entitled to any money you have—but they can’t stop you from saying something before you say it. So even if the folks behind this film said something specific enough to support a defamation suit, the can only be sued for whatever money they have. They can’t be locked up.

Speech that incites violence is another exception—but in this case you need to be encouraging people to go out and do something violent. “Go punch that guy in the nose” is an incitation to violence. Being such a jerk that people come and punch you in the nose is not.

There are two other potentially applicable exceptions. One proposed exception is an exception for hate speech. This one is inapplicable because it’s just a proposed exception in the U.S. pretty much nobody recognizes it, even if some people think it should be an exception.

The other exception is an exception for “fighting words.” The “fighting words” doctrine says that it is legal to prohibit a particularly obnoxious Jehovah’s Witness from calling a town marshal a “god-damned racketeer,” provided it is 1932. The general idea is that if you’re saying something so offensive that it’s likely to lead to immediate violence against yourself, there’s a way for a town to ban it. It’s not a particularly robust doctrine. The Supreme Court has held that pretty much everything else—including the Westboro Baptist Church’s protests—are not fighting words. The reason this doctrine is more-or-less abandoned is that it only gets used against incredibly unpopular people. And half the point of freedom of speech is that you can have unpopular viewpoints.

Vigilantism and the Law

The Vigilante Superhero only makes sense in a world with supervillians. You don’t need Superman to deal with guys snatching old ladies’ purses. Our criminal justice system is so thoroughly up to that task that I sometimes feel sorry for the poor purse snatcher.

The real world fight for justice has a lot less spandex and a lot more patience. Grappling hooks may be awesome—but their utility in providing food, shelter, healthcare, and a solid education to the systematically disenfranchised is limited.

People ask me if they should go to law school—usually because they argue with their friends all the time or think life as a lawyer would be lucrative and fulfilling. As a policy, I try to discourage them. If you find yourself constantly arguing with your friends and loved ones, a psychiatrist can help with the interpersonal issues more effectively and more affordably than law school. And frankly, law school is hardly a guarantee of a lucrative and fulfilling career. The legal market is saturated. And becoming a lawyer correlates more closely with alcoholism than it does with living a fulfilled and happy life.

And yet … the law is a powerful tool. If you want to change the world and are partial to heroics, you could do a lot worse than law school. Justice, though blind, carries a viciously large sword. We have a lot of laws in place that can do a lot of good for a lot of people—so long as somebody is keeping an eye on what’s going on and lets Justice know who to hit with the sword.