Law, Social Norms and Trump

"That's not nice. Next"
When I was a very young boy, and my mother was making a meal, or otherwise engaged, I'm told she'd turn to anyone handy and say, "Go find Nicky; see what he is doing and tell him to stop it."

That's how more and more traditional Republicans -- and Americans generally -- are coming to feel about Donald Trump.

The week of September 25 was a good example, from his ignoring advice on how to minimize self-inflicted harm during the Monday night debate with Hillary Clinton to his pre-dawn Twitter tirade Friday attacking Alicia Machado (the former Miss Universe).

"There ought to be a law," you say. But there's not.

Abraham Maslow may not have realized it, but he said something relevant to first-year law students when he observed, "I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail." Many of those law students are too quickly tempted to start thinking of all human behavior as a product of legal rights and responsibilities.

There are a number of Trump's controversies that may have legal significance. David A. Graham has listed 19 in a recent Atlantic article: The Beauty Pageant Scandals, Racial Housing Discrimination, Mafia Ties, Trump University, Tenant Intimidation, The Four Bankruptcies, The Undocumented Polish Workers, Alleged Marital Rape, Breaking Casino Rules, Antitrust Violations, Condo Hotel Shenanigans, Corey Lewandowski [former campaign manager], Suing Journalist Tim O'Brien for Libel, Refusing to Pay Workers and Contractors, Trump Institute, Buying Up His Own Books, Undocumented Models, The Trump Foundation, and The Cuban Embargo. (For each he provides "where and when," "the dirt," "the upshot," and "read more.") David A. Graham, "The Many Scandals of Donald Trump: A Cheat Sheet," The Atlantic, September 30, 2016.

But like the law students, we would be wrong to assume our only means of corralling the wild Trump involves courts, judges and lawyers.

Whether we are conscious of it or not, most of what regulates our behavior, to the extent anything does, is not the law as such, but rather social norms: what we eat and how we eat it; the distance we maintain when standing and talking to another; the clothes we do (or don't) wear for various locations, occasions and situations; the verbal and body language we employ when talking to contemporaries or supervisors. Most social norms are unwritten and evolve over time. Some come from our parents, our friends and neighbors in a small community, a religious organization, or our fellow workers at a university or business.

Just as there are penalties for violating the law, so too are there penalties for violating social norms -- including what the community may consider inappropriate speech. (See, Nicholas Johnson, "Was It Something I Said? General Semantics, the Outspoken Seven, and the Unacceptable Remark," October 30, 2010.) Is this a possible course for those concerned about Trump's hateful outbursts? It just may be.

In the summer of 1969, when the Los Angeles creative community -- actors, writers, directors, producers -- became concerned about what some of them thought of as "censorship" of their work by the networks, the FCC eventually agreed to hold a hearing on the matter. The witnesses who appeared were mostly white, male, network lawyers and lobbyists in suits.

The last one to appear was decidedly not a member of that club. It was my friend, Emmy and Grammy winner Mason Williams, head writer for the "Smothers Brothers Comedy Hour," a highly-rated CBS variety program with social and political content. Given the 1960s, Tom and Dick Smothers had generated both a large, loyal following of fans, and significant levels of network executives' anxiety -- anxiety that took the form of New York executives' close review and removal of some portions of the scripts created in LA.

Mason arrived with open shirt and beads, carrying a guitar, and copies for the FCC commissioners of what he called "The Mason Williams FCC Rapport," July 23, 1969. As he played and sang his way through his testimony he read from his "Rapport" some of the brain-bursts he'd entered in his journals (e.g., "Network television wants to keep you stupid so you'll watch it;" "Winning an Emmy from television is like getting a kiss from someone with bad breath"). [Photo credit: Wikipedia, public domain, Ken Kragen & Friends; Mason Williams, 1969.]

One of those brain-bursts, relevant to Donald Trump's speech, posited that someone had leveled an offensive and possibly erroneous charge against the President. (I won't repeat the offensive speech here. It can be found at page 66 of the "Rapport.") Rather than a network censoring the remark, Williams said:

Someday I hope that someone could appear on television and say [the offensive speech] and the public would individually be able to say, "That's not right. And that's not a nice thing to say. Next."

In other words, rather than have the FCC and networks censor creative content speech that violates social norms could be uttered, because society would have evolved to the point that we would simply reject it -- "that's not a nice thing to say" -- and either change channels, or go on to the next item, with the command, "Next."

Have we reached that point? Hardly. Indeed, many are concerned, as I am, that Trump's approach to political campaigning may be seen as a new normal by both the young and those with sufficient celebrity status to consider running for office themselves with a Trump-like campaign.

But there are hopeful signs that social norms regarding speech are beginning to join the other objections to Trump's candidacy -- his lack of political and governing experience, the character of his staff choices (some of whom had to be replaced), his policy proposals (e.g., building the wall, deporting 11 million, use of nuclear weapons), his untruthful utterances, his refusal to reveal his tax returns, and the 19 items involving his business practices noted above.

One source of those signs is what some solidly Republican newspapers have been writing in the course of not endorsing him:

The Dallas Morning News, which has never endorsed a Democratic Party presidential candidate since 1940, wrote: "We reject the politics of personal destruction. . . . He [Trump] plays on fear — exploiting base instincts of xenophobia, racism and misogyny — to bring out the worst in all of us, rather than the best." Editorial, "We Recommend Hillary Clinton for President," The Dallas Morning News, September 7, 2016.

A couple weeks later the Cincinnati Enquirer, which had never endorsed a Democratic Party presidential candidate since 1916, joined the Dallas Morning News with its endorsement of Hillary: "We've condemned his childish insults; offensive remarks to women, Hispanics and African-Americans; and the way he has played on many Americans' fears and prejudices to further himself politically. . . . Trump tears our country and many of its people down with his words so that he can build himself up. Trump has toned down his divisive rhetoric, . . .. But going two weeks without saying something misogynistic, racist or xenophobic is hardly a qualification for the most important job in the world. Why should anyone believe that a Trump presidency would look markedly different from his offensive, erratic, stance-shifting presidential campaign?" Editorial, "It Has to be Hillary Clinton," Cincinnati Enquirer, September 23, 2016

More would come in rapid order. The Arizona Republic, which has never endorsed a Democratic Party presidential candidate since it began publication in 1890 (as The Arizona Republican), wrote: "Trump mocked a reporter’s physical handicap. Picked a fight with a Gold Star family. Insulted POWs. Suggested a Latino judge can’t be fair because of his heritage. Proposed banning Muslim immigration. Each of those comments show a stunning lack of human decency, empathy and respect. Taken together they reveal a candidate who doesn’t grasp our national ideals. . . . She [Hillary Clinton] can move us beyond rancor and incivility." Editorial, "Endorsement: Hillary Clinton is the Only Choice to Move America Ahead," The Arizona Republic, September 27, 2016.

Here's what The Detroit News had to say: "[Donald Trump] rubs hard against the editorial board’s values as conservatives and Americans. [He] is unprincipled, unstable and quite possibly dangerous. .... Trump has attracted support from too many of those who represent the worst of human nature .... Few groups have been spared from his bile. . . . But the most worrisome thing about Trump is that he is willing to stir the populace by stoking their fears of sinister forces at work from within and without to tear down their traditions, values and families .... His sort of populism has led to some of history's great tragedies." The News, which has only endorsed Republican Party presidential candidates since it began publication in 1873, rather than endorsing Hillary Clinton, instead chose to skip Trump for Gary Johnson, the Libertarian Party candidate. Editorial, "Libertarian Gary Johnson for President," The Detroit News, September 29, 2016.

The next day the Chicago Tribune followed the Detroit News' example with its endorsement of Gary Johnson. This was only the third time in the last 169 years that it had endorsed any presidential candidate who was not a Republican (the two prior were both Chicagoan Barack Obama in 2008 and 2012). Its editorial said: "Trump has gone out of his way to anger world leaders, giant swaths of the American public, and people of other lands who aspire to immigrate here legally. He has neither the character nor the prudent disposition for the job." Editorial, "A Principled Option for U.S. President: Endorsing Gary Johnson, Libertarian," Chicago Tribune, September 30, 2016.

Finally, USA Today, one of America's national newspapers, took a different approach -- urging voters to not vote for Trump, while not endorsing any of the other three (Clinton, Johnson, or Stein). (Its editorial board only expresses consensus, and there was no consensus for an alternative.) This is the first time in the paper's 34-year history that it has expressed an editorial opinion for or against a candidate in any presidential election.

The Board wrote: "Trump has demonstrated repeatedly that he lacks the temperament, knowledge, steadiness and honesty that America needs from its presidents. . . . From the very beginning, Trump has built his campaign on appeals to bigotry and xenophobia, whipping up resentment against Mexicans, Muslims and migrants. His proposals for mass deportations and religious tests are unworkable and contrary to America’s ideals. . . . He speaks recklessly. . . . He has coarsened the national dialogue. Did you ever imagine that a presidential candidate would discuss the size of his genitalia during a nationally televised Republican debate? Neither did we. Did you ever imagine a presidential candidate, one who avoided service in the military, would criticize Gold Star parents who lost a son in Iraq? Neither did we. Did you ever imagine you’d see a presidential candidate mock a disabled reporter? Neither did we." Editorial, "Trump is 'Unfit for the Presidency,'"> USA Today, September 30, 2016. And see generally, Tim Dickinson, "5 Conservative Newspapers That Just Went 'Never Trump;' Why Papers That Have Backed Republicans for Decades Broke Ranks With This GOP Nominee," Rolling Stone, September 29, 2016.

(The USA Today editorial is also one of the most thorough in discussing the range of reasons not to vote for Trump, with the following headings: He is erratic; He is ill-equipped to be commander in chief; He traffics in prejudice; His business career is checkered; He isn't leveling with the American people; He speaks recklessly; He has coarsened the national dialogue; He's a serial liar.)

It is significant enough that solid, conservative newspapers that have never lifted a figment of type to help a Democratic presidential candidate, or oppose a Republican, are now opposing Trump -- and sometimes even endorsing Hillary Clinton. And most, like USA Today, have identified and enumerated categories of reasons why he is unacceptable.

But what I find most heartening is the growing formulation of a set of social norms, or political norms, regarding what is, and is not, acceptable speech in presidential campaigns. If this continues, it may just save us from future political candidates assuming Trump-style campaigns are the new normal.

Here's what you and I can do:

Next time you see Trump on TV, listen to what he says, and if you find it unacceptable, say so. Say to whomever is with you -- or out loud even if you are alone -- "That's not right. And that's not a nice thing to say. Next."

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WWPD? Pat Paulsen on Guns

February 1, 2013, 8:20 a.m.

Comedy and Concerns from Pat Paulsen's Writer
Quick Internal Links to Content
Introduction/Background: Mason Williams, Smothers Brothers, and Pat Paulsen

Mason Williams, "Pat Paulsen's Solutions for Gun Violence and Other Challenges"

Mason Williams and Nicholas Johnson Offer Gun Violence Solutions

Remember the wrist bands, "WWJD," for "What would Jesus Do"?

They came to mind the other day as I was thinking about what we might succeed in accomplishing as we try to reduce the 30,000 annual suicides and homicides involving firearms. With President Obama's inaugural address still echoing in my brain, my thoughts drifted back to less well-known presidential candidates during my lifetime, and the question, "What would Pat Paulsen do?" [Photo/poster credit: "Pat Paulsen for President."]

Because I had run into a grocery store clerk in Galveston the week before who had no memory of the "Smothers Brothers Comedy Hour" (he was also unaware of which grocery aisle contained the store's offering of bread), it occurs to me that perhaps you, too, would appreciate a little background.

You remember "the Sixties," right? No? OK. Well, the 1960s and early 1970s were times of great creativity and upheaval in America. We had more "movements" then than . . . you get the idea. Large numbers of citizens were involved in protesting, demanding, and often obtaining their rights and goals regarding African-Americans' civil rights, women's rights, and bringing a halt to the Viet Nam War. Whether life imitates art, or the reverse, it was also a time of innovation in graphic art, music, literature, drama -- and television programming.

Given that my term as an FCC commissioner ran from 1966 through 1973, my "15 minutes of fame" pretty much overlapped these years, and caused me to be involved in one way or another with many of the passions of these times -- including one of those innovative TV programs, the "Smothers Brothers Comedy Hour," one of CBS' most popular shows throughout the 1966-68 seasons.

There were conflicts between the show, primarily Tom Smothers, and the CBS' "censors," primarily involving politically edgy content. Ultimately, CBS' Chair Bill Paley ordered the cancellation of the program in April 1969. A film depicts those controversies, "Smothered: The Censorship Struggles of the Smothers Brothers Comedy Hour," in which I play a bit part, and a summary of which is presented, ironically, on "The Paley Center for Media" Web site.

I believe it was during that time frame Tom Smothers flew to Washington and visited with me in my FCC office. My memory is that he said CBS was telling him that he was violating National Association of Broadcasters (NAB) and FCC requirements.

As Mason Williams recalls, I explained to Tommy, and later to Mason, that the NAB Code (NAB "Code of Practices for Television Broadcasters) was a 1951 set of ethical standards, with something almost literally a copy of the Good Housekeeping Seal of Approval, seldom if ever taken seriously (and subsequently abandoned by the NAB in 1983, following pressure from members), with no specified sanctions for violation.

I also reassured him that so far as I knew, there would be no commissioners or staff, many of whom (including myself) were fans of the show, who would be able to find anything in the show that was forbidden by the Communications Act of 1934, or FCC regulations.

That conversation ultimately led to my occasionally visiting the set and meeting a number of those involved with the program. Among them, I spent the most time with Mason Williams, Emmy-award-winning head writer, and composer of "Classical Gas" -- one of the most played pieces in the history of American music. [Photo of Tom Smothers, Mason Williams, Dick Smothers. Photo credit: MasonWilliams-online.com]

If you'd like to know more about this historic and influential program and its place in American television history, here are some links: The Smothers Brothers' Web page; "The Smothers Brothers Comedy Hour," wikipedia.org; "Smothers Brothers," wikipedia.org; Mason Williams' Web page; and "Mason Williams," (including discography), wikipedia.org.

All of which, at long last, brings us to Pat Paulsen and the Pat Paulsen for President campaign, and ultimately Paulsen's proposals for dealing with gun violence. See, e.g., "Pat Paulsen for President," and "Pat Paulsen," wikipedia.org. Tom Smothers has said that Pat Paulsen "was the most important comedic talent I’ve met in my life.” [Photo credit: "Pat Paulsen for President," and other sources.]

There are a couple of videos that will give you a better sense of what that part of the Smothers Brothers Comedy Hour was all about than I can recreate in words. But to give you a start, some early video manipulation enabled the candidate to, literally, talk out of both sides of his mouth simultaneously. One of his campaign events involved climbing the highest mountain in Kansas with the governor. Another was, as I recall, an 89-cent fund raising bean dinner in Los Angeles -- with Carl Reiner acting as master of ceremonies. You get the idea. [Photo/poster credit: Mason Williams.]







Here are the videos:


This one is narrated by Henry Fonda:


This next one is a memorial tribute (Paulsen lived 1927-97), with "Classical Gas" as the soundtrack, Pat Paulsen's rendition of "God Bless America" as a close, and a couple of brief bits from the prior video:



As the Smothers Brothers Comedy Hour head writer, it fell to Mason Williams to write material for Pat Paulsen as well. So who better to ask than Mason Williams how Pat Paulsen might go about controlling gun violence.

As it turns out, although Pat Paulsen has not been with us in a temporal sense since 1997, Mason Williams is still able to channel Paulsen's thoughts from the great beyond. Here, then, is . . . ____________________
Pat Paulsen's Solutions for Gun Violence and Other Challenges
by Mason Williams

[Photo credit: Wikipedia.org.] Solving the gun control issue, less paper work & reduced pressure on hospital emergency rooms

“I’d pass a law that states that from here on, anyone who wants to buy a gun has to be willing to be shot with it. It would be a little like the “golden rule” in reverse: “Do unto yourself what you might do unto others.” In this case, I’d probably call it the “lead rule”. This would solve several aspects of our gun control problems.

1. It would probably get rid of anyone wanting to own ten guns.

2. You wouldn’t need a permit, you’d have the scar from the bullet-wound. No need for a permit means less bureaucracy and therefore less paperwork. This would save a lot of time & money.

3. Local gun shows would probably have to go out of business. You wouldn’t want to buy a gun from some guy who would take you out behind the building and shoot you with it before he sold it to you. You would want go to a reputable dealer who’s a good shot, a marksman.

4. As to the part of the body where you would be shot, that would of course be your decision. This is, after all, a free country.

Pat is asking Congress to act quickly and pass this proposal into law, not just to save lives, but in order to clear the decks for his other proposals. He is concerned about the indication a number of public prosecutors are planning on bringing an "aiding and abetting" criminal behavior case against the National Rifle Association. The theory of the case is that the NRA's efforts to increase the sales of their members who are gun manufacturers and gun show owners, while weakening such regulations as exist, and stonewalling efforts to staff the federal Bureau of Alcohol, Tobacco, Firearms and Explosives, have the effect of aiding and abetting the crimes of those who use guns in the course of robberies or as the preferred instrument for homicides. Candidate Paulsen is concerned that the focus on these protracted and contentious criminal prosecutions, and their attendant publicity and public participation, will detract from what he considers essential legislation for the American people.

Here are some of his other proposals.

Education vs. The escalating cost of putting young people in prison. We need to spend more money and effort to provide a better education for our young people. A great many of today’s high school student’s drop out early only to begin a life of crime. We need to convince kids that if they stay in school and get smarter they’ll be less likely to get caught. This obviously means fewer kids going to prison. This will take a lot of pressure off of the costs of running our prisons.

The smarter kid is a fiscally responsible crook for us all! Who knows, they could even go on to have a career on Wall Street.

Pro-Life vs. Pro-Choice. It's the Republicans who are, for the most part, anti-abortionists. They have no qualms about butting into your personal life, but they do have the basic philosophy of staying out of private business affairs.

Therefore, I’d recommend passing a law to have all of the women in America become corporations. This way, if the hypothetical Jane Doe Corporation got pregnant & decided to “downsize” it would be strictly her “business,” and the Republicans, being honor-bound to abide by their tradition of staying out of people’s business affairs, would have to make her business decision none of their business.

Given the Supreme Court's decision in Citizens United (that turned all corporations into persons), although the women would no longer be able to rely on the Nineteenth Amendment for their voting rights, they could simply vote as corporations.

And here’s the “two-fer,” since there are approximately 150,000,000 women in the United States, this would provide an enormous business opportunity for the lawyers of America.

Drugs and Social Security. I’d solve our nation’s drug problems & our Social Security problems in one fell swoop.

I’d propose that only Senior Citizens deal illicit drugs! (They could certainly use the money!) Think of the big load this would take off of the Social Security Reserves.

They’d probably even be willing to report their income and pay taxes on it!

It would also probably stop much of the violence associated with drug dealing. Who’s going to blow away somebody’s grandmother? Sure, there might be a walker-by-swatting with a handbag once in a while, but I’m sure the cops could handle it. I also think that older, wiser people would be more apt to show a little concern for their clients: “Now sonny boy, don’t take too many of these at once!” Or, “No downers with alcohol.” “These together will kill you.”

So there’s an extra, additional bonus here! The users won’t overdose and cost us, the taxpayers, a fortune in treatment and rehabilitation. In this case you get three solutions for the price of one!

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There you have it, folks. Mason Williams channeling Pat Paulsen from the great beyond, bringing solutions to a political Washington seemingly mired in mud, members of Congress accorded less respect by the American people than the regard they have for cockroaches and communists. We are desperately in need of the leadership only Pat Paulsen could provide.

Now . . .

But seriously, folks . . .
Nick: Mason, why do you think people want assault rifles?

Mason: Don't you see? You can't paint everyone with the same brush, but some of them act like fathers who are afraid their daughters will end up dating someone who is like they were. They know they are out there! They want to be able to protect themselves from people who have assault rifles. In other words, they want to be able to protect themselves from people who think like they do. If nobody, including them, had assault rifles, they wouldn't need to protect themselves from themselves. [Photo credit: Mason Williams.]


Nick: OK, good point. What else?

Mason: I think we ought to encourage and enlist the NRA members to help police themselves.

Nick: Are you serious? How is that going to work?

Mason: The goal would be to encourage the NRA to help solve gun violence problems rather than resisting all solutions. Not that they should go out hunting for criminals -- no good guys with guns going after bad guys with guns -- but agreeing to intensified restrictions that are inconvenient to all when they're applied.

Nick: Lots of luck with that one.

Mason: No; listen now. Suppose in a town like Butte, Montana, there are very few, if any, firearm suicides and homicides. Why should the gun owners in Butte be inconvenienced with regulations and prohibitions on gun ownership? My guess is that most of the congressional opposition to gun controls come from communities, counties, and states like that. Eliminate that opposition, focus the regulations on localities where they are needed, make sense, and could save lives, and the whole effort becomes more politically possible.

The NRA claims to be willing to back sensible regulations that will keep guns out of the hands of criminals and psychopathic killers. Giving the NRA a base on balls in that 75 percent or more of geographic America where responsible gun owners outnumber the armed criminals and psychopaths might just be attractive to them.

Nick: Hey, you may actually have something there. But how would it work?

Mason: Well, once a community reaches a certain threshold of gun violence, that would trigger a set of laws and regulations. But they would only apply to that area. It would be like conditions triggering a curfew; something nobody wants to happen. Maybe Congress or the FCC could require radio and TV stations to report firearm deaths, and broadcast what we used to call public service announcements about shootings.

For example, if the selective enforcement would come into play maybe those who own hunting rifles or pistols would not be bothered, but those who own assault rifles would be subject to more scrutiny.

Don't you see? This would provide an incentive for NRA members to do everything possible to keep these rules from going into effect, an incentive to be left alone. In fact, the whole community would have a vested interest in not bringing these Draconian measures down on itself.

But I see a couple possible problems.

Nick: What's that?

Mason: Nick, it's always the same dilemma. You can't legislate common sense or personal responsibility. Laws tend to be absolutes. The reason is, you can't have loopholes without absolutes, and folks like loopholes. Common sense doesn't have any loopholes.

Besides, could Congress do that? Can you have different standards that apply in different ways to different areas of the country?

Nick: The first example that comes to my mind is the Voting Rights Act of 1965, signed by President Lyndon Johnson when I was a part of his administration. It was an effort to outlaw voting practices throughout the South that resulted in the disenfranchisement of African Americans.

That Act had a built-in formula for distinguishing various areas of the United States. What the Act called "covered jurisdictions" were forbidden to make any changes in their voting laws without the Justice Department's prior approval, or "pre-clearance." Covered jurisdictions were states and counties in which less than 50 percent of the population was registered to vote, and that had used a "device" to restrict voting. Other parts of the country were not subject to that review, and triggering of restrictions.

That doesn't answer your question, but it's at least an example of something somewhat similar. Another might be the FCC regulation, when I was there, that exempted the smallest radio stations from the burden of lengthy paperwork for their license renewals. They could just submit a postcard. That didn't involve geographical areas, but did provide a disparate standard in the application of the law and regulations.

Mason: Those examples hit the mark; they establish legal precedents.

I remember reading an article in the New York Times opinion section that was about how, more and more, people are coalescing into what is called groups of "like minded people," like organizations, or gated communities. And one of their findings was that the larger the group got, the more it embraced the views and perspectives of its most extreme and radical members, rather than the collective average of the group. ("[W]hen like-minded people get together, they tend to end up thinking a more extreme version of what they thought before . . . [a] kind of echo-chamber effect . . .. '[B]iased assimilation' . . . means that people assimilate new information in a selective fashion. . . . [I]nformation that supports what they initially thought [is given] considerable weight. . . . [I]nformation that undermines their initial beliefs, they tend to dismiss . . .." Cass R. Sunstein, "Breaking Up the Echo," New York Times, September 18, 2012, p. A25.)Maybe the NRA has fallen into this category. Maybe the NRA is just a group of like minded people who are held hostage by the extremist views of its most radical members.

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