Friday, October 6, 2006

IN PRAISE OF HATE SPEECH; The Cartoon War and the Heckler’s Veto

A couple years ago, I was sitting on the beach at Rehoboth, talking to a lawyer friend about a First Amendment case he was handling, and apropos of our conversation, I said, “Thank God we live in a country where it’s not a crime to call somebody a nigger.”

He thought about that, and looked at me funny.

“C’mon, Bob,” I said. “Would you want to live in a place where it was illegal to stand in the courtyard at City Hall and yell ‘The first thing we have to do is kill all the Jews.’”

He didn’t answer. He was thinking, as he sometimes does. Then, as luck would have it, a very healthy 20-year-old girl in an abbreviated bathing costume strolled past on her way to the surf, and he seemed to lose interest in my question. My attention may have wandered as well. By the time we were through examining the evidence, my First Amendment question had been forgotten.

But it’s an important question, especially in light of the war breaking out over the Muhammed cartoons. Should it be a crime to use the word “nigger,” or demand that Jews be killed? In other words, should “hate speech” be protected by the First Amendment?

Most Americans understand that the First Amendment makes us different from the rest of the world, even from other democracies with traditions of free speech and freedom of the press. One obvious difference is that free speech in America is rooted in our constitution, which trumps all other law. The British Parliament could pass a law tomorrow that would put all newspapers under government control. If the US Congress did such a thing, however, the law would be nullified as unconstitutional by the first (and every subsequent) federal judge to review it.

Nationalizing the press is an extreme example, of course, and there is no chance the British Parliament is going to do it. In a democracy lacking an overarching body of law like the First Amendment, however, the boundaries of free speech are always subject to political fashion and the whim of the legislature. And in fact, elected bodies in other countries regularly nibble away at speech rights in ways our constitution and our Supreme Court do not permit. Free speech law, as outlined by our courts over the last two hundred years, is marked by bright lines that neither Congress nor the states can cross. One of these bright lines of particular significance to hate speech laws (and the Danish cartoon war), is the “heckler’s veto,” a legal doctrine unique to the United States.

In the case of Terminiello v. Chicago, in 1949, a lecturer was arrested for a breach of the peace when an angry crowd gathered outside the auditorium where he was speaking. The trial judge told the jury that under a Chicago ordinance, it could convict the speaker if he had engaged in speech that “stirs the public to anger, invites dispute, brings about a condition of unrest or creates a disturbance….” On review, the US Supreme Court reversed the conviction and ruled the ordinance unconstitutional. Speech is protected, the Court wrote, BECAUSE “it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

Speech may legally be restricted for many reasons. You can’t hold an anti-war rally on Broad Street on January 1, when the mummers are parading, because that would be an “unreasonable time and place.” Some speech content (i.e., kiddie porn, national security secrets) is not only unprotected, it is actually criminal. Under Terminiello, however, the only reason speech rights may not be limited is that the speech will offend people, or even enrage them. To limit offensive speech because it offends is to give the heckler a veto over speech that annoys him. In fact, it encourages the heckler to become violent and breach the peace, because then the speaker will be punished. The rule of Terminiello is that we punish the violent heckler, but we do not punish the speaker.

The reasoning of the Terminiello case is that once you start banning speech because it offends, eventually you grant control of all discourse to the most sensitive, irrational and violent elements in society. Opening this door creates a “slippery slope” to repression. Though you begin by punishing nazis and racists, you move swiftly to jailing artists like Andres Serrano (“Piss Christ”) and newspaper editors who publish Muhammed cartoons. Ultimately, you lock up the guy who says, “Ya know, women can do a lot of things, but I still think the best firefighters are men.”

Though Terminiello is settled law (a “super-precedent,” as Arlen Specter would say), the rule of the “heckler’s veto” is not universally loved or respected, and there are plenty of folks who would ban what they view as “hate speech” if they could get away with it.

In the last twenty-five years, over 90% of colleges and universities in the United States have enacted speech codes or sexual harassment codes that ban “offensive” speech or speech that “demeans, provokes or subordinates” any person. A private university like Harvard or Bob Jones may legally do such a thing, but a public university like Temple or Penn State or Michigan is legally viewed as an arm of the government and is subject to the First Amendment.

When a student runs afoul of these rules with speech deemed “offensive” or “harassing” by college administrators, litigation often ensues. Currently, there are lawsuits all over the country. In fact, there is now a non-profit organization, the Foundation For Individual Rights In Education (“FIRE”), that provides legal assistance to students or faculty members who are punished for constitutionally-protected speech. FIRE never loses these cases.

Dozens of examples, including those that don’t reach the litigation stage, can be found at FIRE’s website, Here are a few:

***Cal-Poly, 2002. Student Steven Hinkle posted a flier in the campus Multicultural Center advertising a College-Republican-sponsored speech by Mason Weaver, author of It’s OK To Leave The Plantation. The flier displayed only the title of the book, the time and place of the event, and a picture of the author, an African-American. After some black students objected the poster was offensive, Hinkle, following a seven-hour hearing before the Cal-Poly Judicial Affairs Office, was ordered to write letters of apology to the offended students or face “severe penalties.”

***Central Michigan U, 2001. In October 2001, an administrator ordered a number of students to remove various patriotic displays (American flags, eagles, etc.) from their dormitory because the displays were offensive.

***Holy Cross, 2001. In October 2001, the chairman of the sociology department ordered a secretary’s American flag display removed from the office. The flag was in memory of her friend Todd Beamer, who fought and died on United flight 93 over Pennsylvania on 9-11.

***San Diego State, 2001. In September 2001, Zewdalem Kebede witnessed a group of Saudi Arabian students loudly expressing their delight at the success of the terrorist attacks. Kebede spoke to them in Arabic, condemning their opinions and bad taste. When the students complained, Kebede was subjected to a disciplinary hearing and issued a formal “letter of admonishment” in which he was told to avoid similar confrontations or face “severe disciplinary measures.”

***William Patterson U, 2005. Jihad Daniel, a Muslim student and employee of the college, received a mass email from Professor Arlene Scala promoting a showing of a film described as “a lesbian relationship story.” He replied privately to the professor, asking that he not be sent any mail about “Connie and Sally” or “Adam and Steve” because his religion viewed these relationships as “perversions.” Mr. Daniel received an official letter of reprimand in his employment file noting his violation of sexual harassment regulations.

***U of New Hampshire, 2004. Timothy Garneau posted fliers in the elevators of his dormitory suggesting that women could lose the “freshman 15” (weight gained the first year of college) by taking the stairs. Charged with “acts of dishonesty, violation of affirmative action policy and harassment,” Garneau was expelled from student housing, given disciplinary probation, required to meet with a psychological counselor and write a 3000-word essay about it, and further required to submit a letter of apology to the student newspaper.

***U of Cal-Irvine, 2004. Members of the College Republicans staged an Affirmative Action Bake Sale to dramatize the unfairness of affirmative action programs. Prices for donuts were based on the race and sex of the consumer, with white males paying a dollar, Hispanics 75 cents, and blacks 50 cents. A spirited discussion ensued, until the Dean of Students stopped the sale, claiming it violated student regulations on discrimination. College Republican groups have set up these sales at universities around the country, and were also shut down at Illinois State and SMU. At DePaul, the students were charged with violating the school’s harassment policy.

Another tactic used by college administrations to silence views they dislike is to allow, or even encourage, radical students to do the silencing by means of vandalism, theft, or other violence. At the University of Colorado, for example, an affirmative action bake sale ended when, with campus police in attendance, counter-demonstrators were permitted to rip down signs and overturn tables, without opposition or consequences.

In 2005, at Washington State University, student playwright Chris Lee produced his play, “Passion Of The Musical,” and advertised it widely as “offensive or inflammatory to all audiences.” During one performance, a group of forty protesters repeatedly stood up, shouted they were offended, and threatened audience members and the cast. When Lee finally stopped the play and asked campus security to remove the protesters, they refused his request. Evidence later surfaced that the Washington State Office For Campus Involvement had bought forty tickets for the protesters with university funds and had helped organize the disruption.

A common tactic for radical students is to steal the entire press run of a student newspaper containing “offensive” (i.e., politically conservative) material. Typically, the thieves are never punished. In fact, the theft is sometimes defended by administrators and professors as itself being an exercise of free speech. Again, these incidents are found across the country at a wide variety of institutions. A few that garnered significant press coverage were at Berkeley, UNC-Wilmington, U Mass, Loyola Marymount, Boston College, Morehead State, and Oregon State. FIRE has received reports on hundreds of such events.

It may be tempting to attribute these cases to a few ignorant zealots who happen to be college administrators, but in fact, they happen regularly across the country, in small schools and large, in red states and blue. Also, even when the light is shone on the suppression of speech at an institution supposedly dedicated to intellectual freedom, schools rarely back down. They litigate. They fight these complaints, spending many thousands on lawyers and thousands more on settlements and judgments. But even after they lose, the speech codes remain.

Illegal speech codes grew out of a misreading of Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972, federal laws that prohibit real harassment in the workplace and on campus. Because of this misunderstanding, and because of their own political views, the people who run our universities came to believe they were permitted, or even required, to regulate offensive speech. While it seems unlikely anyone could still believe this, the speech codes are now in place and there is strong support for them on most campuses.

University speech codes illustrate the “slippery slope” in full regalia. Federal laws designed to prevent the most severe, persistent, frightening sort of harassment (the equivalent of “stalking” under state laws), have morphed into an Orwellian system of oppression.

Thus, expressing one’s religious view that homosexuality is immoral becomes a hate crime. Poking fun at affirmative action policies results in disciplinary hearings and punishment. American flags get ripped from dormitory walls a month after 9-11. Once the door is opened to the notion that speech can be banned because someone is offended by it, no speech is safe. All variety of commentary becomes subject to the heckler’s veto.

American universities will eventually get the message that their speech codes are illegal, but in nations without a First Amendment (i.e., everywhere else), and without a Terminiello case, there is no particular reason to tolerate speech the majority deems hateful. And since, as a matter of practical politics, there is no organized constituency in favor of the most offensive speech, it is often banned.

In 1998, an Ontario man was convicted of a hate crime for distributing pamphlets about Islam. The offending pamphlet (truthfully) listed atrocities committed in the name of Allah, and urged the reader to be careful in dealing with Canadian Muslims.

More recent Canadian law has criminalized the public disapproval of homosexuality. In 2001, Hugh Owens placed an ad in the Saskatoon Star Phoenix in which a drawing of two males holding hands was overlaid with a red circle and a diagonal bar. The ad also referenced (but did not quote) four Bible passages that condemn homosexuality. Mr. Owens and the newspaper were fined $4500 under the Saskatchewan Human Rights Code, and the ruling was upheld by the Queen’s Bench, where a Justice Barclay wrote that “the advertisement can objectively be seen as exposing homosexuals to hatred or ridicule.” And under Canadian law, that’s all that matters. In another recent case from Ontario (not a speech case), a printer (a Christian) was fined $5000 for refusing a job printing letterhead for a gay advocacy group.

Hate speech laws are also found throughout Europe.

Shortly after Muslims carried out bomb attacks in London in 2005, a German man printed up toilet paper with the word “Koran” on every sheet, then sent the rolls to TV stations and mosques. He was given a one-year prison sentence, which will be followed by 300 hours of community service. I

In an odd English case, the Mayor of London was brought before the Adjudication Panel For England over a heated exchange he had with a reporter for the Evening Standard, a paper the Mayor despises. The Mayor asked the reporter (a Jew) if he had been a German war criminal and compared him to a concentration camp guard. The result was a four-week suspension for the Mayor, who will also have to pay legal fees of $175,000.

In Sweden, the Rev. Aake Green was sentenced to a month in prison for a sermon denouncing homosexuality as “a cancer on society.” After a yearlong appeal, the conviction was overturned and the pastor remains free, but the prosecution has announced plans for a further appeal, which will include a demand for a longer sentence.

Though the Rev. Green may escape punishment for his remarks from the pulpit, the effect of such laws on speech was apparent in his post-appeal statement to the press. “I’ll go on preaching as usual but I won’t be dedicating so much time to this issue,” he said. (This “chilling effect,” under US law, is why even an unsuccessful attempt to censor speech, or a rarely-enforced speech code, is actionable. On February 22, 2006, the Alliance Defense Fund filed a lawsuit against Penn State over its speech code in which the plaintiff is a student who has never been disciplined by the university for his speech, though others have been.)

The most widespread hate-speech laws are those banning public display of nazi symbols or denial of the holocaust. There are ten such countries in Europe (France, Belgium, Switzerland, Germany, Austria, Romania, Slovakia, the Czech Republic, Lithuania and Poland.) In addition, there are other countries (e.g., Canada and the U.K.) that do not explicitly ban holocaust denial, but do so under broader laws against inciting racial hatred.

On February 20, 2006, a British historian named David Irving was sentenced to three years in prison by an Austrian court for denying the holocaust in a 1989 publication (in England). The prosecutor is appealing the sentence as too lenient since the 1992 Austrian law provides for a sentence of up to ten years.

There is solid support for hate speech laws, of various kinds, across Europe. In fact, the EU bureaucracy is currently engaged in writing regulations to ban various forms of offensive speech on the internet. It is against this backdrop that the Danish cartoon war erupted.

The protests began with boycotts of Danish dairy products in Arabian countries and quickly progressed to riots, embassy-burning and blood in the streets. As the violence escalated, there were repeated demands that the government of Denmark, and other countries, apologize. And some government officials did, but not the Prime Minister of Denmark. Anders Fogh Rasmussen, though noting that burning a Koran would be a crime in Denmark, claimed the Danish government could do nothing about the cartoons because it did not control the press. In other words, the Danish government had nothing to do with it, so how could they apologize?

Mahmoud Ahmadinejad, the Hitler-wannabe who is now President of Iran, in one of his more rational moments, hit the nail squarely on the noggin: “How can the insulting of the prophet of Muslims worldwide be justified within the framework of press freedom, but investigating the fairy tale holocaust is not?”

And he’s got a point, doesn’t he? In Europe, they’re trying to keep skinheads off the internet, they fine the elected mayor of a great city because he insults a reporter, they lock up a historian because he denied the holocaust in a different country three years before a law was passed saying you can’t deny the holocaust, and they want to put a preacher in jail for quoting Leviticus on Sunday morning. SO WHAT ABOUT US? WE’RE PISSED TOO! WHAT ABOUT OUR DAMN PROPHET??? Now, suddenly, you’re claiming there’s some free speech principle involved? Since when did YOU ever bother about free speech?

The Muslims are correct this time. There is no reasonable basis upon which Denmark or any other European country can stand on principle, because they recognize no such principle. If speech is offensive, it is banned, and speakers go to jail. Putting aside the issue of how much of the rioting is actually government-sponsored, there’s no question that Muslims are genuinely annoyed by the graphic depiction, especially in a negative light, of their prophet, so why aren’t the cartoonists eating out of tin cups? If some kid at Duesseldorf U. put a swastika in his dorm window, the Germans would treat him like Sherman treated Georgia. Once you begin banning offensive speech, you’re going to encounter some sensitive people (like Muslims), and you will have to accommodate them. When you allow the heckler a veto, you may be unpleasantly surprised by how many hecklers there are and how easily they are offended.

Europe’s failure to protect hate speech left an opening for the growing Muslim population there to exploit, and this particular battle in the culture war was over before it started, with Western freedom exposed as an illusion. European governments and journalists had no idea how to respond because they weren’t sure what they believed in, so many governments and newspapers apologized to the Muslim world. What newspaper now will publish words or pictures (even truthful ones) that will enrage the Muslim population? Those that do not censor themselves can expect no protection from the law; in fact, they may themselves be arrested for offending the rabble.

Apart from the freedom that disappears when a people fail to understand the importance of protecting hate speech, the cartoon war illustrates another danger of permitting the heckler a veto. As the Terminiello court pointed out, the peril for society is that the loudest and most violent hecklers will rule.

It may seem polite or civilized or politically-correct to ban speech that may offend one group or another, but this impulse is extremely shortsighted. What happens when groups of “victims” disagree over what speech is offensive? What will happen in Europe, for example, when an imam calls for the silencing of gay advocacy groups because their views are an affront to Allah? Homosexuals are executed in some Muslim countries; what happens when the faithful demand the same in Europe? It is one thing to lock up an elderly small-town Swedish pastor for condemning homosexuality, but would the Europeans do the same to a Muslim preacher who said far worse? An Iranian university just held an academic conference on the “myth” of the holocaust. Suppose someone decided to launch such an event in France?

When conflicts like this arise, the only method of resolving it will be to accede to the wishes of those who are most offended (i.e., the loudest). Since there is no principle involved other than a “right” not to have one’s (subjective) feelings wounded, those with the strongest feelings should prevail. And can anyone doubt that the winners of the rage-fest will be followers of Islam?

America, however, is different. America is better. Here, at least some people understand that if we want any freedom at all, we must accept the possibility we will sometimes be offended by other people’s exercise of it. It’s our law. It’s our tradition. “F*** em if they can’t take a joke” might as well be written in the Constitution. Several years ago, Andres Serrano’s “Piss Christ” was displayed in a public museum. The sculpture, a statue of Jesus immersed in a plastic case filled with the artist’s own urine, was deeply upsetting to many (perhaps most) people in this very Christian nation, but I remember no one calling for the suppression of this work. The only issue, discussed endlessly on TV and radio and in editorials, was whether artists like Mr. Serrano should receive public funding. Ban Muhammed cartoons? Ban offensive speech? Give me a break. Americans (outside of academia) don’t know how to think like that.

As Europe descends into oppression, we can be thankful that free speech, especially hate speech, survives here. America is still a place where you can say any damn thing you please. Maybe you’ll get punched in the nose for it, and maybe you should get punched in the nose for it, but you won’t get arrested. Or silenced.

Copyright 2006 Michael Kubacki

Wednesday, October 4, 2006


I was in the car a few Sundays ago, looking for a football game on the radio, and I happened upon one of those call-in medical shows that fill out the right-wing radio schedule when Rush and Sean and Michael and Laura are all hunkered down somewhere with a box of cigars, a case of single-malt scotch and a 57-inch plasma TV tuned to the NFL package.

Normally, a medical show would hold my attention for exactly the length of time it would take me to recognize it was a medical show and hit the dial. I disapprove of these things under the best of circumstances, but on a Sunday afternoon in the Fall, I find it positively frightening to discover there are people (Americans!) who would rather talk about ginkgo and bowel movements than watch Peyton Manning dissect the Seahawks’ secondary. The shock of this realization invariably makes me wonder, briefly, whether al-Qaeda might someday win.

But at the moment I tuned in, as luck would have it, the “doctor” was not talking about ginkgo or bowel movements. He wasn’t even talking about cholesterol. Instead, he was launching into a problem in medical ethics.

And here it is.

A married couple goes to a doctor’s office to inquire about their fertility problems. The doctor examines each of them, administers some tests, and tells them to return on Thursday for the results. As they are leaving, the wife says, “Thanks, doctor. This is very important to us. We’ve been trying to have another child for seven years now.”

Before the second appointment, the doctor learns the husband is sterile. There is no other conclusion. It is a congenital condition, and while it might be corrected with surgery, the husband is not the father of their seven-year-old child.

Thursday comes. You’re the doctor. What do you tell the couple?

There’s no right answer, of course. Or rather, there is a right answer, but considerable disagreement about what it is. All us mortals can do is argue about it, and it turns out to be a great question to argue about. I brought it up, over the pie and cheesecake and coffee, at our Thanksgiving dinner, and the discussion went on for quite a while. One thing I can report at the outset is that even those with positions on the two extremes---1) tell the hard truth or 2) lie like a dog---tend not to get adamant about it. Almost everyone, it seems, can see the other side of the coin.

While you are considering your answer, and before I tell you mine, let me specify one rule: you can’t duck the question. One guy (a lawyer, of course), said the solution was to call the ethics board at the AMA and get a ruling. OK, I said, then the question is: what answer should they give you? Another guy (a doctor) avoided the question by claiming there was no such thing as medical certainty, and thus, nothing he might tell the couple could be characterized as “true” or “false.” In a nutshell, he was arguing it was impossible for him to lie when he was offering a medical opinion. (A convenient position for a doctor, n’est-ce pas?) He never did give me an answer.

The hypothetical is designed to engage our view of right and wrong---that’s the purpose of it. Don’t fight it.

On one extreme is the view of the doctor on the radio show. He said he would sit the couple down and tell them the truth, the whole truth and nothing but the truth. This was his obligation as a doctor, he said. The couple came to him seeking a medical opinion and he would betray his oath if he were less than completely frank, no matter the consequences. As a policy matter, he noted that with DNA and genetic testing for diseases, this sort of issue was arising with increasing frequency, and it was essential to have an ironclad rule for the situation. Doctors could not be expected to “play God” with their patients, he suggested.

It’s a reasoned point of view, and I can see why a doctor, in particular, would feel that way. Among my unscientific sample, however, this is an extreme and unusual position. Only two people thought “the truth” trumped everything, and one of them was the lawyer whose first impulse was to duck the question.

The most common response, the middle road, is: “Well, he has to tell them the truth, right?” Then there is a pause of five or ten seconds. Then the person says, “Well, maybe I wouldn’t do that, exactly.” Following this, any number of creative lies emerge:

• “He’s been riding his bike too much.”
• “Maybe I check his medical records for the last seven years, and whatever happened to him is the reason he’s sterile."
• “I tell the wife the truth and ask her what she wants me to tell him.”
• “I tell them their first child was close to a miracle and he needs surgery to have another.”

My own view is at the other extreme---it would never occur to me to tell them the truth. I’m not sure what lie I would tell, but if I were a doctor, I’m sure I could invent something convincing, and I would. I would do so in spite of whatever ethical rules I learned in medical school and whatever legal liability I would be risking. I would falsify lab reports, if necessary. I would probably continue to lie even if they got a second opinion from another doctor and accused me of lying to them. I would tell them the second doctor was wrong, and subtly suggest he was well known to the police. Only when faced with threats of violence from the husband and service of a subpoena would I admit the truth.

Certainly, the truth is important, in an abstract sort of way. And yes, there is a contractual obligation on the doctor’s part to provide the service he has been engaged to perform. To see no further than these (perfectly legitimate) concerns, however, is to reduce the doctor’s role to that of the guy who sells you a new set of radial tires. A professional has an obligation to go a bit further, partly because he is in possession of specialized knowledge and the client is not. The client may not know what facts are important. He may not even know what the problem is. That’s why a professional has to acquaint himself with the entire picture, and has to use his judgment in identifying the problem and then deciding how to solve it.

How much further? Well, I admit my answer pushes professional responsibility to its limits, but once you acknowledge that the obligation to a patient or client extends further than that of the tire-monger, aren’t you forced to consider the interests of the seven-year-old child you have never met? And if, as a professional, you take that first little step toward an expanded view of your obligation---well, personally, I quickly come to the conclusion that the kid’s interests are the only ones that matter.

Morally, he trumps everybody. I’m an outsider here, but the one thing I know is that the kid is a completely innocent party. To my way of thinking, if that kid isn’t asking what happened nine months before he was born, I’m not going to tell him. I’m not going to tell anybody. And the kid isn’t asking. Why should he? He has a Momma and a Dada, and they all live together, and love each other, and whatever happened ninety-three months ago is ancient history.

It’s apparently ancient history to the husband and wife too, by the way. Remember---I’m just their doctor. I have no particular interest, professional or otherwise, in what happened way back when. All I see is a married couple that wants to have another kid. Maybe the husband had suspicions. If so, they’re gone now. The wife knew there was a possibility, but after seven years, she has persuaded herself her husband was the father. Maybe it was a two-week fling. Maybe it was a drunken Christmas party. Maybe, in her mind, it “didn’t matter.” What do I care? I’m only concerned with the kid, and what good can come to that seven-year-old by me telling the truth?

I have presented this argument to “truth-tellers” and have received the following response: “But it might be good for them to learn the truth. Maybe they will finally deal with the underlying issues in their relationship. Maybe they will reach a new understanding and a new level of partnership and love.”

“Yes,” I respond cordially. “And maybe monkeys will fly out of my butt.”

Speaking simply as a guy, qua guy, knowledge of a wife’s infidelity and a husband’s non-paternity is not going to catapult anybody to a new level of partnership and love. I don’t even know a guy who is that “evolved,” though I know some who probably think they are. A few guys would kill. More would divorce. About the best outcome would be a long series of therapy sessions and hot tubs and long, meaningful chats and crap like that. Meanwhile, the kid (remember the kid???) is wondering what the hell is wrong with his Momma and Dada. In my limited experience, kids don’t want Momma and Dada to have long, meaningful chats and deal with the underlying issues in their relationship. They prefer it when their parents are sitting on the patio drinking beer and talking about Britney Spears and Hillary Clinton. Kids want Momma to make cookies sometimes, and they want Dada to take them to a ballgame and buy them a hotdog and tell them a stupid joke. Kids HATE underlying issues. Nobody hates underlying issues more than kids do. Not even me.

What is interesting about this problem is that all of us can sympathize with the doctor. He is simply doing his job to the best of his ability, and suddenly he is confronted with a moral and ethical dilemma. He did not choose to be placed in the position he finds himself. Nobody would. Nevertheless, there it is. He holds the fate of this family in his hands and he has to decide what to do. He can consult other doctors or call the AMA Ethics Board or ask his priest, but the final decision is his. He’s stuck with it.

What engages us is that we are all placed in this position from time to time, typically when we least expect it. Moral issues are part of the human condition, as much as we may try to avoid them. But it’s not really an answer, is it, to “call the Ethics Board” or dismiss the issue with some bromide about “the truth” or “medical certainty” or “playing God.” Not that “the truth” is a concept without value, but why should it triumph here, in this situation, with this family? As my criminal law professor used to say, “Justify your answer!” Perhaps it can be justified, but if the parents get divorced and the kid starts selling dope on the corner, you will need a better answer for yourself than, “Well, that’s what the Ethics Board told me to do,” or “In medical school, they told us not to play God.” Because you were playing God. You were put in a position where you were forced to play God. You just made the wrong decision because you wanted to pretend you weren’t making a decision at all. This is the worst possible strategy when faced with a moral dilemma.

One way to approach these questions is to ask yourself, “If I choose Option A, and there are terrible consequences, can I still defend my decision?” Then ask yourself the same question about Option B. In this case, the first question becomes, “If I tell the truth and the family disintegrates, will I still feel I did the right thing?” Then ask, “If I lie, and I face discipline for an ethical violation (or get a punch in the nose), will I still believe my lie was justified?”

I remain curious about this question. If you disagree with me (and most people do), send me an email and tell me what you think.

Copyright 2006 Michael Kubacki