Right-wing media are misinforming about a recent Supreme Court injunction that allows the non-profit charity Little Sisters of the Poor to continue its objection to the Affordable Care Act's (ACA) contraception mandate, as they appeal a lower court opinion that rejected their legal challenge.
In its January 24 order, the Court pointed out that the ruling "should not be construed as an expression of the Court's views on the merits." In other words, the nuns haven't won their lawsuit -- the Court has not issued an opinion regarding whether or not their First Amendment rights have been violated. Interestingly, although the order stipulated that the nuns would no longer have "to use the [original] form prescribed by the Government," in order to register their objection, they still must "inform the Secretary of Health and Human Services in writing that they ... have religious objections to providing coverage for contraceptive services."
But this preservation of the status quo hasn't stopped right-wing media from framing the case as a big win for Little Sisters. In a January 27 segment on Fox's Special Report, host Bret Baier "chalk[ed] one up for David against Goliath." National Review Online at least acknowledged the meaning of the Court's order, but still crowed about the nuns' "big procedural victory." In a recent editorial, The Wall Street Journal went further, not only calling the case a "victory" for Little Sisters, but also a "rebuke to the Obama Administration's bullying conception of religious liberty":
[T]he permanent stay pending appeal, issued late Friday by the full Supreme Court with no recorded dissent, was rarer still -- and a rebuke to the Obama Administration's bullying conception of religious liberty.
The Little Sisters sued because they believe the form they must sign to supposedly exempt themselves from the mandate instructs others to provide contraceptives and abortifacients in their name, and thus violates their faith and the First Amendment. Nearly all of the lower courts that are adjudicating the 91 lawsuits challenging the rule gave religious organizations a reprieve, but the Tenth Circuit Court of Appeals did not for the Little Sisters.
The Justice Department also argued that this order of Catholic nuns who run a Colorado nursing home and hospice should be forced to comply. You might call it a war on religiously devout women.
Right-wing media have sunk to new lows in smears against President Barack Obama's nominee to head the Department of Justice's Civil Rights Division, former NAACP Legal Defense Fund (LDF) top official Debo Adegbile, a highly-qualified and widely praised civil rights litigator who has been senior counsel to the Senate Judiciary Committee.
The Wall Street Journal took to its editorial pages to plead with ultra-conservative Supreme Court Justice Antonin Scalia to overturn decades of labor law precedent -- including his own opinion -- that would greatly hinder public-employee unions' ability to advocate for their members.
The Supreme Court has long held that employees in unionized workplaces are required to pay dues even if they're not members, as long as their dues don't go toward the political activity of the union, which would be a violation of non-members' First Amendment rights. Requiring dues payments from non-members helps prevent a "free rider" problem where non-unionized workers receive the significant benefits of unionization without having to pay for it.
On January 21, the Supreme Court heard oral arguments in Harris v. Quinn, a case that could allow home-care workers who voted against unionization to refuse to pay dues. These workers, whom the state of Illinois recognizes as public employees because they're paid with Medicaid funds, argue that the union's efforts to raise wages constitute political activity.
Lawyers for the union and for Illinois counter that unionization has reduced turnover for home-care workers, has nearly doubled wages for those workers, and has saved the state around $632 million. It should be noted that the plaintiffs in this case, despite opposing the union, still accepted the wage increase, all while bringing a lawsuit that has national implications for the labor movement. As NPR's legal affairs correspondent Nina Totenberg reported, a finding for the plaintiffs "could drive a stake through the heart of public employee unions" because unions will still be required by law to represent and advocate for non-members even if they refuse to pay dues.
But the WSJ, never one to pass up an opportunity to attack unions, is predictably pro-plaintiff when it comes to Harris. The editorial board, presumably taking advantage of the fact that the WSJ is one of just two newspapers Scalia reads, pleaded with him (or his clerks) to "restore a first constitutional principle" by finding that paying union dues violates the plaintiffs' First Amendment rights -- something that Scalia has previously declined to do.
The Wall Street Journal published an op-ed by former CNN anchor Campbell Brown that misleadingly accused teacher unions of "making it more difficult to protect children from molesters" and failed to disclose that Brown's husband is a board member of an anti-teacher union organization.
The Protecting Students from Sexual and Violent Predators Act of 2013 from Rep. George Miller (D-CA) passed in the House of Representatives in October 2013. Politico reported that the bill will "require school employees, applicants and contractors to pass a comprehensive background check that includes a check of the FBI fingerprint database, standardizing national background check policy. It would forbid school districts from knowingly transferring employees who have engaged in sexual misconduct, and it would allow districts to share background check information."
In a January 17, op-ed for The Wall Street Journal, Brown dismissed the objections of teacher unions such as the American Federation of Teachers (AFT) and the National Education Association (NEA) to the bill as "unconvincing," claiming the organizations' stance is "making it more difficult to protect children from molesters."
Campbell recounted two "horror stories" of sexual misconduct by teachers to paint the legitimate concerns of the AFT and NEA regarding the bill as an attempt by teacher unions to protect sexual predators:
These are sensible measures that are overdue. Yet the two most powerful teachers unions in the country have voiced objections to the bill. Both the National Education Association and the American Federation of Teachers complained about the bill before it passed the House. The NEA claimed in a letter to House members that background checks "often have a huge, racially disparate impact." Randi Weingarten, the AFT chief, warned of inaccuracies in the FBI database and cautioned that teachers would be inconvenienced by potentially long screening delays.
This response is unconvincing. Twenty-five states already use FBI searches in teacher hiring. More important, the bill includes an appeals provision for anyone who believes the results of background checks are mistaken.
However, the AFT, an organization that represents over 1.5 million teachers, does not oppose the bill. In an open letter to the House of Representatives the organization affirmed support for the bill while also addressing legitimate concerns and suggestions for "improving and strengthening the bill."
AFT specifically addressed parts of the bill that they believe need further consideration and deliberation including the possibility that imposing a national protocol could create inefficient duplication processes in states with already rigorous procedures, and that the data in FBI records used for background checks are often incomplete or inaccurate. AFT say they would also like the bill to consider how individuals will be burdened with addressing inaccurate data, and to address the possibility that this bill may cause serious backlogs and delay in the hiring process.
The NEA offered their view "that criminal background checks often have a huge, racially disparate impact. In addition, we are concerned that H.R. 2083, while well intentioned, may run counter to existing state laws requiring background checks." Although background checks have a history of acting as a racially discriminatory tool for companies, Campbell dismissed these points as "unconvincing."
In addition, WSJ did not disclose Brown's possible conflict of interest in writing about teachers' unions - her husband, Dan Senor, sits on the board of StudentFirstNY, an organization that actively opposes teachers' unions.
The WSJ has a habit of failing to disclose their contributor's conflicts of interest when it comes to conservative policies the paper supports. According to a 2012 Media Matters review, WSJ's editorial page published op-eds from 12 writers without disclosing their roles as advisers to Mitt Romney's presidential campaign. In 2012 the paper also did not provide Campbell's background when she wrote a similarly critical op-ed of teachers unions in New York.
Just before the Supreme Court heard oral arguments over a law designed to protect workers and patients at women's health clinics, the Wall Street Journal ignored the history of murder and violence women have faced at the hands of anti-choice activists, instead claiming that the law's "sole purpose" was to criminalize "peaceful" protests.
On January 15, the Supreme Court will hear arguments in McCullen v. Coakley, a challenge which could invalidate a 2007 Massachusetts law that created 35-foot "buffer zones" around local reproductive health center entrances. The law was designed as a response to public safety concerns after patients and staff at Massachusetts clinics faced a pattern of intimidation, harassment, and extreme violence from protestors -- including a fatal shooting of two women.
The Wall Street Journal editorial board's January 14 preview of the Supreme Court arguments did not mention violence once. Instead, the editorial repeatedly characterized anti-choice protesters as "peaceful," framing the law as simply a "chance to advance free speech" and ignored the events leading up to the law's passage to claim that the "real purpose of the state's abortion buffer zones is to limit, and criminalize, peaceful political speech."
But as the Boston Globe's Renée Loth explained, the implementation of Massachusetts' buffer zones law has helped dramatically reduce the level of intimidation that patients entering the clinics are forced to endure (emphasis added):
I was struck by the contrast to the common scene outside the health center in past decades, when antiabortion zealots screamed, chanted, blocked the doors, grabbed at women trying to enter, and photographed license plates. It was a time when women's health centers offering abortions were routinely bombed, burned, or doused with butyric acid. When staffers received letters purporting to contain anthrax. When John Salvi shot and killed two women and injured five others at two women's health centers in Brookline.
What's changed, according to many advocates, is the adoption of the Massachusetts buffer zone law, which creates a protected area for patients and employees a fixed 35 feet from the entrances to health centers. The law achieves a delicate balance between the free speech rights of abortion protesters and the rights of women to safely access the center. "It's a very peaceful coexistence," said Martha Walz, president of the Planned Parenthood League of Massachusetts and a coauthor of the 2007 law. "We no longer have that in-your-face harassment. The tension levels are way down. The law is working for everybody."
The violence Loth cites included the infamous Brookline murders of 1994, when two receptionists were killed in a shooting by an anti-choice activist at a Boston-area clinic. The shooter was convicted on five additional counts of attempted murder "in the wounding of five other people."
Such public safety concerns remain a pressing issue nationwide. In fact, the Anti-Defamation League (ADL) called anti-choice violence "America's [f]orgotten [t]errorism" in 2012, emphasizing that buffer zones are necessary because patients and doctors at health facilities that offer abortion services remain targets of violent attacks "from murders to arsons to bombings."
As the First Circuit United States Court of Appeals noted during its previous consideration of the Massachusetts law, "the right of the state to take reasonable steps to ensure the safe passage of persons wishing to enter healthcare facilities cannot seriously be questioned." The court recognized that the law places some restrictions on speech by moving protestors away from the entrances and farther down the public sidewalk, but emphasized the fact that "a diminution in the amount of speech, in and of itself, does not translate into unconstitutionality":
This case does not come to us as a stranger. At the turn of the century, the Massachusetts legislature passed a law that created fixed and floating buffer zones around abortion clinics. We rejected serial challenges to the constitutionality of that law.
The plaintiffs again appeal. They advance a salmagundi of arguments, old and new, some of which are couched in a creative recalibration of First Amendment principles.
Few subjects have proven more controversial in modern times than the issue of abortion. The nation is sharply divided about the morality of the practice and its place in a caring society. But the right of the state to take reasonable steps to ensure the safe passage of persons wishing to enter healthcare facilities cannot seriously be questioned. The Massachusetts statute at issue here is a content-neutral, narrowly tailored time-place-manner regulation that protects the rights of prospective patients and clinic employees without offending the First Amendment rights of others.
In the context of abortion-related demonstrations, the Supreme Court has specifically recognized the interest of clinic patients [in the 2000 case of Hill v. Colorado] both "in avoiding unwanted communication" and "pass[ing] without obstruction." Consistent with this interest, the First Amendment does not compel prospective patients seeking to enter an abortion clinic to make any special effort to expose themselves to the cacophony of political protests. Nor does it guarantee to the plaintiffs the same quantum of communication that would exist in the total absence of regulation. A diminution in the amount of speech, in and of itself, does not translate into unconstitutionality. So long as adequate alternative means of communication exist, no more is constitutionally exigible.
The Supreme Court's decision on McCullen v. Coakley could have a significant impact on women's access to reproductive care nationwide, creating a ripple effect that could impede other states' efforts to maintain the safety of women seeking medical aid. At ThinkProgress, Robin Marty reported on the type of harassment that patients would increasingly face:
Without a buffer zone to protect patients, someone entering the clinic can be trailed from the moment a car door is opened to the moment the person enters the building. Just as bad, they can be followed closely from the moment they pass through the clinic doors until they are safely back inside the car.
Ultimately, if the Supreme Court strikes down the buffer zone in McCullen v. Coakley, every clinic sidewalk could potentially turn into the sidewalk in Louisville, where anti-abortion protesters can openly chase clinic patients, "exorcise" escorts, and block doors -- not with the metal or even human chains they used in the nineties, but with the emotional force of 100 bodies lining the street, shouting that you are a murderer.
That type of "freedom of speech" won't just be condoned; it will be actively encouraged at every clinic in every state in the country. The freedom to determine if you choose to carry a pregnancy to term, however? That could become a thing of the past.
In the wake of revelations that New Jersey Gov. Chris Christie's (R) office carried out a political vendetta against a NJ Democrat by closing lanes on the George Washington Bridge, right-wing media have sprung into damage control mode to protect the prominent Republican governor, using any excuse to distract and deflect attention from the scandal.
On January 8, New Jersey's The Record reported that top aides within Christie's office coordinated in order to create "traffic problems in Fort Lee" by closing lanes to the George Washington Bridge in an alleged act of political retribution against the city's Democratic mayor after he refused to endorse Christie's re-election campaign.
Right-wing media have reacted by attempting to deflect criticism from Christie, praise Christie's handling of the scandal in contrast to perceived scandals in the Obama administration, or ignore the unfolding scandal altogether. That defense of Christie was exemplified in a January 9 editorial from The Wall Street Journal, in which the Journal argued that "Mr. Christie's contrition contrasts so sharply with President Obama's handling of the tax agency's abuse of political opponents and his reluctance to fire anyone other than a military general for anything," and concluded, "If Mr. Christie really didn't know about this cheap exercise in political payback, and nothing new emerges, the incident shouldn't interfere with the Governor's expected presidential run."
Which brings us to the Obama Administration, which quickly leaked to the media that the U.S. Attorney is investigating the lane closures as a criminal matter. Well, that sure was fast, and nice of Eric Holder's Justice Department to show its typical discretion when investigating political opponents.
This is the same Administration that won't tell Congress what resources it is devoting to the IRS probe, and appears to be slow-rolling it. It has also doubled down by expanding the political vetting of 501(c)(4) groups seeking tax-exempt status. Lois Lerner, who ran the IRS tax-exempt shop and took the Fifth before Congress, was allowed to "retire," presumably with a pension. Acting IRS commissioner Steven Miller resigned under pressure but no other heads have rolled. Yet compared to using the IRS against political opponents
Following the example of the Journal and others, Media Matters has crafted a how-to checklist for conservative media covering the Christie bridge scandal:
Here are other examples of right-wing media appearing to follow this methodology:
The Wall Street Journal editorial board is continuing its long tradition of suspect legal analysis, this time denouncing federal judges for "defying" Supreme Court precedent by allowing class action lawsuits to proceed, despite its previous disregard for well-established law in other areas.
This is an odd posture from the WSJ, especially since they weren't particularly concerned with Supreme Court precedent when they supported overturning portions of the Voting Rights Act, getting rid of affirmative action in college admissions, and fetal "personhood" amendments that would result in a blanket ban of abortion. But perhaps it's not all that surprising that the WSJ editorial board would now hypocritically cling to precedent when it comes to protecting corporate wealth.
In a January 8 editorial, the WSJ complained that appellate court judges -- including conservative Judge Richard Posner -- were "defying precedent" by allowing class action lawsuits against Sears and Whirlpool to proceed. The class members in these lawsuits are seeking damages after Whirlpool washing machines, sold by Sears, developed untreatable mold problems. The federal courts' decision to certify this class of plaintiffs, according to the WSJ, is tantamount to the lower courts telling the Supreme Court to "take a hike":
Must judges follow Supreme Court precedent? Any high school student would say yes -- at least where they still teach civics -- but the High Court now has a chance to reinforce the point.
As early as Friday the Justices will decide whether to hear Whirlpool v. Glazer and Sears v. Butler, which concern whether class-action lawsuits can be certified even if many class members suffered no harm. It's the second time in less than nine months that the cases are seeking a hearing at the Supreme Court, highlighting a growing trend of lower courts defying precedent.
In both cases the classes are structured around consumers who complained of moldy odors in their front-loading, high-efficiency washing machines. Last spring, the Supreme Court vacated decisions by the Sixth Circuit (Whirlpool) and Seventh Circuit (Sears) Courts of Appeals to certify the classes and remanded the cases for reconsideration in light of the Supreme Court's 2013 decision in Comcast v. Behrend, which narrowed the standards for certifying class actions.
Under Section 23(b)(3) of the Federal Rules of Civil Procedure, class actions can be certified only when "questions of law or fact common to class members predominate over any questions affecting only individual members." In Comcast, as in 2011's Wal-Mart v. Dukes, the Justices drew specific parameters for the commonality of the class. If plaintiffs are unable to demonstrate common injury or damages on a classwide basis, the Court said, no class should be certified.
Rather than adjusting their opinions, the Sixth and Seventh Circuits blew past the Court's new guidance and reinstated their previous decisions. The Sixth Circuit panel said Comcast had "limited application" while Seventh Circuit Judge Richard Posner shrugged that Comcast didn't change his reasoning because class actions are the most efficient way to handle the mold complaints.
Even if the washing machine companies were right that most members of the class had no exposure to mold, Judge Posner wrote, so what? If true, "that was an argument not for refusing to certify the class but for certifying it and then entering a judgment that would largely exonerate Sears -- a course it should welcome, as all class members who did not opt out of the class action would be bound by the judgment." Message to Supremes: Take a hike.
What the WSJ doesn't mention is that at least 1.3 million consumers called to complain about the mold and smell emanating from their Whirlpool washing machines. In response to complaints, Whirlpool developed and sold a cleaning product called "Affresh" to eliminate the mold problem. According to Slate senior editor Emily Bazelon, Whirlpool earned about $195 million in revenue from that cleaning product, despite the fact that Affresh didn't actually work. Later redesigns to the washers also failed to solve the mold problem. Nevertheless, Sears continued to sell the washers and consumers sued.
Right-wing media outlets who have long engaged in a campaign to demonize organized labor may be contributing to economic inequality as economists point to declining union participation as one cause of the growing economic rift in America.
Unions and union workers have been a consistent target for right-wing media figures who have attacked organized labor as a leech on society and destroyer of jobs. In the latest example of anti-union rhetoric, the opponents of organized labor in the conservative media have defended Boeing Co., which has come under fire recently for its anti-worker policies.
On January 3, Boeing's leadership came to an agreement with its largest union that freezes pension plans and limits wage increases for Boeing workers -- all at a time when the company is setting productivity records while its shares are hitting record highs on the New York Stock Exchange. Workers initially rejected the terms, but after Boeing began taking steps to move their jobs to states with anti-union right-to-work laws, they conceded by a margin of 51-49%.
Fox News and the Wall Street Journal touted the development as a victory for Boeing and the people of Washington state, where the company is headquartered. On the January 7 edition of Fox & Friends, above on-screen text that read "Flying High, Boeing's Victory Over Big Labor," co-host Steve Doocy asked whether the deal was "a nail in the coffin of America's unions?"
But LA Times business columnist Michael Hiltzik argued that the real impact of the vote "is that it continues -- even accelerates -- the hollowing-out of America's once thriving middle class" by shifting the company's profits away from workers and toward shareholders:
Any way you cut it, the workers are getting squeezed. A Boeing machinist job, once the reliable foundation of a middle-class lifestyle, will be much less of one in the future. It won't be exactly hard time--with average pay about $70,000 "it's still one of the best deals you can get for a blue-collar worker without a college degree," observes Leon Grunberg, a labor relations expert at the University of Puget Sound--but it shrinks the workers' economic horizons considerably, especially for younger workers.
So if Boeing is gaining so much with this deal, where are the gains going? The answer, as is true throughout corporate America, is to shareholders and executives. Under Chairman and Chief Executive James McNerney, who took over in 2005, the company has increased its dividend every year but one, from $1.05 to $2.92 in 2014. That's a total increase of 178%, including a huge bump of 51% this year alone.
At the same time, the company has authorized $17 billion in share buybacks. That's just another way of shoveling money out to shareholders, and surely accounts for a good portion of the company's handsome run-up in share price over the last year, when it has appreciated by more than 80%.
Supporting Hiltzik's claims is a report from the Center for American Progress, which illustrated how the decline in union participation mirrors the decline in middle-class incomes. Economist and former Labor Secretary Robert Reich recently argued that preserving "the right to form a union without being sacked for trying" is one of six solutions to reduce income inequality in America.
Wall Street Journal editorial board member James Taranto falsely claimed that women have full control over reproduction and are choosing to have "illegitimate" children who grow up without fathers -- furthering his history of sexist and inaccurate attacks on women's rights and reproductive freedom.
In his January 6 Best of the Web Today column, Taranto examined an article about studies which claim that boys who grow up in households without fathers are likelier to have discipline problems in school than boys who grow up in families with both a male and female parent. Taranto argued that this was a problem rooted in "female careerism" and birth control. He claimed that the growing number of children born to unmarried women -- what he termed "widespread illegitimacy" -- was a product of women having full control over reproduction thanks to the introduction of the pill and abortion rights, and thus "the vast majority of children who are growing up without fathers are doing so in large part because of their mothers' choices" (emphasis added):
Under the legal regime that has prevailed for more than four decades, any woman who gives birth out of wedlock does so because she chooses to do so. To assign responsibility is not necessarily to assign blame: One may hold the view, for example, that illegitimate childbirth is morally preferable to abortion, or that widespread illegitimacy is not as bad for society as the decline in fertility that would occur, all else being equal, if sex outside marriage never produced a child.
Nonetheless, the vast majority of children who are growing up without fathers are doing so in large part because of their mothers' choices. In our column last month, we half-facetiously raised "the converse lament that young females are insufficiently interested in 'becoming reliable wives and mothers.' " Let us now raise it half-seriously. It is trivially true that an unmarried woman who bears a child is not a reliable wife. If Hymowitz is correct about the baneful effects of fatherlessness on boys, such a woman also is not a reliable mother, at least to her sons.
Regardless of what kind of household children are raised in, the fact is women have increasingly little control over their reproductive choices, as their rights are under unprecedented threat. A new Guttmacher Institute report stated that in 2013 alone there were 70 different anti-choice restrictions adopted throughout the states. This severely reduced women's reproductive health options and in many cases shut down health clinics in huge areas of the country, blocking women's access to necessary and safe procedures. Indeed, more abortion restrictions were enacted in the past three years than in the entire previous decade.
Taranto's sexism and misinformed attacks on women's reproductive freedom are a regular feature at the Journal, where he has previously argued that a "war on men" began with contemporary feminism in the 1960s, when women dared "to be equal to men" and wanted "sexual freedom." Below, Media Matters has compiled a selection of some of his worst comments:
Video by Coleman Lowndes
If 2012 was the year of Solyndra, then 2013 was the year of Tesla, whose initial success has encapsulated the potential of clean energy. The electric automaker received a loan from the same overarching program as Solyndra, the bankrupt solar company that became the target of political attacks, but it turned a profit and became the poster child for clean energy subsidies. This confounded conservative media, who alternated between praising Tesla while denying or ignoring its federal loan, and putting it down just days later.
In addition to the more traditional targets -- electric cars like Tesla's, solar (allegedly "tanking the economy") and wind energy (supposedly causing "devastating" health effects) -- this year conservative media reached so far right as to go after energy efficiency and bike-share programs. We collected some of the worst attacks from conservative media against clean energy technology during 2013.
2013 got off to a promising start when perennial conservative huckster Dick Morris was finally fired from Fox News.
But any hope for year free from scandal unraveled as conservative outlets like Fox, and venerable institutions like CBS and CNN, found themselves mired in ethical morasses of their own making.
Media Matters looks back at the year in media ethics:
The past 12 months witnessed innumerable attacks on social safety net programs in the United States. These attacks on American social insurance programs were hardly limited to Social Security -- all forms of social insurance, including unemployment benefits, food stamps, and disability, came under fire from mainstream and conservative media alike, regardless of the programs' social or economic benefits. Media Matters compiled a list of the six types of attacks on the social safety net in 2013.
For more than three years, an influential study by two Harvard economists -- Carmen Reinhart and Kenneth Rogoff -- provided a plausible foundation for attacks on spending of all types. The study fostered debt-paranoia among pundits otherwise interested in austere fiscal policies.
An April study by economists at the University of Massachusetts, however, concluded that the Reinhart-Rogoff data was error-filled in a way that selectively biased the results. A further review of the corrected data by economists at the University of Michigan found that the study should have been deemed inconclusive.
Despite losing its intellectual foundation in April, the deficit reduction talking point maintained a prominent position in fiscal policy discussion throughout the year.
Media calls for deficit reduction in the past year also regularly relied on budget reporting that lacked adequate context that federal budget deficits have declined precipitously from their 2009 peak. A Media Matters review of budget reporting done by The New York Times, The Wall Street Journal, and The Washington Post revealed that a sizeable majority of articles provided budget items and program spending figures out of context. Further analysis concluded this misrepresentative reporting to be little more than a scare tactic, which bolstered calls for deeper cuts to the safety net for the sake of alleged fiscal responsibility.
This lack of context in media, and the effect it had in shifting the policy debate, eventually encouraged Times public editor Margaret Sullivan to issue a statement promising to correct problematic reporting standards going forward, but other outlets have yet to follow suit.
Forbes recently hyped the American Tort Reform Association's (ATRA) annual "Judicial Hellholes" report, but failed to mention that the report's attempt at methodology is anecdotal and highly suspect.
This is not the first time members of the right-wing media have cheered ATRA's Judicial Hellholes report, which aims to point out the jurisdictions that are the "worst" when it comes to allowing lawsuits to proceed. Last year, a Wall Street Journal editorial board writer called the report the "Oscars" of "abusive class actions."
In his December 16 article, Forbes writer Daniel Fisher called the report "an entertaining read" and minimized legitimate criticisms of ATRA's "hellhole" selection process:
News flash: Madison, County, Ill. is no longer the nation's worst place for corporations to find themselves in court.
California took top honors in the American Tort Reform's annual "Judicial Hellholes" list, an unashamedly pro-defendant look at the nation's judicial system. The Golden State won for the welcoming stance its courts take toward consumer class actions -- particularly against food companies -- and rampant lawsuits targeting small businesses over disability-access rules.
A dozen or so law firms, many of them veterans of the tobacco litigation jackpot, have filed 75 class actions against food companies in California and similar cases are running almost one a week, ATRA reports. Many involve the same plaintiffs and take advantage of the state's stringent laws to target companies like Chobani and Trader Joe's with claims that they mislabeled products -- for example, using the term "evaporated cane juice" instead of "sugar."
Critics may say, with justification, that ATRA is financed by businesses with a strong profit motive to cut down on such litigation. But these lawsuits aren't without cost: ATRA says California consumers paid at least part of the cost of $33.5 billion in settlements in 2013 alone. And, as I have reported elsewhere, studies cast strong doubt on the idea that consumers get anything of value out of class actions supposedly brought in their name.
Unlike the Journal's positive take on the "Judicial Hellholes" report from last year, Fisher at least points out some of its flaws -- namely that it's underwritten by corporations that don't want to pay to defend themselves in court. But Fisher seems far more concerned with the amount of money these companies spend on litigation than he is with the very real harm corporate wrongdoers cause. According to the Center for Justice & Democracy, many of ATRA's members are Fortune 500 companies, including "representatives of the tobacco, insurance, chemical, auto, and pharmaceutical companies" -- all industries with a history of questionable business practices.
Men are under threat. Despite the fact that women still make less than men do, are hugely underrepresented in media, and face so much sexism on a daily basis that Republicans actually have to undergo training to learn how to talk to women in non-offensive ways, conservative media would like you to know that it's really men who have it tough.
The "War on Men" is waged on multiple fronts, from elementary school classrooms to the workplace to men's own marriages. Nowhere is safe. So to help the besieged men out there, here is a list of all the things conservative media said were examples of the "War on Men" in 2013.
1. Kids Don't Play "Tag" Anymore.
In September, National Review Online hosted a debate which asked "Is there a war on women? Or is it a war on men?" An example of the suffering of men, according to the panel, was that "schools are replacing boys' favorite game, 'tag,' with a more female-friendly alternative called 'circle of friends.'" As Alice Munro noted in the New Republic, this isn't true.
2. "Female Sexual Freedom."
The "War on Men" really began with contemporary feminism in the 1960s, according to Wall Street Journal editor James Taranto, when women dared "to be equal to men" and wanted "sexual freedom":
MARY KISSEL: [W]hen did this war on men begin? Can you pinpoint a starting point?
TARANTO: Well, it all goes back to the beginning of contemporary feminism in the early '60s. You know, women wanted to be equal to men, they wanted to be able to do all the sort of professional things including the military that men could do, and --
KISSEL: Was there anything wrong with that, though, James? I mean, that sounds --
TARANTO: Well, that's too long to go into now, the question of what's wrong with that, but in addition they wanted sexual freedom. Well what is female sexual freedom? It means, for this woman, that she had the freedom to get drunk, and to get in the backseat of the car with this guy. There was another woman who accused him, he was acquitted in this case, of sexual assault. This so-called assault happened in his bedroom, to which she voluntarily accompanied him, even the jury said that was consensual.
According to conservative media, the Affordable Care Act's mandate that insurance companies can no longer discriminate is the same as "sticking it to men" and waging a "war on bros." In reality, the law makes sure insurance companies can't force women to pay more for health care just because they are women.
4. "Feminized" Schools Have Rules, Standards.
The "War on Men" starts "as a war on boys," according to NRO's Helen Smith, which manifests when schools "take away recess" and adopt "a feminized approach to schools to the point where it is mainly for those who conform, sit still, and like to follow rules."
5. Sometimes, Men Are Accused Of Sexual Harassment.
Wall Street Journal editor James Taranto fights the "War on Men" on a regular basis. In June, he dismissed the epidemic of sexual assault in the military, claiming that efforts to address the enormous problem contributed to the "war on men" and were an "effort to criminalize male sexuality." Taranto conveniently ignored the fact that many victims of sexual assault in the military are also male, and that most men probably don't agree that "male sexuality" necessarily includes having sex with drunken women in cars.
6. Commercials And Sitcoms Make Men Look Stupid.
In 2012, FoxNews.com columnist Suzanne Venker claimed that a factor in the "War on Men" was that "Women aren't women anymore," because now they have college degrees and have sex outside of marriage. In 2013, she took this probing analysis further, saying that men -- who are "second class citizens" -- are under threat because Title IX forbids discrimination in college sports and because of "sit-coms and commercials that portray dad as an idiot."
7. Women Work Full-Time Jobs.
In December, Venker uncovered yet another layer in the war on men: women these days are "financially independent," and despite the "simply irrefutable" fact that they "prefer part-time work," many continue to insist on working full-time jobs, harming men's ability to fulfil their natural inclination to be primary breadwinner.
8. Women Would Like To Make The Same Amount Of Money Men Do.
At FoxNews.com, Carrie Lukas argued that President Obama's nominee to the Office of Personnel Management was the new "general" in the "war on men's pay," because she was tasked with attempting to close the gender wage gap in government salaries. Lukas baselessly claimed that this would result in men being paid less money in order to make up the difference -- literally the opposite of what was intended, which was to pay women more.
9. "Obama's America."
Finally, WSJ editor James Taranto blamed "Obama's America" for waging the "War on Men" with the sexual harassment regulations under Title IX, which he claimed unfairly police men's sexuality.
In a recent investigative report, NBC News debunked right-wing media's insistence that lawsuits brought against gas can companies whose products explode were "frivolous." As reported by NBC, its findings not only led the federal Consumer Product Safety Commission to recommend that the industry remedy the gas can defect at the heart of the lawsuits, but also prompted co-defendant Wal-Mart to propose a $25 million settlement.
Last year, Blitz USA, the number one manufacturer of red gas cans who refused to put flame arrestors in their products' spouts, closed its doors. Flame arrestors are a commonly used device that is "almost two hundred years" old and inexpensively prevents gas vapor from igniting the contents of the can.
Right-wing media, however, blamed multiple "frivolous" lawsuits for Blitz USA's decision to cease operations. Despite the fact that the plaintiffs in the cases had been severely burned or killed after gas cans exploded when the spout was close to a heat source, The Wall Street Journal compared their lawyers to "19th century marauders" and characterized the gas can companies as "victims" of "modern robbery" by the trial bar. From the WSJ's editorial:
Like 19th century marauders, the trial bar attacks any business it thinks will cough up money in its raids. The latest victims are the people who make those red plastic gasoline cans.
Until recently, Blitz USA -- the nation's No. 1 consumer gasoline-can producer, based in Miami, Oklahoma -- was doing fine. It's a commoditized, low-margin business, but it's steady. Sales normally pick up when hurricane season begins and people start storing fuel for back-up generators and the like.
Blitz USA has controlled some 75% of the U.S. market for plastic gas cans, employing 117 people in that business, and had revenues of $60 million in 2011. The Consumer Product Safety Commission has never deemed Blitz's products unsafe.
Then the trial attorneys hit on an idea with trial-lawyer logic: They could sue Blitz when someone poured gas on a fire (for instance, to rekindle the flame) and the can exploded, alleging that the explosion is the result of defects in the can's design as opposed to simple misuse of the product. Plaintiffs were burned, and in some cases people died.
The Atlantic hurricane season started June 1, and Blitz estimates that demand for plastic gas cans rises 30% about then. If consumers can't find the familiar red plastic can, fuel will have to be carried around in heavy metal containers or ad-hoc in dangerous alternatives, such as coolers.
Trial lawyers remain a primary funding source for the Democratic Party, but stories like this cry out for a bipartisan counter-offensive against these destructive raids that loot law-abiding companies merely because our insane tort laws make them vulnerable.
The WSJ has a long record of opposing "frivolous lawsuits," so it's no surprise it would ignore the evidence on gas can explosions and side with the corporation. But the WSJ wasn't alone in its criticism of the gas can lawsuits. International Business Times went further than the WSJ, blaming victims for "product misuse and lawsuit abuse," and positively cited a spokesperson from the Institute for Legal Reform (ILR) -- a partner of the pro-business lobbying group U.S. Chamber of Commerce.