The Wall Street Journal is attacking the equal employment provision of the Pregnancy Discrimination Act of 1978, claiming that this historic civil rights law's protection is unnecessary since "market forces" will ultimately reduce such workplace discrimination on the basis of sex.
On December 3, the Supreme Court heard oral arguments in Young v. UPS, a pregnancy discrimination case where former UPS driver Peggy Young alleges that her employer failed to treat her equally during her pregnancy. Even though UPS had previously accommodated other drivers who were unable to perform the specific duties required for their jobs, the company refused to reassign Young after her doctor told her she should avoid lifting more than 20 pounds. Because of this unequal treatment, Young is arguing that UPS violated the Pregnancy Discrimination Act, whose statutory text clearly guarantees pregnant workers the right to be "treated the same for all employment-related purposes" as other workers "similar in their ability or inability to work."
The Journal isn't convinced that Young has been discriminated against, however, or if she was, whether she deserved the protection of civil rights law. In a December 2 editorial, the Journal admitted that UPS had "acted like dunderheads" when they refused to accommodate Young's pregnancy and argued that "[s]ympathetic plaintiffs make good headlines, but they often make bad law." The Journal rejected Young's sex discrimination claim, suggesting that UPS's "pregnancy-neutral policies" were sufficient and that Young was asking for "a special accommodation" that her employer shouldn't have to provide.
The editorial went on to criticize Young's decision to sue, suggesting that she should have skipped the lawsuit and let "market forces" correct UPS' "dumb corporate behavior":
Typically, discrimination claims are brought either by showing disparate treatment of an individual or disparate impact on a group based on statistical evidence. Ms. Young took neither path. Her argument is that UPS is liable because it failed to extend a special accommodation beyond the neutral policies that otherwise cover workplace disability.
The effect would expand the boundaries of discrimination law and ramp up penalties for businesses. If Ms. Young's theory succeeds, Title VII would have a third category of discrimination for which employers could be accused of discrimination even if their policies were neutral.
In the real world, most employers aren't in the habit of picking fights with their pregnant employees to make their lives miserable. UPS had accommodated Ms. Young during previous pregnancy-related requests, including rounds of in vitro fertilization. We agree with Ms. Young that UPS managers acted like dunderheads when they sent a longtime employee on unpaid leave, but not being nice enough is not the same as discrimination under the law.
The answer to dumb corporate behavior is market forces, not more legislating through regulation or the courts. UPS has since changed its policy and other companies have been put on notice. We hope the Justices will resist creating a long-term problem to fix a temporary condition.
The Wall Street Journal is misrepresenting the legal justification for President Obama's executive actions on immigration from the Justice Department's Office of Legal Counsel (OLC) -- even falsely claiming that the OLC's opinion does not quote "specific statutory language."
On November 20, Obama announced that he would take executive action on immigration by prioritizing deportations of dangerous undocumented immigrants over the undocumented parents of U.S. citizens or lawful permanent residents who pass a criminal background check and register for temporary administrative relief. Right-wing media were quick to accuse Obama of lawlessness for this deferred action on deportations and to declare his order "unconstitutional," despite the fact that the overwhelming majority of legal experts agree that the president has the authority to exercise this sort of prosecutorial discretion in service of family unification.
The Wall Street Journal was no exception. Before the president issued his executive order, the Journal claimed in a November 16 editorial that the president didn't have the authority to act on immigration because his administration had not yet received a "written legal justification" from the OLC. According to the editorial, the "President should always seek legal justification for controversial actions to ensure that he is on solid constitutional ground" by asking for the OLC's guidance. The Journal ultimately concluded that "[i]t's possible" the Obama administration hadn't "sought an immigration opinion because they suspect there's little chance that even a pliant Office of Legal Counsel could find a legal justification" -- apparently unaware that Obama had already received legal advice from the OLC, Attorney General Eric Holder, and immigration experts before the Journal published its editorial.
As requested, the OLC published its official opinion on Obama's immigration proposal prior to his announcement on November 20. The opinion determined that the president had the authority to prioritize and defer some deportations over others -- but that apparently wasn't enough to appease the Journal. In a November 24 editorial, the Journal criticized the OLC's opinion: "Now that we've studied the legal memo his government used to support his order, his abuse of power looks even worse." But the editorial incorrectly claimed the opinion allowed the president to "rewrite" the law by "exempting whole categories of people and extending federal benefits that they aren't entitled to by statute." Worse, the Journal falsely claimed the memo omitted information that it actually included. From the November 24 editorial:
The problem, as the Justice Department's Office of Legal Counsel (OLC) concedes in the 33-page document, is that "the Executive cannot, under the guise of exercising enforcement discretion, attempt to effectively rewrite laws to match its policy preferences" or apply "set formulas or bright-line rules." Yet Mr. Obama is making precisely such a rewrite, by exempting whole categories of people and extending federal benefits that they aren't entitled to by statute.
By recognizing that there is no categorical exemption, the OLC is implicitly admitting that Mr. Obama is stretching prosecutorial discretion beyond legal norms.
These are the kind of errors that normally scrupulous lawyers make under deadlines or political pressure. The OLC memo reveals that the White House did not submit formal legal questions until Wednesday, Nov. 19, and the OLC drafted the opinion the same day. The details of the new program weren't complete and submitted to the Justice Department until Monday. The OLC published the memo on Thursday, Nov. 20.
We wouldn't be surprised if some West Wing minion read our editorial [from November 16] "The Missing Immigration Memo," panicked, and rushed one out. Mr. Obama's political calculation --in keeping with his lawlessness on health care, drug policy and the rest -- seems to be that he'll dispense with laws or parts of laws that displease him and dare Congress to challenge him. Republicans can and should take the dare.
The Wall Street Journal is misleading about President Obama's proposed executive action on immigration by suggesting he does not have enough legal authority to support the move.
As The New York Times recently reported, Obama is expected to announce as soon as this week an executive order aimed at improving the nation's immigration system. Although specific details about the order have yet to be disclosed, it is expected in part to build upon the Deferred Action for Childhood Arrivals (DACA) program, which has deferred deportation proceedings for some categories of immigrants. There is plenty of legal precedent and justifications for such a move, and even right-wing media figures like Fox News hosts Bill O'Reilly and Megyn Kelly have admitted that the president has the authority to take action on immigration in this way through the exercise of prosecutorial discretion.
But in a November 16 editorial, the Journal questioned whether Obama had the legal authority to issue his executive order because his administration hadn't yet received "written legal justification" from the Department of Justice's Office of Legal Counsel. The editorial also misrepresented how prosecutorial discretion actually works and ignored the use of similar executive orders on immigration by Republican presidents in the past.
From the editorial:
If the White House press corps wants to keep government honest, here's a question to ask as President Obama prepares to legalize millions of undocumented immigrants by executive order: Has he sought, and does he have, any written legal justification from the Attorney General and the Justice Department's Office of Legal Counsel (OLC) for his actions?
This would be standard operating procedure in any normal Presidency. Attorney General Eric Holder is the executive branch's chief legal officer, and Administrations of both parties typically ask OLC for advice on the parameters of presidential legal authority.
Yet as far as we have seen, Mr. Obama sought no such legal justification in 2012 when he legalized hundreds of thousands of immigrants who were brought to the U.S. illegally as children. The only document we've found in justification is a letter from the Secretary of Homeland Security at the time, Janet Napolitano, to law enforcement agencies citing "the exercise of our prosecutorial discretion." Judging by recent White House leaks, that same flimsy argument will be the basis for legalizing millions more adults.
It's possible Messrs. Obama and Holder haven't sought an immigration opinion because they suspect there's little chance that even a pliant Office of Legal Counsel could find a legal justification. Prosecutorial discretion is a vital legal concept, but it is supposed to be exercised in individual cases, not to justify a refusal to follow the law against entire classes of people.
Conservative media have used Republican electoral gains in the 2014 midterm election to renew calls to repeal the Affordable Care Act (ACA). But recent polling indicates that most Americans do not support repealing the healthcare law, including midterm voters.
A consumer class-action lawsuit about allegedly defective washing machines is proceeding in favor of the company, a result being called a "vindication of consumer class actions," even though The Wall Street Journal held up the lawsuit as an example of why class actions are inherently unfair to corporations accused of wrongdoing.
The washing machines, manufactured by Whirlpool and Kenmore and sold by Sears and other retail stores, had a defect that caused the washers to accumulate mold and emit a bad smell. Despite over a million complaints, Whirlpool continued making the washers, and Sears continued to sell them. A group of consumers ultimately filed a class-action lawsuit after Whirlpool's design changes and special cleaning solution failed to fix the problem.
The "moldy washer" case has been working its way through the court system for the last several years, and right-wing media have repeatedly called on the Supreme Court to take the case as an opportunity to "rein in" class action lawsuits by changing the rules to disallow this type of collective legal action. The Wall Street Journal was particularly riled up over the case, claiming that these suits should not be certified in the first place because "[e]very trial lawyer in America knows that certifying a class nearly always compels a company to settle rather than to face the barrage of bad PR and litigation costs." The Journal also accused 7th U.S. Circuit Court of Appeals Judge Richard Posner of "clearly disregard[ing]" the Supreme Court's previous rulings because he allowed the moldy washer plaintiffs to certify as a class and proceed to trial and rejected the judge's idea that "class actions are the most efficient way to handle the mold complaints." The Supreme Court ultimately declined to disturb Posner's judgment.
The Wall Street Journal is defending BP's decision to fight its legal responsibilities in the wake of the 2010 Deepwater Horizon oil spill by criticizing both class-action lawsuits and the settlement agreement that BP itself agreed to.
The Journal is vocally opposed to class action lawsuits and has previously criticized them as frivolous, abusive, and beneficial only to trial attorneys. Yet the editorial board apparently isn't fond of companies that take responsibility for their harmful actions and settle, either -- even though these settlements can be a less costly alternative to class action lawsuits.
In a recent editorial, the Journal was supportive of BP's latest efforts to avoid having to pay claims related to the oil spill that it caused and that has still not fully been cleaned out of the Gulf of Mexico. Even though BP helped craft and agreed to a billion-dollar settlement deal in order to avoid a trial result that could have been even more damaging, the company is now questioning the terms of the agreement. The Journal is fully onboard with BP's tactics, despite the fact that BP has repeatedly lost its varied attempts to disregard the settlement. The Journal wrote that the ensuing payments to claimants represent "an all-you-can-eat buffet" that is "the best thing ever to happen to the trial lawyers who continue to exploit the accident for fun and profit."
The editorial went on to call on the Supreme Court "to impose discipline on the class-action lawsuit industry" by voiding the settlement under a far-fetched legal theory that could foreclose the ability of anyone to agree to a settlement:
The fund has become an all-you-can-eat buffet and everybody is invited, regardless of the cause of the damages they may or may not have suffered. As long as claimants can show a material loss within certain geographical regions, they qualify.
BP sued to break this wave of abuse but lost in front of [federal district court Judge Carl] Barbier and then mostly again amid a tangle of opinions at the Fifth Circuit Court of Appeals. But the major question for the High Court to resolve isn't a narrow dispute about whether [claims administrator for the settlement fund Patrick] Juneau's or BP's interpretation of the terms is right. Rather, it's whether the courts can certify a class in which thousands of people cannot prove they suffered injuries that the defendant caused and could never succeed in an individual lawsuit, as even Mr. Juneau has conceded.
A class settlement is not a mere understanding among private parties but carries a judicial imprimatur -- or at least is supposed to outside of the Bayou. The legal system is not allowed to convert non-claims into legitimate claims under either Federal Rule of Civil Procedure No. 23 or especially Article III of the U.S. Constitution.
The main reason is that aggregating real and false torts exceeds the constitutional bounds that limits judicial power to "cases and controversies." If BP wants to run a pot-of-gold fund, that's its business, but the courts can't play the administrator.
The Wall Street Journal is advocating for the elimination of decades-old law crafted in the wake of the Watergate scandals that prevents coordination between independent groups and political candidates -- a radical position the Journal pretends is a rejection of a "liberal campaign" but actually is a rejection of the conservative majority opinion in Citizens United.
In an October 20 editorial, the Journal praised a highly controversial federal district court judge's newest attempt to legalize prohibited coordination between Gov. Scott Walker (R-WI) and outside right-wing groups. Under investigation for suspected violation of campaign finance laws, these organizations are suing in an attempt to have rules against this type of coordination declared unconstitutional. Although the Citizens United decision allowed corporations to make previously disallowed expenditures in support of political candidates, the opinion from the conservative justices still recognized that a crucial guard against corruption was the federal prohibition on coordination between unlimited "independent" money and the politicians' actual campaigns. Yet the campaign finance nihilists on the Journal editorial board object to this long-established principle as well, misleadingly referring to coordination as a "new liberal target":
That came into stark view last week with a new and welcome judicial ruling in Wisconsin, only days after the Brennan Center issued a trumpet call for government to find more ways to criminalize campaign spending. The new liberal target is "coordination" between politicians and independent groups. This is dangerous stuff.
[The plaintiff in the Wisconsin campaign finance case] is Citizens for Responsible Government Advocates, an advocacy group that wants to collaborate with politicians on a project called "Take Charge Wisconsin" to educate the public about fiscal responsibility and property rights. But the group was unsure it could proceed under Wisconsin law as interpreted by prosecutors, so it sought relief in federal court.
The problem is that Wisconsin and other states have set up elaborate bureaucracies like the Government Accountability Board (GAB) to police free speech and harass individuals and groups that want to run political advertising. Wisconsin's GAB and Milwaukee District Attorney John Chisholm "have taken the position that coordinated issue advocacy is illegal under Wisconsin's campaign finance law," wrote Judge [Rudolph] Randa.
That legal interpretation has already been rejected by state judge Gregory Peterson, but the state and Mr. Chisholm are appealing. Thanks to Judge Randa's ruling, at least the conservatives will be able to engage in issue advocacy without fear of prosecution in the few remaining days before the election.
It's important to understand that this political attack on "coordination" is part of a larger liberal campaign. The Brennan Center -- the George Soros-funded brains of the movement to restrict political speech -- issued a report this month that urges regulators to police coordination between individuals and candidates as if it were a crime.
The report raises alarms that independent expenditures have exploded since the Supreme Court's 2010 Citizens United decision, as if trying to influence elections isn't normal in a democracy.
Although the Journal insists that attempts to eliminate coordination between independent groups and candidates are a liberal plot, it is actually a bipartisan goal that has been repeatedly endorsed by the Supreme Court, including its conservatives. In the 1976 case Buckley v. Valeo, the Court found that "[u]nlike contributions, such independent expenditures may well provide little assistance to the candidate's campaign, and indeed may prove counterproductive. The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate." In other words, the Court determined that a lack of coordination between candidates and outside groups is necessary to reduce the potential for or the appearance of corruption in the political process, the core reason campaign finance is regulated.
A pair of recent studies debunk some of right-wing media's favorite rationales for legal "reforms" that make it more difficult for consumers to sue corporate wrongdoers.
Right-wing media have consistently railed against class action lawsuits, despite the fact that such suits make it easier for consumers to group low-value claims together that attorneys might otherwise not take. The Wall Street Journal in particular has been critical of class actions, calling them "frivolous," too expensive, and only beneficial to the plaintiffs' lawyers. In one editorial after the Supreme Court upheld the decades-long use of class actions for investors in securities, the Journal attacked the decision as "a champagne day for trial lawyers ... as the Justices voted to maintain the status quo." In another, the editorial board claimed that class action lawsuits that were filed to help workers recover back wages for the time they spent waiting in security check lines "would benefit lawyers far more than workers," ignoring the potential wage theft at issue.
But two new studies undercut some of the main premises behind the Journal's anti-lawsuit crusade. According to a recent report from the Center for Justice & Democracy, "class actions have not only helped victims of corporate law-breaking, but have also resulted in injunctive relief that protects us all from a wide array of corporate wrongdoing, from employment and civil rights violations to price-fixing and consumer fraud to automotive defects to health care abuses." From servicemember financial abuse to systematic sex discrimination at the country's largest employers, the report analyzed hundreds of class action lawsuits and settlements and found that nearly all of them provided meaningful relief to the plaintiffs who had been injured or defrauded. CJ&D note that "without the class action tool, corporations and businesses can ignore the law far more easily and operate with impunity."
Moreover, the conservative idea that class action lawsuits result in higher costs in the industry with the challenged practices is also suspect -- at least in the context of healthcare. A new study from the Rand Corporation suggests that even though "many believe that fear of malpractice lawsuits drives physicians to order otherwise unnecessary care and that legal reforms could reduce such wasteful spending," states that have enacted such reforms have not seen a corresponding reduction in healthcare costs.
For example, as The American Prospect's Paul Waldman explained, healthcare costs have actually gone up in Texas since the state passed a constitutional amendment that severely limited money damages that could be recovered in medical malpractice suits:
[I]n Texas, they passed a constitutional amendment in 2003 that made it almost impossible to recover meaningful damages from medical malpractice. That was good for doctors -- the number of malpractice claims plummeted, and malpractice premiums went down -- but instead of falling, health care costs in the state actually rose faster than in the rest of the country.
When you ask Republicans what they'd like to do to reform American health care, the first thing out of their mouths is usually "tort reform." But the fact that all the evidence suggests it would do nothing to cut costs is probably not going to dent their commitment to laws limiting people's ability to sue for malpractice. That's because the truth is that conservatives see this as a moral question as much as a fiscal one. "Frivolous lawsuits" make them livid, and as far as they're concerned a frivolous lawsuit getting filed (even if it never goes anywhere) is a greater outrage than someone who was victimized not being able to get compensation.
Class action lawsuits provide a valuable legal remedy for consumers who have been defrauded or injured by large corporations, but right-wing media have often discounted their value and hyped their supposed societal costs. Yet as these recent studies once again demonstrate, conservative justifications behind tort "reform" seem to be based less on sound policy and more on antipathy to a court system that encourages corporate accountability.
Right-wing media outlets have turned to serial misinformer Betsy McCaughey as their go-to expert on the Ebola outbreak. But McCaughey has a history of hyping false health care myths and was the chief architect behind the myth that the Affordable Care Act (ACA) included so-called "death panels," a discredited claim that McCaughey pushed even after being dubbed PolitiFact's Lie of the Year in 2009.
The Wall Street Journal is dismissing efforts to convince corporations to be more transparent about their political contributions as "partisan agitprop," despite the fact that the conservative justices of the Supreme Court reaffirmed the need for such transparency in 2010's Citizens United decision.
Although a majority of Americans from across the political spectrum disagree with the court's decision in Citizens United and support a bipartisan effort to reduce the unprecedented influx of campaign spending and "dark money" in politics, the Journal isn't convinced that transparency and disclosure for corporations playing politics is worthwhile. In an October 14 editorial, the Journal complained that groups like the Center for Political Accountability targeted corporations in an attempt to "discourage businesses from participating in politics" by publishing an index that ranks companies based on how transparent they are about their political expenditures. The goal of the index is to encourage corporations to disclose their campaign contributions to their shareholders, since it is the shareholders' money that is financing the political spending in the first place.
But the editorial was unsupportive of the group's activities, despite the fact that the conservatives on the Supreme Court upheld campaign finance disclosures in their majority opinion in Citizens United as indispensable to their decision that corporations can influence elections as freely as actual voters:
Hey shareholders, want some stock tips from a nonprofit outfit that wants to discourage businesses from participating in politics? That's the dubious message from a new index designed to block the political speech of corporations while leaving unions free to donate as they please.
Every year, the George Soros-funded Center for Political Accountability publishes the Wharton-Zicklin index, which ranks companies based on their political disclosure. When the group isn't publishing the index, it spends its time pushing for shareholder proxy proposals that would force companies to disclose their political activity.
The activist group's tactics have also included pressuring companies to cave pre-emptively and disclose political activity for fear of becoming targets. The index ranks companies according to their political transparency and disclosure profile. The Center for Political Accountability then uses those rankings as a truncheon to lobby CEOs to advertise how and how much they spend on campaigns and lobbying.
Most shareholders aren't buying it, but the disclosure gambit deserves to be exposed as the partisan agitprop it is.
The Wall Street Journal editorial board is criticizing a new Supreme Court case by downplaying serious allegations in the case that Amazon.com engaged in illegal employment activities and complaining about class action lawsuits.
On October 8, the Supreme Court heard oral arguments in Integrity Staffing Solutions v. Busk, a case involving a class action lawsuit in which temporary contractors who worked in Amazon warehouses are accusing the retailer of wage theft. The lead plaintiff in the case, Jesse Busk, represents warehouse staffers who argue that they are owed back pay for the time they spent in lines for security checks after they had clocked out. Busk says he often waited upward of 25 minutes at the end of his shift to go through security, where guards checked each employee for stolen merchandise. Because the security screenings are mandated by company policy, Busk and the rest of the class argue they should be compensated for the time they spent waiting to be screened.
Although the court recently held that the time employees spend putting on and taking off protective gear is not compensable, the Busk case is far from a slam-dunk. But as far as the Journal editorial board is concerned, "this should be an easy call for the Justices." In an October 7 editorial, the Journal minimized how much time workers were required to wait in security lines, complained that suits to recover back wages for this unpaid time "benefit lawyers far more than workers," and misrepresented the holding in other wage theft cases to conclude that "[t]ime in security lines doesn't qualify" for compensation:
Standing in line might feel like work, but it isn't. Under the 1947 Portal to Portal Act, Congress specifically wrote rules to prevent employees from abusing an amorphous definition of work in the Fair Labor Standards Act (FLSA) to claim they were entitled to be paid for a wide range of activities on work premises. Congress said employers weren't expected to pay employees for "walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform."
That understanding has been upheld by both the Second and Eleventh Circuit Courts of Appeal. Workers must be paid only for activities that are "integral and indispensable" to their core job responsibilities. Time in security lines doesn't qualify.
This kind of FLSA litigation has been booming, especially as securities class-actions have become harder for the trial bar to win. From March 2011 to March 2012, 7,064 FLSA actions were filed in federal court, up from 2,035 a decade earlier.
If the Ninth Circuit's reasoning is upheld, it would encourage a wave of copycat suits and mean countless paydays for the trial bar. A similar lawsuit is pending against Apple, which checks employee bags for wayward iPhones. While the security delays are only minutes, a class-action suit would cost millions in settlements that would benefit lawyers far more than workers.
The 9th Circuit applied a two-part test in in its opinion to determine whether an on-the-job activity is "integral and indispensable" -- it must be both "necessary to the principal work performed" and "done for the benefit of the employer." In Amazon's case, the employees are arguing that the security checks meet this test, because the checks arise from their work in the warehouse, and uncovering theft is solely for the company's benefit.
Following Eric Holder's announcement that he was resigning, The Wall Street Journal attacked the legacy of the nation's first black attorney general by repeating debunked descriptions of his civil rights work and accusing him of turning the Department of Justice "into a routine instrument of social and racial policy."
On September 25, Holder announced that he will step down as soon as his replacement is confirmed. Right-wing media were quick to celebrate, with Fox News host Andrea Tantaros calling him one of the "most dangerous men in America" because "he ran the DOJ much like the Black Panthers would" and Fox and ABC News contributor Laura Ingraham asking, "What are the race-baiters going to do now?"
The Journal joined the opportunity to bash Holder's civil rights legacy as attorney general, claiming in an editorial that he "explicitly turned the Justice Department into a political weapon." The editorial specifically attacked Holder's efforts to curb racial discrimination in hiring, to promote desegregation in Louisiana schools, and to fight election restrictions that violate the Voting Rights Act:
Mr. Holder also turned Justice into a routine instrument of social and racial policy. Under the former head of the Civil Rights Division, Thomas Perez (now Secretary of Labor), Justice used "disparate impact" analysis to force racial adjustments on cities, police and fire departments and banks. The settlements were not based on proven racial discrimination, as traditionally required, but on arcane statistical analyses.
Among Mr. Holder's worst overreaches was filing suit last year to block Louisiana's private-school voucher program. That program overwhelmingly helps the state's poorest minority families escape bad schools. No matter, Justice's statistical cops said the program was unbalancing the "racial identity" of public schools by admitting too many black children into better schools.
In July 2012 the Attorney General invoked the specter of Jim Crow amid a presidential campaign. In a speech to the NAACP, he likened voter ID laws to "poll taxes," an argument rejected by the Supreme Court in 2009.
These three specific complaints have been among right-wing media's favorite myths about Holder and his successful civil rights track record at the DOJ.
The Wall Street Journal editorial board defended the corporate bill mill American Legislative Exchange Council (ALEC) in an editorial whitewashing the organization's climate change denial and vindicating their one-sided attacks on renewable energy.
This week, several large technology companies have left ALEC, which connects corporations, including many fossil fuel giants, to legislators. Just weeks after Microsoft ended its ties to the corporate bill mill for its attacks on renewable energy policies, Google chairman Eric Schmidt announced in an interview with NPR's Diane Rehm that his company would not renew its membership with ALEC, stating that ALEC is "literally lying" about climate change and that its policies are "really hurting our children and our grandchildren and making the world a much worse place." Facebook, Yelp, and Yahoo quickly followed.
In response to the fallout, The Wall Street Journal defended ALEC and demonized Google in a September 26 editorial, claiming that "ALEC takes no position on the substance of climate change." This echoes ALEC's recent statement refuting the claims of climate change denial and defending their position on climate and renewable energy policies.
But throughout the years, ALEC has made their denial of the scientific consensus on climate change clear. Their climate change model bill -- one of many bills that the legislative members later push through state legislatures -- declares that "human activity" may lead to "possibly beneficial climatic changes," going on to say that climate change influences "may be beneficial or deleterious." Yet consensus reports have found that the negative impacts of global warming will far outweigh any potential benefits. This falls in line with ALEC's stance on the consensus itself -- at its most recent conference, the organization featured the Heartland Institute's Joseph Bast who claimed that "there is no scientific consensus on the human role in climate change." The organization also featured a document called "Top 10 myths about global warming" on its website for years, including as a myth that "human activity is causing the earth to warm," according to Forecast the Facts and the Center for Media Democracy. And in their most recent statement on climate change, ALEC continued to undermine the consensus, writing: "Climate change is a historical phenomenon and the debate will continue on the significance of natural and anthropogenic contributions."
None of this was mentioned in the Wall Street Journal editorial.
The Wall Street Journal went on to defend ALEC's nationwide attacks on renewable energy, another driving force behind Google and others dropping their membership. The Journal derided Google's many investments in wind and solar projects for "kill[ing] birds," an argument that falls flat. Statistics show that renewable energy's impact on bird deaths is miniscule compared to that from buildings, urban light, cell phone towers, and even cats -- and is far outstripped by bird deaths from other energy sources, as seen in this chart by U.S. News and World Report:
Fox News anchor Gregg Jarrett wrote a column accurately depicting the college sexual assault epidemic and the fears victims face in reporting these crimes, a stark contrast to his colleagues and fellow conservative media figures who have dismissed, mocked, and stigmatized victims.
In a September 25 column for Fox News' website, Jarrett highlighted the high rate of assault on college campuses, and praised student activists for raising awareness of the often insufficient resources and efforts by colleges to address the problem (emphasis added):
Nearly 20 % of female college students have been sexually assaulted, according to a White House task force.
I suspect the true number is significantly higher. Many young women are reluctant to report it. They keep it secret for fear of embarrassment, shame, retribution, and the trauma of reliving the nightmare during legal or disciplinary proceedings. I get it. There are repercussions. Victims are especially afraid of being stigmatized or ostracized within the tight, insular social circles on campus.
Awareness is on the rise driven, in part, by student activism. Columbia University student Emma Sulkowicz, angry over how the school adjudicated her claim of rape, has taken to carrying a mattress around campus. Dubbed "Mattress girl" by fellow students and the media, her visually indelible protest has galvanized a growing demand for honesty and transparency. And why not? Schools should be required to publish accurate information about the frequency of assaults. It can be done without breaching individual students' privacy.
Jarrett's column unfortunately stands out among recent commentary about sexual assault in conservative media, where the fact that one in five women are assaulted at college is regularly dismissed. The Daily Caller has called the statistic "bizarre and wholly false," while the Washington Examiner called it "ridiculous."
Moreover, the trust and respect Jarrett treats the victims of these assaults with is unusual. Instead, their stories are often questioned or critiqued, with media figures suggesting that a large number of victims are lying about their assault, or are partly culpable.
The same day that Jarrett's column was published, some of his Fox News colleagues suggested that intoxicated women who are assaulted at college fraternity parties are responsible for their own assaults. Several co-hosts of Fox's Outnumbered defended a Forbes contributor who was fired after claiming that drunk women were "the gravest threat to fraternities" because the fraternity would be liable if a woman was sexually assaulted at a party.
This past summer, Washington Post columnist George Will came under fire for claiming that college efforts to curb sexual assaults were making "victimhood a coveted status that confers privilege." In his column, Will disputed the story of a college rape on Swarthmore's campus, implying he didn't believe the survivor's story qualified as an actual incident of assault. The survivor, Lisa Sendrow, told Media Matters about the violence she had experienced, how Will's dismissal of her story was triggering and damaging to her, and that she was diagnosed with PTSD and received violent threats after her story was first reported.
Earlier this year, a Weekly Standard contributor blamed feminism for sexual assault, because victims abandoned "feminine modesty" which had provided women "protection" from rape. National Review Online writers claimed rape was "instinctive" among some young men, that assaults involve "a large degree of voluntary behavior" from women, and that women are "being taught to believe they were raped." A New York Post columnist dismissed rape as "regrettable sex."
And Wall Street Journal editor James Taranto went so far as to claim intoxicated sexual assault victims are just as guilty as their attackers.
While Jarrett's column is sadly something of an outlier among conservative commentary on the issue, survivors now have one more voice in the media supporting their efforts to combat this epidemic.
The Wall Street Journal sandwiched their coverage of the largest climate change march in history between commentaries that cast doubt on global warming and the need for action, fulfilling the newspaper's trend of pushing harmful rhetoric against international climate negotiations.
On September 21, hundreds of thousands of people participated in the People's Climate March to raise awareness about the need for climate action. The New York City march, which was "by far the largest climate-related protest in history," received front page attention nationally and around the globe:
But the Wall Street Journal, headquartered a few blocks from the march, did not include their story on the action on the front page -- it was buried in the local section. Moreover, the paper criticized the march and cast doubt on the state of climate science, providing ammunition for critics to argue against climate action in the days ahead.
The day before the march, the Wall Street Journal published an op-ed headlined "Climate Science Is Not Settled," which cast doubt on the influence of human activities on global warming and argued for more debate about climate science's "uncertainties." Steven Koonin, former chief scientist of BP, claimed that the "climate has always changed and always will" to downplay the influence of human activities on climate change -- a favorite Fox talking point that is as inherently misleading as asserting that just because people have died naturally they can't be murdered.
The op-ed's flaws were broken down in a lengthy post from Climate Nexus. They explained that Koonin's extensive discussion about uncertainty ignores what those uncertainties actually entail, writing that the range of uncertainties will result in outcomes "from bad to worse." The Guardian's Dana Nuccitelli expanded that even the best case scenario will result in severe impacts, including "widespread coral mortality, hundreds of millions of people at risk of increased water stress, more damage from droughts and heat waves and floods, up to 30% of global species at risk for extinction, and declined global food production."
Moreover, Koonin's assertion that the "impact today of human activity appears to be comparable to the intrinsic, natural variability of the climate system itself" is false, according to Nuccitelli, as scientists have determined that human impacts have been the dominant cause of global warming since 1950.
Many experts say that the "uncertainties" around climate science are not an excuse for inaction, but rather should be looked at with a risk management perspective -- an apt description, as many top insurance companies are incorporating climate change into their long-term strategies and calling for climate action. Koonin himself admitted this, but only after discussing uncertainties for the bulk of the piece. According to a study from the University of Oxford, focusing on what uncertainties remain on the basic premise of manmade global warming -- as Koonin did -- can denigrate public understanding of climate science and the need for action.
Climate Nexus and Nuccitelli both noted that Koonin's op-ed was (for the most part) technically accurate, but that his framing would lead readers to reach inaccurate conclusions. They were right: the op-ed was picked up the next day by conservative news site Newsmax.com, which asserted that Koonin's op-ed "strikes a blow against climate change activists." And the National Review Online cited it as a "pathbreaking piece" in an article claiming that the scientific consensus on climate change is "crumbling" and equating acceptance of climate change to "hysteria."