08 Mar Does Truth Matter?; Relativism in the Courts (or how to dance on the head of a pin)*
Does Truth Matter?
Some believe the beginnings can be traced to Bill Clinton when he said “I did not have sex with that woman.” Before our President gave that historical denial, we all knew that the meaning of fellatio was oral sex. The word “sex,” and the act itself, was not ambiguous – indeed, we also understood what “is” is. No reasonable person viewed fellatio as anything other than a sexual activity. But the President of the United States stated that fellatio was most definitively not sex. Who better to provide guidance than the President, elected because of our trust in his honesty and abilities, the leader of the Free World, the man who had the awesome responsibility of protecting 300 million Americans. If he said it was simply … a BJ, then that was what it was. It wasn’t “sex” at all. And a generation of teenage girls believed him; and a generation of young men capitalized on that new reality. It became “the truth.” The awful fact is that it redefined reality. It did so by undermining Truth.
We all know that Presidents sometimes tell lies, but we also have believed that they tell those lies with the sincere goal of protecting America and Americans from their enemies. Our troops might have been waging an illegal war in Laos in the 1970s, but admitting that they were doing so would only have put American lives and American interests in danger. In the 1980s, the Sandinistas were bad people intent on harming innocent Nicaraguans to the detriment of the United States. The examples are legion, but until recently they didn’t taint our faith in Truth. They didn’t undermine our belief in American values or in the morals of our youth. They furthered them. Except for a few rare exceptions, Presidents and members of Congress have avoided telling lies gratuitously or for personal gain. When a President crossed that line, there was hell to pay: Richard Nixon was forced to resign the Presidency in disgrace. As a result, during most of the 20th Century, our elected officials and our way of life were held in the highest esteem … and not only by Americans. America stood for truth, justice and something rightly called the American Way. No other country in history attained such a status of legal righteousness and moral and ethical decency. No other country became such a multi-dimensional hegemon. Since the end of WWII, the United States represented a beacon of light in a world where darkness often reigned. We exalted property rights and the Rule of Law. We represented Truth. We were the shining example.
Much has changed. Most importantly, the value of Truth has changed. Does it matter? You bet.
I don’t mean Donald Trump or AOC or Lindsay Graham or the FBI or the CIA or our Supreme Court Justices. Although certain statements and inconsistencies have taken untruth to new levels, they’re symptoms of the undermining of reality. And, yes, there is such a thing as reality. Facts are, indeed, facts. Blame our decline and the rise of relativism – and relative truth – on social media. Blame it on Bill Clinton. Blame it on whomever or whatever comes to mind. The current generation of teenagers, and their parents, are not being given the tools to distinguish truth from falsehood. This matters. Greatly. And it will cost us. It’s costing us now. There cannot be consensus, we cannot know which way is forward, without a common understanding of reality. Without consensus, there is no direction and motion becomes randomized. Inconsistencies multiply. We fight among ourselves and ignore our real enemies – and yes, Virginia, we have real enemies. Homo Sapiens/human nature hasn’t changed. We can disagree about direction, about what might be best, about many things. But we can only do so if we have a common understanding of reality. Reality is Truth. We ignore it at our peril.
Relativism in the Courts (or how to dance on the head of a pin)
The Second Circuit Court of Appeals in Singh v. Cigna Corp. recently was faced with the question of whether a company should be liable for making untrue statements about its abilities and efforts to comply with applicable law. In language that may well come back to haunt our legal system, the court said, in part, “no,” it doesn’t matter that such statements are untrue – as a sort-of reprise Bill Clinton-thinking, it depends on what “is” is, what “lies” are.
The court had the opportunity to rule on the difference between a “misstatement” and a “material misstatement.” You may think that this is merely a legal example of dancing on the head of a pin, but that dance has ramifications. The court held that the misstatements of senior executives of Cigna Corp., which clearly were falsehoods, were not sufficiently “material” to result in “securities fraud.” Those statements didn’t rise to the level of being “material misstatements.” Fair enough. They were merely … “mere misstatements.” Isn’t a “lie” a synonym for a “misstatement”? So the court was distinguishing between “mere lies” and “material lies”?
Talk about dancing on the head of a pin! But aren’t lies bad things for a company to say to its shareholders?
Unfortunately, the court chose not to use the word “lie.” The court also chose not to
punish admonish Cigna for telling making those lies misstatements. Instead the court chose to label those lies misstatements “puffery,” an interesting choice of words. The court could have held that what Cigna had told its shareholders were, indeed, “lies,” and could have further held that the Cigna shareholders hadn’t been damaged by those lies – that is, although Cigna’s actions were wrongful and could amount to “securities fraud” in many circumstances, the court was holding that no one had been damaged by them. The question of “materiality” – a difficult legal concept – could have been ducked and left for another day. The court didn’t do that. Instead, by labeling the lies misstatements mere “puffery” – that is, exaggerations –, the court held that lying-through-exaggeration (here, about the company’s abilities to comply, and its focus on complying, with applicable law) isn’t a material misstatement. Disturbingly, the court added that, since our laws are so complex and therefore so difficult to comply with, it’s right and proper for companies to lie misstate their ability and competency to comply with those laws. That’s a hell of a thing for a court to say! “[There is] uncertainty as to the very possibility of maintaining an adequate compliance mechanism in light of complex and shifting government regulations.” Wow! While it’s difficult to argue with the conclusion that our legal system has gotten way out-of-hand and that compliance has become a monster that needs to be addressed by Congress, isn’t it the job of the courts to uphold the laws that are on the books? Shouldn’t courts avoid saying that companies can’t possibly comply with those laws? And therefore needn’t do so? As a result, I suppose, companies cannot be held responsible for violating complex laws because those laws are too complex. A certain amount of noncompliance with the law – a synonym for illegal activity – therefore has to be anticipated … and is OK.
Am I the only Realist who sees this as way too much of a slide down the slope?
With respect to the March 1st “Executive Power” discussion: The New York Times on March 6th published an editorial entitled “Fix the National Emergencies Law.”
Finally (from a good friend)
The CIA had an opening for an assassin. After all the background checks, interviews, and testing were done, there were three finalists: two men and a woman. For the final test, the CIA agents took one of the men to a large metal door and handed him a gun.
“We must know that you will follow our instructions no matter what the circumstances. Inside the room you will find your wife sitting in a chair. Kill her.”
The man said, “You can’t be serious. I could never shoot my wife.”
The agent said, “Then you are not the right man for this job. Take your wife and go home.”
The second man was given the same instructions.
He took the gun and went into the room. All was quiet for about five minutes. The man came out with tears in his eyes, “I tried, but I can’t kill my wife.”
The agent said, “You don’t have what it takes, so take your wife and go home.”
Finally, it was the woman’s turn. She was given the same instructions to kill her husband. She took the gun and went into the room. Shots were heard one after another. They heard screaming, crashing, and banging on the walls. After a few minutes, all was quiet. The door opened slowly and there stood the woman, wiping sweat from her brow.
“The gun was loaded with blanks,” she said. “I had to kill him with the chair.
*┬® Copyright 2019 by William Natbony. All rights reserved.