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October 2, 2016

Law, Social Norms and Trump

By Nicholas Johnson

There are many valid categories of reasons to not vote for Trump. But a new one is evolving that may help save us from future Trump-like candidates and campaigns: social and political norms for acceptable, and unacceptable speech. That's what this column, and its fuller blog version, explores.

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"That's Not Nice. Next"

Mason Williams 1969
Mason Williams 1969
(Image by (From Wikimedia) Ken Kragen & Friends-management, Author: Ken Kragen & Friends-management)
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When I was a very young boy, and my mother was making a meal, or otherwise engaged, I'm told she'd turn to anyone handy and say, "Go find Nicky; see what he is doing and tell him to stop it."

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

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

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

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

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

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

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

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

"Smothers Brothers Comedy Hour" head writer, Mason Williams, once urged the FCC and networks to lay off censorship and just rely on the following audience reaction to unacceptable speech: "That's not right. And that's not a nice thing to say. Next."

Is this a possible course for those concerned about Trump's hateful outbursts? It just may be.

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

One source of those signs is what some solidly Republican newspapers have been writing in the course of not endorsing him: Dallas Morning News, Cincinnati Enquirer, Arizona Republic, Detroit News, Chicago Tribune, and USA Today.

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

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

Here's what you and I can do:

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

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Former FCC Commissioner Nicholas Johnson lives in Iowa City, Iowa, where he maintains www.nicholasjohnson.org and the blog, FromDC2Iowa.blogspot.com (where there's a full version of this column).



Authors Website: http://nicholasjohnson.org

Authors Bio:

Nicholas Johnson is best known for his tumultuous seven-year term as a Federal Communications Commission commissioner (1966-1973), while publishing How to Talk Back to Your Television Set, 400 separate FCC opinions, and appearing on a Rolling Stone Cover.

He's also served as a law professor; public interest advocate; administrator, manager and corporate representative; author, columnist, public lecturer, TV and radio performer; politician; and lawyer -- with experience in public health, media, computer and telecommunications policy.

A native Iowan, Johnson holds undergraduate and law degrees from the University of Texas, Austin. Following law school, where he was Order of the Coif and articles editor of the Texas Law Review, he clerked for both Judge John R. Brown, US Court of Appeals, 5th Circuit, and Justice Hugo L. Black, United States Supreme Court. His first professorship was at the University of California Law School, Berkeley (Boalt Hall). He later was an associate at the Washington, D.C., law firm of Covington & Burling, from which he was appointed U.S. Maritime Administrator by President Lyndon B. Johnson (no relation).

Following his FCC term, he served President Jimmy Carter as a presidential advisor for the White House Conference on Libraries and Information Services. He has also been a candidate for Congress in an Iowa Democratic primary, chair of a Washington-based media reform group, host of his PBS TV program, author of a nationally syndicated column, consultant to numerous countries on media matters, and appeared at hundreds of colleges as a public lecturer.

In 1981 he returned to Iowa City, served as Co-director of the University of Iowa's Institute for Health, Behavior and Environmental Policy, a member of the school board of the Iowa City Community School District, and accepted a position at the University of Iowa College of Law where he taught media and cyberlaw from 1981 until retiring from teaching in 2015 but still retains his office.

In 2009, Nicholas Johnson was selected as one of roughly 700 individuals described by Yale University Press as "leading figures in the history of American law, from the colonial era to the present day" in The Yale Biographical Dictionary of American Law.

He is the author of 8 books, and maintains an active Web page and blog.


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