All posts by Josh King

Compelled Speech & Viewpoint Discrimination

So “compelled speech.” The government telling you what you’ve got to say. It’s surprisingly common, and also often uncontroversial. Think nutrition labeling and warning signs.

Other times, not so much.

So what’s the test? Under what circumstances can the government tell us what we’ve got to say?

I’ll tell you what the test SHOULD be: it should be the same “intermediate scrutiny” test that applies to commercial speech restrictions. Meaning that if the state wants to make a business say something, that requirement must be both necessary and narrowly-tailored. Oh, and there’s gotta be some evidence of necessity.

But this area of commercial speech law is a mess.

It all starts with Zauderer v. Office of Disciplinary Counsel, a 1985 Supreme Court case dealing with attorney advertising. One of the key issues in the case – and the one it is best known for – was the legality of a disclaimer requirement for “no recovery, no legal fees” advertising.

The Zauderer court found that the disclaimer rule must only be “reasonably related” to the state’s interest in preventing consumer deception. That’s a much lower bar to clear than the intermediate scrutiny standard. Pretty much any argument the state can make without breaking into uncontrollable laughter will do.

Unfortunately, some nuance has gotten lost since Zauderer was decided. What it seems the court meant – though it was only specifically called out by Justice Brennan in his concurrence – is that the “reasonably related” test is only appropriate when the compelled speech is necessary to avoid consumer deception. Sadly, what this has been taken to mean by many lower courts is that ANY compelled speech need only be justified under the “reasonably related” test.

So this brings me to the Supreme Court’s decision Monday in Matel v. Tam, a case involving the trademark application for the band “The Slants.” It was an important decision, and a unanimous one, 1 finding that the government’s denying of “disparaging” trademarks was constitutionally impermissible content regulation. But in a four judge concurrence, Justice Kennedy went even further, delving into the importance of holding the government to a high standard when it dictates a viewpoint, even in the commercial speech context:

“Commercial speech is no exception,” the Court has
explained, to the principle that the First Amendment
“requires heightened scrutiny whenever the government
creates a regulation of speech because of disagreement
with the message it conveys.” Sorrell v. IMS Health Inc.,
564 U. S. 552, 566 (2011) (internal quotation marks omitted).
Unlike content based discrimination, discrimination
based on viewpoint, including a regulation that targets
speech for its offensiveness, remains of serious concern in
the commercial context. See Bolger v. Youngs Drug Products
Corp., 463 U. S. 60, 65, 71–72 (1983).

If the government picking and choosing which trademarks are appropriate is “viewpoint discrimination,” why is the same not true for compelled speech? Or, at least, speech that is compelled outside of those situations where disclosure is necessary to cure otherwise-deceptive marketing messages?

This isn’t an idle question. There are dozens of instances of speech compulsion contained within state lawyer advertising rules, and many – if not most- of them aren’t designed to cure otherwise-deceptive messages. In fact, many require that attorneys publish the state’s view on the efficacy or usefulness of lawyer advertising. 2

Speech that’s compelled outside of health, safety, or a need to cure deceptive marketing is an even starker example of viewpoint discrimination than the picking and choosing of acceptable trademarks. I’d love to see the Supreme Court close this “Zauderer exception” to the commercial speech doctrine sooner rather than later.

Notes:

  1. 8-0; Justice Gorsuch wasn’t on the bench when the case was heard.
  2. For example, New Jersey requires that any comparative advertising by lawyers state that “No aspect of this advertisement has been approved by the Supreme Court of New Jersey.”

June 2017 Notes: Big Changes for Lawyer Ad Rules?

Are the Bar Ad Rules Finally Changing? One of the little-understood impediments to consumer access to legal services is the way lawyers are regulated. From our monopoly on “the practice of law,” to our antiquated jurisdictional limits and advertising rules, lawyers labor under a regulatory burden with few equals. And while there are some good reasons for “lawyer exceptionalism” – the protection of clients chief among them – too often our over-regulatory impulses get the better of us. But there are signs of hope. The ABA has gotten serious about looking at streamlining the Model Rules on attorney advertising. And, not content to wait, the Virginia State Bar recently adopted changes very similar to those under consideration at the ABA. That’s a very good thing. The legacy ad regs make it harder than it should be for lawyers to inform the public. Here’s hoping that these signs of thaw turn into a torrent of changes to every state’s rules.

 Don’t Sue Over Opinions. There are many sayings about opinions, few of them flattering. We all have opinions, and most of us – if we’re being honest – would admit that we don’t like hearing opinions that we consider wrong. And this can really drive us off the deep end when those opinions are expressed online. Case in point: this real estate lawyer vexed that Zillow’s “zestimate” has made it difficult to sell her home. But what this lawyer (and too many others like her) fails to grasp is that there’s no legal duty to publish “right” opinions. In fact, it’s fine (legally, at least) to publish opinions that are completely, utterly unfounded. This principle offers important protection of the “breathing room” necessary for the fulsome expression of ideas. Keep that in mind the next time someone talks about suing over a hyperbolic online review.

 Blogging Makes You a Better Speaker.  I’ve been blogging for something like 13 years now, but it’s always something I’ve done for myself. I find it makes me more thoughtful – and a better lawyer – when I have to articulate and defend my ideas in written form. Now Kevin O’Keefe points out another benefit of blogging: the positive impact on public speaking performance. This resonated with me, because I’ve certainly experienced it. By having written so much about professional ethics and the First Amendment, I have a huge number of topics I can explore. And even more importantly, the breadth and depth of my writing allows me to improvise and answer questions on these topics quite fluidly. If you’re looking to step up your speaking game, blogging regularly may be just the ticket.

Social Media News and Notes:

More shade thrown at live-tweeting: judges in Bill Cosby case will have none of it.

Hey, someone went and built free plugins to publish your Avvo rating and reviews right on your WordPress website!

Interesting new “Pagefreezer” product captures court-admissible versions of social media evidence.

9th Circuit Reverses on Expanded Protection for Commercial Speech

Early last year, the 9th Circuit made an intriguing ruling: that commercial speech regulation required an even higher showing of necessity than that long-recognized by the “intermediate scrutiny” standard.  Unfortunately, in an en banc opinion this week, the court reversed its decision in RDN v. Appelsmith. 

That’s a shame, because there’s been a lot of noise that the commercial speech doctrine could use some freshening up and additional protection from overreaching regulation. And while the appellants here have vowed to take this case to the Supreme Court, the odds of getting that kind of review are always very long.

Unless SCOTUS wants to use this case to deal with the increasingly-large pit of vagueness in the commercial speech doctrine that is compelled speech. Is compelled speech subject only to rational basis review? Something more? Or are all speech requirements – compulsions and restrictions alike – subject to the same test of constitutional validity? A test perhaps more demanding than that laid out by Central Hudson?

Here’s hoping the Supreme Court decides to give us an answer.

May 2017 Notes: Live-tweeting trials and client communications via Facebook

Live-Tweeting Trials Not “Broadcast.” In early May, at the ABA Litigation Section Annual Meeting, I spoke on a panel relating to social media use in trial. Two of my co-panelists were Judge William Alsup – who has presided over several high-profile technology cases in the Northern District of California – and Sarah Jeong, a lawyer/journalist who has pithily live-tweeted several of these cases. I was really struck by Alsup’s commitment to openness in the proceedings, and his sense that Jeong’s live-tweeting added something substantive to public understanding of his cases. This is certainly not the case everywhere, as many courts don’t even permit mobile devices in the courtroom, and others prohibit video or audio coverage. But in a sign of at least some movement on the transparency front, the Indiana Judicial Ethics Commission recently concluded that live-tweeting does not run afoul of that state’s prohibition on “broadcasting” court proceedings.

Failure to Communicate, Facebook Edition. A Nebraska lawyer was just suspended for failing to adequately respond to a client’s Facebook Messenger inquiries. But as Vermont Ethics Counsel Michael Kennedy notes, there’s nothing special to see here – this is simply a failure to communicate with a client; the medium used just happened to be “social.” And that’s the thing: as clients increasingly use social media to communicate – and anyone with teenage children knows that the idea of using a phone to actually TALK will be met with blank stares – attorneys have to respond and adapt to these changing habits. Social media may feel informal or frivolous, but a client’s concerns are no less real simply because they were communicated via instant message. And the attorney here still could have responded with a call, a letter, or an email – rather than just tapping back “Relax.”

Florida LRS Rule Changes Rejected. Florida is home to the nation’s most restrictive and extensive set of lawyer advertising regulations. For the last several years, the Florida Bar has been attempting to update those rules – specifically the rules relating to lawyer referral services – to deal with problems stemming from services cross-referring clients for unnecessary medical care. Unfortunately, the approach the Bar came up with didn’t address this problem at all. Instead, it attempted to water down the LRS rules and have them apply to all forms of legal marketing – including Avvo. So I went to Tallahassee last month to let the Florida Supreme Court know why we think this proposal is bad for Florida consumers and lawyers (I’m up at the 23:00 mark). I’m happy to report that the Court agreed that the Bar is on the wrong track, and sent it back to the drawing board. This doesn’t mean Florida won’t ultimately change its rules, but hopefully it will do so in a way that thoughtfully considers both the issues and the opportunities raised by developments in legal marketing and services.

Social Media News and Notes:

The “internet of things” lets manufacturers retaliate directly against negative reviews (note: NOT a good idea).

Lawyer’s defamation lawsuit over “worst ever” review is tossed by court.

Texas judge is reprimanded after letting his inner racist fly on Facebook.

Florida Supreme Court Rejects LRS Rule Changes

Last month, I did something I hadn’t done in 21 years. I put on a suit, grabbed my notes, and argued a case in court.

And not any old court: this hearing was in front of the Florida Supreme Court. The Court was hearing a petition by the Florida Bar to change its lawyer referral service rules.

In our view, the Bar’s changes were  bad for on many levels. They didn’t address the problem at hand (alleged cross-referral of legal clients for unneeded medical services). They created a cumbersome new set of compliance obligations. They watered down protections currently applicable to Florida lawyer referral services. And, by bringing virtually all forms of legal marketing within the ambit of the rule, they threatened to chill the availability of legal information and the willingness of Florida lawyers to offer innovative new services to the public.

So Avvo filed comments opposing the Bar’s rule change. We weren’t the only ones; it seemed that no one liked what the Bar was proposing. When it came down to it, Avvo was one of four parties arguing against the rules, and I was allotted all of 6 minutes with which to do so.

Appellate arguments call for a tricky balance. You’ve got to be ready to make your argument, for the allotted time, without facing a single question. But you’ve also got to be ready to abandon your prepared work and face down questions from the bench for as long as the Justices desire.

I’ve always preferred the latter, and as it turned out, the Court had lots of questions for me. The video is available here; my bit starts at 23:00. As you’ll see, the Court was far more interested in hearing about Avvo and online legal marketing than it was about my nuanced First Amendment arguments.

It was gratifying – and fun – to argue in court again after so many years. And the Florida Supreme Court’s Greek Revival courtroom in Tallahassee was an inspiring venue in which to do so.

The capper came last week when the Court rejected the Bar’s proposed rules. While I’d like to claim that result on the force of my advocacy, it was the only reasonable outcome possible. The Bar had been asked to address a specific issue, and had used that opportunity to attempt wholesales changes to the rules.

It’s a favorable outcome, and I’m happy to see it. But at the same time, the process demonstrated how far from effective Bar regulation can be. In any other agency, regulatory changes would go though an administrative law process – with workshops, open hearings, and comments – to vet issues before adopting new rules. Florida, like many states, devolves that process to the Bar. The final arbiter is then the Supreme Court, which deals with the matter in much the same way it would treat any other adversary proceeding.

It’s not that such a system is doomed to failure. It could work, given enough structure, direction, and discipline by those involved. But the odds are long. Market participants drive the process, and these lawyers often have parochial interests. They also rarely have experience with administrative rulemaking. And the Florida Supreme Court sits at a remove, only dealing with the process near its conclusion.

For the Supreme Court to actively supervise this work – work that impacts the availability of legal services to the public – it’s got to get more involved. It must oversee and direct the Bar throughout the rulemaking process. This could include hiring out neutral professionals to run rulemaking. Or having a subcommittee of Justices deeply involved throughout (and there’s some indication in the Court’s order that it plans to do something along these lines).

This problem isn’t unique to Florida. Most lawyer regulators do their rulemaking in a similar way. But in a state with a bar as large and fractious as Florida’s, the weaknesses of the process are particularly evident.

Need a License to Speak Your Mind?

Need a license to perform your chosen occupation? More and more Americans do. While licensing has long been a requirement for doctors and lawyers, it has spread far wider – licensing is up 5-fold in the last 50 years or so, and around 25% of us work in professions where a license is required.

I’m not going to get into all of the reasons why this spread of licensing is counterproductive, read this Brookings Institute report if you want to dig deeper. Rather, I’m interested in how the spread of licensing is speeding toward a collision with the First Amendment – a collision that will likely change how we think about what’s included within the monopoly our legal licenses grant us.

The tension between occupational licensing and free speech rights is particularly fraught for lawyers, as so much of what we do involves verbal and written expression. But outside of lawyer advertising, there’s been next to no guidance from the courts about the limits of regulators to compel or prohibit the speech of lawyers.

Or the speech of any licensed profession, for that matter.

But with so many occupations now being licensed, and so many regulators imposing and enforcing rules, the Supreme Court’s opportunity to take this issue on may be fast approaching. Recently, we’ve had psychologists told that they couldn’t write newspaper columns, veterinarians told they couldn’t give advice online, and mathematicians told they couldn’t . . . math.

Oh, and Florida doctors have only just recently fought back efforts to restrict their ability to ask patients about guns in the home, and California now requires pregnancy counseling offices to provide government-mandated information about abortion services.

So, lots of efforts abound to restrict professional speech. But what do we know about the acceptable limits of professional speech regulation? Precious little. There’s Justice Byron White’s concurrence in the 1985 case of Lowe v. S.E.C.and some lower court cases. My best guess from these cases is that professional speech regulation requires something in the neighborhood of the “intermediate scrutiny” review that applies to commercial speech.

But there may end up being a difference for regulation of those who aren’t licensed. It’s one thing for regulators to restrict the regulated, but what gives them the right to tell the rest of us what we can and cannot say?

Watch this; it has major implications for the monopoly that lawyers have on providing legal advice. After all, legal advice is just someone expressing their opinion. It’s hard to see what rationale exists for restricting such opinions to lawyers.

April 2017 Notes: It’s all About “Unmasking” This Month!

Twitter Crushes Unmasking Attempt. If you’ve been following the political news lately, there’s been LOTS of talk about leaks of information and the “unmasking” of the identity of U.S. citizens caught up in government surveillance of foreign spies. But the political unmasking tilt took yet another turn in early April, as the Department of Homeland Security tried to use an administrative summons to force Twitter to reveal the identity of the person behind an anonymous account. The account – @ALT_uscis – was one of many “ALT government” accounts set up after last November’s presidential election. And like many of the other accounts, @ALT_uscis regularly posts content critical of the Trump administration and the agency it spoofs – in this case, the Customs and Immigration Service. Twitter, to its credit, filed a federal lawsuit to quash the summons. After all, there is a strong first amendment protection for anonymous speech, and the use of administrative summons or subpoenas to reveal the identity of anonymous speakers – particularly when such tools are wielded by thin-skinned bureaucrats – is exceptionally threatening to full and robust public expression. Within a day the DHS withdrew the subpoena, showing that at least at some level grownups have asserted authority within the agency. But it shouldn’t have to take a lawsuit and public pressure for government agencies to respect the right of the public to criticize them.

Avvo Unmasking Follow-Up. Back in 2015, Avvo took a similar stance in response to a subpoena from an attorney seeking to unmask the identity of the anonymous author of a negative Avvo review, who the attorney believed was a non-client. That case, decided in favor of the reviewer, established the balancing standard in Washington State by which courts will determine whether to permit discovery under “unmasking subpoenas.” Now, the reviewer has come forward and identified herself, proving that she was a client of the lawyer in question, and noting that she “feels strongly about the need for a consumer to speak the truth about their experience” with an attorney.

It’s Hard to Hide Online. If any of my readers are wondering whether they can reliably stay anonymous online, here’s a fascinating cautionary tale. After FBI Director James Comey mentioned offhand that he had a “secret” Twitter account, Gizmodo reporter Ashley Feinberg took on the challenge of tracking it down. Through some quick detective work and cross-referencing of other accounts, Feinberg zeroed in on a particular twitter account: @ProjectExile7. And by tracking the accounts @ProjectExile7 followed, and the FBI-centric tweets occasionally sent out by the account, she concluded that it was “almost certainly” Comey’s (this conclusion was bolstered by the posting of this meme by @ProjectExile7 right after Feinberg’s story ran). The takeaway? If even the FBI Director can’t stay hidden from a motivated investigator, don’t count on having better luck yourself.

Social Media News and Notes:

Lawyers continue to wring hands about reconciling ethics rules and use of social media.

“Reverse astroturfing:” $34,500 judgment in case of false negative review left for competitor.

Some surprisingly good tips for lawyers experimenting with Facebook advertising.

Non-Lawyer Investment in Law Firms?

While the ABA has, in recent years, tentatively nosed around the idea of allowing some form of non-lawyer investment in law firms, it’s a concept that continues to be met largely with cries of “BURN THE WITCH” rather than any meaningful engagement.

Arguments against are of the “lawyer exceptionalism” variety, which I addressed in a piece that Vermont Bar Counsel Michael Kennedy reminded me I wrote 5 years ago:

The idea that the law is an exceptional case, that it is a profession that “often mandates conduct and practices that are not profit maximizing or optimizing” such that non-lawyer ownership cannot happen is hogwash. The same argument can be made for business writ large – Sarbanes-Oxley, charitable giving, employee benefits, community involvement and the accounting profession (kidding!) – are all examples of conduct and practices common in business that are not profit maximizing. Or on a more specific level, with medicine, where doctors make daily non-profit-maximizing decisions in the service of patients, despite non-MD ownership of most large medical groups.

What’s more, so many of the problems that our prized ethics rules are designed to prevent could be more effectively solved by letting people who know something about running a business be involved in law firms:

Ineffective marketing, lackadaisical client development, poor internal controls, shoddy accounting practices – all can lead to cash crunches, blown deadlines, drawing from client trust accounts and the litany of ills that end in attorney discipline and malpractice lawsuits.

The concept is back in the news this week, thanks to the spectacularly-poorly-lawyered efforts of Jacoby & Meyers in pressing for a First Amendment right of lawyers to non-lawyer investment. It’s not a great argument, but they surely could have done a better job with it.

In any event, the advent of non-lawyer investment in firms will happen – if it ever does happen – through the wisdom of lawyers rather than judgments from tribunals. I’m hopeful that one day enough attorneys will realize that our profession CAN bring in professionals from other disciplines, allow them to be invested in our work, and improve the quality of the services we offer across the board.

But it might also take a little shaming:

 

March 2017 Notes: Social Media Lockout?

On “Giving Freely” in Social Media. Kevin O’Keefe recently wrote a great blog post on the importance of lawyers being willing to “give” – without expectation of return – when using social media. You should read the whole thing, but the central point is key to prosperity in all relationships, whether on social media or in the real world (or in the increasingly prevalent intersection of the two): it all starts with sharing and real engagement. This can be hard for lawyers; we are skeptical, cautious, risk-adverse. We can have a hard time wrapping our heads around the concept of opening our arms and freely giving advice, information, encouragement, or guidance. But Kevin’s post is echoed in another recent take, from the brilliant Farnham Street blog, on the differences between “rich” and “poor” mindsets: while the latter always seeks the easy way out, the former knows that all success comes from enriching the lives of other people and going the extra mile. Getting hyped up on traffic numbers or constantly selling yourself is just a distraction from the work that drives real value – giving of yourself.

Is Using Facebook a Fundamental Right? In a sign of the pervasiveness of social media, the Supreme Court is poised to decide whether the state (in this case, under the ambit of restrictions on sex offenders) may prohibit access to social media platforms. The case raises broad questions about access to information and news, particularly in an environment where so much news dissemination comes via social media. With both the press and political leaders regularly taking to Twitter to spread news and express opinions, is it proper for government to limit access to such media? Look for the court’s answer later this summer. However, even if the Supreme Court finds such a right, don’t expect it to extend to the courtroom. Judges have wide discretion to control their spaces. As one commenter noted, constitutional rights are “at their nadir” in the courtroom. Or, as one witness recently learned the hard way, if a judge doesn’t want you to broadcast your buddy’s murder trial using Facebook Live, he probably means it.

Settlement in “Fake Defendant” Libel Lawsuit. I’ve written here a number of times before about what seems to be a growing practice of fraud on the courts designed to remove negative online reviews: file a defamation lawsuit, show up with the “defendant,” stipulated judgment in hand, and then take the judgment to Google and have the offending review “de-indexed” so it will never show in search results. Paul Alan Levy of Public Citizen has been leading the charge against this practice, and he’s obtained first blood: a settlement, along with the referral of the case to law enforcement. For lawyers who outsource their marketing, this case is yet another call for expanded due diligence, as the defendant here was a “reputation management” company. There are no doubt other such companies also doing this. And while it would be bad for any business to be found to have used a third party to try and defraud the courts, just imagine how career-impacting it would be for an attorney to be caught up in such matters.

Briefly:

Who says blogging doesn’t pay? Prolific tax law blogger named dean of Pepperdine law school.

Groupon’s legal team has created a scorecard – with client reviews – for outside law firms.

The Nevada Supreme Court will have to decide a fight between the State Bar and AG’s office over attorney licensing.

Credibility in Business and Government

[This post was inspired by an email discussion after my last CLE webinar, “Lawyers & Lies.”]

Prior to the 2016 Presidential election, it wasn’t exactly a secret that Donald Trump is a less-than-effective businessman. Those familiar with how businesses operate and grow know that building a business empire through real estate and one’s gilded name, on the back of inherited wealth, is no marker of an excellent business operator.

The signs were all there: the bankruptcies, the reliance on a small coterie of loyalists and family, the rumors of shady dealings, the repeated stories about screwing over counterparties (often tradespeople and small-scale vendors), and the lack of any business vision other than the simple logic of commercial real estate: leveraging other people’s money and hoping that rents rise and assets inflate fast enough to outpace debt service.

So I doubt that any serious business person voted for Trump on the commonly-held assumption that he would wield his “business acumen” to bring the problems of unruly government to heel. 1 But plenty of people less familiar with business surely bought in to this pipe dream, assuming that Trump’s gold-festooned lifestyle was a proxy for serious mastery of all things business.

It should now be obvious – to  all but the willfully blind – that the assumption of Trump’s business skills has been put soundly and firmly to bed. The failures of operational discipline were apparent from the start, from the disorganized transition to the complete goat rodeo that represented Trump’s first travel ban rollout – an egregious bit of policy that nonetheless could have easily been landed successfully had a defter hand been at the helm. But beyond this lack of operating chops, we are now seeing the impact of another, even more critical form of business currency that Trump seems devoid of: credibility.

Presidents and politicians, even more than business leaders, are notorious for spin, overstatement, and failed predictions. But this doesn’t mean they don’t retain – and rely on – some reservoir of core credibility. That much of what they say, particularly when making statements of fact and important or personal commitments, can be fundamentally trusted.

Trump is something else entirely. In the New York Times yesterday, David Leonhardt offered a good overview of the President’s many, many confabulations. Yet while the man is clearly a liar (in the sense that so many of his untruthful utterances, unlike the spin or failed predictions of other politicians, are clearly intentional), he is also something more: a bullshitter. The bullshitter will lie, certainly. But more fundamentally, the bullshitter doesn’t care about the truth. Whatever he says is whatever he says – it’s just a means to end. He says whatever he needs to say to get to where he wants to be.

And the thing is, being a bullshitter probably worked pretty well in Trump’s sad, shoddy, little business empire. You can shine on lenders, as long as they get paid or you’ve got an escape hatch via bankruptcy. You can stiff your “little guy” vendors, because what are they going to do, sue? And you can take advantage of the star-struck and gullible, because suckers abound when celebrity (even of the tarnished, C-list variety) is around.

But lacking credibility doesn’t work in real business, or – as Trump is learning – in government. First of all is the transparency: people start checking things out. They follow up to see if you did what you said you were going to do. And they call you on your bullshit when you lie or fail to follow through.

Even worse for the bullshitter who finds himself out of his depth is the fact that the loss of credibility makes it really hard to get things done. While our society has lots of contracts, laws, and verification procedures, there are myriad points where we invest – time, money, effort – based on our trust of another person. Imagine if you didn’t trust a counterparty to not retrade or willfully breach an agreement. Would you invest the time to negotiate a deal with them anyway? Of course not. The same goes for government – the bullshitter’s got no ability to cajole, persuade, or incentive. His bullshit has cost him any room to negotiate, because his counterparties don’t believe what he’s saying, and don’t trust that he will meet any commitments he makes. He’s stuck with nothing but punitive measures.

The punitive-and-petulant approach may have worked passably well in the gaudy corridors of Trump Tower. But as our 45th President is discovering, it’s not remotely enough to meet the challenge of running the country. Credibility must come first.

Notes:

  1. Although surely plenty voted for him on the assumption that he would adopt business-friendly policies, either hoping that collateral damage (to democratic institutions, national security, minority rights, etc.) would be minimized or out of a willingness to ignore such concerns. The first part of that seems to be working out so far.