The newest volley in the back and forth war between President Trump and former-reality-star-cum-former-White-House-staffer Omarosa Manigault Newman came today, with Trump filing an arbitration suit against Manigault Newman for what he alleges is a breach of a “non-disclosure agreement”.  Manigault Newman, who served as “liason to the African American community” for the Trump administration until her firing last December, denies that any such agreement covered her time in the White House.  Though the agreement has not yet been made public, many experts agree that the NDA is likely invalid as to Manigault Newman’s time in the White House.

That the President required his staffers to sign NDAs was first revealed back in March, Though it has been conceded on both sides that the Manigault Newman NDA dates back to the 2016 campaign, the Trump camp asserted via Kellyanne Conway that all employees of the West Wing have signed similar agreements. The Trump camp alleges that Manigault Newman’s new tell-all book and her statements to the media regarding her time in the White House is in breach of the confidentiality agreement, for which she “owes millions”.

A few things to note: White House staffers are not employed by Donald J. Trump; they are employed by the United States of America. Thus, any attempt to enforce the muzzling of federal employees would necessarily be by the federal government, not the president or his campaign. Any attempt by the government to limit speech would likely invoke that whole First Amendment thing. True, there are situations involving classified information for which the government may restrict speech, but “I saw the president eat paper and he uses the “N word” is unlikely to qualify as matters of national security.

It’s also true that government entities may have a legitimate interest in the regulation of their employees’ speech, but, as national security lawyer Bradley P. Moss of the Lawfare Blog explains here, federal courts have held that non-classified information revealed by former government employees is not subject to restriction. There exists a “pre-publication review” process for former employees who wish to publish memoirs of their time in government, which gives the government the ability to identify and restrict the dissemination of any classified-but only classified-information. However, this process is for security clearance holders, which does not include Manigault Newman, who had no security clearance at all.

Trump is often criticized for treating the presidency as another of his business ventures, and the use of NDAs is classic Trump. But while NDAs might be useful for ex-wives, former mistresses, and disgruntled beauty pageant contestants, Trump may find that things are different when his staff works for the people of the nation, not him.

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Michael Drejka has been arrested and charged with manslaughter in the shooting death of Markeis McGlockton. For a quick recap, Sam Wilkinson did a write-up on this case, and the invoking of the Stand Your Ground defense in it, a while back:

Markeis McGlockton was at the Circle A Food Store on Sunset Point Road near Clearwater, Florida.

He had his girlfriend, Britany Jacobs, and his three children with him. He parked in a handicap spot and went into the store. Michael Drejka, a man nearby, objected to McGlockton’s choice of parking spots and initiated a confrontation with McGlockton’s girlfriend. Seeing the commotion, McGlockton left the store, confronted Drejka, eventually pushing him to the ground. Drejka then pulled a gun, shot McGlockton once in the chest, killing him. McGlockton was black; Drejka is white. Prosecutors have announced that Drejka was standing his ground, and will not be prosecuting him.

What comes next is entirely based upon what is seen in the paragraph above. Some people will see a man defending his girlfriend and their children from an armed, confrontational stranger who obviously represented an immediate threat to their well-being. (And although McGlockton had no way of knowing this at the time, Drejka has done this before; several months earlier, Drejka had threatened to shoot another man in the same parking lot, regarding that man’s decision to park in the same spot.) Some people will see Drejka simply defending himself, to the maximal imaginable degree, from an aggressor.

But regardless of what people see in this story, Florida law sees Drejka as a victim completely justified in killing McGlockton, all because Drejka can credibly report that he was afraid for his own well-being in the aftermath of having been shoved to the ground. It does not matter that he instigated the conflict; it does not matter that he was the armed aggressor; it does not matter that he is the one that posed the threat; it only matters that McGlockton almost immediately, but only briefly, had the upper hand.

Pinellas County Sheriff Bob Gualtieri said as much late last week, noting that although he questioned Drejka’s decision to shoot McGlockton, “But I don’t get to, and we don’t get to, substitute our judgment for Drejka’s judgment.”

But that was then, and apparently the now includes bringing up Drejka on manslaughter charges, as covered by the Tampa Bay Times:

Prosecutors charged Michael Drejka, the man accused of killing Markeis McGlockton in a shooting that has reignited a debate over Florida’s stand your ground law, with manslaughter Monday.

According to the Pinellas County Sheriff’s Office, Drejka was taken into custody Monday morning. He was being booked about 12:20 p.m. into the Pinellas County Jail, where he will be held in lieu of $100,000 bail.
“It’s about time,” said McGlockton’s father, Michael McGlockton, adding that he was ecstatic. “This is exactly what I wanted. This is exactly what me and my family wanted was to get this guy behind bars.”

Pinellas-Pasco State Attorney Bernie McCabe said Monday that his office “reviewed everything, and we filed the charge we think we can prove.”

“I’m comfortable that we moved expeditiously to review the case,” he said.

Drejka, who turned 48 since the shooting, had avoided arrest since he shot 28-year-old McGlockton on July 19 because of the controversial self-defense law that eliminated one’s duty to retreat before resorting to force.
Pinellas Sheriff Bob Gualtieri announced July 20 that his agency was precluded from arresting Drejka because evidence showed it was “within the bookends of stand your ground and within the bookends of force being justified,” which provides immunity from arrest, the sheriff said. He forwarded the case Aug. 1 to the Pinellas-Pasco State Attorney’s Office to make a final charging determination.

So why the change? As the Times notes, the prosecutor declined to elaborate but the arrest warrant itself provides some clues:

It follows the same timeline outlined by authorities. The encounter between the two men started when Drejka, of 1116 Charles St. in Clearwater, confronted McGlockton’s girlfriend, Britany Jacobs, about why she had parked in a handicap-reserved parking space without a decal at the Circle A Food Store on Sunset Point Road.
McGlockton, inside the store with his 5-year-old son, caught wind of the heated argument from witnesses.

Surveillance video shows him leaving the store, walking up to Drejka and pushing him to the ground. Drejka then pulls out a gun and shoots McGlockton. He told deputies he was in fear of further attack.
The warrant notes what McGlockton’s family and their lawyers have pointed out to show that Drejka’s fear wasn’t reasonable.

“Drejka steadies the firearm with both hands,” it says. “McGlockton immediately backs up when confronted with the firearm. As he backs up to his vehicle he begins to turn towards the front of the store away from the shooter.”
It also notes investigators used a scanner that helps capture measurement and distance to find that Drejka was about 12 feet from McGlockton when he fired the shot.

Several questions must be considered in deciding whether someone can be protected under the law when they use force: Was the person acting lawfully? Did the person have a right to be there? And was the person in reasonable fear of serious injury or death?

State legislators revised the law last year to put the onus on prosecutors to disprove a stand your ground claim instead of on defense attorneys to prove one. That would be hashed out at a pre-trial immunity hearing.

It would seem not just Drejka, but the scope and legal definition of Stand Your Ground law itself, will be on trial this time, at least in the court of public opinion.

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And it’s not through fines:

Late fines weren’t very effective at getting people to return materials, officials said.

Instead, patrons seem to be more motivated to return items to avoid replacement costs and losing borrowing privileges than they were to avert accumulating fees, officials said.

Late fees were a drain on library resources, and collecting them did not promote a good relationship with patrons, said Tim Kambitsch, the executive director of the Dayton Metro Library.

“A long time ago, the overdue fines stopped having an impact on people’s timeliness of returning items,” he said. “What’s really made a big difference is that we’ve been more aggressive in how people’s borrowing privileges get limited with the new policy if they don’t return items.”

There’s a late episode of the Cosby Show where one of the replacement kids broke the rules and accepted the punishment as the cost of doing so. Cliff and Claire had to explain that it wasn’t meant to be transactional like that.

I thought about that when reading this. Apart from actually going after their ability to check out library books, a lot of people can probably internalize fines as a sort of rental fee. Whereas this makes them feel like they are doing something wrong, and the inability to rent other things out reinforces this fact. This makes it non-transactional.

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I think this is true, as far as it goes, but is also an inclination to be resisted (albeit not dismissed)

But as Stanley Fish pointed out decades ago, during the first round of political-correctness culture wars (ca. 1985-95), in this sense hypocrisy is simply what human beings do. According to the definition given above, it is virtually impossible to find non-hypocritical judgments. In his famous essay “There’s No Such Thing As Free Speech, and It’s a Good Thing, Too” Fish describes John Milton’s famous celebration of free speech in “Areopagitica,” which commends “the virtues of toleration and unregulated publication in passages that find their way into every discussion of free speech and the First Amendment,” after which “Milton catches himself up short and says, of course I didn’t mean Catholics, them we exterminate.” Here’s the key passage:

I mean not tolerated popery, and open superstition, which as it extirpates all religious and civil supremacies, so itself should be extirpate . . . that also which is impious or evil absolutely against faith or manners no law can possibly permit that intends not to unlaw itself.

Beneath every commitment to free speech, Fish says, is this unspoken but essential question: “Would this form of speech or advocacy, if permitted to flourish, tend to undermine the very purposes for which our society is constituted?” If the answer is Yes, then that speech is unprotected by our laws.

Though perhaps there is a way to incorporate it into our discussion without it leading to a wholesale dismissal of speech that runs contrary to our societal rationale.

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