The Rules of #MeToo
Two revelations are central to the meaning of the #MeToo movement. First, sexual harassment and assault are ubiquitous. And second, traditional legal procedures have failed to redress these problems. In the absence of effective formal legal procedures, a set of ad hoc processes have emerged for managing claims of sexual harassment and assault against persons in high-level positions in business, media, and government. This Article sketches out the features of this informal process, in which journalists expose misconduct and employers, voters, audiences, consumers, or professional organizations are called upon to remove the accused from a position of power. Although this process exists largely in the shadow of the law, it has attracted criticisms in a legal register. President Trump tapped into a vein of popular backlash against the #MeToo movement in arguing that it is “a very scary time for young men in America” because “somebody could accuse you of something and you’re automatically guilty.” Yet this is not an apt characterization of #MeToo’s paradigm cases. In these cases, investigative journalists have carefully vetted allegations; the accused have had opportunities to comment and respond; further investigation occurred when necessary; and the employment consequences, if there were any at all, were proportional to the severity of the misconduct. This Article offers a partial defense of the #MeToo movement against the argument that it offends procedural justice. Rather than flouting due process values, #MeToo’s informal procedures have a number of advantages in addressing sexual misconduct while providing fair process when the accused person is a prominent figure.
Introduction
TOPThe #MeToo movement has exposed that sexual harassment and assault remain commonplace and that traditional legal procedures have failed for survivors.1
Catharine A. MacKinnon, #MeToo Has Done What the Law Could Not, N.Y. Times (Feb. 4, 2018), https://www.nytimes.com/2018/02/04/opinion/metoo-law-legal-system.html[https://perma.cc/J7QL-BZD2].
See infra notes 31–58, 219–228 and accompanying text.
See infra notes 49–58 and accompanying text.
Cf. Pamela K. Bookman & David L. Noll, Ad Hoc Procedure, 92 N.Y.U. L. Rev. 767, 774 (2017) (“Ad hoc procedure overcomes problems that cannot be solved using the existing procedural structures, and may be necessary to ensure that the civil justice system is able to provide the ordinary desiderata of civil litigation in cases that defy customary judicial management.”).
See Melissa Murray, Consequential Sex: #MeToo, Masterpiece Cakeshop, and Private Sexual Regulation, 113 Nw. L. Rev. 825, 833 (2019) (“#MeToo and its efforts respond directly to the view that the state has failed to impose appropriate consequences on those who commit sexual harassment and sexual assault.”). Cf. Deborah Tuerkheimer, Unofficial Reporting in the #MeToo Era, 2019 U. Chi. Legal F. 273, 276 (2019) (discussing how “#MeToo has catalyzed the creation of new channels for reporting sexual misconduct without directly invoking the legal system or law-adjacent institutional structures”).
Audrey Carlsen et al., #MeToo Brought Down 201 Powerful Men. Nearly Half of Their Replacements Are Women., N.Y. Times (Oct. 29, 2018), https://www.nytimes.com/interactive/2018/10/23/us/metoo-replacements.html[https://perma.cc/VTM3-KDJ].
The backlash came swiftly, invoking concerns of false allegations,7
See Measuring the #MeToo Backlash,The Economist (Oct. 20, 2018), https://www.economist.com/united-states/2018/10/20/measuring-the-metoo-backlash[https://perma.cc/65LW-CAF7](reporting that “18% of Americans now think that false accusations of sexual assault are a bigger problem than attacks that go unreported or unpunished, compared with 13% in November last year” based on YouGov polls of 1500 Americans).
See Emily Stewart, Trump Wants “Due Process” for Abuse Allegations. I Asked 8 Legal Experts What That Means, Vox (Feb. 12, 2018), https://www.vox.com/policy-and-politics/2018/2/11/16999466/what-is-due-process-trump(“[A]s more and more figures face consequences —financial, political, professional, and legal—for their bad behavior, one term that comes up over and over again is ‘due process.’”).
See Masha Gessen, Sex, Consent, and the Dangers of ‘Misplaced Scale,’ New Yorker (Nov. 27, 2017), https://www.newyorker.com/news/our-columnists/sex-consent-dangers-of-misplaced-scale[https://perma.cc/MN3F-PWMM];Jia Tolentino, The Rising Pressure of the #MeToo Backlash, New Yorker (Jan. 24, 2018), https://www.newyorker.com/culture/culture-desk/the-rising-pressure-of-the-metoo-backlash[https://perma.cc/CVW7-8329].
Emma Grey Ellis, How #HimToo Became the Anti #MeToo of the Kavanaugh Hearings, Wired (Sept. 27, 2018), https://www.wired.com/story/brett-kavanaugh-hearings-himtoo-metoo-christine-blasey-ford/[https://perma.cc/E8GQ-Z5G2].
Dara Lind, Trump: “It’s a Very Scary Time for Young Men in America,” Vox (Oct. 2, 2018), https://www.vox.com/2018/10/2/17928800/trump-women-doing-great-kavanaugh[http://perma.cc/EUX8-NGN5].
Betsy Klein, Allie Malloy, & Kate Sullivan, Trump Mocks the #MeToo Movement at a Rally, Again, CNN (Oct. 10, 2018), https://www.cnn.com/2018/10/10/politics/trump-rally-mocks-me-too/index.html[https://perma.cc/9T9E-863E].
See, e.g., David M. Perry, No, #MeToo Is Not a Witch Hunt, Pac. Standard (Jan. 9, 2018), https://psmag.com/social-justice/no-metoo-is-not-a-witch-hunt[https://perma.cc/4M7H-LFG5].
Shira A. Scheindlin & Joel Cohen, After #MeToo, We Can’t Ditch Due Process, Guardian (Jan. 8, 2018), https://www.theguardian.com/commentisfree/2018/jan/08/metoo-due-process-televictions[https://perma.cc/QV5P-F5VG].
Elizabeth Bartholet, #MeToo Excesses, Harv. Crimson, (Jan. 16, 2018) https://www.thecrimson.com/article/2018/1/16/bartholet-metoo-excesses/[https://perma.cc/Q453-HHU5].
In large part, the response to this backlash has been to argue that it is off the mark as a matter of law because the court of public opinion is not constrained by procedural rules.16
See, e.g., Ana Marie Cox, Al Franken Isn’t Being Denied Due Process. None of These Famous Men Are, Wash. Post (Dec. 7, 2017), https://www.washingtonpost.com/news/posteverything/wp/2017/12/07/al-franken-isnt-being-denied-due-process-none-of-these-famous-men-are/?utm_term=.49f4dfa95a51[https://perma.cc/9B5B-LNYY](“But the courts aren’t where our national conversation is taking place, so let’s not dither about the dangers of proclaiming guilt or innocence.”); Alison Gash & Ryan Harding, #MeToo? Legal Discourse and Everyday Responses to Sexual Violence, 7 Laws 21 (2018) (“Critics who contend ‘due process is better than mob rule’ miss the point. The aim, and point, is not (or is not always) criminal prosecution.” (citation omitted)).
This Article is interested in the public nature of reports as a characteristic feature of the #MeToo era. It is not focused on the procedures for handling complaints against students under Title IX or against employees under Title VII. The due process implications of these processes, which are often confidential, have been analyzed elsewhere.
This Article uses “sexual misconduct” as a provisional term to describe the broader set of harms illuminated by #MeToo. One controversial feature of #MeToo is that it has contested the legal and social boundaries separating various forms of harm, including, but not limited to: rape, sexual assault, unwanted and coercive sex, child sex abuse, nonsexual but gender-based harassment, harassment inside and outside the workplace, intimate partner violence, homophobic and transphobic harassment, claims against women, claims by men and nonbinary survivors, and claims about the erasure of people of color and other groups. This Article is not the place to resolve these controversies, although it addresses the question of whether the consequences are proportional to the severity of the misconduct in Part IV.E. Where appropriate, this Article refers specifically to certain of these forms of harm.
I am concerned with high-profile abusers who occupy positions that afford them great fame, power, or wealth and whose misconduct therefore counts as newsworthy. See, e.g., Poynter Staff, Which Sexual Harassment and Assault Stories Should You Cover? Here Are Some Guidelines, Poynter (Nov. 29, 2017), https://www.poynter.org/ethics-trust/2017/which-sexual-harassment-and-assault-stories-should-you-cover-here-are-some-guidelines/[https://perma.cc/XR4Y-TN3L].Accusations against rank-and-file workers raise different concerns. See Rachel Arnow-Richman, Of Power and Process: Handling Harassers in an At-Will World, 128 Yale L.J.F. 85, 95–99 (2018). While the boundaries of the category of high-profile employees can be disputed, core cases are easy to identify.
This Article does not advance any particular theory of what procedural justice requires. Rather, it responds to specific procedural objections to the #MeToo movement by examining the set of cases of individuals who lost prominent positions in the year after the Weinstein story and evaluating the procedures those individuals were afforded based on principles from due process precedents. This Article does not argue that extralegal processes are ideal for survivors or are a satisfactory alternative to legal reform.
These Pulitzer Prize winning stories are collected at The Pulitzer Prizes, The 2018 Pulitzer Prize Winner in Public Service (2018), https://www.pulitzer.org/winners/new-york-times-reporting-led-jodi-kantor-and-megan-twohey-and-new-yorker-reporting-ronan[https://perma.cc/3VWQ-SZYL].
I do not defend employment decisions based on anonymous public reports or sparse allegations against high-level leaders; rather, I argue that any such cases are exceptional deviations from emerging procedural norms. See infra Part III.
This Article proceeds in four parts. Part I explains the advantages of #MeToo’s extralegal procedures over traditional legal procedures, such as those provided by the criminal justice system and workplace sexual harassment law. Part II argues that, even though private actors are not bound by procedural rules outside of legal proceedings, #MeToo’s advocates should be concerned with procedural justice for the accused because it is important to the legitimacy of the movement’s goals. Part III argues that a set of procedural norms for evaluating extralegal claims of sexual harassment and assault against persons in positions of power is emerging. Part IV defends these emerging norms against various procedural objections: that they are not enforceable; that survivors who failed to pursue formal legal remedies should be barred from pursing extralegal ones; that #MeToo fails to give the accused a fair hearing; and that it imposes disproportionate consequences. Close examination reveals that that the rules of #MeToo, as applied, do not violate basic procedural principles in terms of the rights of the accused.
I. Advantages of #MeToo’s Extralegal Procedures
TOPThe originators of the #MeToo movement conceived of their project as a “therapeutic, restorative, and educational” effort aimed at structural change and solidarity for survivors.23
See, e.g., Lesley Wexler, #MeToo and Law Talk, 2019 U. Chi. Legal F. 343, 343 (discussing “Alyssa Milano’s informative, hand raising oriented #MeToo hashtag and its intersection with Tarana Burke’s victim-centered, empathy-generating and restorative-justice focused Me Too”).
Sandra E. Garcia, The Woman Who Created #MeToo Long Before Hashtags, N.Y. Times (Oct. 20, 2017), https://www.nytimes.com/2017/10/20/us/me-too-movement-tarana-burke.html[https://perma.cc/K45D-2XH3].
See Carlsen et al., supra note 6.
See, e.g., Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 Mich. L. Rev. 338, 350 (1997) (discussing definitions of norms by contrast to legal rules).
Compare Deborah L. Brake & Joanna L. Grossman, The Failure of Title VII as a Rights-Claiming System, 86 N.C. L. Rev. 859, 863 (2008) (explaining how employment discrimination law, including sexual harassment law, is a flawed rights-claiming system).
Compare William L.F. Felstiner, Richard L. Abel, & Austin Sarat, The Emergence and Transformation of Disputes: Naming, Blaming, Claiming15 Law & Soc’y Rev. 631, 635–36 (1980) (describing a process of “naming, blaming, and claiming” in which an aggrieved individual seeks justice).
This process has a number of significant limitations, and fails to achieve many of the #MeToo movement’s goals. Nonetheless, removing perpetrators from power is an essential component of the reckoning occasioned by the #MeToo movement.29
See, e.g., Lesley Wexler, Jennifer K. Robbennolt, & Colleen Murphy, #MeToo, Time’s Up, and Theories of Justice, 2019 U. Ill. L. Rev. 45, 68–81 (discussing principles of restorative justice, which require backward-looking efforts to ensure offender accountability as well as forward-looking efforts to ensure meaningful change).
My argument is not that these extralegal processes should supplant legal ones or substitute for legal reform. It is that they serve purposes current legal processes do not.
Legal processes have been largely ineffective in removing high-profile perpetrators. The criminal law is a blunt and unwieldy tool. Sexual offenses are defined narrowly31
For a survey of state laws and discussion of reform efforts, see Model Penal Code: Sexual Assault and Related Offenses (Am. Law Inst., Tentative Draft No. 1, 2014).
See, e.g., Donald Dripps, After Rape Law: Will the Turn to Consent Normalize the Prosecution of Sexual Assault?, 41 Akron L. Rev. 957, 971 (2008) (discussing research showing “jury reluctance to convict men accused of raping women who have violated traditional sexual mores”).
Kimberly A. Lonsway & Joanne Archambault, The “Justice Gap” for Sexual Assault Cases: Future Directions for Research and Reform, 18 Violence Against Women 145, 156 (2012).
Deborah Tuerkheimer, Incredible Women: Sexual Violence and the Credibility Discount, 166 U. Pa. L. Rev. 1, 2 (2017); see also Corey Rayburn Yung, Rape Law Gatekeeping, 58 B.C. L. Rev. 205, 209 (2017) (“Unlike people who have been robbed, beaten, or defrauded, rape victims must bypass a series of gatekeepers that, beginning with the police, impede the criminal justice system from vindicating victims’ allegations.”).
Amy Dellinger Page, Gateway to Reform? Policy Implications of Police Officers’ Attitudes Toward Rape, 33 Am. J. Crim. Just. 44, 55 (2008) (discussing a survey of 891 police officers, in which 53% believed that 11 to 50% of rape reports by women were false, and 10% believed that between 50 and 100% were false).
See Michelle J. Anderson, Campus Sexual Assault Adjudication and Resistance to Reform, 125 Yale L.J. 1940, 1953 (2016).
As for workplace sexual harassment law, it is ridden with loopholes and limitations.37
For summaries of some of Title VII’s shortcomings, see, e.g., Daniel Hemel & Dorothy S. Lund, Sexual Harassment and Corporate Law, 118 Colum. L. Rev. 1583, 1603–10 (2018); Rebecca Hanner White, Title VII and the #MeToo Movement, 68 Emory L.J. Online 1014 (2018). Tort law is no answer; sexual harassment law was meant to address the many limitations of tort law. See generally Martha Chamallas, Will Tort Law Have Its #Me Too Moment?, 11 J. Tort L. 39 (2018).
Title VII applies only to employer/employee relationships. 42 U.S.C. §2000e-2(a)(1).
See, e.g., Sandra Sperino & Suja Thomas, Unequal: How America’s Courts Undermine Discrimination Law 33–38 (2017) (discussing the requirement that harassment be “severe or pervasive” to violate the law).
Id.
Sexual harassment law is particularly ineffective at stopping high-level harassers. In its 2016 study of harassment in the workplace, an Equal Employment Opportunity Commission (EEOC) task force found that workplaces that anoint some employees as “superstar[s]” tend to be “breeding ground[s]” for harassment.41
Chai R. Feldblum & Victoria A. Lipnic, U.S. Equal Emp’t Opportunity Comm’n, Report of the Co-Chairs of the Select Task Force on the Study of Harassment in the Workplace (2016), https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm[https://perma.cc/AH2R-93VQ].
Id. Additionally, “power can make an individual feel uninhibited and thus more likely to engage in inappropriate behaviors.” Id. (citing Dacher Keltner et al., Power, Approach, and Inhibition, 110 Psychol. Rev. 265 (2003)).
See, e.g., Jodi Kantor & Megan Twohey, Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades, N.Y. Times (Oct. 5, 2017), https://www.nytimes.com/2017/10/05/us/harvey-weinstein-harassment-allegations.html?login=smartlock&auth=login-smartlock[https://perma.cc/D79H-48C8](quoting a memo from a former assistant of Harvey Weinstein: “I am a 28 year old woman trying to make a living and a career. Harvey Weinstein is a 64 year old, world famous man and this is his company. The balance of power is me: 0, Harvey Weinstein: 10.”); Megan Kelly, Settle for More 302 (2016) (Explaining that she did not report Roger Ailes because, “if I caused a stink, my career would likely be over. Sure they might investigate, but I felt certain there was no way they would get rid of him, and I would be left on the wrong side of the one man who had power at Fox.”).
Arnow-Richman, supra note 19, at 87.
Feldblum & Lipnic, supra note 41; see also, e.g., Emily Steel & Michael S. Schmidt, Bill O’Reilly Settled New Harassment Claim, Then Fox Renewed his Contract, N.Y. Times (Oct. 21, 2017), https://www.nytimes.com/2017/10/21/business/media/bill-oreilly-sexual-harassment.html?module=inline[https://perma.cc/VU7R-VBT4].
Arnow-Richman, supra note 19, at 92–95.
The legal rules for reporting sexual harassment allow institutions to sweep it under the rug. In order to prevail in a sexual harassment case, most employees must first attempt to make use of their employer’s internal complaint process.47
This rule generally applies when the harasser is a supervisor. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 753 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).
Lilia M. Cortina & Jennifer L. Berdahl, Sexual Harassment in Organizations: A Decade of Research in Review, in 1 The Sage Handbook of Organizational Behavior 469, 469–96 (J. Barling & C. L. Cooper eds., 2008).
See, e.g., Ronan Farrow, Harvey Weinstein’s Secret Settlements, New Yorker (Nov. 21, 2017), https://www.newyorker.com/news/news-desk/harvey-weinsteins-secret-settlements[https://perma.cc/RY7M-MNCV].
Emily Steel, How Bill O’Reilly Silenced His Accusers, N.Y. Times (Apr. 4, 2018), https://wwww.nytimes.com/2018/04/04/business/media/how-bill-oreilly-silenced-his-accusers.html[https://perma.cc/P86H-7TPR].
Id.
See, e.g., Steven Davidoff Solomon, Arbitration Clauses Let American Apparel Hide Misconduct, Dealb%k (July 15, 2014), https://dealbook.nytimes.com/2014/07/15/arbitration-clauses-let-american-apparel-hide-misconduct/[https://perma.cc/VQ2M-2LU4].One study found mandatory arbitration clauses cover 56% of non-union private-sector workers. Alexander J.S. Colvin, Econ. Policy Inst., The Growing Use of Mandatory Arbitration 1 (Sept. 27, 2017), https://www.epiorg/files/pdf/135056.pdf[https://perma.cc/L9AD-X3C7].For a discussion of how forced arbitration deters claims, see Jean R. Sternlight, Mandatory Arbitration Stymies Progress Toward Justice in Employment Law: Where To, #MeToo?, 54 Harv. C.R.-C.L. L. Rev 155, 201—05 (2019).
Moreover, it is administratively difficult and time consuming for individual survivors to invoke legal remedies. Class action lawsuits could minimize these burdens, helping plaintiffs to attract higher-quality lawyers and offering them more leverage against the economic power of their employers.53
See, e.g., Clyde Summers, Effective Remedies for Employment Rights: Preliminary Guidelines and Proposals, 141 U. Pa. L. Rev. 457, 484 (1992).
Melissa Hart, Litigation Narratives: Why Jensen v. Ellerth Didn’t Change Sexual Harassment Law, But Still Has a Story Worth Telling, 18 Berkeley Women’s L.J. 282, 288 (2003) (“There appear to have been only ten reported cases between 1995 and 2002 in which courts considered sexual harassment claims as part of a federal class action suit.”).
Id. at 293; Tristin K. Green, Was Sexual Harassment Law A Mistake? The Stories We Tell, 128 Yale L.J.F. 152, 166 (2018) (“Judges have constructed an individualized harassment law that revolves around stories of ‘personal advances,’ even though in most cases harassment is not an individualized problem.”).
See, e.g., Katherine E. Lamm, Work in Progress: Civil Rights Class Actions After Wal-Mart v. Dukes, 50 Harv. C.R.-C.L. L. Rev. 153, 176–77 (2015) (discussing challenges for plaintiffs bringing civil rights class actions after the Supreme Court’s 2011 decision in Wal-Mart v. Dukes).
Colvin, supra note 52, at 2 (reporting that 30.1% of employers that require mandatory arbitration also require class waivers).
Andrea Cann Chandrasekher & David Horton, Arbitration Nation: Data from Four Providers, 107 Calif. L. Rev. (forthcoming 2019) (manuscript at 5 n.27), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3238460[https://perma.cc/Z2DX-UXVR].
By contrast, #MeToo’s procedures are open, relatively simple, collective, and effective in removing high-level perpetrators. It is one of #MeToo’s distinctive features that accusations are public.59
See, e.g., Stephanie Zacharek et al., Time Person of the Year 2017: The Silence Breakers, Time (Dec. 18, 2017), http://time.com/time-person-of-the-year-2017-silence-breakers/[https://perma.cc/P7NS-U728].
Id.
8 Reporters Reflect on the Challenges of Covering Sexual Harassment, Nieman Reps. (Nov. 13, 2017), https://niemanreports.org/articles/reporters-on-their-stories-about-male-abuses-of-power/[https://perma.cc/RE3U-DA3C](quoting restaurant critic Brett Anderson on his reporting on celebrity chef John Besh). For example, Leigh Corfman, who reported that Roy Moore had sexually abused her when she was fourteen years old, was at first reluctant to come forward, but told The Washington Post that “If they found additional people, I would tell my story.” Adam Edelman, Roy Moore Accuser Leigh Corfman: I Didn’t Deserve to Be Preyed Upon, NBC News (Nov. 20, 2017), https://www.nbcnews.com/politics/politics-news/roy-moore-accuser-leigh-corfman-i-didn-t-deserve-be-n822416[https://perma.cc/U7QB-23KL].
Glenn Whipp, 200 More Women Share Their James Toback Stories after 38 Accuse Director of Sexual Harassment, L.A. Times (Oct. 23, 2017), https://www.latimes.com/entertainment/movies/la-et-mn-toback-follow-up-20171023-story.html[https://perma.cc/2N97-BQGG].
8 Reporters Reflect, supra note 61 (quoting editor Michelle Cottle).
The #MeToo movement has been stunningly effective in removing perpetrators from positions of power. In the year prior to the Weinstein news stories, fewer than thirty prominent people lost positions due to public accusations of sexual misconduct.64
Carlsen et al., supra note 6.
Id.
See Rebecca Traister, Your Reckoning. And Mine., The Cut (Nov. 2017), https://www.thecut.com/2017/11/rebecca-traister-on-the-post-weinstein-reckoning.html?[https://perma.cc/NDZ7-P6U9](“There are also women who do want to go on the record, women who’ve summoned armies of brave colleagues ready to finally out their repellent bosses. To many of them I must say that their guy isn’t well known enough, that the stories are now so plentiful that offenders must meet a certain bar of notoriety, or power, or villainy, before they’re considered newsworthy.”).
Vicki Schultz, Open Statement on Sexual Harassment from Employment Discrimination Law Scholars, 71 Stan. L. Rev. Online 17, 19 n.4 (2018) (collecting studies showing coworker harassment is more prevalent).
Tarana Burke, #MeToo Was Started for Black and Brown Women and Girls. They’re Still Being Ignored, Wash. Post (Nov. 9, 2017), https://www.washingtonpost.com/news/post-nation/wp/2017/11/09/the-waitress-who-works-in-the-diner-needs-to-know-that-the-issue-of-sexual-harassment-is-about-her-too/?utm_term=.358786061779[https://perma.cc/M9DQ-TRPL].See also Angel-a Onwuachi-Willig, What About #UsToo?: The Invisibility of Race in the #MeToo Movement, 128 Yale L.J.F. 105, 107 (2018) (“The recent resurgence of the #MeToo movement reflects the longstanding marginalization and exclusion that women of color experience within the larger feminist movement in U.S. society.”).
Kimberlé Williams Crenshaw, I Believe I Can Lie, Baffler (Jan. 17, 2019), https://thebaffler.com/latest/i-believe-i-can-lie-crenshaw[https://perma.cc/XY5K-WX9V];see also Jemele Hill, R. Kelly and the Cost of Black Protectionism, Atlantic (Jan. 11, 2019), https://www.theatlantic.com/entertainment/archive/2019/01/r-kelly-and-cost-black-protectionism/580150/[https://perma.cc/Q4JX-A2LU](discussing the “prolonged indifference” to claims by black girls and women against musician R. Kelly).
Lia Russell, Saying #MeToo Is Harder for Low-Wage Workers, Am. Prospect (May 3, 2018), https://prospect.org/article/saying-metoo-harder-low-wage-workers[https://perma.cc/U8V9-NR7X].
See, e.g., Susan Chira & Catrin Einhorn, Decades after the Company Tried to Tackle Sexual Misconduct at Two Chicago Plants, Continued Abuse Raises Questions about the Possibility of Change, N.Y. Times (Dec. 19, 2017), https://www.nytimes.com/interactive/2017/12/19/us/ford-chicago-sexual-harassment.html[https://perma.cc/UW8J-7UNW](discussing racial and gender dynamics that contributed to sexual harassment of blue-collar workers at Ford’s Chicago plants).
See generally Bernice Yeung, In a Day’s Work: The Fight to End Sexual Violence Against America’s Most Vulnerable Workers (2018).
Stories have not focused on how dynamics like class can make certain women more vulnerable to abuse. Josephine Livingstone, The Task Ahead for Feminism, New Republic (Nov. 17, 2017), https://newrepublic.com/article/145850/task-ahead-feminism[https://perma.cc/UV65-HEHX](“Important contextual information—that Roy Moore allegedly chose working-class women and children to abuse, for example—has been lost.”).
See, e.g., Ebony Miranda, Did #MeToo Forget About Me?, N.Y. Times (Sept. 4, 2018), https://www.nytimes.com/2018/09/04/smarter-living/the-edit-me-too.html[https://perma.cc/YAE7-TKGX].
Sandy E. James et al., The Report of the 2015 U.S. Transgender Survey 15 (Dec. 2016), http://www.transequality.org/sites/default/files/docs/usts/USTS%20Full%20Report%20-%20FINAL%201.6.17.pdf[https://perma.cc/A8A2-WTTK](reporting that 47% of transgender survey respondents had been “sexually assaulted at some point in their lifetime,” and 10% “were sexually assaulted in the past year”).
For stories involving male perpetrators and male victims, see, e.g., Laura Bradley, “I Was Terrified, and I Was Humiliated”: #MeToo’s Male Accusers, One Year Later, Vanity Fair (Oct. 4, 2018), https://www.vanityfair.com/hollywood/2018/10/metoo-male-accusers-terry-crews-alex-winter-michael-gaston-interview[https://perma.cc/5QNH-HXC2];Adam B. Vary, Actor Anthony Rapp: Kevin Spacey Made A Sexual Advance Toward Me When I Was 14, Buzzfeed News (Oct. 30, 2017, 12:37 AM), https://www.buzzfeednews.com/article/adambvary/anthony-rapp-kevin-spacey-made-sexual-advance-when-i-was-14[https://perma.cc/D5LW-FU5L].When women abuse men, the story is told as if it were “man bites dog.” Headlines insinuate that such cases somehow undermine the movement, rather than demonstrating the problems with unconstrained power. See, e.g., Kim Severson, Asia Argento, a #MeToo Leader, Made a Deal With Her Own Accuser, N.Y. Times (Aug. 19, 2018), https://www.nytimes.com/2018/08/19/us/asia-argento-assault-jimmy-bennett.html[https://perma.cc/Y6MP-WTW6];Zoe Greenberg, What Happens to #MeToo When a Feminist Is the Accused?, N.Y. Times (Aug. 13, 2018), https://www.nytimes.com/2018/08/13/nyregion/sexual-harassment-nyu-female-professor.html[https://perma.cc/E6ZA-ZUJG].
See, e.g., Vicki Schultz, Reconceptualizing Sexual Harassment, Again, 128 Yale L.J.F. 22, 24 (2018); Rebecca Traister, This Moment Isn’t (Just) About Sex. It’s Really About Work, The Cut (Dec. 10, 2017), https://www.thecut.com/2017/12/rebecca-traister-this-moment-isnt-just-about-sex.html[https://perma.cc/8TML-UYNG].
Yet all these criticisms—the failure to address harassment by low-level employees, the failure to attend to intersectional dynamics involving race, class, LGBTQ, and immigration status, and the failure to address non-sexual forms of harassment—are commonly made of legal processes. What is interesting about #MeToo is how, in many cases, it has achieved what the law could not.78
See MacKinnon, supra note 1.
Despite the limits of the strategy, the #MeToo movement’s ability to remove abusive leaders is an accomplishment because of what it says about gender and power. The movement has the potential to redefine the conditions for holding power, celebrity, and wealth in our society. The Weinstein story came one year after a presidential election in which the winning candidate had bragged on video that being famous meant he could grope women without first asking for their consent.79
David A. Fahrenthold, Trump Recorded Extremely Lewd Conversation About Women in 2005, Wash. Post (Oct. 8, 2016), https://www.washingtonpost.com/politics/trump-recorded-having-extremely-lewd-conversation-about-women-in-2005/2016/10/07/3b9ce776-8cb4-11e6-bf8a-3d26847eeed4_story.html?utm_term=.4c56ec64c6e1[https://perma.cc/7P4J-ZAJK](“You know I’m automatically attracted to beautiful—I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star, they let you do it. You can do anything. Grab them by the p---y.”).
Rebecca Traister, Why the Harvey Weinstein Sexual-Harassment Allegations Didn’t Come Out Until Now, The Cut (Oct. 5, 2017), https://www.thecut.com/2017/10/why-the-weinstein-sexual-harassment-allegations-came-out-now.html?utm_source=tw&utm_medium=s3&utm_campaign=sharebutton-t[https://perma.cc/3YG7-M8WV].
Catharine A. MacKinnon, ‘This Moment Turned Out to Be Fleeting’ Nine Reflections on #MeToo, One Year On, N.Y. Times (Oct. 6, 2018), https://www.nytimes.com/2018/10/06/opinion/me-too-weinstein-one-year.html[https://perma.cc/DQU4-LYF8].
It is true that removing harassers from high places will not resolve all harassment.82
For a discussion of the goals of the #MeToo and Times Up movements, see Murray, supra note 5, at 867. For more comprehensive suggestions on reform, see Schultz, supra note 67.
Schultz, supra note 77, at 26. These underlying conditions include sex segregation and unstructured authority. Id. at 48–53.
See Carlsen, supra note 6; Schultz, supra note 67, at 22–25 (discussing the links between sex segregation and harassment).
II. Why Procedural Justice Matters
TOPBecause of their employment consequences for accused individuals, #MeToo’s informal procedures are controversial.85
See supra notes 10–12 and accompanying text.
See, e.g., Bartholet, supra note 15.
See, e.g., Editorial Board, The Presumption of Guilt, Wall St. J. (Sept. 21, 2018), https://www.wsj.com/articles/the-presumption-of-guilt-1537570627[https://perma.cc/54A8-C4ZY](arguing that “the set of facts [Christine Blasey Ford] currently provides wouldn’t pass even the ‘preponderance of evidence’–or 50.01% evidence of guilt–test that prevails today on college campuses”).
See, e.g., Mollie Hemmingway, The Kavanaugh Allegation Process Is a Miscarriage of Justice for Everyone, Federalist (Sept. 19, 2018), https://thefederalist.com/2018/09/19/the-kavanaugh-allegation-process-is-a-miscarriage-of-justice-for-everyone/[https://perma.cc/E4JT-DN9Z](“[T]he Senate is still an inappropriate place to litigate claims of sexual assault. Since Maryland apparently doesn’t have a statute of limitations on felony sex assault, charges could still be filed there if the case is strong enough to do so.”).
One response to the due process backlash is that technically, procedural requirements do not apply to most employment decisions. Criminal penalties like incarceration cannot be imposed outside of the criminal justice system, and so the rules of criminal justice, such as the requirement that proof be established beyond a reasonable doubt, do not apply outside of that system. The Constitution’s Due Process Clause seldom applies to employment decisions. The main reason is that it does not generally bind non-state actors—such as private employers, voters, consumers, and shareholders.89
See, e.g., Lugar v. Edmondson Oil Co., 457 U.S. 922, 936–37 (1982) (discussing the “state action” requirement for certain constitutional claims, which requires that “the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State”). Even a scholar making the unlikely argument (rejected by every court to consider it) that due process applies to Title IX proceedings by private universities against students, see Jed Rubenfeld, Privatization and State Action: Do Campus Sexual Assault Hearings Violate Due Process?, 96 Texas L. Rev 15, 26 (2017), recognizes that due process does not apply to private employers in their proceedings against employees, id. at 48.
See, e.g., Board of Regents v. Roth, 408 U.S. 564, 577 (1972).
Id. (“To have a property interest in a benefit, a person must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.”).
See, e.g., Stone v. Univ. of Maryland Med. Sys. Corp., 855 F.2d 167, 173–75 (4th Cir. 1988) (holding that “the mere fact that the choice is between comparably unpleasant alternatives—e.g., resignation or facing disciplinary charges—does not of itself establish that a resignation was induced by duress or coercion, hence was involuntary”).
See, e.g., Codd v. Velger, 429 U.S. 624, 627 (1977) (per curiam) (where the constitutional deprivation consists of a false and stigmatizing report about a public employee, due process requires the employee be given “an opportunity to clear his name” (quoting Roth, 408 U.S. at 573)). This right applies even if the employee has no property interest in continued employment. Owen v. City of Independence, 445 U.S. 622, 630 n.10 (1979). But a liberty interest alone is not sufficient for a claim; there must also be some sort of employment action, such as a termination. See Paul v. Davis, 424 U.S. 693, 709 (1976). The employee must also show the disclosure caused a stigma that harmed their future prospects for employment. See, e.g., Cannon v. Vill. of Bald Head Island, N. Carolina, 891 F.3d 489, 502–05 (4th Cir. 2018). Nonetheless, a name-clearing hearing does not result in reinstatement. Codd, 429 U.S. at 628.
Wojcik v. Massachusetts State Lottery Comm’n, 300 F.3d 92, 103–04 (1st Cir. 2002).
It is a widely-accepted myth that U.S. workers have automatic job protection.95
Pauline T. Kim, Bargaining with Imperfect Information: A Study of Worker Perceptions of Legal Protection in an At-Will World, 83 Cornell L. Rev. 105, 110 (1997) (reporting on survey results demonstrating that workers “consistently overestimate the degree of job protection afforded by law, believing that employees have far greater rights not to be fired without good cause than they in fact have”).
Benjamin D. Geffen, The Collateral Consequences of Acquittal: Employment Discrimination on the Basis of Arrests Without Convictions, 20 U. Pa. J.L. & Soc. Change 81, 88–89 (2017) (“There is no comprehensive federal law safeguarding the employment rights of people without convictions, although Title VII and the Fair Credit Reporting Act (“FCRA”) extend protections in certain situations. A handful of state and local laws grant strong, enforceable rights, but most jurisdictions offer none.”). While some states have “ban-the-box” laws that forbid employers from asking about criminal records on job applications, those laws do not forbid employers from considering an applicant’s criminal history after making a provisional employment offer. Shelle Shimizu, Beyond the Box: Safeguarding Employment for Arrested Employees, 128 Yale L.J.F. 226, 233–35 (2018) (surveying employment protections based on criminal records).
Arnow-Richman, supra note 19, at 97.
15 U.S.C. §1681a(y)(1)(B). This exemption does not apply under certain conditions, including if the employer discloses the results of an external investigation to the public. Id. §1681a(y)(1)(D).
Id. §1681a(y)(2).
Id.
Arnow-Richman, supra note 19, at 97.
See, e.g., Elizabeth Tippet, CBS’ Moonves Scandal Shows Why Corporate America Needs Tougher CEO Pay Contracts, Conversation (Dec. 19, 2018), https://theconversation.com/cbs-moonves-scandal-shows-why-corporate-america-needs-tougher-ceo-pay-contracts-109050[https://perma.cc/266J-3NJ7].
The argument that those accused of sexual misconduct should receive special procedural protection, while those accused of other forms of misconduct do not, is a troubling form of exceptionalism. It “harken[s] back to a time when rape victims faced unique hurdles in criminal prosecution”103
Anderson, supra note 36, at 2000 (discussing “rape or sexual assault exceptionalism”).
Id. A 1940 treatise on evidence described “errant young girls and women coming before the courts in all sorts of cases” with “psychic complexes” that take the form of “contriving false charges of sexual offenses by men.” 3 John Henry Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law §924a, at 459 (3d ed. 1940). The treatise warned: “On the surface the narration is straightforward and convincing. The real victim, however, too often in such cases is the innocent man; for the respect and sympathy naturally felt by any tribunal for a wronged female helps to give easy credit to such a plausible tale.” Id.
See Kate Manne, Down Girl: The Logic of Misogyny 218 (2018).
Lenora Lapidus & Sandra Park, The Real Meaning of Due Process in the #MeToo Era, Atlantic (Feb. 15, 2018), https://www.theatlantic.com/politics/archive/2018/02/due-process-metoo/553427/[https://perma.cc/ECY2-A33N](“[F]airness also requires that those reporting violence and harassment be fully heard.”).
See, e.g., Ayesha Rascoe, Trump Pushes Due Process for Some, ‘Lock’ Them Up for Others, NPR (Oct. 5, 2018), https://www.npr.org/2018/10/05/654347194/trump-pushes-due-process-for-some-for-others-lock-them-up[https://perma.cc/F7L7-9HB2](discussing President Trump’s commitment to due process for his Supreme Court nominee but not the five black and Latino teenagers who were wrongfully convicted in New York’s “Central Park Five” rape case).
Nonetheless, it is worthwhile to confront procedural objections on their own terms. To say that prominent people accused of sexual assault, harassment, and misconduct should not be permitted exceptional protections is not to say that normal principles of procedural fairness should be suspended.108
Nor does the goal of ending sexual assault, harassment, and misconduct justify an “at will” employment regime that allows arbitrary terminations and is unfair to low-level workers accused of any type of misconduct. See Arnow-Richman, supra note 19, at 99–103.
If the #MeToo movement is to maintain its moral authority as a mechanism for disqualifying those who have committed serious forms of sexual misconduct from high-level positions of power, it must attend to principles of procedural justice.109
Cf. Murray, supra note 5, at 874–75 (“[A]t some point, the criticisms of #MeToo—concerns about due process and vigilantism—may make this kind of extralegal regulation unsustainable in the long term.”); Wexler, supra note 23, at 14 (“If the #MeToo Movement is perceived as deeply unfair, much of society is unlikely to willingly participate in its call for a social reckoning”).
Tom R. Tyler & E. Allan Lind, A Relational Model of Authority in Groups, 25 Advances in Experimental Soc. Psychol. 115, 133 (1992) (discussing research showing “a key factor affecting legitimacy across a variety of settings is the person’s evaluation of the fairness of the procedures used by the authority in question”); see also John Thibaut & Laurens Walker, Procedural Justice: A Psychological Analysis (1975). This research pertains to whether particular authorities are considered legitimate. Tyler & Lind, supra at 117. It suggests the legitimacy of the #MeToo movement may be in question to the extent that the public regards it as an authority in motivating decision makers such as boards, employers, voters, or consumers to remove accused leaders without fair process.
Tyler & Lind, supra note 110, at 133.
Id. at 134.
See, e.g., Abigail Abrams, Here’s Sen. Susan Collins’ Full Speech about Voting to Confirm Kavanaugh, Time (Oct. 5, 2018), http://time.com/5417444/susan-collins-kavanaugh-vote-transcript/[https://perma.cc/SN5G-VRWA].
Tyler & Lind, supra note 110, at 140 (“To the extent that a procedure is seen as indicating a positive, full-status relationship, it is judged to be fair, and to the extent that a procedure appears to imply that one’s relationship with the authority or institution is negative or that one occupies a low-status position, the procedure is viewed as unfair.”).
See, e.g., Bari Weiss, The Limits of ‘Believe All Women,’ N.Y. Times (Nov. 28, 2017), https://www.nytimes.com/2017/11/28/opinion/metoo-sexual-harassment-believe-women.html[https://perma.cc/598H-YSBK].For a thoughtful response, see Sady Doyle, Despite What You May Have Heard, “Believe Women” Has Never Meant “Ignore Facts”, Elle (Nov. 29, 2017), https://www.elle.com/culture/career-politics/a13977980/me-too-movement-false-accusations-believe-women/[https://perma.cc/S9Y7-SLCE].
Cf. Duncan Kennedy, Sexual Abuse, Sexy Dressing and the Eroticization of Domination, 26 New England L. Rev. 1309, 1311 (1992) (“Men’s fear of being victimized [by unfair enforcement of rules against sexual abuse] is only indirectly and ambiguously related to whatever the reality might turn out to be. The fear varies from man to man, but there is still an unmistakable group interest in avoiding having to worry about enforcement excesses; it is in direct conflict with women’s interest in not having to worry about being abused.”).
III. #MeToo’s Procedural Norms
TOPAn examination of high-profile cases in the #MeToo era reveals that rather than ignoring procedural justice, decisionmakers have relied on a set of evolving procedural norms for resolving these claims. One norm is that allegations are vetted by journalists according to the standards of that profession. Once aired publicly, allegations are scrutinized by skeptical commentators and other journalists. In the #MeToo era, allegations are unlikely to result in formal employment consequences unless they are “corroborated” in a colloquial sense of that term, or confirmed by follow-up investigations.
A. Vetting and Scrutiny
TOPJournalistic standards require that reporters verify facts, seek both sides, and attribute information to its sources.117
Soc’y Prof’l Journalists, Code of Ethics (2014), https://www.spj.org/pdf/spj-code-of-ethics.pdf[https://perma.cc/GG2G-D2KM].The Society for Professional Journalists is “the largest voluntary association of news reporters and editors in the United States” and its Code of Ethics is widely cited. Jane E. Kirtley, Not Just Sloppy Journalism, but a Profound Ethical Failure: Media Coverage of the Duke Lacrosse Case, in Institutional Failures: Duke Lacrosse, Universities, the News Media, and the Legal System 145 (Howard M. Wasserman ed., 2011).
Kelly McBride & Tom Rosenstiel, Introduction, The New Ethics of Journalism: Principles for the 21st Century 5, 5 (Kelly McBride & Tom Rosenstiel, eds., 2013).
Lucas Graves & Michelle A. Amazeen, Fact-Checking as Idea and Practice in Journalism, in Oxford Research Encyclopedia of Communication (2019).
See, e.g., Margaret Sullivan, Make No Mistake, but if You Do, Here’s How to Correct It, N.Y. Times Public Editor’s Blog (Jan. 16, 2013, 5:45 PM), https://publiceditor.blogs.nytimes.com/2013/01/16/make-no-mistake-but-if-you-do-heres-how-to-correct-it/[https://perma.cc/737M-EPRF].
Stephanie Fairyington, In the Era of Fake News, Where Have All the Fact-Checkers Gone?, Colum. Journalism Rev. (Feb. 23, 2018), https://www.cjr.org/business_of_news/fact-checking.php[https://perma.cc/2YDG-YCZ6];Susan Sivek & Sharon Bloyd-Peshkin, Where Do Facts Matter? The Digital Paradox in Magazines’ Fact Checking Practices, 12 Journalism Practice 400 (2018).
See Fairyington, supra note 121; Sivek & Bloyd-Peshkin, supra note 121.
Soc’y Prof’l Journalists, supra note 117.
Bill Kovach & Tom Rosenstiel, The Elements of Journalism: What Newspeople Should Know and the Public Should Expect 114 (3rd ed. 2013).
Id.
Id. at 117.
Kirtley, supra note 117, at 146–52; Rachel Smolkin, Justice Delayed, Am. Journalism Rev. (Aug./Sept. 2007).
Sheila Coronel, Steve Coll, & Derek Kravitz, Rolling Stone’s Investigation: ‘A Failure that Was Avoidable,’ Colum. Rev. Journalism (Apr. 5, 2015), http://www.cjr.org/investigation/rolling_stone_investigation.php[https://perma.cc/HA2L-S23V].
See, e.g., Kirtley, supra note 117, at 158–59 (“[M]any in the media, by accepting the ‘official version’ of the alleged crime without question, effectively became mouthpieces of the government (or of other powerful institutions, such as Duke University), largely ignoring other voices. They accepted the prosecution’s version of events, taking officials’ words at face value and reporting them without challenge.”).
Id. at 144; see also id. at 154.
Coronel, Coll, & Kravitz, supra note 128.
Id.
Investigative journalists have heeded the lessons of these incidents in reporting on #MeToo.133
See Poynter Staff, supra note 19 (discussing standards for sourcing and verification, including the caution that “While it is often impossible to verify specific claims of sexual harassment or assault, it is important to verify as much as possible about the story including: If the source says she shared her story with friends or family, can you confirm that?, Can other facts around the story be checked, including employment dates and times, travel events, emails or text messages? Are there any documents or evidence that support the general story?”); Sivek & Bloyd-Peshkin, supra note 121, at 15 (quoting magazine editors about their reactions to the Rolling Stone case).
Kantor & Twohey, supra note 43.
Id.
Id.
Id. One source, for example, “who asked not to be identified to protect her privacy, said a nondisclosure agreement prevented her from commenting.” Id.
Jessica Bennett, gender editor for The New York Times, has refused to publish reports of sexual assault unless there are two other individuals to attest that the victim reported the assault to them at the time. Alexandra Botti & T.J. Raphael, How Journalists Corroborate Sexual Harassment and Assault Claims, PRI (Dec. 18, 2017), https://www.pri.org/stories/2017-12-18/how-journalists-corroborate-sexual-harassment-and-assault-claims[https://perma.cc/HKG5-JYYV].
Id.
It is true that not every example of #MeToo reporting has been Pulitzer-prize winning journalism, but even stories that have received criticism have met basic standards. In a controversial story posted on Babe.net, an anonymous 23-year-old photographer, referred to as “Grace,” accused 34-year-old comedian Aziz Ansari of pressuring her into sexual activity while the two were on a date.140
Katie Way, I Went on a Date With Aziz Ansari. It Turned Into the Worst Night of my Life, Babe (Jan. 13, 2018), https://babe.net/2018/01/13/aziz-ansari-28355[https://perma.cc/GZ29-NVL5].Grace stated that Ansari aggressively pressured her into performing oral sex and engaging in other sexual activity, despite her “non-verbal cues,” such as “pulling away,” and her “verbal cues,” such as telling him “next time” and stating that she did not want to “feel forced.” Id.
Julianne Escobedo Shepherd, Babe, What Are You Doing?, Jezebel (Jan. 16, 2018), https://jezebel.com/babe-what-are-you-doing-1822114753?rev=1516127284762[https://perma.cc/WN5UDTY7].
Way, supra note 140.
Id.
Caroline Franke, The Controversy Around Babe.net’s Aziz Ansari Story, Explained, Vox (Jan. 18, 2018), https://www.vox.com/culture/2018/1/17/16897440/aziz-ansari-allegations-babe-me-too[https://perma.cc/35XL-N6WB](“Is it possible to do your due diligence on a story in [one week] given the space and resources? Sure. Does it leave you and your subject vulnerable to probing criticism about whether you did your due diligence? Absolutely.”).
Kerry Flynn, What is Babe? Meet the Site that Published the Aziz Ansari Allegation, Mashable (Jan. 15, 2018), https://mashable.com/2018/01/15/what-is-babe-aziz-ansari-sexual-misconduct-allegation/#hroXzRFCVmqQ[https://perma.cc/9CP2-KU9Y].
Sopan Deb, Aziz Ansari, Sidelined by Accusation, Plays to a Big Crowd Back Home, N.Y. Times (Sept. 5, 2018), https://www.nytimes.com/2018/09/05/arts/television/aziz-ansari-standup-charleston.html[https://perma.cc/YPM9-WV5P].
In a few instances, allegations of sexual assault against particular individuals have been aired without vetting by journalists. Some people have posted specific accusations on social media sites such as Twitter.147
See, e.g., Travis M. Andrews, CBS Is Dropping Jeremy Piven’s Show Amid Sexual Misconduct Allegations Against the Actor, Wash. Post (Nov. 27, 2018), https://www.washingtonpost.com/news/morning-mix/wp/2017/11/28/cbs-is-dropping-jeremy-piven-drama-amid-sexual-misconduct-allegations-against-the-actor/?utm_term=.ae2384bb5c8e[https://perma.cc/YXE5-CTDZ](discussing allegations against actor Jeremy Piven, including one posted on Twitter).
See, e.g., Chloe Dykstra, Rose-Colored Glasses: A Confession, Medium (June 14, 2018), https://medium.com/@skydart/rose-colored-glasses-6be0594970ca[https://perma.cc/2GMF-YGG2];Leeann Tweeden, Senator Al Franken Kissed and Groped Me Without My Consent, and There’s Nothing Funny About It, 790KABC (Nov. 16, 2017), http://www.kabc.com/2017/11/16/leeann-tweeden-on-senator-al-franken/[https://perma.cc/Q2VH-BPA7].
See, e.g., Murray, supra note 5, at 869 (discussing anonymous “crowdsourced registries” and their critics); Tuerkheimer, supra note 5, at 9–13 (discussing anonymous accusations).
Moira Donegan, I Started the Media Men List; My Name is Moira Donegan, The Cut (Jan. 2018), https://www.thecut.com/2018/01/moira-donegan-i-started-the-media-men-list.html[https://perma.cc/D3F6-4UBV].Donegan’s purpose was not to subject accused men to consequences; rather, it was to open up the traditional whisper networks that warn women of danger. Id.
One journalism professor has advised reporters to “[t]hink of an anonymous crowdsourced list as Wikipedia wrapped in razor blades. By all means examine it—but do so carefully or there may be a lot of blood on your hands.” James Warren, A Word of Caution: Documents Like that Media Men List Are Like ‘Wikipedia Wrapped in Razor Blades,’ Poynter (Jan. 12, 2018), https://www.poynter.org/ethics-trust/2018/a-word-of-caution-documents-like-that-media-men-list-are-like-wikipedia-wrapped-in-razor-blades/[https://perma.cc/4QTK-PATJ](quoting Jill Geisler, the Bill Plante Chair in Leadership and Media Integrity at Loyola University Chicago). When reporting on allegations of sexual misconduct that have become public through, for example, Twitter, experts on journalistic ethics advise that reporters should question the sources of the allegation, look for corroborating evidence, explain the context of the allegation and whether there is any supporting evidence, and inform readers of all the relevant information so that they are able to assess the facts for themselves. Kovach & Rosenstiel, supra note 124, at 124–25.
But see Bari Weiss, What Do You Do When You Are Anonymously Accused of Rape, N.Y. Times (Oct. 13, 2018), https://www.nytimes.com/2018/10/13/opinion/stephen-elliott-moira-donegan-media-men.html[https://perma.cc/A38F-TDQU](discussing the defamation suit brought by writer Stephen Elliot based on an anonymous assertion on the Shitty Media Men list that he had been the subject of “rape accusations”). Elliott claims that the false rape allegation harmed his professional reputation, causing him to be disinvited from events and reducing his opportunities to publicize a new book. Stephen Elliott, How an Anonymous Accusation Derailed My Life, Quillette (Sept. 25, 2018), https://quillette.com/2018/09/25/how-an-anonymous-accusation-derailed-my-life/[https://perma.cc/5LX9-2LHB].Others question whether “What happened is that years of behaving badly (not criminally) caught up to him.” Marisa Siegel, Firsthand, Rumpus (Sept. 26, 2018), https://therumpus.net/2018/09/firsthand/[https://perma.cc/53YV-SHS8](accusing Elliott of sexist behavior in the workplace).
See, e.g., Alexandra Alter & Sydney Ember, Paris Review Editor Resigns Amid Inquiry into His Conduct with Women, N.Y. Times (Dec. 6, 2017), https://www.nytimes.com/2017/12/06/books/lorin-stein-resigns-the-paris-review.html[https://perma.cc/3SM9-GGK9];A.J. Chavar, Exclusive: National Geographic Investigated a Top Photo Editor for Sexual Misconduct. He Left Quietly, but Women Are Speaking Out, Vox (Jan. 31, 2018, 12:33 PM), https://www.vox.com/2018/1/29/16934552/exclusive-national-geographic-sexual-misconduct[https://perma.cc/MRS2-LPDC].
Alyssa Bereznak, Blind Item Revealed: How a Scorned Form of Gossip Changed Hollywood, Ringer (Dec. 13, 2018), https://www.theringer.com/2018/12/13/18138512/blind-item-revealed-how-a-scorned-form-of-gossip-changed-hollywood[https://perma.cc/C95D-FUAX].“Blind items” are “anonymous snippets of gossip that require readers to guess the parties involved.” Id. They are left “intentionally vague” so that “only the publication’s savviest readers” know who they refer to. Id. For one example, see, e.g., Ramin Setoodeh, Ashley Judd Reveals Sexual Harassment by Studio Mogul, Variety (Oct. 6, 2015), https://variety.com/2015/film/news/ashley-judd-sexual-harassment-studio-mogul-shower-1201610666/[https://perma.cc/N3BK-93RQ].
See, e.g., supra note 21; Vary, supra note 76. The immediate cause of Matt Lauer’s termination was an internal complaint, but at the time he was fired, journalists had been investigating allegations against him for months. Ramin Setoodeh & Elizabeth Wagmeister, Matt Lauer Accused of Sexual Harassment by Multiple Women, Variety (Nov. 29, 2017), https://variety.com/2017/biz/news/matt-lauer-accused-sexual-harassment-multiple-women-1202625959/[https://perma.cc/QKB8-WQNQ].
Moreover, even after a story appears, journalists subject high-profile allegations to critical scrutiny, and different media outlets report on alternative perspectives and updated information.156
More than a year after allegations against former Senator Al Franken led to his resignation, commentators continue to critically question the evidence against him. See, e.g., Jane Mayer, The Case Against Al Franken, New Yorker (July 22, 2019), https://www.newyorker.com/magazine/2019/07/29/the-case-of-al-franken[https://perma.cc/ZLZ3-N4YE];Emily Yoffee, Democrats Need to Learn From Their Al Franken Mistake, Atlantic (Mar. 26, 2019), https://www.theatlantic.com/ideas/archive/2019/03/democrats-shouldnt-have-pressured-al-franken-resign/585739/[https://perma.cc/TV9D-R4MT].
Weiss, supra note 115.
Way, supra note 140.
For a summary of just some of the critical reaction, see Franke, supra note 144.
Aaron Blake, Did Michael Avenatti Help Doom the Case Against Brett Kavanaugh?, Wash. Post (Oct. 5, 2018), https://www.washingtonpost.com/politics/2018/10/05/did-michael-avenatti-help-doom-case-against-brett-kavanaugh/[https://perma.cc/9P4X-5GZM].See also Mayer, supra note 156 (critically assessing the decision of a radio station website to post an essay by Leeann Tweeden accusing Al Franken of sexual misconduct without first requesting comment from Franken or fact checking Tweeden’s statements).
Id.; Jackie Kucinich et al., Democrats to Michael Avenatti: You’re Not Helping in the Kavanaugh Fight, Daily Beast (Sept. 24, 2018), https://www.thedailybeast.com/democrats-to-avenatti-youre-not-helping-in-the-kavanaugh-fight[https://perma.cc/5H4S-6B34](stating that Senator Chris Coons (D-DE), “suggested Avenatti should have followed in the footsteps of [Dr. Christine Blasey] Ford, who ‘attempted to contact news outlets and the committee before Judge Kavanaugh was confirmed as being the nominee’” and another “Democratic source” as saying, “If he had vetted it through a media outlet and had journalists represent it in a well-reported way or have the committee introduce it, it would have been better”).
Blake, supra note 160.
Id.
B. Investigation and Corroboration
TOPAnother informal norm is that allegations do not generally result in specific employment consequences unless they are borne out through formal investigation, corroborated, or both. Corroboration is not a formal legal requirement. Historically, a claim of rape required “corroborative evidence,” such as physical injuries, because rape allegations were treated with exceptional skepticism.164
Anderson, supra note 36, at 2000.
Tuerkheimer, supra note 34, at 2.
Whether this is a fair rule for survivors is a different question. Cf. MacKinnon, supra note 1 (“[I]n cases of campus sexual abuse over decades; it typically took three to four women testifying that they had been violated by the same man in the same way to even begin to make a dent in his denial. That made a woman, for credibility purposes, one-fourth of a person.”).
This is not the legal meaning of corroboration. Legal rules sometimes limit “me too” evidence. See, e.g., Jeannie Suk Gerson, Bill Cosby’s Crimes and the Impact of #MeToo on the American Legal System, New Yorker (Apr. 27, 2018), https://www.newyorker.com/news/news-desk/bill-cosbys-crimes-and-the-impact-of-metoo-on-the-american-legal-system[https://perma.cc/2M4R-WFSZ].It may be akin to the legal requirement of “numerosity” for a class action lawsuit. See Fed R. Civ. P. 23. I am grateful to Lesley Wexler for pointing out this analogy.
Carlsen et al., supra note 6. I do not claim that this is a comprehensive set of cases. This list reflects the judgments of New York Times reporters about what qualifies as “prominent.” It includes only men, although there are at least three women—Asia Argento, Andrea Ramsey, and Avital Ronnell—who lost opportunities on account of reports of sexual misconduct. One consulting firm claims to have compiled its own proprietary list of over 900 people, including twenty-nine women, whose names have appeared in “at least seven news articles as accused of behavior that includes sexual harassment, assault, abuse or rape and condoning and/or helping to hide such behavior” since December 2015. See Jessica Brice & Jeff Green, Woman Compiling MeToo Names Says They’re the ‘Tip of the Iceberg, Bloomberg (Oct. 17, 2018), https://www.bloomberg.com/news/articles/2018-10-17/woman-compiling-metoo-names-says-they-re-tip-of-the-iceberg[https://perma.cc/KW6Z-FAHN].
This count is based on news stories in addition to the New York Times article. A chart describing those sources is on file with the author.
One of the five exceptions involved allegations detailed in a sexual harassment lawsuit. Jessica Sidman & Anna Spiegel, The Inside Story of Mike Isabella’s Fallen Empire, Washingtonian (Nov. 26, 2018), https://www.washingtonian.com/2018/11/26/the-inside-story-of-mike-isabellas-fallen-empire/[https://perma.cc/3ZYH-VUHK].Two involved allegations of criminal conduct. Anita Busch, Tom Sizemore Dropped From Thriller ‘The Door’ After Sexual Misconduct Allegations, Deadline Hollywood (Nov. 15, 2017), https://deadline.com/2017/11/tom-sizemore-sexual-misconduct-allegations-dropped-from-horror-film-the-door-1202208846/[https://perma.cc/A6GU-YFG5];Michael Schneider, T.J. Miller Replaced as Mucinex Spokesman, Coinciding With Sexual Assault Allegations, IndieWire (Feb. 6, 2018), https://www.indiewire.com/2018/02/tj-miller-mucinex-jason-mantzoukas-super-bowl-ad-1201925909/[https://perma.cc/QXT3-4SAT].In one case, there was evidence in the form of text messages that a lawmaker had communicated with a teenage girl in ways legislative leaders regarded as inappropriate. Keith M. Phaneuf, Angel Arce to Resign From General Assembly, CT Mirror (Mar. 7, 2018), https://www.courant.com/politics/hc-pol-arce-texts-whats-next-20180327-story.html[https://perma.cc/W4WQ-6DY5].And in one case, the accused and his employer denied that the allegations of harassment were related to his decision to resign. Rachel Monahan, Former Portland Mayor Sam Adams Has Abruptly Left his Job at a D.C. Think Tank, Willamette Week (Dec. 6, 2017), https://www.wweek.com/news/city/2017/12/06/former-portland-mayor-sam-adams-has-abruptly-left-his-job-at-a-d-c-think-tank/[https://perma.cc/6AJ2-W96A].
One evolving norm in the #MeToo era is that institutions generally conduct investigations. Out of the 95 cases in which the accused individual did not admit to wrongdoing or resign,171
Those who resign rather than face an investigation cannot complain about lack of process. See Stone v. Univ. of Maryland Med. Sys. Corp., 855 F.2d 167, 173–75 (4th Cir. 1988).
Many of the cases in which there was no employer investigation involved investigative journalism that uncovered corroborating evidence, such as the reporting on Harvey Weinstein. See supra note 21.
See, e.g., Amy Oppenheimer & Craig Pratt, Investigating Workplace Harassment: How to Be Fair, Thorough, and Legal 50 (2002).
Id. at 62.
Id. at 108–09; see also Dori Meinert, How to Investigate Sexual Harassment Allegations, SHRM (Jan. 8, 2018), https://www.shrm.org/hr-today/news/hr-magazine/0218/pages/how-to-investigate-sexual-harassment-allegations.aspx[https://perma.cc/R9DP-SH4D].
Oppenheimer & Pratt, supra note at 109 (explaining that if an employer applies the “beyond a reasonable doubt” standard and finds no harassment occurred, but then a civil jury finds that harassment did occur based on a “preponderance of the evidence,” there is a risk that the jury will “question the employer’s good faith and may award significant damages to the complainant.”).
Id. at 110.
Id.
The details of most internal investigations are confidential. But a number of these investigations have come out in favor of the accused.179
My focus is not the fairness of these investigations, because they are not unique features of the #MeToo moment, and they are not extralegal in the same sense; rather, they have insinuated themselves into the fabric of sexual harassment law. See, e.g., Lauren B. Edelman, Working Law: Courts, Corporations, and Symbolic Civil Rights 183–88 (2016).
See, e.g., German Lopez, The FBI Investigation of Kavanaugh Was Doomed from the Start, Vox (Oct. 5, 2018), https://www.vox.com/policy-and-politics/2018/10/5/17940738/fbi-investigation-kavanaugh-thorough-limits[https://perma.cc/V7P7-Z32Y].
Dykstra, supra note 148. With respect to sexual assault, Dykstra stated that “I let him sexually assault me.” Id. While Dykstra did not identify Hardwick by name, she included enough details to allow readers to identify him. Corinne Heller, Chris Hardwick Returning to AMC After
Sexual Assault Investigation, E! News (Jul. 25, 2018, 2:28 PM), https://www.eonline.com/news/944736/chris-hardwick-s-talk-show-pulled-by-amc-amid-sexual-assault-claims[https://perma.cc/CRV7-PZMF].
Heller, supra note 181 (reporting that AMC released the following statement: “We take these matters very seriously and given the information available to us after a very careful review, including interviews with numerous individuals, we believe returning Chris to work is the appropriate step”).
An Phung & Chloe Melas, Women Accuse Morgan Freeman of Inappropriate Behavior, Harassment, CNN (May 28, 2018, 11:56 PM), https://www.cnn.com/2018/05/24/entertainment/morgan-freeman-accusations/index.html[https://perma.cc/EM26-A27S].
David Robb, Morgan Freeman to Keep SAG Lifetime Achievement Award Following Harassment Probe, Fox news (Sept. 7, 2018), https://www.foxnews.com/entertainment/morgan-freeman-to-keep-sag-lifetime-achievement-award-following-harassment-probe[https://perma.cc/FXP6-GTDC].
Julia Jacobs, Junot Díaz Welcomed Back by Pulitzer Prize After Review into Sexual Misconduct Claims, Guardian (Nov. 19, 2018), https://www.theguardian.com/books/2018/nov/19/junot-diaz-welcomed-back-by-pulitzer-prize-after-review-into-sexual-misconduct-claims[https://perma.cc/ASL6-CQ3Z].
In other contexts, how strong the evidence must be to justify an employment decision and what type of evidence counts as corroborative has been the subject of debate. During the Kavanaugh confirmation hearings, some commentators argued that because of the importance of a Supreme Court appointment, the Senate should disqualify the nominee if there were “credible” evidence of sexual misconduct—a lower standard than the preponderance of the evidence.186
See, e.g., Kate Shaw, How Strong Does the Evidence Against Kavanaugh Need to Be?, N.Y. Times (Sept. 20, 2018), https://www.nytimes.com/2018/09/20/opinion/kavanaugh-blasey-allegation-disqualify.html[https://perma.cc/SG8P-5QBX].
David A. Graham, Susan Collins Says She Believes Survivors—Just Not Ford, Atlantic (Oct. 5, 2018), https://www.theatlantic.com/politics/archive/2018/10/susan-collinss-kavanaugh-sexual-assault/572347/[https://perma.cc/3YP7-7E8U](“This is not a criminal trial, and I do not believe that claims such as these need to be proved beyond a reasonable doubt. Nevertheless, fairness would dictate that the claims at least should meet a threshold of more likely than not as our standard.” (quoting Senator Collins)).
Abrams, supra note 113 (quoting Senator Collins). Later, Senator Collins stated that she thought Dr. Ford was mistaken about the identity of her assailant. Caroline Kelly, Collins: ‘I Do Not Believe That Brett Kavanaugh Was’ Ford’s Assailant, CNN (Oct. 7, 2018), https://www.cnn.com/2018/10/06/politics/collins-sotu-kavanaugh-cnntv/index.html[https://perma.cc/3G2W-KNDX].
Kavanaugh Hearing: Transcript, Wash. Post (Sept. 27, 2018), https://www.washingtonpost.com/news/national/wp/2018/09/27/kavanaugh-hearing-trascript/?utm_term=.b9d91041e335[https://perma.cc/653E-77AT](testimony of Christine Blasey Ford that “My husband recalls that I named my attacker as Brett Kavanaugh.”).
Thus, when public allegations of sexual assault, harassment, or misconduct are raised against high-level leaders, a set of informal norms has developed for evaluating whether those allegations warrant dismissal. These norms require that public allegations be vetted according to journalistic standards of verification, attribution, and seeking both sides. The allegations should be specific enough to permit the accused person to respond meaningfully and to allow for further scrutiny by the media and the public. Before action is taken, decision makers require an admission of misconduct by the accused, corroborative evidence, or a formal investigation. Terminations of high-level employees based on single accusations alone are deviations from these norms. Critics of #MeToo have brought to light few, if any, such cases.190
See supra notes 152 & 170 (collecting news stories on cases that might arguably fit into this category); infra notes 289–293 (discussing Andrea Ramsay).
IV. Responding to Procedural Objections
TOPThis Part defends #MeToo’s informal procedural system against the charge that it is unfair to the accused on procedural grounds. Overlooking the fact that legal procedures are not required in extralegal contexts, this Part addresses the fairness concerns that underlie the procedural justice critique. Specifically, it responds to the objections that #MeToo’s procedural norms are unenforceable; that survivors have waived their rights to complain informally by failing to use legal procedures; that only formal legal tribunals are equipped to handle claims; that #MeToo’s procedures fail to provide the accused with notice of the claims against them, a fair opportunity to respond, or the right to confront their accusers; and that consequences have been disproportionate to the severity of the misconduct. A close examination of cases in the #MeToo era demonstrates these complaints lack basis in fact or are not supported by principles of procedural fairness.
A. Unenforceability
TOPOne criticism of the rules of #MeToo, as I have described them, is that they are not “rules” at all; they are a loose set of informal standards without enforcement mechanisms. There is no guarantee that these norms will be applied consistently or apolitically. Opponents make slippery slope arguments about what might result from the lack of hard-and-fast rules to screen out frivolous or abusive allegations.191
See, e.g., Hemmingway, supra note 88 (“You can’t establish a precedent where anyone can make an unverifiable and murky claim against another person to kill his nomination and career.”); Benjamin Wittes, I Know Brett Kavanaugh, But I Wouldn’t Confirm Him, Atlantic (Oct. 2, 2018), https://www.theatlantic.com/ideas/archive/2018/10/why-i-wouldnt-confirm-brett-kavanaugh/571936/[https://perma.cc/SK9Z-P3CP](“Even assuming that Christine Blasey Ford’s allegations are entirely accurate, rejecting him on the current record could incentivize not merely other sexual-assault victims to come forward—which would be a salutary thing—but also other late-stage allegations of a non-falsifiable nature by people who are not acting in good faith.”).
Emily Yoffee, Why the #MeToo Movement Should Be Ready for a Backlash, Politico (Dec. 10, 2017), https://www.politico.com/magazine/story/2017/12/10/yoffe-sexual-harassment-college-franken-216057[https://perma.cc/PT3X-3K5N].
While journalistic standards such as accuracy, seeking both sides, and attribution are not legally enforceable on their own, investigative journalists operate in the shadow of defamation law.193
Kirtley, supra note 117, at 144–45. Libel, for example, is a tort that allows a plaintiff to sue a defendant who has made a false claim that damaged their reputation. In New York, to prove a claim of libel, a plaintiff must show: “(1) a written defamatory factual statement concerning the plaintiff; (2) publication to a third party; (3) fault; (4) falsity of the defamatory statement; and (5) special damages or per se actionability.” Chau v. Lewis, 771 F.3d 118, 126–27 (2d Cir. 2014). Allegations of sexual misconduct may qualify as per se actionable. Restatement (Second) of Torts, §574 (1977).
Kirtley, supra note 117, at 153 (explaining that “it is both easier and legally safer for journalists to rely on official sources. Conducting parallel and independent investigations exposes journalists to a greater risk of legal liability for inaccurate, incorrect, or defamatory statements, while relying on official sources protects them in their ‘fair reports’ of government documents and actions”).
Coronel, Coll, & Kravitz, supra note 128.
T. Rees Shapiro & Emma Brown, Rolling Stone Settles With Former U-Va. Dean in Defamation Case, Wash. Post (Apr. 11, 2017), https://www.washingtonpost.com/local/education/rolling-stone-settles-with-u-va-dean-in-defamation-case/2017/04/11/5a564532-1f02-11e7-be2a-3a1fb24d4671_story.html[https://perma.cc/39FG-Z27X].
Id. The defendants filed a motion to vacate the judgment, but the case settled before it was resolved. Id.
Eramo v. Rolling Stone, LLC, 209 F. Supp. 3d 862, 869 (W.D. Va. 2016).
New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964). “Reckless disregard” means that the defendants “entertained serious doubts as to the truth of [their] publication.” St. Amant v. Thompson, 390 U.S. 727, 730 (1968). Victims who are not public figures may generally prevail on the lesser showing that the defendant was negligent. Rodney A. Smolla, 1 Law of Defamation §3:30 (2d ed. 2018).
Eramo, 209 F. Supp. 3d at 871.
Like journalists, individual bloggers and social media users can be sued for libel for making accusations of sexual assault, harassment, and misconduct.201
Tyler Kingkade, As More College Students Say “MeToo,” Accused Men Are Suing for Defamation, BuzzFeed News (Dec. 5, 2017), https://www.buzzfeednews.com/article/tylerkingkade/as-more-college-students-say-me-too-accused-men-are-suing#.rlW1WVZPE[https://perma.cc/7W7U-TJTW].
Susan Seager, #MeToo Stories Can Lead to Libel Suits, The Wrap (Nov. 4, 2017), https://www.thewrap.com/brett-ratner-melanie-kohlier-sexual-assault-rape-hollywood-harvey-weinstein/[https://perma.cc/7SA6-6SQB](discussing how an accuser was persuaded to remove a Facebook post by the threat of a libel suit).
Id.
See supra note 191.
Abrams, supra note 113 (quoting Senator Collins).
See, e.g., David Bauder, NBC Faces Scrutiny for Interview with Kavanaugh Accuser, AP News (Oct. 3, 2018), https://www.apnews.com/c5ecf76c62ec4c398e35020b5df01061[https://perma.cc/G84H-HRJB];Michael E. Miller et al., Who is Julie Swetnick, the Third Kavanaugh Accuser?, Wash. Post (Oct. 1, 2018), https://www.washingtonpost.com/local/who-is-julie-swetnick-the-third-kavanaugh-accuser/2018/09/26/91e16ed8-c1bc-11e8-97a5-ab1e46bb3bc7_story.html[https://perma.cc/LFW9-848E].
See Lopez, supra note 180.
Senate Comm. on the Judiciary, Swetnick, Avenatti Referred for Criminal Investigation (Oct. 25, 2018), https://www.judiciary.senate.gov/press/rep/releases/swetnick-avenatti-referred-for-criminal-investigation[https://perma.cc/H9U3-KTL2].
Nicholas Fandos & Michael D. Shear, Before Kavanaugh Hearing, New Accusations and Doubts Emerge, N.Y. Times (Sept. 26, 2018), https://www.nytimes.com/2018/09/26/us/politics/kavanaugh-calendar.html [https://perma.cc/G3X4-84NB](discussing an individual from Rhode Island “who charged—and then recanted Wednesday night—that Judge Kavanaugh had raped a woman on a boat in 1985 in Newport, R.I.”).
See, e.g., Natasha Bertrand, Mueller Wants the FBI to Look at a Scheme to Discredit Him, Atlantic (Oct. 30, 2018), https://www.theatlantic.com/politics/archive/2018/10/special-counsel-refers-scheme-targeting-mueller-to-fbi/574411/[https://perma.cc/QCJ2-JV39].
See, e.g., Jill Abramson, The GOP Thinks #MeToo Is a Chance to Exploit the ‘Biased’ Press, Intelligencer (Nov. 19, 2018), http://nymag.com/intelligencer/2018/11/gop-thinks-metoo-is-a-chance-to-exploit-the-biased-press.html.
Beth Reinhard et al., Woman’s Effort to Infiltrate The Washington Post Dated Back Months, Wash. Post (Nov. 29, 2017), https://www.washingtonpost.com/investigations/womans-effort-to-infiltrate-the-washington-post-dates-back-months/2017/11/29/ce95e01a-d51e-11e7-b62dd9345ced896d_story.html[https://perma.cc/T252-G5E6].
Another concern is that the news media will not provide “due diligence” when accusations are brought against workers who do not possess fame, power, or prestige.213
Yoffee, supra note 192 (expressing the worry that the #MeToo movement “will eventually move past this moment of shocking allegations against famous men, and should soon focus on the many nonfamous people in quotidian circumstances. But top news organizations are not likely to provide as much due diligence about those cases”).
See generally Vicki Schultz, The Sanitized Workplace, 112 Yale L.J. 2061 (2003).
Id.
Arnow-Richman, supra note 19, at 89.
See, e.g., id. at 101–02.
B. Waiver, Timeliness, and Jurisdiction
TOPAnother procedural argument is that victims who failed to pursue relief through legal channels—like the civil and criminal law—should not be able to raise claims informally. This argument may be about waiver: that it is unfair for survivors who chose not to exercise their rights to legal relief to raise claims outside legal processes, especially after the lapse of time. Or it may be a jurisdictional point: that formal legal fora should have exclusive jurisdiction over claims of sexual assault and harassment, as informal processes are incompetent to handle such issues. This genre of argument rests on a number of false premises.
The “waiver” version of this argument rests on false premises regarding the availability of legal recourse. “Waiver” is a procedural doctrine that prevents a party from raising an issue when they had an opportunity to bring it up at some earlier point, but failed to do so. A key premise here is that a person had a fair opportunity and the incentive to raise an issue at an earlier point.218
See, e.g., United States v. Ticchiarelli, 171 F.3d 24, 32–33 (1st Cir. 1999) (“Whether there is a waiver depends not on counting the number of missed opportunities (hearings, motions, etc.) to raise an issue, but on whether the party had sufficient incentive to raise the issue in the prior proceedings.”).
See supra notes 33–58 and accompanying text. Professor Duncan Kennedy has called this the “tolerated residuum” of sexual abuse. Kennedy, supra note 116, at 1320. It serves not only the interests of abusers, but also the individual interests of those men who imagine themselves more likely to be falsely accused than sexually abused, and who wish to avoid the burden of worrying about “excess or inaccurate enforcement” of the law. Id.
See, e.g., #WhyIDidntReport, Twitter, https://twitter.com/hashtag/WhyIDidntReport[https://perma.cc/FCG7-JBGS].
Zacharek, supra note 59.
Those recent cases in which the law has achieved ostensible successes only go to show the law’s abject failure. Twenty-years of complaints against USA Gymnastics doctor Larry Nassar by young gymnasts were not taken seriously until the police found child pornography on his hard drive.222
Kerry Howley, Everyone Believed Larry Nassar. The Predatory Trainer May Have Just Taken Down USA Gymnastics. How Did He Deceive So Many For So Long?, The Cut (Nov. 19, 2018), https://www.thecut.com/2018/11/how-did-larry-nassar-deceive-so-many-for-so-long.html[https://perma.cc/C4W6-3BQA](“Over the course of at least 20 years of consistent abuse, women and girls reported to every proximate authority.”).
Noreen Malone & Amanda Demme, ‘I’m No Longer Afraid’: 35 Women Tell Their Stories About Being Assaulted by Bill Cosby, and the Culture that Wouldn’t Listen, The Cut (July 26, 2015), https://www.thecut.com/2015/07/bill-cosbys-accusers-speak-out.html#barbara-bowman[https://perma.cc/PAY5-BHR2].
Eliana Dockterman, ‘I Was Angry.’ Taylor Swift on What Powered her Sexual Assault Testimony, Time (Dec. 6, 2017), http://time.com/5049659/taylor-swift-interview-person-of-the-year-2017/[https://perma.cc/3767-N3Y2].
Id.
Id.
Id. (“When I testified, I had already been in court all week and had to watch this man’s attorney bully, badger and harass my team including my mother over inane details and ridiculous minutiae, accusing them, and me, of lying.”).
Id.
Another version of this argument is about timeliness—that victims are using the court of public opinion to circumvent the statutes of limitations that apply to civil and criminal cases, long after evidence has gone stale, memories have faded, and social norms about appropriate conduct have changed.229
See, e.g., United States v. Kubrick, 444 U.S. 111, 117 (1979) (explaining that statutes of limitations provide defendants with “repose,” “encourage the prompt presentation of claims,” and “protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise.”).
Cf. Jessica Henderson Daniel, Statement of APA President Regarding the Science behind Why Women May Not Report Sexual Assault, Am. Psychol. Ass’n (Sept. 24, 2018), https://www.apa.org/news/press/releases/2018/09/report-sexual-assault.aspx[https://perma.cc/N8NW-3FYK](explaining that survivors may not report for any number of reasons, including “fear for their safety, being in shock, fear of not being believed, feeling embarrassed or ashamed, or expecting to be blamed.”).
Anne Lawton, Tipping the Scales of Justice in Sexual Harassment Law, 27 Ohio N.U. L. Rev. 517, 519–22 (2001) (criticizing the short statute of limitations for sexual harassment claims, and pointing out that, for example, under Ohio law there is a four-year statute of limitations for breach of a sales contract).
See Jamie R. Abrams, The #MeToo Movement: An Invitation for Feminist Critique of Rape Crisis Framing, 52 U. Rich. L. Rev. 749, 769–70 (2018).
Yet another variation on this argument is that the court of public opinion is ill-suited for truth-finding, so real courts should have exclusive jurisdiction. This argument overestimates the truth-finding capacity of the criminal justice system, which is focused on plea bargaining,233
See, e.g., George Fisher, Plea Bargaining’s Triumph, 109 Yale L.J. 857, 859 (2000) (discussing how the criminal justice system is dominated by plea bargaining); Thea Johnson, Fictional Pleas, 94 Ind. L.J. 855, 857 (2019) (discussing “fictional pleas” in which offenders plead guilty to crimes they did not commit to avoid trials that place them at risk of extreme consequences).
See, e.g., Judith Resnik, Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III, 113 Harv. L. Rev. 924, 925 (2000).
As the Supreme Court has reflected:
A responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field. Its function in this regard is documented by an impressive record of service over several centuries. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.
Sheppard v. Maxwell, 384 U.S. 333, 350 (1966). The Duke Lacrosse incident provides one example of how the press can serve as a check on irresponsible prosecutors. See, e.g., supra note 130 and accompanying text.
See, e.g., Joanna Piacenza, How #MeToo Impacts Viewers’ Decisions on What to Watch, Morning Consult (May 28, 2018), https://morningconsult.com/2018/05/28/how-metoo-impacts-viewers-decisions-what-watch/[https://perma.cc/TJ8S-A7FK](surveying 2202 U.S. adults about whether allegations of misconduct against twenty performers would affect their viewership, and finding that “allegations against only two — Kevin Spacey and Louis C.K. — spurred more people to say their viewership habits would change as a result”).
See supra Section III.B.
Stephen N. Subrin et al., Civil Procedure: Doctrine, Practice, and Context 1024–25 (4th ed. 2012).
Id.
What standard of proof ought to apply when a person holding or seeking high office is publicly accused of sexual misconduct has appropriately been the subject of public debate.240
See supra notes 186–189 and accompanying text.
See, e.g., Daniel Hemel, Burdens of Proof for Sexual Misconduct Claims in Senate Confirmations and on College Campuses, Medium (Sept. 23, 2018), https://medium.com/whatever-source-derived/burdens-of-proof-for-sexual-misconduct-claims-in-senate-confirmations-and-on-college-campuses-ed6347713674[https://perma.cc/3BYD-NTU9].
See Shaw, supra note 186.
See Hemel, supra note 241.
See id. (discussing the substantial evidence standard); Shaw, supra note 186 (arguing for a “credible accusation” standard).
See Hemel, supra note 241.
Career consequences and reputational harms for the accused are relevant but too often overvalued. The decisions of any particular institutional decisionmaker, consumer, or audience member on the merits of a #MeToo claim do not bind all others.246
Different employers may conduct their own investigations, see, e.g., Jacobs, supra note 185, and may sometimes reach different conclusions, see, e.g., Erik Wemple, CNN Reinstates Ryan Lizza, Wash. Post (Jan. 25, 2018), https://www.washingtonpost.com/blogs/erik-wemple/wp/2018/01/25/cnn-reinstates-ryan-lizza/?utm_term=.afb7cd3dd9b4[https://perma.cc/YU3G-2RMD].
See Hemel, supra note 241.
Id.
[1] See supra note 156 (citing sources re-evaluating of the accusations against former Senator Al Franken over a year after his resignation).
See Hemel, supra note 241 (discussing the consequences of the allegation for Christine Blasey Ford, who went into hiding with her family to avoid harassment).
C. Notice and Hearing
TOPAnother set of concerns relates to the basic due process principle that “a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it.”251
Mathews v. Eldridge, 424 U.S. 319, 348 (1976) (alteration in original) (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 171–72 (1951) (Frankfurter, J., concurring)).
Henry J. Friendly, “Some Kind of Hearing”, 123 U. Pa. L. Rev. 1267, 1267 (1975) (quoting Wolff v. McDonnell, 418 U.S. 539, 557–58 (1974)).
Mathews, 424 U.S. at 335 (setting forth an inquiry that considers three factors: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail”).
Lack of notice does not seem to be the main due process complaint in the #MeToo era. Unlike some Title IX proceedings and workplace investigations, the defining feature of #MeToo reporting is that allegations are made publicly, with detailed news coverage. Before a story is even published, journalistic standards require that a person accused of serious misconduct be given an opportunity to respond, along with enough information about the story to make that response meaningful.254
This was a failing of the reporting by Rolling Stone on rape at the University of Virginia. Coronel, Coll, & Kravitz, supra note 128 (“If both the reporter and checker had understood that by policy they should routinely share specific, derogatory details with the subjects of their reporting, Rolling Stone might have veered in a different direction.”).
See supra Section III.A.
The objection might be that there is no trial-like procedure with a neutral adjudicator that would allow individuals accused of sexual misconduct to clear their names. However, in many cases, employers hire outside investigators to conduct formal investigations and announce the results publicly.256
See supra notes 173–185 and accompanying text.
See Arnow-Richman, supra note 19, at 92.
Even when the accused person does not have contractual protections, principles of due process do not require a formal trial. Cases in which a public employee is entitled to a “name clearing hearing” to rebut a public charge of misconduct made by a government employer are instructive here.258
For more discussion of “name clearing hearings,” see supra notes 93–94 and accompanying text.
See, e.g., Wojcik v. Massachusetts State Lottery Comm’n, 300 F.3d 92, 103 (1st Cir. 2002) (“The purpose of the hearing is only to allow the employee to clear his name of the false charges; compliance with formal procedures is not necessarily required.”); Moody v. Cty. of Santa Clara, No. 5:15-CV-04378-EJD, 2018 WL 2267662, at *4 (N.D. Cal. May 17, 2018) (“Due process imposes no hard and fast requirements on what constitutes an adequate ‘name-clearing’ hearing, including, for example, whether it must be public, evidentiary in nature, or held prior to deprivation of the liberty or property interest.”).
See, e.g., Gunasekera v. Irwin, 551 F.3d 461, 469–71 (6th Cir. 2009) (applying the balancing test from Mathews v. Eldridge, 424 U.S. 319, 348 (1976)).
See, e.g., Harrell v. Cty of Gastonia, 392 Fed. App’x 197, 205 (4th Cir. 2010) (“[G]overnmental officials conducting such hearings will often be employed by the same governmental entity that made the decision being challenged, and those officials are still presumed to be fair and impartial in conducting proceedings.”).
See, e.g., Baden v. Koch, 799 F.2d 825, 832 (2d Cir. 1986) (holding that the plaintiff “could presumably have called a press conference and provided any further defense of his record or explanation of his removal from office that he desired to give”); see also Moody, 2018 WL 2267662, at *4.
Baden, 799 F.2d at 832; see also Esposito v. Metro-N. Commuter R. Co., 856 F. Supp. 799, 807–08 (S.D.N.Y. 1994) (“[A]s plaintiff concedes, because media interest in his story was so intense, he had, and took advantage of, ready and pervasive access to the public to refute the allegations against him. Indeed, as the plethora of newspaper articles contained in the record demonstrates, plaintiff was not shy about publishing his version of events, and the media was more than willing to report it”).
Cf. Baden, 799 F.2d at 833 (“If we were to hold that a government executive’s public statement of reasons for a discretionary personnel decision automatically triggered a requirement for a formal trial-type hearing, executives would be tempted to refrain from explaining their personnel actions in public, a result contrary to the strong policy of maintaining an informed electorate.”).
Another variation on this complaint is that the decision makers under the rules of #MeToo—such as boards of directors, corporate officers, voters, political party leaders, consumers, or audiences—are prone to conflicts of interest and motivated reasoning.265
It is not clear which direction biases will point in. For example, some survey evidence suggests that sexual misconduct allegations have little effect on film and television audiences, with some audience members reporting they are more likely to watch a performer after accusations emerge. Piacenza, supra note 236.
See Arnow-Richman, supra note 19, at 86 (“With harassment in the spotlight, many [employers] are likely to conclude that a swift and severe response to any allegation of misconduct is the only way to avoid a public relations nightmare.”). With respect to high level employees, institutions may have countervailing incentives to protect incumbent leadership. Id. at 87.
Cf. Hemmingway, supra note 88 (describing the Ford-Kavanaugh hearings as “[a] Senate star chamber full of grandstanding senators on both sides”).
D. Confrontation
TOPAnother complaint might be that there is no opportunity to confront the accuser, to cross-examine them, or to otherwise scrutinize their account. But, for the most part, decision makers have not acted on disputed allegations against high-level perpetrators unless accusers have been willing to come forward and respond to scrutiny.
The complaint about the right to confrontation may overstate what the law requires. In criminal cases, the Sixth Amendment affords a right of confrontation;268
U.S. Const. amend. VI.
See Fed. R. Evid. 801–07.
See, e.g., Miller v. Metrocare Servs., 809 F.3d 827, 834 (5th Cir. 2016) (“[W]e decline Miller’s invitation to make confrontation of witnesses a mandatory requirement for an adequate name-clearing hearing.”); Chilingirian v. Boris, 882 F.2d 200, 206 (6th Cir. 1989) (holding that a name-clearing hearing did not violate due process even though the plaintiff was not permitted to cross-examine city council members who had voted for his termination or to require that they answer questions he had submitted).
See, e.g., Feterle v. Chowdhury, 148 F. App’x 524, 532 (6th Cir. 2005) (holding that due process was satisfied even though an employee accused of discriminatory misconduct was not provided the names of witnesses who had contributed to a report that was part of the basis for terminating him).
Doe v. Baum, 903 F.3d 575, 578 (6th Cir. 2018) (“[I]f a university is faced with competing narratives about potential misconduct, the administration must facilitate some form of cross-examination in order to satisfy due process.”).
Id. at 582.
H. Hunter Bruton, Cross-Examination, College Sexual-Assault Adjudications, and the Opportunity for Tuning Up the “Greatest Legal Engine Ever Invented”, 27 Cornell J.L. & Pub. Pol’y 145 (2017) (collecting and assessing empirical research). Cross-examination may suggest that the key to the truth is a witness’s demeanor, but “scientific evidence proves that most, if not all, readily observable behavioral cues assumed to indicate deceit do not actually do so.” Id. at 155–56. Under the stress of cross-examination, “many cope by simply changing their story regardless of their original answers’ veracity,” particularly victims of sexual abuse. Id. at 165. While cross-examination allows lawyers to point out inconsistencies, even truthful witnesses are sometimes unable to recall precise details, and so the technique “highlights the errors of well-intentioned and deceptive witnesses alike.” Id. at 158.
See Suzanne B. Goldberg, Keep Cross-Examination Out of College Sexual-Assault Cases, Chronicle of Higher Ed. (Jan. 10, 2019), https://www.chronicle.com/article/Keep-Cross-Examination-Out-of/245448?cid=wcontentlist_hp_5[https://perma.cc/5DM2-ZHXH].
See, e.g., Furey v. Temple Univ., 884 F. Supp. 2d 223, 252 (E.D. Pa. 2012) (holding that prohibiting the student-plaintiff from personally cross-examining the witnesses did not violate due process because the student “was able to cross examine the witnesses by posing questions through the [panel’s] Chair”).
In the #MeToo context, reporters are wary of coming forward with stories in which accusers refuse to be named publicly.277
SPJ Ethics Comm., Position Papers, Anonymous Sources, https://www.spj.org/ethics-papers-anonymity.asp[https://perma.cc/AV6S-KVBD](last visited Jan. 15, 2019) (discussing the principles that sources should be identified “whenever feasible” and journalists should “[a]lways question sources’ motives before promising anonymity”). The use of an anonymous source should require a supervisor’s approval, and many news organizations have policies on the question. Id.; see also Anonymous Sourcing, NPR Ethics Handbook (accessed Jan. 15, 2019), http://ethics.npr.org/tag/anonymity/[https://perma.cc/2B4Z-TSU9].
Poynter Staff, supra note 19.
See, e.g., Oliver Darcy, Five Women Accuse Journalist and ‘Game Change’ Co-Author Mark Halperin of Sexual Harassment, CNN (Oct. 27, 2017), https://money.cnn.com/2017/10/25/media/mark-halperin-sexual-harassment-allegations/index.html[https://perma.cc/8L3B-EV3S];Irene Plagianos & Kitty Greenwald, Mario Batali Steps Away From Restaurant Empire Following Sexual Misconduct Allegations, Eater (Dec. 11, 2017, 8:01 AM), https://ny.eater.com/2017/12/11/16759540/mario-batali-sexual-misconduct-allegations[https://perma.cc/3X4B-C2PM];Jenn Ableson & Sacha Pfeiffer, Modeling’s Glamour Hides Web of Abuse, Boston Globe (Feb. 16, 2018), https://www.bostonglobe.com/metro/2018/02/16/beauty-and-ugly-truth/c7r0WVsF5cib1pLWXJe9dP/story.html[https://perma.cc/WTH7-PT98](reporting that three anonymous models accused “Karl Templer, a top stylist, of yanking their breasts, touching their crotches, or aggressively pulling down their underwear without asking them during shoots,” which Templer denied).
See Coronel, Coll, & Kravitz, supra note 128; Poynter Staff, supra note 19 (“Although you may not be naming a source in a story, in most cases it is appropriate to reveal accusers’ names to the accused.”).
Plagianos & Greenwald, supra note 279 (quoting a statement from Mario Batali); see also Darcy, supra note 279 (quoting a statement in which Halperin apologized for pursuing relationships with junior colleagues).
Employers are wary of acting on anonymous allegations. During the confirmation hearings for Justice Kavanaugh, for example, the Senate did not act on leaked information about Dr. Ford’s allegations until she came forward.282
Eli Watkins, Timeline: How the Kavanaugh Accusations Have Unfolded, CNN (Sept. 17, 2018), https://www.cnn.com/2018/09/17/politics/kavanaugh-ford-timeline/index.html[https://perma.cc/4NST-TDLH].
See, e.g., Frank Pallotta, John Lasseter Joins Skydance Media After Leaving Disney Following Misconduct Allegations, CNN Business (Jan. 9, 2019), https://www.cnn.com/2019/01/09/media/john-lasseter-skydance/index.html[https://perma.cc/5UBT-G53G](discussing an investigation conducted after unnamed sources alleged sexual harassment); Maureen Ryan, ‘Supergirl,’ ‘Arrow’ Producer Suspended Amid Sexual Harassment Allegations by Warner Bros., Variety (Nov. 10, 2017), https://variety.com/2017/tv/news/warner-bros-sexual-harassment-andrew-kreisberg-1202612522/[https://perma.cc/DKX4-XYPR](discussing how inquiries by Variety about anonymous allegations of harassment prompted an investigation by the Warner Brothers’ human resources department).
See Busch, supra note 170; Schneider, supra note 170. In another case, an employer acted on the report of a source who was known to it and the accused but whose story was not disclosed to the public. See, e.g., Liam Stack, Ryan Lizza Fired by The New Yorker over Sexual Misconduct Allegation, N.Y. Times (Dec. 11, 2017), https://www.nytimes.com/2017/12/11/business/ryan-lizza-sexual-misconduct.html[https://perma.cc/T4XT-82W5].There may be cases in which employers acted on anonymous reports that were not included in the New York Times’ list. See supra note 152.
When victims do come forward, their accounts do not evade scrutiny. The prospect of this public scrutiny is a factor that deters reporting.285
See, e.g., Steel, supra note 38 (discussing how Bill O’Reilly hired a private investigator to find damaging information about one accuser).
Miller et al., supra note 206.
See, e.g., Maria Halkias, Scandal Surrounding Alleged Extramarital Affair of Former U.S. Hispanic Chamber Leaders from Dallas Moves into Court, Dallas News (July 17, 2018), https://www.dallasnews.com/business/business/2018/07/17/charges-surrounding-extramarital-affair-former-us-hispanic-chamber-leaders-dallas-moves-court[https://perma.cc/X2RU-MUU2];Weiss, supra note 152.
Bauder, supra note 206.
One exception to the norm that victims come forward involves a woman accused of sexual harassment, Andrea Ramsay, who dropped out of her race to become the democratic nominee for a congressional seat in Kansas in December 2017.289
Lindsay Wise & Bryan Lowry, Kansas Dem Andrea Ramsey, Accused of Sexual Harassment, Will Drop Out of U.S. House Race, Kan. City Star (Dec. 15, 2017), https://www.kansascity.com/news/politics-government/article189931704.html.
Id. Court documents include very few details about the incident. An EEOC charge attached to the complaint states: “In late March 2005, [Ramsay] made sexual advances toward [the plaintiff] on a business trip,” and that after the plaintiff told Ramsay he was not interested in her, she terminated him. Complaint, Funkhouser v. LabOne, Inc., No. 05-cv-02458 (D. Kan. Oct. 25, 2005).
Andrea Ramsey Letter: ‘I Never Engaged in Any of the Alleged Behavior,’ Kan. City Star (Dec. 15, 2017), https://www.kansascity.com/news/politics-government/article189934114.html.
Wise & Lowry, supra note 289 (Ramsay is quoted as saying “All I can say is the matter has been resolved.”).
Two democratic representatives have publicly questioned the DCCC’s decision to withdraw its support for Ramsay. Maggie Severns & Marianne Levine, Both Parties Face Dissent over Handling of #MeToo, Politico (Jan. 29, 2018, 5:01 AM), https://www.politico.com/story/2018/01/29/congress-sexual-harassment-metoo-372855[https://perma.cc/F7Y2-KA6K].
E. Proportionality
TOPAnother criticism is that the consequences for the accused are not proportional to the severity and likelihood of the accusations. Commentators fear false equivalences and extreme penalties. For example, talk show host Gayle King has said, “I think when a woman makes an accusation, the man instantly gets the death penalty. There has to be some sort of due process here. All of these inappropriate behaviors are not all the same.”294
Audie Cornish, Gayle King Thinks #MeToo Needs Due Process, N.Y. Times Mag. (June 12, 2018), https://www.nytimes.com/2018/06/12/magazine/gayle-king-thinks-metoo-needs-due-process.html[https://perma.cc/HUW9-BH7G];see also Traister, supra note 66 (“MSNBC’s Mike Barnicle, himself once having been returned to power after a plagiarism scandal, has mourned publicly for the injury done to his friend and former colleague Mark Halperin, who got canned after being accused of pushing his penis against younger female subordinates: ‘He deserves to have what he did deplored,’ Barnicle declared. ‘But does he deserve to die? How many times can you kill a guy?’”).
Not only do disproportionate penalties offend basic fairness, but treating all instances of sexual misconduct with “zero-tolerance” can make rules against misconduct less effective. Feldblum & Lipnic, supra note 41 (explaining that “zero tolerance” rules “may contribute to employee under-reporting of harassment, particularly where they do not want a colleague or co-worker to lose their job over relatively minor harassing behavior–they simply want the harassment to stop”).
With respect to high-profile cases, it is not true that consequences have been either automatic or terminal. The public cannot keep track of accusations against celebrities, and it tends to forgive and forget.296
Piacenza, supra note 265 (discussing polling data and quoting public relations executives).
Don’t Miss Bill O’Reilly’s ‘No Spin News’ on Newsmax TV, Newsmax (Nov. 20, 2018), https://www.newsmax.com/newsmax-tv/bill-oreilly-no-spin-news-newsmaxtv/2018/03/28/id/851260/[htttps://perma.cc/6XR6-SG6T].
See Wemple, supra note 246.
Adrienne Lafrance, The New York Times’s Glenn Thrush Dilemma, Atlantic (Jan. 9, 2018), https://www.theatlantic.com/business/archive/2018/01/american-newsrooms-are-covering-sexual-harassmentbut-whats-happening-inside-the-newsrooms-themselves/550058/[https://perma.cc/8S5V-96TS].
See, e.g., Al Franken, https://soundcloud.com/user-490403240[https://perma.cc/AER9-JP4Y](podcast hosted by Franken with guests including Norm Ornstein, E.J. Dionne, Michael Lewis,and Dana Carvey); Dahlia Lithwick, How Would Al Franken Question Attorney General Nominee William Barr?, Slate (Jan. 15, 2019), https://slate.com/news-and-politics/2019/01/how-al-franken-would-question-william-barr.html[https://perma.cc/W7HH-BA2K](interviewing Franken); Al Franken, Kavanaugh Supreme Court Hearings Showcase Republican Partisanship, Hypocrisy: Al Franken, USA Today (Sept. 7, 2018), https://www.usatoday.com/story/opinion/2018/09/07/brett-kavanaugh-supreme-court-hearings-showcase-republican-hypocrisy-column/1215578002/[https://perma.cc/5P3Y-VQ9Q].But see Mayer, supra note 156 (observing that the level of public interest in Franken is a shadow in comparison to his past celebrity as “the most recognizable figure in the Senate”).
Crenshaw, supra note 69 (“A crass effort to marshal his considerable talent to sing his way to clemency, ‘I Admit’ is a coyly titled work of audience-trolling in the vein of O.J. Simpson’s memoir of his ex-wife’s murder case, If I Did It.”).
Elizabeth A. Harris & Ben Sisario, Why It Could be Hard to Mute R. Kelly, N.Y. Times (Jan. 13, 2019), https://www.nytimes.com/2019/01/13/arts/music/mute-r-kelly.html[https://perma.cc/6P9W-8FAH].
Louis CK: I’ve Been ‘to Hell and Back’ and Lost $35 Million, Laughspin (Oct. 12, 2018), https://laughspin.com/louis-ck-west-side-comedy-club-sexual-misconduct/[https://perma.cc/ZY8E-58AB].C.K. is one of the world’s highest paid comedians, reportedly earning $52 million in the twelve months prior to June 2017. Madeline Berg, Louis C.K.’s Losses: How Much the Sexual Misconduct Scandal May Cost the Comedian, Forbes (Nov. 10, 2017), https://www.forbes.com/sites/maddieberg/2017/11/10/louis-c-k-s-losses-how-much-the-sexual-misconduct-scandal-may-cost-the-comedian/#2051da615801[https://perma.cc/H8FL-A9EA].
Anna North, Aziz Ansari’s New Standup Set, and its Complicated, Necessary Role in #MeToo, Vox (Mar. 20, 2019), https://www.vox.com/2019/3/20/18263783/aziz-ansari-tour-2019-sexual-misconduct-allegations[https://perma.cc/2FCV-KVWJ](describing the themes of a recent comedy performance by Ansari as “personal growth and political progress”). See also Doreen St. Félix, The Productive Ambivalence of Aziz Ansari in his Comeback Netflix Special, New Yorker (July 13, 2019), https://www.newyorker.com/culture/cultural-comment/the-productive-ambivalence-of-aziz-ansari-in-his-comeback-netflix-special[https://perma.cc/N3PH-257F].
This is not to diminish the lost opportunities and career consequences these men have faced. Nor is it to condone mobbing behaviors such as online insults, threats, trolling, or doxing, whether that mobbing is aimed at the accuser or the accused.305
“Doxing” is the spread of personal information about an individual in an effort to facilitate harassment. See Leigh Honeywell, Staying Safe When You Say #MeToo, ACLU (Feb. 12, 2018), https://www.aclu.org/blog/privacy-technology/internet-privacy/staying-safe-when-you-say-metoo[https://perma.cc/P4W3-8S7V].Unfortunately, online mobbing is a risk for accusers. Id.
The “disproportionality” argument may misunderstand the severity of sexual assault, harassment, and misconduct. It may be based on an all-or-nothing view—long reflected in criminal law—that the problem is an exceptional phenomenon perpetrated by a small number of predators.306
See Anderson, supra note 36, at 1953.
See Schultz, supra note 67.
Melena Ryzik et al., Louis C.K. Is Accused by 5 Women of Sexual Misconduct, N.Y. Times (Nov. 9, 2017), https://www.nytimes.com/2017/11/09/arts/television/louis-ck-sexual-misconduct.html[https://perma.cc/PM3E-H5QZ].
Laurie Kilmartin, Being a Female Comic in Louis C.K.’s World, N.Y. Times (Nov. 10, 2017), https://www.nytimes.com/2017/11/10/opinion/sunday/louis-ck-harassment.html[https://perma.cc/FPE4-RR4A].
Ryzik et al., supra note 308.
See, e.g., Manne, supra note 105, at 225–38.
See Dartunorro Clark, Al Franken Accused of Forcibly Kissing, Groping Leeann Tweeden, NBC News (Nov. 16, 2017), https://www.nbcnews.com/politics/congress/sen-al-franken-accused-forcibly-kissing-groping-woman-n821381[https://perma.cc/GL9H-BM8U].One commentator has said about this photo: “I found it an inoffensive burlesque of a burlesque—they were, after all, on a USO tour, which is a raunchy vaudeville throwback.” Yoffe, supra note 156. Cf. Mayer, supra note 156 (quoting an individual who was present when the photo was taken as explaining that the picture was a reference to a skit in which Franken’s character attempted to grope Tweeden’s character on the pretense of performing a breast examination). Modern day burlesque might be a sexually liberatory form of feminist camp, but only if all the performers are in on the joke. At best, the picture shows Franken treating Tweeden like a prop, not a performer. About the picture, Franken himself said:
It’s obvious how Leeann would feel violated by that picture. And, what’s more, I can see how millions of other women would feel violated by it—women who have had similar experiences in their own lives, women who fear having those experiences, women who look up to me, women who have counted on me.
Associated Press, Statement by Sen. Al Franken on Sexual Harassment Allegation, AP (Nov. 16, 2017), https://www.apnews.com/3adcb145c40341c384208dcc036d2429[https://perma.cc/L6QB-K4EP].
Kirsten Gillibrand, Senator Franken Should Step Aside, Facebook (Dec. 6, 2017), https://www.facebook.com/KirstenGillibrand/posts/senator-franken-should-step-asidei-have-been-shocked-and-disappointed-to-learn-o/10155471770513411/[https://perma.cc/W48V-B6HW](“We should demand the highest standards, not the lowest, from our leaders, and we should fundamentally value and respect women.”).
Another version of the “death penalty” argument is that there is no path to redemption. Yet there are few examples of attempts at meaningful amends.314
Wexler, Robbennolt, & Murphy, supra note 29, at 31 (discussing NFL player Ray Rice’s meaningful efforts at redemption after being caught on video assaulting his then-girlfriend).
Id. at 22–33.
Benedict Carey, Therapy for Sexual Misconduct? It’s Mostly Unproven, N.Y. Times (Nov. 27, 2017), https://www.nytimes.com/2017/11/27/health/sexual-harassment-addiction-treatment.html[https://perma.cc/4A52-BYUM];Amy Chozick, Where’s Harvey?, N.Y. Times (Mar. 9, 2018), https://www.nytimes.com/2018/03/09/style/harvey-weinstein-in-arizona.html[https://perma.cc/8BBJ-EZPR].
See, e.g., Sean O’Neal, The Tortured Mind of Dan Harmon, GQ (May 30, 2018), https://www.gq.com/story/dan-harmon-rick-and-morty-profile[https://perma.cc/489Q-8QKL](describing the successful career of Dan Harmon, who apologized for harassment in January 2018); Stacy Perman, John Lasseter is Attempting Hollywood’s Biggest #MeToo Comeback. How’s that Going?, L.A. Times (Jan. 27, 2019), https://www.latimes.com/business/hollywood/la-fi-ct-lasseter-skydance-testcase-20190124-story.html[https://perma.cc/2C43-F75K](discussing controversy over the hiring of John Lasseter to run the animation division of Skydance Media after he had apologized for “missteps” at his previous job).
A more general problem with the disproportionality argument is that it frames the goals of #MeToo’s procedures as “retribution” rather than “replacement.”318
See Traister, supra note 66.
See, e.g., Judy Faber, CBS Fires Don Imus over Racial Slur, CBS News (July 16, 2007), https://www.cbsnews.com/news/cbs-fires-don-imus-over-racial-slur/[https://perma.cc/9462-V2PD];John Koblin, After Racist Tweet, Roseanne Barr’s Show Is Canceled by ABC, N.Y. Times (May 29, 2018), https://www.nytimes.com/2018/05/29/business/media/roseanne-barr-offensive-tweets.html[https://perma.cc/CUP9-3CYP].
See, e.g., John Patterson, Is All Forgiven? The Strange, Troubling Resurgence of Mel Gibson, Guardian (Nov. 23, 2017), https://www.theguardian.com/film/2017/nov/23/mel-gibson-hollywood-road-rehabilitation[https://perma.cc/S79M-LUBS].
See, e.g., John Koblin & Emily Steel, Brian Williams Gets New Role at Lower Salary, N.Y. Times (June 18, 2015), https://www.nytimes.com/2015/06/19/business/media/brian-williams-nbc-lester-holt.html[https://perma.cc/64BT-MAT8](lies about a helicopter incident in Iraq); James B. Stewart, In the Undoing of a CEO, a Puzzle, N.Y. Times (May 18, 2012), https://www.nytimes.com/2012/05/19/business/the-undoing-of-scott-thompson-at-yahoo-common-sense.html[https://perma.cc/L8EA-XZZ4](fabricating a college degree to embellish a resume).
See, e.g., Chris Tognotti, Whatever Happened to John Edwards? The North Carolina Senator’s Fall from Grace Was Quick & Absolute, Bustle (Nov. 5, 2015), https://www.bustle.com/articles/121572-whatever-happened-to-john-edwards-the-north-carolina-senators-fall-from-grace-was-quick-absolute[https://perma.cc/G62N-KNBK].
Conclusion
TOPUnder the rules of #MeToo, anyone could one day be in the position of evaluating public accusations of sexual misconduct against political figures, entertainers, or executives. Although we may not be state actors, we should take due process seriously. We should consider the source of information and critically evaluate media based on whether it conforms to journalistic standards such as seeking both sides, attribution, and verification. We should not act based on allegations that have not been vetted or are not sufficiently specific to enable the accused to respond meaningfully. We should insist on independent investigations where appropriate. We should apply different considerations to those seeking high office, fame, and fortune and those just seeking to make a living. We should recognize that not all sexual misconduct is equally harmful. But we should not carve out exceptional protections for those accused of sexual forms of misconduct. The #MeToo movement has accomplished something unprecedented in removing abusive leaders from positions of power. The movement should continue to reflect critically on procedural justice if it hopes to achieve a future in which sexual harassment and assault disqualify a person from holding immense power.
- 1Catharine A. MacKinnon, #MeToo Has Done What the Law Could Not, N.Y. Times (Feb. 4, 2018), https://www.nytimes.com/2018/02/04/opinion/metoo-law-legal-system.html[https://perma.cc/J7QL-BZD2].
- 2See infra notes 31–58, 219–228 and accompanying text.
- 3See infra notes 49–58 and accompanying text.
- 4Cf. Pamela K. Bookman & David L. Noll, Ad Hoc Procedure, 92 N.Y.U. L. Rev. 767, 774 (2017) (“Ad hoc procedure overcomes problems that cannot be solved using the existing procedural structures, and may be necessary to ensure that the civil justice system is able to provide the ordinary desiderata of civil litigation in cases that defy customary judicial management.”).
- 5See Melissa Murray, Consequential Sex: #MeToo, Masterpiece Cakeshop, and Private Sexual Regulation, 113 Nw. L. Rev. 825, 833 (2019) (“#MeToo and its efforts respond directly to the view that the state has failed to impose appropriate consequences on those who commit sexual harassment and sexual assault.”). Cf. Deborah Tuerkheimer, Unofficial Reporting in the #MeToo Era, 2019 U. Chi. Legal F. 273, 276 (2019) (discussing how “#MeToo has catalyzed the creation of new channels for reporting sexual misconduct without directly invoking the legal system or law-adjacent institutional structures”).
- 6Audrey Carlsen et al., #MeToo Brought Down 201 Powerful Men. Nearly Half of Their Replacements Are Women., N.Y. Times (Oct. 29, 2018), https://www.nytimes.com/interactive/2018/10/23/us/metoo-replacements.html[https://perma.cc/VTM3-KDJ].
- 7See Measuring the #MeToo Backlash,The Economist (Oct. 20, 2018), https://www.economist.com/united-states/2018/10/20/measuring-the-metoo-backlash[https://perma.cc/65LW-CAF7](reporting that “18% of Americans now think that false accusations of sexual assault are a bigger problem than attacks that go unreported or unpunished, compared with 13% in November last year” based on YouGov polls of 1500 Americans).
- 8See Emily Stewart, Trump Wants “Due Process” for Abuse Allegations. I Asked 8 Legal Experts What That Means, Vox (Feb. 12, 2018), https://www.vox.com/policy-and-politics/2018/2/11/16999466/what-is-due-process-trump(“[A]s more and more figures face consequences —financial, political, professional, and legal—for their bad behavior, one term that comes up over and over again is ‘due process.’”).
- 9See Masha Gessen, Sex, Consent, and the Dangers of ‘Misplaced Scale,’ New Yorker (Nov. 27, 2017), https://www.newyorker.com/news/our-columnists/sex-consent-dangers-of-misplaced-scale[https://perma.cc/MN3F-PWMM];Jia Tolentino, The Rising Pressure of the #MeToo Backlash, New Yorker (Jan. 24, 2018), https://www.newyorker.com/culture/culture-desk/the-rising-pressure-of-the-metoo-backlash[https://perma.cc/CVW7-8329].
- 10Emma Grey Ellis, How #HimToo Became the Anti #MeToo of the Kavanaugh Hearings, Wired (Sept. 27, 2018), https://www.wired.com/story/brett-kavanaugh-hearings-himtoo-metoo-christine-blasey-ford/[https://perma.cc/E8GQ-Z5G2].
- 11Dara Lind, Trump: “It’s a Very Scary Time for Young Men in America,” Vox (Oct. 2, 2018), https://www.vox.com/2018/10/2/17928800/trump-women-doing-great-kavanaugh[http://perma.cc/EUX8-NGN5].
- 12Betsy Klein, Allie Malloy, & Kate Sullivan, Trump Mocks the #MeToo Movement at a Rally, Again, CNN (Oct. 10, 2018), https://www.cnn.com/2018/10/10/politics/trump-rally-mocks-me-too/index.html[https://perma.cc/9T9E-863E].
- 13See, e.g., David M. Perry, No, #MeToo Is Not a Witch Hunt, Pac. Standard (Jan. 9, 2018), https://psmag.com/social-justice/no-metoo-is-not-a-witch-hunt[https://perma.cc/4M7H-LFG5].
- 14Shira A. Scheindlin & Joel Cohen, After #MeToo, We Can’t Ditch Due Process, Guardian (Jan. 8, 2018), https://www.theguardian.com/commentisfree/2018/jan/08/metoo-due-process-televictions[https://perma.cc/QV5P-F5VG].
- 15Elizabeth Bartholet, #MeToo Excesses, Harv. Crimson, (Jan. 16, 2018) https://www.thecrimson.com/article/2018/1/16/bartholet-metoo-excesses/[https://perma.cc/Q453-HHU5].
- 16See, e.g., Ana Marie Cox, Al Franken Isn’t Being Denied Due Process. None of These Famous Men Are, Wash. Post (Dec. 7, 2017), https://www.washingtonpost.com/news/posteverything/wp/2017/12/07/al-franken-isnt-being-denied-due-process-none-of-these-famous-men-are/?utm_term=.49f4dfa95a51[https://perma.cc/9B5B-LNYY](“But the courts aren’t where our national conversation is taking place, so let’s not dither about the dangers of proclaiming guilt or innocence.”); Alison Gash & Ryan Harding, #MeToo? Legal Discourse and Everyday Responses to Sexual Violence, 7 Laws 21 (2018) (“Critics who contend ‘due process is better than mob rule’ miss the point. The aim, and point, is not (or is not always) criminal prosecution.” (citation omitted)).
- 17This Article is interested in the public nature of reports as a characteristic feature of the #MeToo era. It is not focused on the procedures for handling complaints against students under Title IX or against employees under Title VII. The due process implications of these processes, which are often confidential, have been analyzed elsewhere.
- 18This Article uses “sexual misconduct” as a provisional term to describe the broader set of harms illuminated by #MeToo. One controversial feature of #MeToo is that it has contested the legal and social boundaries separating various forms of harm, including, but not limited to: rape, sexual assault, unwanted and coercive sex, child sex abuse, nonsexual but gender-based harassment, harassment inside and outside the workplace, intimate partner violence, homophobic and transphobic harassment, claims against women, claims by men and nonbinary survivors, and claims about the erasure of people of color and other groups. This Article is not the place to resolve these controversies, although it addresses the question of whether the consequences are proportional to the severity of the misconduct in Part IV.E. Where appropriate, this Article refers specifically to certain of these forms of harm.
- 19I am concerned with high-profile abusers who occupy positions that afford them great fame, power, or wealth and whose misconduct therefore counts as newsworthy. See, e.g., Poynter Staff, Which Sexual Harassment and Assault Stories Should You Cover? Here Are Some Guidelines, Poynter (Nov. 29, 2017), https://www.poynter.org/ethics-trust/2017/which-sexual-harassment-and-assault-stories-should-you-cover-here-are-some-guidelines/[https://perma.cc/XR4Y-TN3L].Accusations against rank-and-file workers raise different concerns. See Rachel Arnow-Richman, Of Power and Process: Handling Harassers in an At-Will World, 128 Yale L.J.F. 85, 95–99 (2018). While the boundaries of the category of high-profile employees can be disputed, core cases are easy to identify.
- 20This Article does not advance any particular theory of what procedural justice requires. Rather, it responds to specific procedural objections to the #MeToo movement by examining the set of cases of individuals who lost prominent positions in the year after the Weinstein story and evaluating the procedures those individuals were afforded based on principles from due process precedents. This Article does not argue that extralegal processes are ideal for survivors or are a satisfactory alternative to legal reform.
- 21These Pulitzer Prize winning stories are collected at The Pulitzer Prizes, The 2018 Pulitzer Prize Winner in Public Service (2018), https://www.pulitzer.org/winners/new-york-times-reporting-led-jodi-kantor-and-megan-twohey-and-new-yorker-reporting-ronan[https://perma.cc/3VWQ-SZYL].
- 22I do not defend employment decisions based on anonymous public reports or sparse allegations against high-level leaders; rather, I argue that any such cases are exceptional deviations from emerging procedural norms. See infra Part III.
- 23See, e.g., Lesley Wexler, #MeToo and Law Talk, 2019 U. Chi. Legal F. 343, 343 (discussing “Alyssa Milano’s informative, hand raising oriented #MeToo hashtag and its intersection with Tarana Burke’s victim-centered, empathy-generating and restorative-justice focused Me Too”).
- 24Sandra E. Garcia, The Woman Who Created #MeToo Long Before Hashtags, N.Y. Times (Oct. 20, 2017), https://www.nytimes.com/2017/10/20/us/me-too-movement-tarana-burke.html[https://perma.cc/K45D-2XH3].
- 25See Carlsen et al., supra note 6.
- 26See, e.g., Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 Mich. L. Rev. 338, 350 (1997) (discussing definitions of norms by contrast to legal rules).
- 27Compare Deborah L. Brake & Joanna L. Grossman, The Failure of Title VII as a Rights-Claiming System, 86 N.C. L. Rev. 859, 863 (2008) (explaining how employment discrimination law, including sexual harassment law, is a flawed rights-claiming system).
- 28Compare William L.F. Felstiner, Richard L. Abel, & Austin Sarat, The Emergence and Transformation of Disputes: Naming, Blaming, Claiming15 Law & Soc’y Rev. 631, 635–36 (1980) (describing a process of “naming, blaming, and claiming” in which an aggrieved individual seeks justice).
- 29See, e.g., Lesley Wexler, Jennifer K. Robbennolt, & Colleen Murphy, #MeToo, Time’s Up, and Theories of Justice, 2019 U. Ill. L. Rev. 45, 68–81 (discussing principles of restorative justice, which require backward-looking efforts to ensure offender accountability as well as forward-looking efforts to ensure meaningful change).
- 30My argument is not that these extralegal processes should supplant legal ones or substitute for legal reform. It is that they serve purposes current legal processes do not.
- 31For a survey of state laws and discussion of reform efforts, see Model Penal Code: Sexual Assault and Related Offenses (Am. Law Inst., Tentative Draft No. 1, 2014).
- 32See, e.g., Donald Dripps, After Rape Law: Will the Turn to Consent Normalize the Prosecution of Sexual Assault?, 41 Akron L. Rev. 957, 971 (2008) (discussing research showing “jury reluctance to convict men accused of raping women who have violated traditional sexual mores”).
- 33Kimberly A. Lonsway & Joanne Archambault, The “Justice Gap” for Sexual Assault Cases: Future Directions for Research and Reform, 18 Violence Against Women 145, 156 (2012).
- 34Deborah Tuerkheimer, Incredible Women: Sexual Violence and the Credibility Discount, 166 U. Pa. L. Rev. 1, 2 (2017); see also Corey Rayburn Yung, Rape Law Gatekeeping, 58 B.C. L. Rev. 205, 209 (2017) (“Unlike people who have been robbed, beaten, or defrauded, rape victims must bypass a series of gatekeepers that, beginning with the police, impede the criminal justice system from vindicating victims’ allegations.”).
- 35Amy Dellinger Page, Gateway to Reform? Policy Implications of Police Officers’ Attitudes Toward Rape, 33 Am. J. Crim. Just. 44, 55 (2008) (discussing a survey of 891 police officers, in which 53% believed that 11 to 50% of rape reports by women were false, and 10% believed that between 50 and 100% were false).
- 36See Michelle J. Anderson, Campus Sexual Assault Adjudication and Resistance to Reform, 125 Yale L.J. 1940, 1953 (2016).
- 37For summaries of some of Title VII’s shortcomings, see, e.g., Daniel Hemel & Dorothy S. Lund, Sexual Harassment and Corporate Law, 118 Colum. L. Rev. 1583, 1603–10 (2018); Rebecca Hanner White, Title VII and the #MeToo Movement, 68 Emory L.J. Online 1014 (2018). Tort law is no answer; sexual harassment law was meant to address the many limitations of tort law. See generally Martha Chamallas, Will Tort Law Have Its #Me Too Moment?, 11 J. Tort L. 39 (2018).
- 38Title VII applies only to employer/employee relationships. 42 U.S.C. §2000e-2(a)(1).
- 39See, e.g., Sandra Sperino & Suja Thomas, Unequal: How America’s Courts Undermine Discrimination Law 33–38 (2017) (discussing the requirement that harassment be “severe or pervasive” to violate the law).
- 40Id.
- 41Chai R. Feldblum & Victoria A. Lipnic, U.S. Equal Emp’t Opportunity Comm’n, Report of the Co-Chairs of the Select Task Force on the Study of Harassment in the Workplace (2016), https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm[https://perma.cc/AH2R-93VQ].
- 42Id. Additionally, “power can make an individual feel uninhibited and thus more likely to engage in inappropriate behaviors.” Id. (citing Dacher Keltner et al., Power, Approach, and Inhibition, 110 Psychol. Rev. 265 (2003)).
- 43See, e.g., Jodi Kantor & Megan Twohey, Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades, N.Y. Times (Oct. 5, 2017), https://www.nytimes.com/2017/10/05/us/harvey-weinstein-harassment-allegations.html?login=smartlock&auth=login-smartlock[https://perma.cc/D79H-48C8](quoting a memo from a former assistant of Harvey Weinstein: “I am a 28 year old woman trying to make a living and a career. Harvey Weinstein is a 64 year old, world famous man and this is his company. The balance of power is me: 0, Harvey Weinstein: 10.”); Megan Kelly, Settle for More 302 (2016) (Explaining that she did not report Roger Ailes because, “if I caused a stink, my career would likely be over. Sure they might investigate, but I felt certain there was no way they would get rid of him, and I would be left on the wrong side of the one man who had power at Fox.”).
- 44Arnow-Richman, supra note 19, at 87.
- 45Feldblum & Lipnic, supra note 41; see also, e.g., Emily Steel & Michael S. Schmidt, Bill O’Reilly Settled New Harassment Claim, Then Fox Renewed his Contract, N.Y. Times (Oct. 21, 2017), https://www.nytimes.com/2017/10/21/business/media/bill-oreilly-sexual-harassment.html?module=inline[https://perma.cc/VU7R-VBT4].
- 46Arnow-Richman, supra note 19, at 92–95.
- 47This rule generally applies when the harasser is a supervisor. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 753 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).
- 48Lilia M. Cortina & Jennifer L. Berdahl, Sexual Harassment in Organizations: A Decade of Research in Review, in 1 The Sage Handbook of Organizational Behavior 469, 469–96 (J. Barling & C. L. Cooper eds., 2008).
- 49See, e.g., Ronan Farrow, Harvey Weinstein’s Secret Settlements, New Yorker (Nov. 21, 2017), https://www.newyorker.com/news/news-desk/harvey-weinsteins-secret-settlements[https://perma.cc/RY7M-MNCV].
- 50Emily Steel, How Bill O’Reilly Silenced His Accusers, N.Y. Times (Apr. 4, 2018), https://wwww.nytimes.com/2018/04/04/business/media/how-bill-oreilly-silenced-his-accusers.html[https://perma.cc/P86H-7TPR].
- 51Id.
- 52See, e.g., Steven Davidoff Solomon, Arbitration Clauses Let American Apparel Hide Misconduct, Dealb%k (July 15, 2014), https://dealbook.nytimes.com/2014/07/15/arbitration-clauses-let-american-apparel-hide-misconduct/[https://perma.cc/VQ2M-2LU4].One study found mandatory arbitration clauses cover 56% of non-union private-sector workers. Alexander J.S. Colvin, Econ. Policy Inst., The Growing Use of Mandatory Arbitration 1 (Sept. 27, 2017), https://www.epiorg/files/pdf/135056.pdf[https://perma.cc/L9AD-X3C7].For a discussion of how forced arbitration deters claims, see Jean R. Sternlight, Mandatory Arbitration Stymies Progress Toward Justice in Employment Law: Where To, #MeToo?, 54 Harv. C.R.-C.L. L. Rev 155, 201—05 (2019).
- 53See, e.g., Clyde Summers, Effective Remedies for Employment Rights: Preliminary Guidelines and Proposals, 141 U. Pa. L. Rev. 457, 484 (1992).
- 54Melissa Hart, Litigation Narratives: Why Jensen v. Ellerth Didn’t Change Sexual Harassment Law, But Still Has a Story Worth Telling, 18 Berkeley Women’s L.J. 282, 288 (2003) (“There appear to have been only ten reported cases between 1995 and 2002 in which courts considered sexual harassment claims as part of a federal class action suit.”).
- 55Id. at 293; Tristin K. Green, Was Sexual Harassment Law A Mistake? The Stories We Tell, 128 Yale L.J.F. 152, 166 (2018) (“Judges have constructed an individualized harassment law that revolves around stories of ‘personal advances,’ even though in most cases harassment is not an individualized problem.”).
- 56See, e.g., Katherine E. Lamm, Work in Progress: Civil Rights Class Actions After Wal-Mart v. Dukes, 50 Harv. C.R.-C.L. L. Rev. 153, 176–77 (2015) (discussing challenges for plaintiffs bringing civil rights class actions after the Supreme Court’s 2011 decision in Wal-Mart v. Dukes).
- 57Colvin, supra note 52, at 2 (reporting that 30.1% of employers that require mandatory arbitration also require class waivers).
- 58Andrea Cann Chandrasekher & David Horton, Arbitration Nation: Data from Four Providers, 107 Calif. L. Rev. (forthcoming 2019) (manuscript at 5 n.27), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3238460[https://perma.cc/Z2DX-UXVR].
- 59See, e.g., Stephanie Zacharek et al., Time Person of the Year 2017: The Silence Breakers, Time (Dec. 18, 2017), http://time.com/time-person-of-the-year-2017-silence-breakers/[https://perma.cc/P7NS-U728].
- 60Id.
- 618 Reporters Reflect on the Challenges of Covering Sexual Harassment, Nieman Reps. (Nov. 13, 2017), https://niemanreports.org/articles/reporters-on-their-stories-about-male-abuses-of-power/[https://perma.cc/RE3U-DA3C](quoting restaurant critic Brett Anderson on his reporting on celebrity chef John Besh). For example, Leigh Corfman, who reported that Roy Moore had sexually abused her when she was fourteen years old, was at first reluctant to come forward, but told The Washington Post that “If they found additional people, I would tell my story.” Adam Edelman, Roy Moore Accuser Leigh Corfman: I Didn’t Deserve to Be Preyed Upon, NBC News (Nov. 20, 2017), https://www.nbcnews.com/politics/politics-news/roy-moore-accuser-leigh-corfman-i-didn-t-deserve-be-n822416[https://perma.cc/U7QB-23KL].
- 62Glenn Whipp, 200 More Women Share Their James Toback Stories after 38 Accuse Director of Sexual Harassment, L.A. Times (Oct. 23, 2017), https://www.latimes.com/entertainment/movies/la-et-mn-toback-follow-up-20171023-story.html[https://perma.cc/2N97-BQGG].
- 638 Reporters Reflect, supra note 61 (quoting editor Michelle Cottle).
- 64Carlsen et al., supra note 6.
- 65Id.
- 66See Rebecca Traister, Your Reckoning. And Mine., The Cut (Nov. 2017), https://www.thecut.com/2017/11/rebecca-traister-on-the-post-weinstein-reckoning.html?[https://perma.cc/NDZ7-P6U9](“There are also women who do want to go on the record, women who’ve summoned armies of brave colleagues ready to finally out their repellent bosses. To many of them I must say that their guy isn’t well known enough, that the stories are now so plentiful that offenders must meet a certain bar of notoriety, or power, or villainy, before they’re considered newsworthy.”).
- 67Vicki Schultz, Open Statement on Sexual Harassment from Employment Discrimination Law Scholars, 71 Stan. L. Rev. Online 17, 19 n.4 (2018) (collecting studies showing coworker harassment is more prevalent).
- 68Tarana Burke, #MeToo Was Started for Black and Brown Women and Girls. They’re Still Being Ignored, Wash. Post (Nov. 9, 2017), https://www.washingtonpost.com/news/post-nation/wp/2017/11/09/the-waitress-who-works-in-the-diner-needs-to-know-that-the-issue-of-sexual-harassment-is-about-her-too/?utm_term=.358786061779[https://perma.cc/M9DQ-TRPL].See also Angel-a Onwuachi-Willig, What About #UsToo?: The Invisibility of Race in the #MeToo Movement, 128 Yale L.J.F. 105, 107 (2018) (“The recent resurgence of the #MeToo movement reflects the longstanding marginalization and exclusion that women of color experience within the larger feminist movement in U.S. society.”).
- 69Kimberlé Williams Crenshaw, I Believe I Can Lie, Baffler (Jan. 17, 2019), https://thebaffler.com/latest/i-believe-i-can-lie-crenshaw[https://perma.cc/XY5K-WX9V];see also Jemele Hill, R. Kelly and the Cost of Black Protectionism, Atlantic (Jan. 11, 2019), https://www.theatlantic.com/entertainment/archive/2019/01/r-kelly-and-cost-black-protectionism/580150/[https://perma.cc/Q4JX-A2LU](discussing the “prolonged indifference” to claims by black girls and women against musician R. Kelly).
- 70Lia Russell, Saying #MeToo Is Harder for Low-Wage Workers, Am. Prospect (May 3, 2018), https://prospect.org/article/saying-metoo-harder-low-wage-workers[https://perma.cc/U8V9-NR7X].
- 71See, e.g., Susan Chira & Catrin Einhorn, Decades after the Company Tried to Tackle Sexual Misconduct at Two Chicago Plants, Continued Abuse Raises Questions about the Possibility of Change, N.Y. Times (Dec. 19, 2017), https://www.nytimes.com/interactive/2017/12/19/us/ford-chicago-sexual-harassment.html[https://perma.cc/UW8J-7UNW](discussing racial and gender dynamics that contributed to sexual harassment of blue-collar workers at Ford’s Chicago plants).
- 72See generally Bernice Yeung, In a Day’s Work: The Fight to End Sexual Violence Against America’s Most Vulnerable Workers (2018).
- 73Stories have not focused on how dynamics like class can make certain women more vulnerable to abuse. Josephine Livingstone, The Task Ahead for Feminism, New Republic (Nov. 17, 2017), https://newrepublic.com/article/145850/task-ahead-feminism[https://perma.cc/UV65-HEHX](“Important contextual information—that Roy Moore allegedly chose working-class women and children to abuse, for example—has been lost.”).
- 74See, e.g., Ebony Miranda, Did #MeToo Forget About Me?, N.Y. Times (Sept. 4, 2018), https://www.nytimes.com/2018/09/04/smarter-living/the-edit-me-too.html[https://perma.cc/YAE7-TKGX].
- 75Sandy E. James et al., The Report of the 2015 U.S. Transgender Survey 15 (Dec. 2016), http://www.transequality.org/sites/default/files/docs/usts/USTS%20Full%20Report%20-%20FINAL%201.6.17.pdf[https://perma.cc/A8A2-WTTK](reporting that 47% of transgender survey respondents had been “sexually assaulted at some point in their lifetime,” and 10% “were sexually assaulted in the past year”).
- 76For stories involving male perpetrators and male victims, see, e.g., Laura Bradley, “I Was Terrified, and I Was Humiliated”: #MeToo’s Male Accusers, One Year Later, Vanity Fair (Oct. 4, 2018), https://www.vanityfair.com/hollywood/2018/10/metoo-male-accusers-terry-crews-alex-winter-michael-gaston-interview[https://perma.cc/5QNH-HXC2];Adam B. Vary, Actor Anthony Rapp: Kevin Spacey Made A Sexual Advance Toward Me When I Was 14, Buzzfeed News (Oct. 30, 2017, 12:37 AM), https://www.buzzfeednews.com/article/adambvary/anthony-rapp-kevin-spacey-made-sexual-advance-when-i-was-14[https://perma.cc/D5LW-FU5L].When women abuse men, the story is told as if it were “man bites dog.” Headlines insinuate that such cases somehow undermine the movement, rather than demonstrating the problems with unconstrained power. See, e.g., Kim Severson, Asia Argento, a #MeToo Leader, Made a Deal With Her Own Accuser, N.Y. Times (Aug. 19, 2018), https://www.nytimes.com/2018/08/19/us/asia-argento-assault-jimmy-bennett.html[https://perma.cc/Y6MP-WTW6];Zoe Greenberg, What Happens to #MeToo When a Feminist Is the Accused?, N.Y. Times (Aug. 13, 2018), https://www.nytimes.com/2018/08/13/nyregion/sexual-harassment-nyu-female-professor.html[https://perma.cc/E6ZA-ZUJG].
- 77See, e.g., Vicki Schultz, Reconceptualizing Sexual Harassment, Again, 128 Yale L.J.F. 22, 24 (2018); Rebecca Traister, This Moment Isn’t (Just) About Sex. It’s Really About Work, The Cut (Dec. 10, 2017), https://www.thecut.com/2017/12/rebecca-traister-this-moment-isnt-just-about-sex.html[https://perma.cc/8TML-UYNG].
- 78See MacKinnon, supra note 1.
- 79David A. Fahrenthold, Trump Recorded Extremely Lewd Conversation About Women in 2005, Wash. Post (Oct. 8, 2016), https://www.washingtonpost.com/politics/trump-recorded-having-extremely-lewd-conversation-about-women-in-2005/2016/10/07/3b9ce776-8cb4-11e6-bf8a-3d26847eeed4_story.html?utm_term=.4c56ec64c6e1[https://perma.cc/7P4J-ZAJK](“You know I’m automatically attracted to beautiful—I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star, they let you do it. You can do anything. Grab them by the p---y.”).
- 80Rebecca Traister, Why the Harvey Weinstein Sexual-Harassment Allegations Didn’t Come Out Until Now, The Cut (Oct. 5, 2017), https://www.thecut.com/2017/10/why-the-weinstein-sexual-harassment-allegations-came-out-now.html?utm_source=tw&utm_medium=s3&utm_campaign=sharebutton-t[https://perma.cc/3YG7-M8WV].
- 81Catharine A. MacKinnon, ‘This Moment Turned Out to Be Fleeting’ Nine Reflections on #MeToo, One Year On, N.Y. Times (Oct. 6, 2018), https://www.nytimes.com/2018/10/06/opinion/me-too-weinstein-one-year.html[https://perma.cc/DQU4-LYF8].
- 82For a discussion of the goals of the #MeToo and Times Up movements, see Murray, supra note 5, at 867. For more comprehensive suggestions on reform, see Schultz, supra note 67.
- 83Schultz, supra note 77, at 26. These underlying conditions include sex segregation and unstructured authority. Id. at 48–53.
- 84See Carlsen, supra note 6; Schultz, supra note 67, at 22–25 (discussing the links between sex segregation and harassment).
- 85See supra notes 10–12 and accompanying text.
- 86See, e.g., Bartholet, supra note 15.
- 87See, e.g., Editorial Board, The Presumption of Guilt, Wall St. J. (Sept. 21, 2018), https://www.wsj.com/articles/the-presumption-of-guilt-1537570627[https://perma.cc/54A8-C4ZY](arguing that “the set of facts [Christine Blasey Ford] currently provides wouldn’t pass even the ‘preponderance of evidence’–or 50.01% evidence of guilt–test that prevails today on college campuses”).
- 88See, e.g., Mollie Hemmingway, The Kavanaugh Allegation Process Is a Miscarriage of Justice for Everyone, Federalist (Sept. 19, 2018), https://thefederalist.com/2018/09/19/the-kavanaugh-allegation-process-is-a-miscarriage-of-justice-for-everyone/[https://perma.cc/E4JT-DN9Z](“[T]he Senate is still an inappropriate place to litigate claims of sexual assault. Since Maryland apparently doesn’t have a statute of limitations on felony sex assault, charges could still be filed there if the case is strong enough to do so.”).
- 89See, e.g., Lugar v. Edmondson Oil Co., 457 U.S. 922, 936–37 (1982) (discussing the “state action” requirement for certain constitutional claims, which requires that “the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State”). Even a scholar making the unlikely argument (rejected by every court to consider it) that due process applies to Title IX proceedings by private universities against students, see Jed Rubenfeld, Privatization and State Action: Do Campus Sexual Assault Hearings Violate Due Process?, 96 Texas L. Rev 15, 26 (2017), recognizes that due process does not apply to private employers in their proceedings against employees, id. at 48.
- 90See, e.g., Board of Regents v. Roth, 408 U.S. 564, 577 (1972).
- 91Id. (“To have a property interest in a benefit, a person must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.”).
- 92See, e.g., Stone v. Univ. of Maryland Med. Sys. Corp., 855 F.2d 167, 173–75 (4th Cir. 1988) (holding that “the mere fact that the choice is between comparably unpleasant alternatives—e.g., resignation or facing disciplinary charges—does not of itself establish that a resignation was induced by duress or coercion, hence was involuntary”).
- 93See, e.g., Codd v. Velger, 429 U.S. 624, 627 (1977) (per curiam) (where the constitutional deprivation consists of a false and stigmatizing report about a public employee, due process requires the employee be given “an opportunity to clear his name” (quoting Roth, 408 U.S. at 573)). This right applies even if the employee has no property interest in continued employment. Owen v. City of Independence, 445 U.S. 622, 630 n.10 (1979). But a liberty interest alone is not sufficient for a claim; there must also be some sort of employment action, such as a termination. See Paul v. Davis, 424 U.S. 693, 709 (1976). The employee must also show the disclosure caused a stigma that harmed their future prospects for employment. See, e.g., Cannon v. Vill. of Bald Head Island, N. Carolina, 891 F.3d 489, 502–05 (4th Cir. 2018). Nonetheless, a name-clearing hearing does not result in reinstatement. Codd, 429 U.S. at 628.
- 94Wojcik v. Massachusetts State Lottery Comm’n, 300 F.3d 92, 103–04 (1st Cir. 2002).
- 95Pauline T. Kim, Bargaining with Imperfect Information: A Study of Worker Perceptions of Legal Protection in an At-Will World, 83 Cornell L. Rev. 105, 110 (1997) (reporting on survey results demonstrating that workers “consistently overestimate the degree of job protection afforded by law, believing that employees have far greater rights not to be fired without good cause than they in fact have”).
- 96Benjamin D. Geffen, The Collateral Consequences of Acquittal: Employment Discrimination on the Basis of Arrests Without Convictions, 20 U. Pa. J.L. & Soc. Change 81, 88–89 (2017) (“There is no comprehensive federal law safeguarding the employment rights of people without convictions, although Title VII and the Fair Credit Reporting Act (“FCRA”) extend protections in certain situations. A handful of state and local laws grant strong, enforceable rights, but most jurisdictions offer none.”). While some states have “ban-the-box” laws that forbid employers from asking about criminal records on job applications, those laws do not forbid employers from considering an applicant’s criminal history after making a provisional employment offer. Shelle Shimizu, Beyond the Box: Safeguarding Employment for Arrested Employees, 128 Yale L.J.F. 226, 233–35 (2018) (surveying employment protections based on criminal records).
- 97Arnow-Richman, supra note 19, at 97.
- 9815 U.S.C. §1681a(y)(1)(B). This exemption does not apply under certain conditions, including if the employer discloses the results of an external investigation to the public. Id. §1681a(y)(1)(D).
- 99Id. §1681a(y)(2).
- 100Id.
- 101Arnow-Richman, supra note 19, at 97.
- 102See, e.g., Elizabeth Tippet, CBS’ Moonves Scandal Shows Why Corporate America Needs Tougher CEO Pay Contracts, Conversation (Dec. 19, 2018), https://theconversation.com/cbs-moonves-scandal-shows-why-corporate-america-needs-tougher-ceo-pay-contracts-109050[https://perma.cc/266J-3NJ7].
- 103Anderson, supra note 36, at 2000 (discussing “rape or sexual assault exceptionalism”).
- 104Id. A 1940 treatise on evidence described “errant young girls and women coming before the courts in all sorts of cases” with “psychic complexes” that take the form of “contriving false charges of sexual offenses by men.” 3 John Henry Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law §924a, at 459 (3d ed. 1940). The treatise warned: “On the surface the narration is straightforward and convincing. The real victim, however, too often in such cases is the innocent man; for the respect and sympathy naturally felt by any tribunal for a wronged female helps to give easy credit to such a plausible tale.” Id.
- 105See Kate Manne, Down Girl: The Logic of Misogyny 218 (2018).
- 106Lenora Lapidus & Sandra Park, The Real Meaning of Due Process in the #MeToo Era, Atlantic (Feb. 15, 2018), https://www.theatlantic.com/politics/archive/2018/02/due-process-metoo/553427/[https://perma.cc/ECY2-A33N](“[F]airness also requires that those reporting violence and harassment be fully heard.”).
- 107See, e.g., Ayesha Rascoe, Trump Pushes Due Process for Some, ‘Lock’ Them Up for Others, NPR (Oct. 5, 2018), https://www.npr.org/2018/10/05/654347194/trump-pushes-due-process-for-some-for-others-lock-them-up[https://perma.cc/F7L7-9HB2](discussing President Trump’s commitment to due process for his Supreme Court nominee but not the five black and Latino teenagers who were wrongfully convicted in New York’s “Central Park Five” rape case).
- 108Nor does the goal of ending sexual assault, harassment, and misconduct justify an “at will” employment regime that allows arbitrary terminations and is unfair to low-level workers accused of any type of misconduct. See Arnow-Richman, supra note 19, at 99–103.
- 109Cf. Murray, supra note 5, at 874–75 (“[A]t some point, the criticisms of #MeToo—concerns about due process and vigilantism—may make this kind of extralegal regulation unsustainable in the long term.”); Wexler, supra note 23, at 14 (“If the #MeToo Movement is perceived as deeply unfair, much of society is unlikely to willingly participate in its call for a social reckoning”).
- 110Tom R. Tyler & E. Allan Lind, A Relational Model of Authority in Groups, 25 Advances in Experimental Soc. Psychol. 115, 133 (1992) (discussing research showing “a key factor affecting legitimacy across a variety of settings is the person’s evaluation of the fairness of the procedures used by the authority in question”); see also John Thibaut & Laurens Walker, Procedural Justice: A Psychological Analysis (1975). This research pertains to whether particular authorities are considered legitimate. Tyler & Lind, supra at 117. It suggests the legitimacy of the #MeToo movement may be in question to the extent that the public regards it as an authority in motivating decision makers such as boards, employers, voters, or consumers to remove accused leaders without fair process.
- 111Tyler & Lind, supra note 110, at 133.
- 112Id. at 134.
- 113See, e.g., Abigail Abrams, Here’s Sen. Susan Collins’ Full Speech about Voting to Confirm Kavanaugh, Time (Oct. 5, 2018), http://time.com/5417444/susan-collins-kavanaugh-vote-transcript/[https://perma.cc/SN5G-VRWA].
- 114Tyler & Lind, supra note 110, at 140 (“To the extent that a procedure is seen as indicating a positive, full-status relationship, it is judged to be fair, and to the extent that a procedure appears to imply that one’s relationship with the authority or institution is negative or that one occupies a low-status position, the procedure is viewed as unfair.”).
- 115See, e.g., Bari Weiss, The Limits of ‘Believe All Women,’ N.Y. Times (Nov. 28, 2017), https://www.nytimes.com/2017/11/28/opinion/metoo-sexual-harassment-believe-women.html[https://perma.cc/598H-YSBK].For a thoughtful response, see Sady Doyle, Despite What You May Have Heard, “Believe Women” Has Never Meant “Ignore Facts”, Elle (Nov. 29, 2017), https://www.elle.com/culture/career-politics/a13977980/me-too-movement-false-accusations-believe-women/[https://perma.cc/S9Y7-SLCE].
- 116Cf. Duncan Kennedy, Sexual Abuse, Sexy Dressing and the Eroticization of Domination, 26 New England L. Rev. 1309, 1311 (1992) (“Men’s fear of being victimized [by unfair enforcement of rules against sexual abuse] is only indirectly and ambiguously related to whatever the reality might turn out to be. The fear varies from man to man, but there is still an unmistakable group interest in avoiding having to worry about enforcement excesses; it is in direct conflict with women’s interest in not having to worry about being abused.”).
- 117Soc’y Prof’l Journalists, Code of Ethics (2014), https://www.spj.org/pdf/spj-code-of-ethics.pdf[https://perma.cc/GG2G-D2KM].The Society for Professional Journalists is “the largest voluntary association of news reporters and editors in the United States” and its Code of Ethics is widely cited. Jane E. Kirtley, Not Just Sloppy Journalism, but a Profound Ethical Failure: Media Coverage of the Duke Lacrosse Case, in Institutional Failures: Duke Lacrosse, Universities, the News Media, and the Legal System 145 (Howard M. Wasserman ed., 2011).
- 118Kelly McBride & Tom Rosenstiel, Introduction, The New Ethics of Journalism: Principles for the 21st Century 5, 5 (Kelly McBride & Tom Rosenstiel, eds., 2013).
- 119Lucas Graves & Michelle A. Amazeen, Fact-Checking as Idea and Practice in Journalism, in Oxford Research Encyclopedia of Communication (2019).
- 120See, e.g., Margaret Sullivan, Make No Mistake, but if You Do, Here’s How to Correct It, N.Y. Times Public Editor’s Blog (Jan. 16, 2013, 5:45 PM), https://publiceditor.blogs.nytimes.com/2013/01/16/make-no-mistake-but-if-you-do-heres-how-to-correct-it/[https://perma.cc/737M-EPRF].
- 121Stephanie Fairyington, In the Era of Fake News, Where Have All the Fact-Checkers Gone?, Colum. Journalism Rev. (Feb. 23, 2018), https://www.cjr.org/business_of_news/fact-checking.php[https://perma.cc/2YDG-YCZ6];Susan Sivek & Sharon Bloyd-Peshkin, Where Do Facts Matter? The Digital Paradox in Magazines’ Fact Checking Practices, 12 Journalism Practice 400 (2018).
- 122See Fairyington, supra note 121; Sivek & Bloyd-Peshkin, supra note 121.
- 123Soc’y Prof’l Journalists, supra note 117.
- 124Bill Kovach & Tom Rosenstiel, The Elements of Journalism: What Newspeople Should Know and the Public Should Expect 114 (3rd ed. 2013).
- 125Id.
- 126Id. at 117.
- 127Kirtley, supra note 117, at 146–52; Rachel Smolkin, Justice Delayed, Am. Journalism Rev. (Aug./Sept. 2007).
- 128Sheila Coronel, Steve Coll, & Derek Kravitz, Rolling Stone’s Investigation: ‘A Failure that Was Avoidable,’ Colum. Rev. Journalism (Apr. 5, 2015), http://www.cjr.org/investigation/rolling_stone_investigation.php[https://perma.cc/HA2L-S23V].
- 129See, e.g., Kirtley, supra note 117, at 158–59 (“[M]any in the media, by accepting the ‘official version’ of the alleged crime without question, effectively became mouthpieces of the government (or of other powerful institutions, such as Duke University), largely ignoring other voices. They accepted the prosecution’s version of events, taking officials’ words at face value and reporting them without challenge.”).
- 130Id. at 144; see also id. at 154.
- 131Coronel, Coll, & Kravitz, supra note 128.
- 132Id.
- 133See Poynter Staff, supra note 19 (discussing standards for sourcing and verification, including the caution that “While it is often impossible to verify specific claims of sexual harassment or assault, it is important to verify as much as possible about the story including: If the source says she shared her story with friends or family, can you confirm that?, Can other facts around the story be checked, including employment dates and times, travel events, emails or text messages? Are there any documents or evidence that support the general story?”); Sivek & Bloyd-Peshkin, supra note 121, at 15 (quoting magazine editors about their reactions to the Rolling Stone case).
- 134Kantor & Twohey, supra note 43.
- 135Id.
- 136Id.
- 137Id. One source, for example, “who asked not to be identified to protect her privacy, said a nondisclosure agreement prevented her from commenting.” Id.
- 138Jessica Bennett, gender editor for The New York Times, has refused to publish reports of sexual assault unless there are two other individuals to attest that the victim reported the assault to them at the time. Alexandra Botti & T.J. Raphael, How Journalists Corroborate Sexual Harassment and Assault Claims, PRI (Dec. 18, 2017), https://www.pri.org/stories/2017-12-18/how-journalists-corroborate-sexual-harassment-and-assault-claims[https://perma.cc/HKG5-JYYV].
- 139Id.
- 140Katie Way, I Went on a Date With Aziz Ansari. It Turned Into the Worst Night of my Life, Babe (Jan. 13, 2018), https://babe.net/2018/01/13/aziz-ansari-28355[https://perma.cc/GZ29-NVL5].Grace stated that Ansari aggressively pressured her into performing oral sex and engaging in other sexual activity, despite her “non-verbal cues,” such as “pulling away,” and her “verbal cues,” such as telling him “next time” and stating that she did not want to “feel forced.” Id.
- 141Julianne Escobedo Shepherd, Babe, What Are You Doing?, Jezebel (Jan. 16, 2018), https://jezebel.com/babe-what-are-you-doing-1822114753?rev=1516127284762[https://perma.cc/WN5UDTY7].
- 142Way, supra note 140.
- 143Id.
- 144Caroline Franke, The Controversy Around Babe.net’s Aziz Ansari Story, Explained, Vox (Jan. 18, 2018), https://www.vox.com/culture/2018/1/17/16897440/aziz-ansari-allegations-babe-me-too[https://perma.cc/35XL-N6WB](“Is it possible to do your due diligence on a story in [one week] given the space and resources? Sure. Does it leave you and your subject vulnerable to probing criticism about whether you did your due diligence? Absolutely.”).
- 145Kerry Flynn, What is Babe? Meet the Site that Published the Aziz Ansari Allegation, Mashable (Jan. 15, 2018), https://mashable.com/2018/01/15/what-is-babe-aziz-ansari-sexual-misconduct-allegation/#hroXzRFCVmqQ[https://perma.cc/9CP2-KU9Y].
- 146Sopan Deb, Aziz Ansari, Sidelined by Accusation, Plays to a Big Crowd Back Home, N.Y. Times (Sept. 5, 2018), https://www.nytimes.com/2018/09/05/arts/television/aziz-ansari-standup-charleston.html[https://perma.cc/YPM9-WV5P].
- 147See, e.g., Travis M. Andrews, CBS Is Dropping Jeremy Piven’s Show Amid Sexual Misconduct Allegations Against the Actor, Wash. Post (Nov. 27, 2018), https://www.washingtonpost.com/news/morning-mix/wp/2017/11/28/cbs-is-dropping-jeremy-piven-drama-amid-sexual-misconduct-allegations-against-the-actor/?utm_term=.ae2384bb5c8e[https://perma.cc/YXE5-CTDZ](discussing allegations against actor Jeremy Piven, including one posted on Twitter).
- 148See, e.g., Chloe Dykstra, Rose-Colored Glasses: A Confession, Medium (June 14, 2018), https://medium.com/@skydart/rose-colored-glasses-6be0594970ca[https://perma.cc/2GMF-YGG2];Leeann Tweeden, Senator Al Franken Kissed and Groped Me Without My Consent, and There’s Nothing Funny About It, 790KABC (Nov. 16, 2017), http://www.kabc.com/2017/11/16/leeann-tweeden-on-senator-al-franken/[https://perma.cc/Q2VH-BPA7].
- 149See, e.g., Murray, supra note 5, at 869 (discussing anonymous “crowdsourced registries” and their critics); Tuerkheimer, supra note 5, at 9–13 (discussing anonymous accusations).
- 150Moira Donegan, I Started the Media Men List; My Name is Moira Donegan, The Cut (Jan. 2018), https://www.thecut.com/2018/01/moira-donegan-i-started-the-media-men-list.html[https://perma.cc/D3F6-4UBV].Donegan’s purpose was not to subject accused men to consequences; rather, it was to open up the traditional whisper networks that warn women of danger. Id.
- 151One journalism professor has advised reporters to “[t]hink of an anonymous crowdsourced list as Wikipedia wrapped in razor blades. By all means examine it—but do so carefully or there may be a lot of blood on your hands.” James Warren, A Word of Caution: Documents Like that Media Men List Are Like ‘Wikipedia Wrapped in Razor Blades,’ Poynter (Jan. 12, 2018), https://www.poynter.org/ethics-trust/2018/a-word-of-caution-documents-like-that-media-men-list-are-like-wikipedia-wrapped-in-razor-blades/[https://perma.cc/4QTK-PATJ](quoting Jill Geisler, the Bill Plante Chair in Leadership and Media Integrity at Loyola University Chicago). When reporting on allegations of sexual misconduct that have become public through, for example, Twitter, experts on journalistic ethics advise that reporters should question the sources of the allegation, look for corroborating evidence, explain the context of the allegation and whether there is any supporting evidence, and inform readers of all the relevant information so that they are able to assess the facts for themselves. Kovach & Rosenstiel, supra note 124, at 124–25.
- 152But see Bari Weiss, What Do You Do When You Are Anonymously Accused of Rape, N.Y. Times (Oct. 13, 2018), https://www.nytimes.com/2018/10/13/opinion/stephen-elliott-moira-donegan-media-men.html[https://perma.cc/A38F-TDQU](discussing the defamation suit brought by writer Stephen Elliot based on an anonymous assertion on the Shitty Media Men list that he had been the subject of “rape accusations”). Elliott claims that the false rape allegation harmed his professional reputation, causing him to be disinvited from events and reducing his opportunities to publicize a new book. Stephen Elliott, How an Anonymous Accusation Derailed My Life, Quillette (Sept. 25, 2018), https://quillette.com/2018/09/25/how-an-anonymous-accusation-derailed-my-life/[https://perma.cc/5LX9-2LHB].Others question whether “What happened is that years of behaving badly (not criminally) caught up to him.” Marisa Siegel, Firsthand, Rumpus (Sept. 26, 2018), https://therumpus.net/2018/09/firsthand/[https://perma.cc/53YV-SHS8](accusing Elliott of sexist behavior in the workplace).
- 153See, e.g., Alexandra Alter & Sydney Ember, Paris Review Editor Resigns Amid Inquiry into His Conduct with Women, N.Y. Times (Dec. 6, 2017), https://www.nytimes.com/2017/12/06/books/lorin-stein-resigns-the-paris-review.html[https://perma.cc/3SM9-GGK9];A.J. Chavar, Exclusive: National Geographic Investigated a Top Photo Editor for Sexual Misconduct. He Left Quietly, but Women Are Speaking Out, Vox (Jan. 31, 2018, 12:33 PM), https://www.vox.com/2018/1/29/16934552/exclusive-national-geographic-sexual-misconduct[https://perma.cc/MRS2-LPDC].
- 154Alyssa Bereznak, Blind Item Revealed: How a Scorned Form of Gossip Changed Hollywood, Ringer (Dec. 13, 2018), https://www.theringer.com/2018/12/13/18138512/blind-item-revealed-how-a-scorned-form-of-gossip-changed-hollywood[https://perma.cc/C95D-FUAX].“Blind items” are “anonymous snippets of gossip that require readers to guess the parties involved.” Id. They are left “intentionally vague” so that “only the publication’s savviest readers” know who they refer to. Id. For one example, see, e.g., Ramin Setoodeh, Ashley Judd Reveals Sexual Harassment by Studio Mogul, Variety (Oct. 6, 2015), https://variety.com/2015/film/news/ashley-judd-sexual-harassment-studio-mogul-shower-1201610666/[https://perma.cc/N3BK-93RQ].
- 155See, e.g., supra note 21; Vary, supra note 76. The immediate cause of Matt Lauer’s termination was an internal complaint, but at the time he was fired, journalists had been investigating allegations against him for months. Ramin Setoodeh & Elizabeth Wagmeister, Matt Lauer Accused of Sexual Harassment by Multiple Women, Variety (Nov. 29, 2017), https://variety.com/2017/biz/news/matt-lauer-accused-sexual-harassment-multiple-women-1202625959/[https://perma.cc/QKB8-WQNQ].
- 156More than a year after allegations against former Senator Al Franken led to his resignation, commentators continue to critically question the evidence against him. See, e.g., Jane Mayer, The Case Against Al Franken, New Yorker (July 22, 2019), https://www.newyorker.com/magazine/2019/07/29/the-case-of-al-franken[https://perma.cc/ZLZ3-N4YE];Emily Yoffee, Democrats Need to Learn From Their Al Franken Mistake, Atlantic (Mar. 26, 2019), https://www.theatlantic.com/ideas/archive/2019/03/democrats-shouldnt-have-pressured-al-franken-resign/585739/[https://perma.cc/TV9D-R4MT].
- 157Weiss, supra note 115.
- 158Way, supra note 140.
- 159For a summary of just some of the critical reaction, see Franke, supra note 144.
- 160Aaron Blake, Did Michael Avenatti Help Doom the Case Against Brett Kavanaugh?, Wash. Post (Oct. 5, 2018), https://www.washingtonpost.com/politics/2018/10/05/did-michael-avenatti-help-doom-case-against-brett-kavanaugh/[https://perma.cc/9P4X-5GZM].See also Mayer, supra note 156 (critically assessing the decision of a radio station website to post an essay by Leeann Tweeden accusing Al Franken of sexual misconduct without first requesting comment from Franken or fact checking Tweeden’s statements).
- 161Id.; Jackie Kucinich et al., Democrats to Michael Avenatti: You’re Not Helping in the Kavanaugh Fight, Daily Beast (Sept. 24, 2018), https://www.thedailybeast.com/democrats-to-avenatti-youre-not-helping-in-the-kavanaugh-fight[https://perma.cc/5H4S-6B34](stating that Senator Chris Coons (D-DE), “suggested Avenatti should have followed in the footsteps of [Dr. Christine Blasey] Ford, who ‘attempted to contact news outlets and the committee before Judge Kavanaugh was confirmed as being the nominee’” and another “Democratic source” as saying, “If he had vetted it through a media outlet and had journalists represent it in a well-reported way or have the committee introduce it, it would have been better”).
- 162Blake, supra note 160.
- 163Id.
- 164Anderson, supra note 36, at 2000.
- 165Tuerkheimer, supra note 34, at 2.
- 166Whether this is a fair rule for survivors is a different question. Cf. MacKinnon, supra note 1 (“[I]n cases of campus sexual abuse over decades; it typically took three to four women testifying that they had been violated by the same man in the same way to even begin to make a dent in his denial. That made a woman, for credibility purposes, one-fourth of a person.”).
- 167This is not the legal meaning of corroboration. Legal rules sometimes limit “me too” evidence. See, e.g., Jeannie Suk Gerson, Bill Cosby’s Crimes and the Impact of #MeToo on the American Legal System, New Yorker (Apr. 27, 2018), https://www.newyorker.com/news/news-desk/bill-cosbys-crimes-and-the-impact-of-metoo-on-the-american-legal-system[https://perma.cc/2M4R-WFSZ].It may be akin to the legal requirement of “numerosity” for a class action lawsuit. See Fed R. Civ. P. 23. I am grateful to Lesley Wexler for pointing out this analogy.
- 168Carlsen et al., supra note 6. I do not claim that this is a comprehensive set of cases. This list reflects the judgments of New York Times reporters about what qualifies as “prominent.” It includes only men, although there are at least three women—Asia Argento, Andrea Ramsey, and Avital Ronnell—who lost opportunities on account of reports of sexual misconduct. One consulting firm claims to have compiled its own proprietary list of over 900 people, including twenty-nine women, whose names have appeared in “at least seven news articles as accused of behavior that includes sexual harassment, assault, abuse or rape and condoning and/or helping to hide such behavior” since December 2015. See Jessica Brice & Jeff Green, Woman Compiling MeToo Names Says They’re the ‘Tip of the Iceberg, Bloomberg (Oct. 17, 2018), https://www.bloomberg.com/news/articles/2018-10-17/woman-compiling-metoo-names-says-they-re-tip-of-the-iceberg[https://perma.cc/KW6Z-FAHN].
- 169This count is based on news stories in addition to the New York Times article. A chart describing those sources is on file with the author.
- 170One of the five exceptions involved allegations detailed in a sexual harassment lawsuit. Jessica Sidman & Anna Spiegel, The Inside Story of Mike Isabella’s Fallen Empire, Washingtonian (Nov. 26, 2018), https://www.washingtonian.com/2018/11/26/the-inside-story-of-mike-isabellas-fallen-empire/[https://perma.cc/3ZYH-VUHK].Two involved allegations of criminal conduct. Anita Busch, Tom Sizemore Dropped From Thriller ‘The Door’ After Sexual Misconduct Allegations, Deadline Hollywood (Nov. 15, 2017), https://deadline.com/2017/11/tom-sizemore-sexual-misconduct-allegations-dropped-from-horror-film-the-door-1202208846/[https://perma.cc/A6GU-YFG5];Michael Schneider, T.J. Miller Replaced as Mucinex Spokesman, Coinciding With Sexual Assault Allegations, IndieWire (Feb. 6, 2018), https://www.indiewire.com/2018/02/tj-miller-mucinex-jason-mantzoukas-super-bowl-ad-1201925909/[https://perma.cc/QXT3-4SAT].In one case, there was evidence in the form of text messages that a lawmaker had communicated with a teenage girl in ways legislative leaders regarded as inappropriate. Keith M. Phaneuf, Angel Arce to Resign From General Assembly, CT Mirror (Mar. 7, 2018), https://www.courant.com/politics/hc-pol-arce-texts-whats-next-20180327-story.html[https://perma.cc/W4WQ-6DY5].And in one case, the accused and his employer denied that the allegations of harassment were related to his decision to resign. Rachel Monahan, Former Portland Mayor Sam Adams Has Abruptly Left his Job at a D.C. Think Tank, Willamette Week (Dec. 6, 2017), https://www.wweek.com/news/city/2017/12/06/former-portland-mayor-sam-adams-has-abruptly-left-his-job-at-a-d-c-think-tank/[https://perma.cc/6AJ2-W96A].
- 171Those who resign rather than face an investigation cannot complain about lack of process. See Stone v. Univ. of Maryland Med. Sys. Corp., 855 F.2d 167, 173–75 (4th Cir. 1988).
- 172Many of the cases in which there was no employer investigation involved investigative journalism that uncovered corroborating evidence, such as the reporting on Harvey Weinstein. See supra note 21.
- 173See, e.g., Amy Oppenheimer & Craig Pratt, Investigating Workplace Harassment: How to Be Fair, Thorough, and Legal 50 (2002).
- 174Id. at 62.
- 175Id. at 108–09; see also Dori Meinert, How to Investigate Sexual Harassment Allegations, SHRM (Jan. 8, 2018), https://www.shrm.org/hr-today/news/hr-magazine/0218/pages/how-to-investigate-sexual-harassment-allegations.aspx[https://perma.cc/R9DP-SH4D].
- 176Oppenheimer & Pratt, supra note at 109 (explaining that if an employer applies the “beyond a reasonable doubt” standard and finds no harassment occurred, but then a civil jury finds that harassment did occur based on a “preponderance of the evidence,” there is a risk that the jury will “question the employer’s good faith and may award significant damages to the complainant.”).
- 177Id. at 110.
- 178Id.
- 179My focus is not the fairness of these investigations, because they are not unique features of the #MeToo moment, and they are not extralegal in the same sense; rather, they have insinuated themselves into the fabric of sexual harassment law. See, e.g., Lauren B. Edelman, Working Law: Courts, Corporations, and Symbolic Civil Rights 183–88 (2016).
- 180See, e.g., German Lopez, The FBI Investigation of Kavanaugh Was Doomed from the Start, Vox (Oct. 5, 2018), https://www.vox.com/policy-and-politics/2018/10/5/17940738/fbi-investigation-kavanaugh-thorough-limits[https://perma.cc/V7P7-Z32Y].
- 181Dykstra, supra note 148. With respect to sexual assault, Dykstra stated that “I let him sexually assault me.” Id. While Dykstra did not identify Hardwick by name, she included enough details to allow readers to identify him. Corinne Heller, Chris Hardwick Returning to AMC After
Sexual Assault Investigation, E! News (Jul. 25, 2018, 2:28 PM), https://www.eonline.com/news/944736/chris-hardwick-s-talk-show-pulled-by-amc-amid-sexual-assault-claims[https://perma.cc/CRV7-PZMF].
- 182Heller, supra note 181 (reporting that AMC released the following statement: “We take these matters very seriously and given the information available to us after a very careful review, including interviews with numerous individuals, we believe returning Chris to work is the appropriate step”).
- 183An Phung & Chloe Melas, Women Accuse Morgan Freeman of Inappropriate Behavior, Harassment, CNN (May 28, 2018, 11:56 PM), https://www.cnn.com/2018/05/24/entertainment/morgan-freeman-accusations/index.html[https://perma.cc/EM26-A27S].
- 184David Robb, Morgan Freeman to Keep SAG Lifetime Achievement Award Following Harassment Probe, Fox news (Sept. 7, 2018), https://www.foxnews.com/entertainment/morgan-freeman-to-keep-sag-lifetime-achievement-award-following-harassment-probe[https://perma.cc/FXP6-GTDC].
- 185Julia Jacobs, Junot Díaz Welcomed Back by Pulitzer Prize After Review into Sexual Misconduct Claims, Guardian (Nov. 19, 2018), https://www.theguardian.com/books/2018/nov/19/junot-diaz-welcomed-back-by-pulitzer-prize-after-review-into-sexual-misconduct-claims[https://perma.cc/ASL6-CQ3Z].
- 186See, e.g., Kate Shaw, How Strong Does the Evidence Against Kavanaugh Need to Be?, N.Y. Times (Sept. 20, 2018), https://www.nytimes.com/2018/09/20/opinion/kavanaugh-blasey-allegation-disqualify.html[https://perma.cc/SG8P-5QBX].
- 187David A. Graham, Susan Collins Says She Believes Survivors—Just Not Ford, Atlantic (Oct. 5, 2018), https://www.theatlantic.com/politics/archive/2018/10/susan-collinss-kavanaugh-sexual-assault/572347/[https://perma.cc/3YP7-7E8U](“This is not a criminal trial, and I do not believe that claims such as these need to be proved beyond a reasonable doubt. Nevertheless, fairness would dictate that the claims at least should meet a threshold of more likely than not as our standard.” (quoting Senator Collins)).
- 188Abrams, supra note 113 (quoting Senator Collins). Later, Senator Collins stated that she thought Dr. Ford was mistaken about the identity of her assailant. Caroline Kelly, Collins: ‘I Do Not Believe That Brett Kavanaugh Was’ Ford’s Assailant, CNN (Oct. 7, 2018), https://www.cnn.com/2018/10/06/politics/collins-sotu-kavanaugh-cnntv/index.html[https://perma.cc/3G2W-KNDX].
- 189Kavanaugh Hearing: Transcript, Wash. Post (Sept. 27, 2018), https://www.washingtonpost.com/news/national/wp/2018/09/27/kavanaugh-hearing-trascript/?utm_term=.b9d91041e335[https://perma.cc/653E-77AT](testimony of Christine Blasey Ford that “My husband recalls that I named my attacker as Brett Kavanaugh.”).
- 190See supra notes 152 & 170 (collecting news stories on cases that might arguably fit into this category); infra notes 289–293 (discussing Andrea Ramsay).
- 191See, e.g., Hemmingway, supra note 88 (“You can’t establish a precedent where anyone can make an unverifiable and murky claim against another person to kill his nomination and career.”); Benjamin Wittes, I Know Brett Kavanaugh, But I Wouldn’t Confirm Him, Atlantic (Oct. 2, 2018), https://www.theatlantic.com/ideas/archive/2018/10/why-i-wouldnt-confirm-brett-kavanaugh/571936/[https://perma.cc/SK9Z-P3CP](“Even assuming that Christine Blasey Ford’s allegations are entirely accurate, rejecting him on the current record could incentivize not merely other sexual-assault victims to come forward—which would be a salutary thing—but also other late-stage allegations of a non-falsifiable nature by people who are not acting in good faith.”).
- 192Emily Yoffee, Why the #MeToo Movement Should Be Ready for a Backlash, Politico (Dec. 10, 2017), https://www.politico.com/magazine/story/2017/12/10/yoffe-sexual-harassment-college-franken-216057[https://perma.cc/PT3X-3K5N].
- 193Kirtley, supra note 117, at 144–45. Libel, for example, is a tort that allows a plaintiff to sue a defendant who has made a false claim that damaged their reputation. In New York, to prove a claim of libel, a plaintiff must show: “(1) a written defamatory factual statement concerning the plaintiff; (2) publication to a third party; (3) fault; (4) falsity of the defamatory statement; and (5) special damages or per se actionability.” Chau v. Lewis, 771 F.3d 118, 126–27 (2d Cir. 2014). Allegations of sexual misconduct may qualify as per se actionable. Restatement (Second) of Torts, §574 (1977).
- 194Kirtley, supra note 117, at 153 (explaining that “it is both easier and legally safer for journalists to rely on official sources. Conducting parallel and independent investigations exposes journalists to a greater risk of legal liability for inaccurate, incorrect, or defamatory statements, while relying on official sources protects them in their ‘fair reports’ of government documents and actions”).
- 195Coronel, Coll, & Kravitz, supra note 128.
- 196T. Rees Shapiro & Emma Brown, Rolling Stone Settles With Former U-Va. Dean in Defamation Case, Wash. Post (Apr. 11, 2017), https://www.washingtonpost.com/local/education/rolling-stone-settles-with-u-va-dean-in-defamation-case/2017/04/11/5a564532-1f02-11e7-be2a-3a1fb24d4671_story.html[https://perma.cc/39FG-Z27X].
- 197Id. The defendants filed a motion to vacate the judgment, but the case settled before it was resolved. Id.
- 198Eramo v. Rolling Stone, LLC, 209 F. Supp. 3d 862, 869 (W.D. Va. 2016).
- 199New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964). “Reckless disregard” means that the defendants “entertained serious doubts as to the truth of [their] publication.” St. Amant v. Thompson, 390 U.S. 727, 730 (1968). Victims who are not public figures may generally prevail on the lesser showing that the defendant was negligent. Rodney A. Smolla, 1 Law of Defamation §3:30 (2d ed. 2018).
- 200Eramo, 209 F. Supp. 3d at 871.
- 201Tyler Kingkade, As More College Students Say “MeToo,” Accused Men Are Suing for Defamation, BuzzFeed News (Dec. 5, 2017), https://www.buzzfeednews.com/article/tylerkingkade/as-more-college-students-say-me-too-accused-men-are-suing#.rlW1WVZPE[https://perma.cc/7W7U-TJTW].
- 202Susan Seager, #MeToo Stories Can Lead to Libel Suits, The Wrap (Nov. 4, 2017), https://www.thewrap.com/brett-ratner-melanie-kohlier-sexual-assault-rape-hollywood-harvey-weinstein/[https://perma.cc/7SA6-6SQB](discussing how an accuser was persuaded to remove a Facebook post by the threat of a libel suit).
- 203Id.
- 204See supra note 191.
- 205Abrams, supra note 113 (quoting Senator Collins).
- 206See, e.g., David Bauder, NBC Faces Scrutiny for Interview with Kavanaugh Accuser, AP News (Oct. 3, 2018), https://www.apnews.com/c5ecf76c62ec4c398e35020b5df01061[https://perma.cc/G84H-HRJB];Michael E. Miller et al., Who is Julie Swetnick, the Third Kavanaugh Accuser?, Wash. Post (Oct. 1, 2018), https://www.washingtonpost.com/local/who-is-julie-swetnick-the-third-kavanaugh-accuser/2018/09/26/91e16ed8-c1bc-11e8-97a5-ab1e46bb3bc7_story.html[https://perma.cc/LFW9-848E].
- 207See Lopez, supra note 180.
- 208Senate Comm. on the Judiciary, Swetnick, Avenatti Referred for Criminal Investigation (Oct. 25, 2018), https://www.judiciary.senate.gov/press/rep/releases/swetnick-avenatti-referred-for-criminal-investigation[https://perma.cc/H9U3-KTL2].
- 209Nicholas Fandos & Michael D. Shear, Before Kavanaugh Hearing, New Accusations and Doubts Emerge, N.Y. Times (Sept. 26, 2018), https://www.nytimes.com/2018/09/26/us/politics/kavanaugh-calendar.html [https://perma.cc/G3X4-84NB](discussing an individual from Rhode Island “who charged—and then recanted Wednesday night—that Judge Kavanaugh had raped a woman on a boat in 1985 in Newport, R.I.”).
- 210See, e.g., Natasha Bertrand, Mueller Wants the FBI to Look at a Scheme to Discredit Him, Atlantic (Oct. 30, 2018), https://www.theatlantic.com/politics/archive/2018/10/special-counsel-refers-scheme-targeting-mueller-to-fbi/574411/[https://perma.cc/QCJ2-JV39].
- 211See, e.g., Jill Abramson, The GOP Thinks #MeToo Is a Chance to Exploit the ‘Biased’ Press, Intelligencer (Nov. 19, 2018), http://nymag.com/intelligencer/2018/11/gop-thinks-metoo-is-a-chance-to-exploit-the-biased-press.html.
- 212Beth Reinhard et al., Woman’s Effort to Infiltrate The Washington Post Dated Back Months, Wash. Post (Nov. 29, 2017), https://www.washingtonpost.com/investigations/womans-effort-to-infiltrate-the-washington-post-dates-back-months/2017/11/29/ce95e01a-d51e-11e7-b62dd9345ced896d_story.html[https://perma.cc/T252-G5E6].
- 213Yoffee, supra note 192 (expressing the worry that the #MeToo movement “will eventually move past this moment of shocking allegations against famous men, and should soon focus on the many nonfamous people in quotidian circumstances. But top news organizations are not likely to provide as much due diligence about those cases”).
- 214See generally Vicki Schultz, The Sanitized Workplace, 112 Yale L.J. 2061 (2003).
- 215Id.
- 216Arnow-Richman, supra note 19, at 89.
- 217See, e.g., id. at 101–02.
- 218See, e.g., United States v. Ticchiarelli, 171 F.3d 24, 32–33 (1st Cir. 1999) (“Whether there is a waiver depends not on counting the number of missed opportunities (hearings, motions, etc.) to raise an issue, but on whether the party had sufficient incentive to raise the issue in the prior proceedings.”).
- 219See supra notes 33–58 and accompanying text. Professor Duncan Kennedy has called this the “tolerated residuum” of sexual abuse. Kennedy, supra note 116, at 1320. It serves not only the interests of abusers, but also the individual interests of those men who imagine themselves more likely to be falsely accused than sexually abused, and who wish to avoid the burden of worrying about “excess or inaccurate enforcement” of the law. Id.
- 220See, e.g., #WhyIDidntReport, Twitter, https://twitter.com/hashtag/WhyIDidntReport[https://perma.cc/FCG7-JBGS].
- 221Zacharek, supra note 59.
- 222Kerry Howley, Everyone Believed Larry Nassar. The Predatory Trainer May Have Just Taken Down USA Gymnastics. How Did He Deceive So Many For So Long?, The Cut (Nov. 19, 2018), https://www.thecut.com/2018/11/how-did-larry-nassar-deceive-so-many-for-so-long.html[https://perma.cc/C4W6-3BQA](“Over the course of at least 20 years of consistent abuse, women and girls reported to every proximate authority.”).
- 223Noreen Malone & Amanda Demme, ‘I’m No Longer Afraid’: 35 Women Tell Their Stories About Being Assaulted by Bill Cosby, and the Culture that Wouldn’t Listen, The Cut (July 26, 2015), https://www.thecut.com/2015/07/bill-cosbys-accusers-speak-out.html#barbara-bowman[https://perma.cc/PAY5-BHR2].
- 224Eliana Dockterman, ‘I Was Angry.’ Taylor Swift on What Powered her Sexual Assault Testimony, Time (Dec. 6, 2017), http://time.com/5049659/taylor-swift-interview-person-of-the-year-2017/[https://perma.cc/3767-N3Y2].
- 225Id.
- 226Id.
- 227Id. (“When I testified, I had already been in court all week and had to watch this man’s attorney bully, badger and harass my team including my mother over inane details and ridiculous minutiae, accusing them, and me, of lying.”).
- 228Id.
- 229See, e.g., United States v. Kubrick, 444 U.S. 111, 117 (1979) (explaining that statutes of limitations provide defendants with “repose,” “encourage the prompt presentation of claims,” and “protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise.”).
- 230Cf. Jessica Henderson Daniel, Statement of APA President Regarding the Science behind Why Women May Not Report Sexual Assault, Am. Psychol. Ass’n (Sept. 24, 2018), https://www.apa.org/news/press/releases/2018/09/report-sexual-assault.aspx[https://perma.cc/N8NW-3FYK](explaining that survivors may not report for any number of reasons, including “fear for their safety, being in shock, fear of not being believed, feeling embarrassed or ashamed, or expecting to be blamed.”).
- 231Anne Lawton, Tipping the Scales of Justice in Sexual Harassment Law, 27 Ohio N.U. L. Rev. 517, 519–22 (2001) (criticizing the short statute of limitations for sexual harassment claims, and pointing out that, for example, under Ohio law there is a four-year statute of limitations for breach of a sales contract).
- 232See Jamie R. Abrams, The #MeToo Movement: An Invitation for Feminist Critique of Rape Crisis Framing, 52 U. Rich. L. Rev. 749, 769–70 (2018).
- 233See, e.g., George Fisher, Plea Bargaining’s Triumph, 109 Yale L.J. 857, 859 (2000) (discussing how the criminal justice system is dominated by plea bargaining); Thea Johnson, Fictional Pleas, 94 Ind. L.J. 855, 857 (2019) (discussing “fictional pleas” in which offenders plead guilty to crimes they did not commit to avoid trials that place them at risk of extreme consequences).
- 234See, e.g., Judith Resnik, Trial as Error, Jurisdiction as Injury: Transforming the Meaning of Article III, 113 Harv. L. Rev. 924, 925 (2000).
- 235As the Supreme Court has reflected:
A responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field. Its function in this regard is documented by an impressive record of service over several centuries. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.
Sheppard v. Maxwell, 384 U.S. 333, 350 (1966). The Duke Lacrosse incident provides one example of how the press can serve as a check on irresponsible prosecutors. See, e.g., supra note 130 and accompanying text.
- 236See, e.g., Joanna Piacenza, How #MeToo Impacts Viewers’ Decisions on What to Watch, Morning Consult (May 28, 2018), https://morningconsult.com/2018/05/28/how-metoo-impacts-viewers-decisions-what-watch/[https://perma.cc/TJ8S-A7FK](surveying 2202 U.S. adults about whether allegations of misconduct against twenty performers would affect their viewership, and finding that “allegations against only two — Kevin Spacey and Louis C.K. — spurred more people to say their viewership habits would change as a result”).
- 237See supra Section III.B.
- 238Stephen N. Subrin et al., Civil Procedure: Doctrine, Practice, and Context 1024–25 (4th ed. 2012).
- 239Id.
- 240See supra notes 186–189 and accompanying text.
- 241See, e.g., Daniel Hemel, Burdens of Proof for Sexual Misconduct Claims in Senate Confirmations and on College Campuses, Medium (Sept. 23, 2018), https://medium.com/whatever-source-derived/burdens-of-proof-for-sexual-misconduct-claims-in-senate-confirmations-and-on-college-campuses-ed6347713674[https://perma.cc/3BYD-NTU9].
- 242See Shaw, supra note 186.
- 243See Hemel, supra note 241.
- 244See id. (discussing the substantial evidence standard); Shaw, supra note 186 (arguing for a “credible accusation” standard).
- 245See Hemel, supra note 241.
- 246Different employers may conduct their own investigations, see, e.g., Jacobs, supra note 185, and may sometimes reach different conclusions, see, e.g., Erik Wemple, CNN Reinstates Ryan Lizza, Wash. Post (Jan. 25, 2018), https://www.washingtonpost.com/blogs/erik-wemple/wp/2018/01/25/cnn-reinstates-ryan-lizza/?utm_term=.afb7cd3dd9b4[https://perma.cc/YU3G-2RMD].
- 247See Hemel, supra note 241.
- 248Id.
- 249[1] See supra note 156 (citing sources re-evaluating of the accusations against former Senator Al Franken over a year after his resignation).
- 250See Hemel, supra note 241 (discussing the consequences of the allegation for Christine Blasey Ford, who went into hiding with her family to avoid harassment).
- 251Mathews v. Eldridge, 424 U.S. 319, 348 (1976) (alteration in original) (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 171–72 (1951) (Frankfurter, J., concurring)).
- 252Henry J. Friendly, “Some Kind of Hearing”, 123 U. Pa. L. Rev. 1267, 1267 (1975) (quoting Wolff v. McDonnell, 418 U.S. 539, 557–58 (1974)).
- 253Mathews, 424 U.S. at 335 (setting forth an inquiry that considers three factors: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail”).
- 254This was a failing of the reporting by Rolling Stone on rape at the University of Virginia. Coronel, Coll, & Kravitz, supra note 128 (“If both the reporter and checker had understood that by policy they should routinely share specific, derogatory details with the subjects of their reporting, Rolling Stone might have veered in a different direction.”).
- 255See supra Section III.A.
- 256See supra notes 173–185 and accompanying text.
- 257See Arnow-Richman, supra note 19, at 92.
- 258For more discussion of “name clearing hearings,” see supra notes 93–94 and accompanying text.
- 259See, e.g., Wojcik v. Massachusetts State Lottery Comm’n, 300 F.3d 92, 103 (1st Cir. 2002) (“The purpose of the hearing is only to allow the employee to clear his name of the false charges; compliance with formal procedures is not necessarily required.”); Moody v. Cty. of Santa Clara, No. 5:15-CV-04378-EJD, 2018 WL 2267662, at *4 (N.D. Cal. May 17, 2018) (“Due process imposes no hard and fast requirements on what constitutes an adequate ‘name-clearing’ hearing, including, for example, whether it must be public, evidentiary in nature, or held prior to deprivation of the liberty or property interest.”).
- 260See, e.g., Gunasekera v. Irwin, 551 F.3d 461, 469–71 (6th Cir. 2009) (applying the balancing test from Mathews v. Eldridge, 424 U.S. 319, 348 (1976)).
- 261See, e.g., Harrell v. Cty of Gastonia, 392 Fed. App’x 197, 205 (4th Cir. 2010) (“[G]overnmental officials conducting such hearings will often be employed by the same governmental entity that made the decision being challenged, and those officials are still presumed to be fair and impartial in conducting proceedings.”).
- 262See, e.g., Baden v. Koch, 799 F.2d 825, 832 (2d Cir. 1986) (holding that the plaintiff “could presumably have called a press conference and provided any further defense of his record or explanation of his removal from office that he desired to give”); see also Moody, 2018 WL 2267662, at *4.
- 263Baden, 799 F.2d at 832; see also Esposito v. Metro-N. Commuter R. Co., 856 F. Supp. 799, 807–08 (S.D.N.Y. 1994) (“[A]s plaintiff concedes, because media interest in his story was so intense, he had, and took advantage of, ready and pervasive access to the public to refute the allegations against him. Indeed, as the plethora of newspaper articles contained in the record demonstrates, plaintiff was not shy about publishing his version of events, and the media was more than willing to report it”).
- 264Cf. Baden, 799 F.2d at 833 (“If we were to hold that a government executive’s public statement of reasons for a discretionary personnel decision automatically triggered a requirement for a formal trial-type hearing, executives would be tempted to refrain from explaining their personnel actions in public, a result contrary to the strong policy of maintaining an informed electorate.”).
- 265It is not clear which direction biases will point in. For example, some survey evidence suggests that sexual misconduct allegations have little effect on film and television audiences, with some audience members reporting they are more likely to watch a performer after accusations emerge. Piacenza, supra note 236.
- 266See Arnow-Richman, supra note 19, at 86 (“With harassment in the spotlight, many [employers] are likely to conclude that a swift and severe response to any allegation of misconduct is the only way to avoid a public relations nightmare.”). With respect to high level employees, institutions may have countervailing incentives to protect incumbent leadership. Id. at 87.
- 267Cf. Hemmingway, supra note 88 (describing the Ford-Kavanaugh hearings as “[a] Senate star chamber full of grandstanding senators on both sides”).
- 268U.S. Const. amend. VI.
- 269See Fed. R. Evid. 801–07.
- 270See, e.g., Miller v. Metrocare Servs., 809 F.3d 827, 834 (5th Cir. 2016) (“[W]e decline Miller’s invitation to make confrontation of witnesses a mandatory requirement for an adequate name-clearing hearing.”); Chilingirian v. Boris, 882 F.2d 200, 206 (6th Cir. 1989) (holding that a name-clearing hearing did not violate due process even though the plaintiff was not permitted to cross-examine city council members who had voted for his termination or to require that they answer questions he had submitted).
- 271See, e.g., Feterle v. Chowdhury, 148 F. App’x 524, 532 (6th Cir. 2005) (holding that due process was satisfied even though an employee accused of discriminatory misconduct was not provided the names of witnesses who had contributed to a report that was part of the basis for terminating him).
- 272Doe v. Baum, 903 F.3d 575, 578 (6th Cir. 2018) (“[I]f a university is faced with competing narratives about potential misconduct, the administration must facilitate some form of cross-examination in order to satisfy due process.”).
- 273Id. at 582.
- 274H. Hunter Bruton, Cross-Examination, College Sexual-Assault Adjudications, and the Opportunity for Tuning Up the “Greatest Legal Engine Ever Invented”, 27 Cornell J.L. & Pub. Pol’y 145 (2017) (collecting and assessing empirical research). Cross-examination may suggest that the key to the truth is a witness’s demeanor, but “scientific evidence proves that most, if not all, readily observable behavioral cues assumed to indicate deceit do not actually do so.” Id. at 155–56. Under the stress of cross-examination, “many cope by simply changing their story regardless of their original answers’ veracity,” particularly victims of sexual abuse. Id. at 165. While cross-examination allows lawyers to point out inconsistencies, even truthful witnesses are sometimes unable to recall precise details, and so the technique “highlights the errors of well-intentioned and deceptive witnesses alike.” Id. at 158.
- 275See Suzanne B. Goldberg, Keep Cross-Examination Out of College Sexual-Assault Cases, Chronicle of Higher Ed. (Jan. 10, 2019), https://www.chronicle.com/article/Keep-Cross-Examination-Out-of/245448?cid=wcontentlist_hp_5[https://perma.cc/5DM2-ZHXH].
- 276See, e.g., Furey v. Temple Univ., 884 F. Supp. 2d 223, 252 (E.D. Pa. 2012) (holding that prohibiting the student-plaintiff from personally cross-examining the witnesses did not violate due process because the student “was able to cross examine the witnesses by posing questions through the [panel’s] Chair”).
- 277SPJ Ethics Comm., Position Papers, Anonymous Sources, https://www.spj.org/ethics-papers-anonymity.asp[https://perma.cc/AV6S-KVBD](last visited Jan. 15, 2019) (discussing the principles that sources should be identified “whenever feasible” and journalists should “[a]lways question sources’ motives before promising anonymity”). The use of an anonymous source should require a supervisor’s approval, and many news organizations have policies on the question. Id.; see also Anonymous Sourcing, NPR Ethics Handbook (accessed Jan. 15, 2019), http://ethics.npr.org/tag/anonymity/[https://perma.cc/2B4Z-TSU9].
- 278Poynter Staff, supra note 19.
- 279See, e.g., Oliver Darcy, Five Women Accuse Journalist and ‘Game Change’ Co-Author Mark Halperin of Sexual Harassment, CNN (Oct. 27, 2017), https://money.cnn.com/2017/10/25/media/mark-halperin-sexual-harassment-allegations/index.html[https://perma.cc/8L3B-EV3S];Irene Plagianos & Kitty Greenwald, Mario Batali Steps Away From Restaurant Empire Following Sexual Misconduct Allegations, Eater (Dec. 11, 2017, 8:01 AM), https://ny.eater.com/2017/12/11/16759540/mario-batali-sexual-misconduct-allegations[https://perma.cc/3X4B-C2PM];Jenn Ableson & Sacha Pfeiffer, Modeling’s Glamour Hides Web of Abuse, Boston Globe (Feb. 16, 2018), https://www.bostonglobe.com/metro/2018/02/16/beauty-and-ugly-truth/c7r0WVsF5cib1pLWXJe9dP/story.html[https://perma.cc/WTH7-PT98](reporting that three anonymous models accused “Karl Templer, a top stylist, of yanking their breasts, touching their crotches, or aggressively pulling down their underwear without asking them during shoots,” which Templer denied).
- 280See Coronel, Coll, & Kravitz, supra note 128; Poynter Staff, supra note 19 (“Although you may not be naming a source in a story, in most cases it is appropriate to reveal accusers’ names to the accused.”).
- 281Plagianos & Greenwald, supra note 279 (quoting a statement from Mario Batali); see also Darcy, supra note 279 (quoting a statement in which Halperin apologized for pursuing relationships with junior colleagues).
- 282Eli Watkins, Timeline: How the Kavanaugh Accusations Have Unfolded, CNN (Sept. 17, 2018), https://www.cnn.com/2018/09/17/politics/kavanaugh-ford-timeline/index.html[https://perma.cc/4NST-TDLH].
- 283See, e.g., Frank Pallotta, John Lasseter Joins Skydance Media After Leaving Disney Following Misconduct Allegations, CNN Business (Jan. 9, 2019), https://www.cnn.com/2019/01/09/media/john-lasseter-skydance/index.html[https://perma.cc/5UBT-G53G](discussing an investigation conducted after unnamed sources alleged sexual harassment); Maureen Ryan, ‘Supergirl,’ ‘Arrow’ Producer Suspended Amid Sexual Harassment Allegations by Warner Bros., Variety (Nov. 10, 2017), https://variety.com/2017/tv/news/warner-bros-sexual-harassment-andrew-kreisberg-1202612522/[https://perma.cc/DKX4-XYPR](discussing how inquiries by Variety about anonymous allegations of harassment prompted an investigation by the Warner Brothers’ human resources department).
- 284See Busch, supra note 170; Schneider, supra note 170. In another case, an employer acted on the report of a source who was known to it and the accused but whose story was not disclosed to the public. See, e.g., Liam Stack, Ryan Lizza Fired by The New Yorker over Sexual Misconduct Allegation, N.Y. Times (Dec. 11, 2017), https://www.nytimes.com/2017/12/11/business/ryan-lizza-sexual-misconduct.html[https://perma.cc/T4XT-82W5].There may be cases in which employers acted on anonymous reports that were not included in the New York Times’ list. See supra note 152.
- 285See, e.g., Steel, supra note 38 (discussing how Bill O’Reilly hired a private investigator to find damaging information about one accuser).
- 286Miller et al., supra note 206.
- 287See, e.g., Maria Halkias, Scandal Surrounding Alleged Extramarital Affair of Former U.S. Hispanic Chamber Leaders from Dallas Moves into Court, Dallas News (July 17, 2018), https://www.dallasnews.com/business/business/2018/07/17/charges-surrounding-extramarital-affair-former-us-hispanic-chamber-leaders-dallas-moves-court[https://perma.cc/X2RU-MUU2];Weiss, supra note 152.
- 288Bauder, supra note 206.
- 289Lindsay Wise & Bryan Lowry, Kansas Dem Andrea Ramsey, Accused of Sexual Harassment, Will Drop Out of U.S. House Race, Kan. City Star (Dec. 15, 2017), https://www.kansascity.com/news/politics-government/article189931704.html.
- 290Id. Court documents include very few details about the incident. An EEOC charge attached to the complaint states: “In late March 2005, [Ramsay] made sexual advances toward [the plaintiff] on a business trip,” and that after the plaintiff told Ramsay he was not interested in her, she terminated him. Complaint, Funkhouser v. LabOne, Inc., No. 05-cv-02458 (D. Kan. Oct. 25, 2005).
- 291Andrea Ramsey Letter: ‘I Never Engaged in Any of the Alleged Behavior,’ Kan. City Star (Dec. 15, 2017), https://www.kansascity.com/news/politics-government/article189934114.html.
- 292Wise & Lowry, supra note 289 (Ramsay is quoted as saying “All I can say is the matter has been resolved.”).
- 293Two democratic representatives have publicly questioned the DCCC’s decision to withdraw its support for Ramsay. Maggie Severns & Marianne Levine, Both Parties Face Dissent over Handling of #MeToo, Politico (Jan. 29, 2018, 5:01 AM), https://www.politico.com/story/2018/01/29/congress-sexual-harassment-metoo-372855[https://perma.cc/F7Y2-KA6K].
- 294Audie Cornish, Gayle King Thinks #MeToo Needs Due Process, N.Y. Times Mag. (June 12, 2018), https://www.nytimes.com/2018/06/12/magazine/gayle-king-thinks-metoo-needs-due-process.html[https://perma.cc/HUW9-BH7G];see also Traister, supra note 66 (“MSNBC’s Mike Barnicle, himself once having been returned to power after a plagiarism scandal, has mourned publicly for the injury done to his friend and former colleague Mark Halperin, who got canned after being accused of pushing his penis against younger female subordinates: ‘He deserves to have what he did deplored,’ Barnicle declared. ‘But does he deserve to die? How many times can you kill a guy?’”).
- 295Not only do disproportionate penalties offend basic fairness, but treating all instances of sexual misconduct with “zero-tolerance” can make rules against misconduct less effective. Feldblum & Lipnic, supra note 41 (explaining that “zero tolerance” rules “may contribute to employee under-reporting of harassment, particularly where they do not want a colleague or co-worker to lose their job over relatively minor harassing behavior–they simply want the harassment to stop”).
- 296Piacenza, supra note 265 (discussing polling data and quoting public relations executives).
- 297Don’t Miss Bill O’Reilly’s ‘No Spin News’ on Newsmax TV, Newsmax (Nov. 20, 2018), https://www.newsmax.com/newsmax-tv/bill-oreilly-no-spin-news-newsmaxtv/2018/03/28/id/851260/[htttps://perma.cc/6XR6-SG6T].
- 298See Wemple, supra note 246.
- 299Adrienne Lafrance, The New York Times’s Glenn Thrush Dilemma, Atlantic (Jan. 9, 2018), https://www.theatlantic.com/business/archive/2018/01/american-newsrooms-are-covering-sexual-harassmentbut-whats-happening-inside-the-newsrooms-themselves/550058/[https://perma.cc/8S5V-96TS].
- 300See, e.g., Al Franken, https://soundcloud.com/user-490403240[https://perma.cc/AER9-JP4Y](podcast hosted by Franken with guests including Norm Ornstein, E.J. Dionne, Michael Lewis,and Dana Carvey); Dahlia Lithwick, How Would Al Franken Question Attorney General Nominee William Barr?, Slate (Jan. 15, 2019), https://slate.com/news-and-politics/2019/01/how-al-franken-would-question-william-barr.html[https://perma.cc/W7HH-BA2K](interviewing Franken); Al Franken, Kavanaugh Supreme Court Hearings Showcase Republican Partisanship, Hypocrisy: Al Franken, USA Today (Sept. 7, 2018), https://www.usatoday.com/story/opinion/2018/09/07/brett-kavanaugh-supreme-court-hearings-showcase-republican-hypocrisy-column/1215578002/[https://perma.cc/5P3Y-VQ9Q].But see Mayer, supra note 156 (observing that the level of public interest in Franken is a shadow in comparison to his past celebrity as “the most recognizable figure in the Senate”).
- 301Crenshaw, supra note 69 (“A crass effort to marshal his considerable talent to sing his way to clemency, ‘I Admit’ is a coyly titled work of audience-trolling in the vein of O.J. Simpson’s memoir of his ex-wife’s murder case, If I Did It.”).
- 302Elizabeth A. Harris & Ben Sisario, Why It Could be Hard to Mute R. Kelly, N.Y. Times (Jan. 13, 2019), https://www.nytimes.com/2019/01/13/arts/music/mute-r-kelly.html[https://perma.cc/6P9W-8FAH].
- 303Louis CK: I’ve Been ‘to Hell and Back’ and Lost $35 Million, Laughspin (Oct. 12, 2018), https://laughspin.com/louis-ck-west-side-comedy-club-sexual-misconduct/[https://perma.cc/ZY8E-58AB].C.K. is one of the world’s highest paid comedians, reportedly earning $52 million in the twelve months prior to June 2017. Madeline Berg, Louis C.K.’s Losses: How Much the Sexual Misconduct Scandal May Cost the Comedian, Forbes (Nov. 10, 2017), https://www.forbes.com/sites/maddieberg/2017/11/10/louis-c-k-s-losses-how-much-the-sexual-misconduct-scandal-may-cost-the-comedian/#2051da615801[https://perma.cc/H8FL-A9EA].
- 304Anna North, Aziz Ansari’s New Standup Set, and its Complicated, Necessary Role in #MeToo, Vox (Mar. 20, 2019), https://www.vox.com/2019/3/20/18263783/aziz-ansari-tour-2019-sexual-misconduct-allegations[https://perma.cc/2FCV-KVWJ](describing the themes of a recent comedy performance by Ansari as “personal growth and political progress”). See also Doreen St. Félix, The Productive Ambivalence of Aziz Ansari in his Comeback Netflix Special, New Yorker (July 13, 2019), https://www.newyorker.com/culture/cultural-comment/the-productive-ambivalence-of-aziz-ansari-in-his-comeback-netflix-special[https://perma.cc/N3PH-257F].
- 305“Doxing” is the spread of personal information about an individual in an effort to facilitate harassment. See Leigh Honeywell, Staying Safe When You Say #MeToo, ACLU (Feb. 12, 2018), https://www.aclu.org/blog/privacy-technology/internet-privacy/staying-safe-when-you-say-metoo[https://perma.cc/P4W3-8S7V].Unfortunately, online mobbing is a risk for accusers. Id.
- 306See Anderson, supra note 36, at 1953.
- 307See Schultz, supra note 67.
- 308Melena Ryzik et al., Louis C.K. Is Accused by 5 Women of Sexual Misconduct, N.Y. Times (Nov. 9, 2017), https://www.nytimes.com/2017/11/09/arts/television/louis-ck-sexual-misconduct.html[https://perma.cc/PM3E-H5QZ].
- 309Laurie Kilmartin, Being a Female Comic in Louis C.K.’s World, N.Y. Times (Nov. 10, 2017), https://www.nytimes.com/2017/11/10/opinion/sunday/louis-ck-harassment.html[https://perma.cc/FPE4-RR4A].
- 310Ryzik et al., supra note 308.
- 311See, e.g., Manne, supra note 105, at 225–38.
- 312See Dartunorro Clark, Al Franken Accused of Forcibly Kissing, Groping Leeann Tweeden, NBC News (Nov. 16, 2017), https://www.nbcnews.com/politics/congress/sen-al-franken-accused-forcibly-kissing-groping-woman-n821381[https://perma.cc/GL9H-BM8U].One commentator has said about this photo: “I found it an inoffensive burlesque of a burlesque—they were, after all, on a USO tour, which is a raunchy vaudeville throwback.” Yoffe, supra note 156. Cf. Mayer, supra note 156 (quoting an individual who was present when the photo was taken as explaining that the picture was a reference to a skit in which Franken’s character attempted to grope Tweeden’s character on the pretense of performing a breast examination). Modern day burlesque might be a sexually liberatory form of feminist camp, but only if all the performers are in on the joke. At best, the picture shows Franken treating Tweeden like a prop, not a performer. About the picture, Franken himself said:
It’s obvious how Leeann would feel violated by that picture. And, what’s more, I can see how millions of other women would feel violated by it—women who have had similar experiences in their own lives, women who fear having those experiences, women who look up to me, women who have counted on me.
Associated Press, Statement by Sen. Al Franken on Sexual Harassment Allegation, AP (Nov. 16, 2017), https://www.apnews.com/3adcb145c40341c384208dcc036d2429[https://perma.cc/L6QB-K4EP].
- 313Kirsten Gillibrand, Senator Franken Should Step Aside, Facebook (Dec. 6, 2017), https://www.facebook.com/KirstenGillibrand/posts/senator-franken-should-step-asidei-have-been-shocked-and-disappointed-to-learn-o/10155471770513411/[https://perma.cc/W48V-B6HW](“We should demand the highest standards, not the lowest, from our leaders, and we should fundamentally value and respect women.”).
- 314Wexler, Robbennolt, & Murphy, supra note 29, at 31 (discussing NFL player Ray Rice’s meaningful efforts at redemption after being caught on video assaulting his then-girlfriend).
- 315Id. at 22–33.
- 316Benedict Carey, Therapy for Sexual Misconduct? It’s Mostly Unproven, N.Y. Times (Nov. 27, 2017), https://www.nytimes.com/2017/11/27/health/sexual-harassment-addiction-treatment.html[https://perma.cc/4A52-BYUM];Amy Chozick, Where’s Harvey?, N.Y. Times (Mar. 9, 2018), https://www.nytimes.com/2018/03/09/style/harvey-weinstein-in-arizona.html[https://perma.cc/8BBJ-EZPR].
- 317See, e.g., Sean O’Neal, The Tortured Mind of Dan Harmon, GQ (May 30, 2018), https://www.gq.com/story/dan-harmon-rick-and-morty-profile[https://perma.cc/489Q-8QKL](describing the successful career of Dan Harmon, who apologized for harassment in January 2018); Stacy Perman, John Lasseter is Attempting Hollywood’s Biggest #MeToo Comeback. How’s that Going?, L.A. Times (Jan. 27, 2019), https://www.latimes.com/business/hollywood/la-fi-ct-lasseter-skydance-testcase-20190124-story.html[https://perma.cc/2C43-F75K](discussing controversy over the hiring of John Lasseter to run the animation division of Skydance Media after he had apologized for “missteps” at his previous job).
- 318See Traister, supra note 66.
- 319See, e.g., Judy Faber, CBS Fires Don Imus over Racial Slur, CBS News (July 16, 2007), https://www.cbsnews.com/news/cbs-fires-don-imus-over-racial-slur/[https://perma.cc/9462-V2PD];John Koblin, After Racist Tweet, Roseanne Barr’s Show Is Canceled by ABC, N.Y. Times (May 29, 2018), https://www.nytimes.com/2018/05/29/business/media/roseanne-barr-offensive-tweets.html[https://perma.cc/CUP9-3CYP].
- 320See, e.g., John Patterson, Is All Forgiven? The Strange, Troubling Resurgence of Mel Gibson, Guardian (Nov. 23, 2017), https://www.theguardian.com/film/2017/nov/23/mel-gibson-hollywood-road-rehabilitation[https://perma.cc/S79M-LUBS].
- 321See, e.g., John Koblin & Emily Steel, Brian Williams Gets New Role at Lower Salary, N.Y. Times (June 18, 2015), https://www.nytimes.com/2015/06/19/business/media/brian-williams-nbc-lester-holt.html[https://perma.cc/64BT-MAT8](lies about a helicopter incident in Iraq); James B. Stewart, In the Undoing of a CEO, a Puzzle, N.Y. Times (May 18, 2012), https://www.nytimes.com/2012/05/19/business/the-undoing-of-scott-thompson-at-yahoo-common-sense.html[https://perma.cc/L8EA-XZZ4](fabricating a college degree to embellish a resume).
- 322See, e.g., Chris Tognotti, Whatever Happened to John Edwards? The North Carolina Senator’s Fall from Grace Was Quick & Absolute, Bustle (Nov. 5, 2015), https://www.bustle.com/articles/121572-whatever-happened-to-john-edwards-the-north-carolina-senators-fall-from-grace-was-quick-absolute[https://perma.cc/G62N-KNBK].