Scorning Harassers Isn't the New McCarthyism
1. Are we facing a new McCarthy era?
No. Perhaps there is occasionally too great a rush to judgment, but that’s a familiar problem in human history. McCarthyism involved a huge effort to punish people for their opinions, not their actions. That’s despicable at any time. (As I have noted before, my great-uncle was one of those who became unemployable because of the positions he advocated.) Disciplining an employee because he expresses views that some hate is McCarthyist; disciplining him for harassment or assault isn’t.
It would be McCarthyist for an employer to fire an employee for insisting on more due process for those who are named, or for coming to the defense of one who has been accused. But taking strong action when there is credible evidence that an individual has been abusive toward women is simply the turning of the wheel of justice.
2. Should the news media rely so heavily on unnamed sources in reporting these stories?
In a perfect world, of course not. It’s hard for people to defend themselves against anonymous accusers, and in the courts of law the introduction of such evidence would be outrageous. If some readers choose to attach more weight to the stories that name the sources, that’s certainly their prerogative. But nobody can fail to understand why women lodging serious accusations about powerful men might worry about the effect on their careers.
True, reporters nowadays rely too heavily on unnamed sources in stories of all sorts, often without troubling to penetrate the motives of those who wish to remain unknown. But when one woman after another, while insisting on anonymity, tells journalists similar tales about the same prominent man, it’s reasonable to run with the story; indeed, it would be wrong not to. Media outlets that have had the information in years past and decided not to go with it may have been acting less with prudence than with cowardice.
3. Why does R. Kelly get a pass?
4. What about Senator Al Franken of Minnesota? Shouldn’t he resign, given that a Democratic governor will appoint his replacement?
I keep seeing this argument pressed, and it turns my stomach. Not the resignation part. Franken should go. The disgusting part is the slimy suggestion that part of the reason it’s okay to lose him is that the U.S. Senate’s partisan balance won’t be affected -- that if he were from a red state, maybe he should stay. The principle seems to be that serial harassers should go as long as the party isn’t weakened as a result. That approach doesn’t protect the dignity of women at all; instead, it proposes to sacrifice them when needed for the good of the cause. Such an attitude is neither liberal nor progressive; it’s just cruel.
5. How can you say that? Isn’t Franken entitled to the presumption of innocence and due process?
No, no, no, no, no. As I have noted recently in this space, the presumption of innocence is a legal concept, applied when the government is trying to take away one’s life or liberty. This does not apply to politicians, whether office-seekers or office-holders. As for due process, an elected official is judged in the court of public opinion. An unelected official would be entitled to “some kind of hearing” (in the argot of the law) before being cashiered, but most private employees are terminable at will or terminable for cause.
Yes, employers should carefully investigate charges. Yes, before acting they should believe the accusations. But just as partisans who are trying to figure out what’s true should not take into account the effect on the party, so employers who are trying to figure out what’s true should not take into account the effect on the bottom line.
6. Come on. Why should Franken resign if President Donald Trump doesn’t resign?
Because people of integrity should not choose Trump’s behavior as their model. Indeed, “Trump acts that way too” would not seem to be a compliment.
7. Fair point. But is firing always the answer?
Evidently not. The National Football League, to take the most obvious example, continues to employ young men who have not engaged simply in harassment or groping, but have -- in the opinion of the league -- actually committed assault. These supposed abusers are suspended for several games, which costs them significant money, but then they are back, to the cheers of the fans who pretend never to have believed they were guilty in the first place.
The NFL may be too lenient. (Remember, we’re talking assault, not inappropriate remarks.) But in the midst of a moral panic, it’s important for other employers not to treat every offense as equal. There may be cases in which fines or suspensions are more rational remedies than termination. For example, what Garrison Keilor is accused of doing and what Harvey Weinstein is accused of doing are very different. It’s not a defense of one to say that he’s not in the same ballpark as the other. Thus the New York Times, say, may have been on the right track when it suspended rather than fired reporter Glenn Thrush. (On the other hand, maybe not.)
8. What about higher-ups? Should they remain in place?
This seems to me the most intriguing question left on the table. At one workplace after another, bosses have insisted that they knew nothing about what was going on. Maybe that’s true. But at some level, isn’t it their responsibility to know?
Over lunch a couple of years ago, some students and I had an analogous conversation about sexual assault on campus. I know that the 1-in-4 figure is controversial, and a lot of serious scholars doubt its accuracy, but let’s assume for a moment that it’s true. I asked the students to imagine that the figure applied not to a university but to an investment bank. Would they really think that tweaking the standard of proof in internal disciplinary hearings was the way to deal with the problem?
After a bit of thought, my students admitted that they’d want the bank to face lawsuits and a federal investigation, and maybe be shut down. And, certainly, they’d think the leadership should go, because if those in charge didn’t actually know who was doing what, they were presiding over an institution riddled with assault.
I’m certainly not saying that everyone running any organization that has sexual harassment problems should leave. But “I didn’t know” cannot be allowed to become the excuse that pays dividends forever.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Stephen L. Carter is a Bloomberg View columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park” and “Back Channel,” and his nonfiction includes “Civility” and “Integrity.”
The public haranguing of and forced apologies from those whose views the campus mob doesn’t like isn’t really McCarthyist either; it’s worse Stalinist, or perhaps even Maoist.
Thus House Minority Leader Nancy Pelosi was obviously wrong in her ill-timed remark that Representative John Conyers is entitled to due process. Faced with criticism, Pelosi backed off so fast that one might conclude that either she didn’t mean what she said or she abandoned a principle she believes in.
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