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Wednesday, August 28, 2019

Dahlia Lithwick is wrong: There is no dichotomy between journalism and due process. Just the opposite.

Dahlia Lithwick
I've followed Dahlia Lithwick's writing about the law for many years, and have long admired her work. But in a piece earlier this week in Slate, she wrote about a subject I know quite a bit about: The relationship between journalism and the #MeToo movement.

In her piece, entitled "Journalism Won't Get Us Out of This," Lithwick argued the following:

"As a gap-filler for meaningful legal redress, [journalism] has done its job, and it has frequently prompted enormously satisfying resolutions to situations in which unspeakable abuses of power had been revealed. But as a meaningful way to correct for all of the problems it has uncovered, it is time to admit that journalism is not sufficient."

As a prominent example, Lithwick discusses the Al Franken case at some length, which has taken on new wrinkles after Jane Mayer's recent New Yorker piece questioning the credibility of one (among a much larger number, as many have pointed out) of Franken's accusers. And Franken's forced resignation without an ethics probe in the Senate could indeed be seen as an example of where media coverage substituted for due process.

But in reality, that has been the exception rather than the rule, and that's where Lithwick gets the role of the press in the #MeToo movement wrong. I kept expecting her to qualify her analysis, but if anything, her piece doubles down on the contention that there is some kind of dichotomy between journalism and due process. Lithwick refers to the "court of public opinion," a well worn trope often used by those who leap to the defense of abusers (I am not suggesting Litwick intended to do that here), and, in reference to Franken, concludes that "The whole affair should serve as yet another reminder that when journalism is made to substitute for due process, things go sideways."

And, two paragraphs later, she repeats that misleading formulation: "...we should pause to recognize that our current reliance on journalism as a stand-in for due process has ended up meaning that accused men--who might have been subject to real rules of evidence, and procedure, and credible testimony--are being punished according to their own thresholds for shame and their best guesses about what behaviors the public will tolerate and for how long."

I think Lithwick's contention here is both factually and conceptually wrong. The Franken case is actually an exception to the real role that journalism has played, which is to shame institutions and the court system into at long last dealing with long festering accusations of misconduct. In other words, the main role that journalism has played is to bring about the very due process that Lithwick argues it is substituting for. It has done so by giving victims and survivors a voice, something they have often have denied for many years.

How many examples do we need? The justice system in New York only caught up with Jeffrey Epstein after the brilliant reporting of Julie K. Brown at the Miami Herald exposed the rotten deal that prosecutors (including Alexander Acosta, forced to resign as labor secretary) had given given the millionaire financier; Harvey Weinstein is facing trial for rape charges that stem from the reporting of the New York Times and The New Yorker (Pulitzers all around for that critical journalism); and the internal investigation (a form of due process) of former CBS Les Moonves was only initiated by the company after Ronan Farrow documented the allegations against him, again in The New Yorker.

I have worked as a #MeToo reporter for the past four years, mostly in the sciences. Here are two examples from my own reporting, among many:

--The American Museum of Natural History only launched a serious investigation of sexual assault and harassment charges against its former curator of human origins, Brian Richmond, after I began reporting on the allegations for Science magazine. Some months after my article appeared, Richmond was forced to resign.

--The University of Adelaide began an inquiry into allegations of bullying and harassment by the director of its ancient DNA lab, Alan Cooper, after I reported those accusations on Balter's Blog in June and July. Earlier this month, the university suspended Cooper pending disciplinary proceedings. (Note that even a blog post can be influential enough to bring about institutional action. More on that in a piece I have coming out soon.)

The evidence is clear that the usual sequence of events is: Journalism first, due process second. They are not in opposition, nor is one a substitute for the other; rather, journalism often paves the way for people and institutions to do the right thing, sometimes many years after they first knew about serious abuses. Justice, especially justice delayed, very often flows from journalism.

I will continue to read Dahlia Lithwick's legal writing with interest and enthusiasm. But by creating a straw man and seeing a contradiction that does not really exist, she has it wrong when it comes to the relationship between #MeToo and journalism.

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