Journalism has been among the heroes of the #MeToo movement. Journalism has surfaced the women who were finally ready to speak out against Harvey Weinstein, stalled and almost blocked the Brett Kavanaugh confirmation, and triggered the re-arrest of Jeffrey Epstein. Journalism has stepped into the void that had been created by an economic system in which wealthy men could use an array of legal workarounds—from NDAs to threats of blackballing to payoffs and intimidation—to avoid the consequences of their actions; a sobering lesson in all the ways the law and lawyers can be deployed to contract out of legal liability. If Epstein stands for anything, it’s how grotesquely an army of well-paid lawyers with insider connections can distort legal accountability and redress, right to the end. So journalism and journalists have stepped up to do the work that courts and lawyers and money had been able to stymie.
It’s easy to conclude that this is a good thing. In so many cases, serious journalists have conducted serious investigations, using multiple credible sources, to shine a light on powerful people behaving despicably. As a gap-filler for meaningful legal redress, it 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. Journalism is not, nor can it ever be, a fail-safe substitute for legal processes. The conversation surrounding Jane Mayer’s recent piece on Al Franken exemplifies the problem.
Last month, the New Yorker’s prize-winning investigative reporter came out with a deeply reported piece that dug into specifics around Franken’s primary accuser, Leeann Tweeden. She did months of reporting, with dozens of sources, and based on her investigation, it’s hard not to think that Tweeden was either lying or manipulated by a right-wing media entity. Mayer also got on-the-record accounts from several senators who questioned their own roles in the events leading up to Franken’s resignation in 2017.
As soon as it was published, the piece was litigated as if it was meant to be a final ruling on the former senator’s guilt or innocence. Many journalists, including writers at Slate, accused Mayer of writing a piece that could too easily be read as a kind of get-out-of-public-shame-jail-free card for Franken. Others praised the piece for being exactly the kind of deep, careful reporting a situation like Franken’s required, while a third group responded by reupping the accounts of their own careful reporting into allegations against Franken. The net effect was another scrum of judgment, with journalism acting as both the body of evidence and the trial mechanism. We ended up possibly more divided than we’d been before, living and luxuriating in our new home: the court of public opinion. The whole affair should serve as yet another reminder that when journalism is made to substitute for due process, things go sideways.
This is not for lack of effort on the part of journalists, but for lack of institutional power. A chief complaint about Mayer’s piece was that she didn’t interview some of the other accusers (several of them declined to speak with her) or gave short shrift to their accounts. The critique first serves to demonstrate how, rather than litigating the actual decisions made by the Senate, we are litigating how journalism is done. But Mayer’s lack of interviews with these women reveals one of the main flaws with thinking that reporting can serve as legal process. Journalists can’t issue subpoenas. They can’t take depositions. Journalists do not have the capacity to take sworn testimony under oath. While both law and journalism claim to have the same aim—truth-seeking—the ground rules and guardrails of each mean they are not interchangeable.
It’s a problem of process, and it’s something we should contemplate sooner rather than later. Because even as we compulsively participate in endless debate enabled by our lizard brains and also Twitter, 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. This helps nobody: It does not serve the accused, and it does not serve the victims well, either. Think of E. Jean Carroll, who, along with 16 other women, is still waiting to see if her testimony, delivered where else but in the press, will begin to matter.
This has been apparent in case after case after case, but it is Mayer’s piece on Franken that has made the problem feel more urgent. I like to think I’ve been fairly consistent on this front for a while now. When the allegations against Franken first surfaced, I wrote that I wanted him to be granted a formal ethics probe. After I accused Alex Kozinski of misconduct myself, I wanted the former 9th Circuit judge to have … a formal ethics probe. A formal finding, unlike a journalistic one, would have had the benefit of being conclusive, and possibly even meting out consequences. I believed that the bizarre hearing (with a hired-gun sex crimes prosecutor) for Brett Kavanaugh was the furthest thing from an investigation or due process that I had ever seen. (And unfortunately, the end result was the further degradation of an institution that cannot afford to be degraded right now.) In each of these instances, the absence of conclusive proceedings has meant we all get to believe in whatever truth we like best. One needn’t deplore the great work done by important journalists exposing sexual predation to fear that journalism alone cannot do the work of formal adjudicatory proceedings. But we confuse journalism for due process at our peril.
The critiques of Mayer help underscore what we lose when we do this. (And yes, as an opinion journalist who writes for an opinion magazine, I understand that journalism encompasses many things beyond straight investigative reporting.) Making journalism the sole adjudicator blinds us to the smaller, more incremental fact-finding that is journalism’s true purpose. It prevents journalism from holding the actual systems that are tasked with upholding due process accountable. Instead, journalism itself becomes the system, and Mayer—the only person or entity that’s done anything approaching an in-depth investigation—ends up getting the brunt of scrutiny at the expense of everyone and everything else. This shift in our attention lets us forget that senators stating on the record that due process was ignored in Franken’s case is useful, even if it’s frustrating—because that admission allows journalists to then ask them what they, as public servants, might do about this problem, or whether they would do it differently next time.
The press has a vital, even unparalleled role in truth-telling and democratic governance. It is the only profession protected by name in the Bill of Rights. But we need to stop relying on journalism to serve as a rough proxy for the justice system. It is bad for journalism and bad for justice. It is why we live in the era of cancel culture. Trial-by-outrage doesn’t attempt to do the other work of judicial proceedings or ethics hearings—the work of meting out proportionate punishment, and crafting mechanisms for restitution and rehabilitation. And if you think that the lack of clear on-ramps back into society, of paths for restitution, has absolutely nothing to do with people’s resistance to admitting their mistakes, I’d suggest you think again.
The real problem with the way things are currently happening is that the quantum of shame heaped on the accused is decreasing with time. The possibility of waiting it out is looking like a smart strategic choice. Roy Moore is running for office again. The enduring lesson of #MeToo should surely not be that regardless of the allegations, your best bet is to weather the storm, claim “fake news,” and deny everything. If that is where we land, this movement will have been a finite three-year episode in a decades-long effort to improve investigations into predation and abuse.
It is true that the institutional and legal methods for investigating and addressing sexual harassment and abuse are deeply flawed. Again, that is precisely how we got here. But the solution to this is not to give up on them; it is to reform them. In a better world, legislators and lawyers would use the lessons of #MeToo to create formal legal mechanisms to investigate abuse and assault, as New York has now done with a new statute that will allow child victims of alleged attacks to initiate proceedings even if the statute of limitations has run out. In a perfect world, we would have more ethics investigations that can consider abuses that don’t break the law but are still objectionable, and more hearings and more FBI inquiries into allegations of abuse. But if all that happens as a result of #MeToo is public and journalistic opprobrium, it will go from being a pathway for meaningful justice that has eluded victims to a lose-lose scenario for truth and for change.
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