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Reuters/Mark Blinch
Jian Ghomeshi reentered the spotlight.
OBJECTION

What felled celebrities can expect from the court of public opinion

Ephrat Livni
By Ephrat Livni

Senior reporter, law & politics, DC.

The law offers people accused of wrongdoing protections. It enshrines certain rights, like liberty, and provides due process so that freedom can’t be taken away without procedures and proofs.

Culture doesn’t do that, which is fine. Because liberty isn’t at stake. Reputation is, and a great one is not a given. That’s why Ian Buruma felt forced to resign as editor of the New York Review of Books this week after a scandal exploded over the October issue, called “The Fall of Men.”

It featured an essay by disgraced Canadian radio personality Jian Ghomeshi, who was in 2014 accused of sexual misconduct by 20 women but ultimately acquitted of criminal charges. Buruma told Slate last week that he was interested in Ghomeshi’s experience as a media outcast. Today (Sept. 20), he tells the Dutch publication Vrij Nederland, “I still stand behind my decision to publish. I expected that there would intense reactions, but I hoped that it would open a discussion about what to do with people who behaved badly, but who were acquitted in a court of law.”

Law v. culture

Therein lies his logical flaw. Buruma draws a distinction between legal prosecution and public persecution, correctly, but doesn’t recognize the fact that prominence in the culture is a privilege, not a right.

When the culture accuses a prominent person of messing up, it owes them nothing. There’s no entitlement to power in society, and the court of public opinion offers no protections or processes for a powerful person to maintain their place. Nor does it have to. We, the people who consume media, are fickle, and since we have ample choice about what to read and watch and who to focus our short attention spans upon, we can decide to just not approve of someone for whatever reason.

The former editor recognizes the irony of his situation. “The theme interested me and now I have become a part of this: what do we think of punishing people by social media? There is no time limit to it, no defense possible. If somebody is not guilty in a court of law, he deserves scorn, sure–but in what form and for how long,” Buruma asks Vrij Nederland.

Implied in this question is the assumption that at some point, a felled celebrity’s place should be restored. Or, at the very least, the fallen should be given a second chance.

The problem with this position, however, is that it fails to recognize that the court of public opinion doesn’t operate like a court of law. There are no rules. And it in no way depends on legal outcomes for its conclusions. Unpopularity and prosecution are two totally different animals

Someone like Buruma, whose job was to be attuned to the culture, should have understood that just because Ghomeshi was legally acquitted of six charges and settled one claim, it didn’t mean the public would embrace him after an essay describing his experience. The editor’s judgment was wrong, as he admits.

So, too, is Buruma’s obsession with using legal language for cultural matters. “I have now myself been convicted on Twitter, without any due process,” he complains.

And it’s true. But there was no process due to him. And he’s not facing prison. He’s merely unpopular and out of a job, possibly for good reason. The title of the October issue was proof enough that the editor was out of touch, as there’s ample evidence that men haven’t fallen at all.

The character of Brett Kavanaugh

Consider the discussions surrounding Brett Kavanaugh, the US Supreme Court nominee, who has been accused of attempted sexual assault as a teenager by psychology professor Christine Blasey Ford. She is in hiding after receiving death threats for coming out with the story, while the US president has expressed his sympathies for the nominee. Senator Orrin Hatch, the Utah Republican, says she’s “mistaken.” And some have dismissed the claims with, essentially, the old adage about boys being boys.

Yet Kavanaugh increasingly seems creepy. Former Yale law school students tell the Guardian that professors coaching prospective female clerks for Kavanaugh tell them to dress “feminine” because the judge has a weakness for a certain “look.” And Kavanaugh is close to former federal judge Alex Kozinski, who’s been accused of harassing female clerks and regularly distributed dirty and demeaning jokes via the Easy Rider Gag List, which Kavanaugh received but claims not to recall.

None of these allegations have been proven in a court of law. But they’re all reasons to be extremely wary of the judge’s suitability for the most honorable legal job in the US.

Briefly lucky

Some might argue that the two situations—Burma’s and Kavanaugh’s—are not comparable and that it’s too soon to judge the high-court nominee. Buruma merely published an incendiary article, after all, and Kavanaugh hasn’t yet had a chance to testify about his alleged transgression. 

But there are notable parallels. Both men are in extremely elevated positions that require heightened cultural sensitivity. These are privileged places. No one is entitled to be editor of the most prestigious literary magazine in the US or to sit on the nation’s highest court. If they show poor judgment—now or in the past—the public can and should ask who can replace them, just as outrage over Roseanne Barr’s racist comments led to the cancellation of her ABC-TV show.

Society acquiesces, however briefly, to the elevation of a few lucky individuals. If we discover the respect was misplaced, there’s no reason to save reputations or coveted top spots of people “who behaved badly.”

It doesn’t take a law degree to see the difference between a court of law and the court of public opinion, and using the language of these two spaces interchangeably is misleading and just plain wrong. There is no process due those accused of violating the unwritten and ever-changing rules of an evolving society because there’s no entitlement to power. It’s not a right like liberty, not enshrined in the Constitution. And even if it was, the public is not a state actor responsible for guarding fundamental rights.

We’re merely people, tweeting, reading, watching TV, and free to express our disappointment and displeasure with whomever we choose for however long, maybe forever. As Ghomeshi himself writes in his controversial essay, “And with all of this, I am moving toward what might be seen as a trite point: we learn from our mistakes.”

The same applies to society. Only the process doesn’t require a trial.