The Unique Vulnerability of Sexual Assault Victims Under Defamation Law

A former George Mason University law professor and FTC commissioner, Josh Wright, has sued several of his former students who accused him of sexual misconduct and exploitation for defamation. He's seeking over $100 million in damages. (As I understand Wright's position, he admits to having engaged in sexual relationships with several of his students but denies any form of abuse or exploitation). This has some resonance with Johnny Depp's lawsuit against Amber Heard where he largely successfully convinced a jury that Heard had defamed him upon accusing him of domestic abuse.

Cases like this have an interesting character; one that poses special danger towards defendants and, by extension, potentially make leveling accusations of things like sexual misconduct or domestic abuse especially fraught.

Truth is an absolute defense to a defamation claim. But establishing falsity is not normally sufficient for a plaintiff to win a defamation claim. Even a defendant who utters a false statement still can't be held liable for defamation unless they exhibited some sort of culpable disregard for the truth. Where the target is a public figure, the standard is known as "actual malice" -- a requirement that the false statement be uttered with either knowledge of its falsity or reckless disregard for whether it is true or not (for non-public figures, this standard may be relaxed). So there are many circumstances where a jury might believe that an allegedly defamatory statement is indeed false, but still will not assign liability -- for example, if they think the speaker made an honest mistake or a regular poor judgment.

But a sexual assault claim by the putative victim is different, because by definition the victim has firsthand knowledge of what happened. If the attack happened, then her accusation is true, and there's no defamation (truth as an absolute defense). But if the jury concludes the attack didn't happen, then the defamation claim essentially succeeds by default, because if the attack didn't happen then the "victim" must have known the attack didn't happen, rendering her allegation knowingly false. In other words, in a defamation case regarding a firsthand accusation of sexual assault, the entire case resolves down to the jury's judgment about whether they believe the accuser or the accused. If they believe the latter, then -- despite the normally additional hurdles put up by the "actual malice" standard and its cousins -- defamation is essentially a strict liability offense.

This prospect, one imagines, is yet another deterrent to sexual assault victims going public with their accusations. We speak a lot about the propensity (or not) to "believe women", and how widespread tendencies towards disbelief deters victims of sexual abuse from coming forward. In the public square, it is essentially inevitable that -- regardless of the underlying truth of the allegation -- there will be some cadre of observers who will believe the accusation and some cadre who disbelieve. One reason a victim might not directly seek legal recompense from their attacker is because they lack confidence that a jury will be comprised entirely of believers, and so the effort will come to naught. In the court of public opinion, a victim may in practice come to terms with the fact that some will believe her and others won't; speaking her piece and letting the chips fall where they may. She may, in other words, be well aware that some significant quotient of listeners will not believe even her true story and be willing to ensure that prospect as a cost of speaking her truth.

But the aspect of defamation law I'm flagging here means that victims cannot simply opt out of the legal process. The victim who wants to speak but do nothing else still is automatically exposed to potentially ruinous liability in any circumstance where a jury is comprised of disbelievers -- and disbelief is all it takes (the additional guardrails offered by doctrines like "actual malice" do not apply). The woman who is willing to endure a significant cadre of the public disbelieving probably will not be so sanguine about that disbelief translating into financial catastrophe.

If one has strong confidence in juries being able to sort truth from falsehood in cases like this, then this may not strike you as much of a problem. But in general, I suspect one reason why defamation law normally has these guardrails beyond "is the statement true or not" is because we understand juries are not perfect and that there needs to be wiggle room in hotly contested cases. And in specific, I suspect that defamation claims around sexual misconduct are cases where we may be especially likely to see significant error rates. Low confidence in accurate judgments surrounding truth or falsity, combined with an effective strict liability regime for statements adjudged to be false, equals a very strong deterrent to speaking out in the first place.

"Vulgar Intersectionality" Doesn't Strike Again

For the past few months, I've been following the story of Daniel Pollack-Pelzner, a Jewish professor who was summarily terminated from his tenured position at Oregon's Linfield University after whistleblowing about sexual assault allegations against members of the university's board of trustees (Pollack-Pelzner was the faculty delegate to the board). Pollack-Pelzner also had complained of antisemitic language used by the university President.

The AAUP has just released its investigation and report into the incident, and it is blistering in condemning the university and its treatment of Pollack-Pelzner. The report is about 20 pages long, and is absolutely unsparing -- definitely worth reading if you want a thorough account of what happened here. One would struggle to find a more vicious (and frankly petty) abuse of power by a university administration against one of its tenured faculty than is presented here.

Here, I only want to add one thing. The President of the University (whom Pollack-Pelzner had accused of using antisemitic language) is African-American, and as the allegations against him and other high-level university leaders began to pick up steam in the media, he started to complain that the backlash against him was racist in character -- even enlisting the NAACP to conduct its own investigation. That investigation, in turn, inveighed against groups like the ADL and other Jewish organizations who had vigorously backed Pollack-Pelzner, and characterized the allegations against the President as "what systemic and institutionalized racism looks like in Oregon."

I do not venture an opinion as to whether the university president has faced disproportionate scrutiny on account of his race. Clearly, such treatment would in no way justify the inexcusable fashion he and Linfield had treated Professor Pollack-Pelzner.

However, I flag this because of what it tells us about a certain alleged trend that we are often told is ascendant if not unchallengeable in spaces like education and academia. Sometimes dubbed "vulgar intersectionality", this is the claim that in putatively progressive spaces the only factor that is functionally considered in cases of controversy or conflict is a sort of crude ranking of oppressions, one where (we are told) Jews are slotted in with privileged White folks (and accordingly ignored) while groups like African-Americans are giving immediate and unquestioning deference -- facts be damned.

If this thesis were true, it would suggest that in this case -- where a White Jewish man (alleging, among other things, antisemitism) was in conflict with a Black man (making a counter-allegation of racism) -- a group like the AAUP would have unquestionably backed the university president and vilified Pollack-Pelzner. This, we are told, is the hegemony of vulgar intersectionality: Jews are at the bottom (or top, depending on your point of view) of the totem pole, and so are unworthy of support when victimized or wounded -- still less, when the perpetrator is a member of the "favored" (to the intersectionalists) class.

But of course, this is not what happened. This is not even close to what happened. The AAUP conducted its investigation, assessed what happened, and again, backed Pollack-Pelzner to the hilt. It specifically condemned any effort to use claims of racism "to invalidate or distract attention from other allegations" of discrimination, such as those here. Simply put, the report's approach could not have been further from that predicted by the "vulgar intersectionality" thesis -- a thesis which always relied more on social panic than empirical observation.

I am pleased, of course, to see Professor Pollack-Pelzner vindicated. I hope that he his restored to his position at Linfield (if that is his desire), or gains whatever recompense or remediation he believes is his due. And I hope the Linfield administration listens to the robust consensus of its faculty and students (who have loudly rallied behind Pollack-Pelzner and the community members he had been supporting as a whistleblower) and shifts course away from these sorts of abuses and towards the ideal of academic freedom and shared governance.

"And Never Rat on Your Friends!": NYC Sexual Harassment Edition

If you've ever taken a company- or university-mandated sexual harassment seminar, you probably remember those multiple-choice quizlets they always hand out. The option set usually comes with one or two reasonable-sounding answers, one answer which the facilitator drummed into you is the wrong answer, and then one answer that's just flat bonkers. For example:

[New York City] councilmembers were presented with a hypothetical scenario in which they were “asked what they should do if they overheard a chief of staff making sexually inappropriate comments in an elevator” that “visibly upset” a female staffer.... According to multiple city councilmembers present, [Ruben Diaz Sr.] interrupted the presentation to scream, “I’m not gonna rat my people out! This place is full of rats!”

Oooookay. And Diaz is not even close to a first-time offender here.

Sadly, he's also not a complete nobody. Diaz is running in the Democratic primary to replace retiring Rep. Jose Serrano in a deep-blue district. You'd think a guy who campaigned with Ted Cruz and talked about how much he liked Donald Trump would be toxic in New York City, but for whatever reason Diaz seems to have strong local backing in his corner of the Bronx. We'll see if it translates to an entire congressional district though -- Serrano, for his part, is a member of the House Progressive Caucus and sports an A "progressive punch" rating, so it's hard to see the district as a whole voting for a self-described "conservative" like Diaz.

It Wasn't a Bomb Roundup

Unbelievably, this package -- which randomly arrived at the offices of The Jewish Daily Forward for me (I do not work at the Forward, for the record) -- didn't contain a bomb. The truth was actually weirder -- it was (eight copies of) a pamphlet on Jews, marijuana, and prostitution, given to "strengthin [sic] you and your friends."

What a weird world we live in sometimes.

* * *

The Tarrant County, Texas GOP prepares to vote on whether to remove a party official for that most heinous crime of ... being Muslim. Tarrant County is not some tiny speck -- it's where Fort Worth is.

Two Black men have turned up dead in the house of a prominent California Democratic Party donor -- another man who was hired to do drugs and sexual activity shares his story.

Carly Pildis has an insightful column on how to tighten synagogue security while recognizing that a police presence won't necessarily make all congregants feel safe (picking up on a conversation Bentley Addison helped start last November).

Tema Smith has a good essay in the Forward on the history of Jewish Whiteness in America.

Andrew Silow-Carroll does an excellent job parsing the issue of Rep. Rashida Tlaib's "dual loyalty" insinuation from a few days ago.

An ADL staffer reports on a recent interfaith trip he organized with African-American pastors to Israel and the Palestinian territories. Though I think the term "Third Narrative" has already been taken.

The Chronicle of Higher Education reports on the outcome of a significant sexual harassment investigation involving a Michigan State political scientist (though -- lawyer's tic -- the article is incorrect to say that the "preponderance of the evidence" standard used in the investigation wouldn't be used in court. "Preponderance of the evidence" is the normal standard used in non-criminal judicial proceeding).

Senator Kamala Harris comes out in favor of legalizing marijuana and expunging the convictions of non-violent offenders.

And, to complete the "not a bomb" circuit, a Berkeley man was arrested after leaving a fake bomb laced with antisemitic slurs on the UC-Berkeley campus

Preemptive Strikes in Antidiscrimination Law (Or: Why You Need a Union!)

Last week, the Eighth Circuit Court of Appeals decided the case of Hales v. Casey's Marketing.

Lauren Hales was an eighteen year old employee working the graveyard shift at Casey's General Store. At 1:45 AM, a customer came in and starting making sexually suggestive comments towards her. In an attempt to avoid the man, Hales stepped outside to take a cigarette break. The man followed her, blocked the entrance to the store, and continued making sexual remarks.

Hales, who had previously been sexual assaulted, told the guy to "back off". The customer replied "what are you going to do about it?", at which point Hales extended her cigarette to ward him off. Instead, the customer stepped towards Hales, burning his arm on her cigarette in the process.

The next day, the customer complained to a Casey's manager that Hales had burned his arm. The next time Hales reported to work, a manager asked her if "anything out of the ordinary" happened on her previous shift. She forthrightly reported the cigarette incident, but said she had done it in self-defense.

Hales was then terminated.

She sued, alleging sexual harassment and retaliation -- and the Eighth Circuit just rejected both of those claims. The harassment claim failed because the customer's conduct wasn't "severe or pervasive" enough to constitute sexual harassment as a matter of law (the Eighth Circuit apparently hasn't decided whether a company can be held liable for harassment done by a customer, but it assumed for sake of argument that it could). The retaliation claim was rejected because it was filed too late, but apparently the district court had also indicated it should fail because Hales was not engaged in protected activity under Title VII.

Here's the thing: I'm not sure this decision is wrong as a matter of (current) law. The "severe and pervasive" threshold necessary to make out a harassment claim is extremely (I'd say ludicrously) high, and I know of no case law which addresses self-defense steps as a form of "opposing" harassment in the workplace.*

But even if the case "rightfully" lost, all that demonstrates is that antidiscrimination law -- even when "correctly" applied -- isn't sufficient to protect vulnerable workers (even from discrimination).

In fact, the structure of antidiscrimination law in many ways encourages employers like Casey's to act in precisely this fashion -- terminating employees who are the victims of sexual harassment (whether by customers or coworkers) as a "preemptive strike" before they're able to put together a legally cognizable claim of discrimination. Even if one doesn't think that antidiscrimination law should expand to create liability for a single case of customer harassment, there's surely something perverse about it allowing (or even encouraging!) a young woman to be fired because she refused to tolerate a customer harassing her.

When I read this case, it reminded me of one of the very first employment discrimination cases I read which got me hot under the collar -- Jordan v. Alternative Resources Corp. In that case, Jordan -- in accordance with company policy -- reported a coworker who, while watching news coverage that two Black criminals had been arrested, exclaimed "[t]hey should put those two black monkeys in a cage with a bunch of black apes and let the apes fuck them."  His supervisor took decisive action ... against Jordan: changing his work hours to less desirable times, making derogatory comments towards Jordan, and then -- within a month of the initial complaint -- firing Jordan. Jordan sued, claiming his termination was retaliation for filing his complaint.

Title VII only protects against retaliation if you're opposing an act covered under Title VII. In Jordan, the Fourth Circuit concluded that the single racist remark Jordan reported could not alone have sufficed to create legally actionable harassment (again, not being "severe or pervasive" enough to qualify), which means he was not "opposing" covered conduct, which means that his company was not retaliating against him as a matter of law (even though, again, company policy required that Jordan file his complaint).

Jordan argued that his complaint should have been protected because it covered action that, if left unabated, would have eventually ripened into unlawful harassment. The court refused to make the extension, and the result is an obvious Catch-22: Jordan has to report conduct that is not "yet" harassment in order to obey company policy (and preserve a potential future harassment claim), but he can be retaliated against for filing the reports.

But there's a deeper problem in the incentive structure this rule creates: As soon as an employer begins to observe incipient harassing conduct that has not (yet) risen to be legally actionable, it probably should terminate the victim before a sufficient record of wrongful conduct accumulates.** If the employee is reporting the bad conduct, then so much the worse for them -- they're showing themselves to be the sorts who stand up for themselves and so may be more likely to file a discrimination complaint.

Consider how this dynamic might have played out in Hales' case. Suppose the manager knew that one instance of customer harassment of this sort against Hales would likely not be enough to create any legal liability for Casey's. But if it happened again to Hales, or multiple times, then Casey's may well be on the hook. What are the options? Well, one is to take concrete steps to protect Hales from this predatory customer (e.g., banning him from the store) and harassment more generally. But that's difficult, and maybe expensive, and it alienates a customer! So option two is just to fire Hales. If you fire her now, the legal case is nipped in the bud. Problem solved.

And make no mistake: this set of perverse incentives will fall heaviest on the most vulnerable employees. It is entirely predictable that the employees most likely to be subjected to repeat instances of sexually aggressive, harassing conduct are young, those working overnight shifts, racial minorities, gender-nonconforming, and the like (Hales met at least the first two of these). Hence, it is these employees who are most likely to be -- and be perceived as -- potential "repeat victims". And that means they are the most likely to encounter "preemptive strike" discrimination -- a form of employment discrimination that does not just avoid legal accountability, but in many ways is the product of the (exceptions to) antidiscrimination law itself.

So the obvious reform is to make clear that Title VII retaliation protections extend to cases of opposition to sexual or racial misconduct even where the practices would not themselves (yet) rise to being independently legally actionable.

But it's also the more straightforward case that what Hales really needed here was a union. It is very difficult to craft legal rules which do not create some sets of bad incentives or which a clever employer cannot game to their advantage. Given who writes laws (political elites) and who interprets them (legal elites), these unanticipated consequences are unlikely to be randomly distributed -- they will track the usual lines of social power and advantage.

Hence, what Hales really needs is someone whose job it is to be in her corner, a body which can protect her from such arbitrary employer action in the particular case even when the general law couldn't shield her. In other words, she needs a union.

* Retaliation jurisprudence generally envisions "opposition" to mean something like reporting the conduct to company officials or public authority officials. Nonetheless, I'd be inclined to say that physically resisting harassment in the workplace should qualify as "opposing" that conduct. But there remains the separate problem illuminated by the Jordan case: where the conduct "opposed" does not alone suffice to create a "severe and pervasive" hostile work environment (as it almost never will in the first instance), then no action by the employee -- whether it's filing a report or physical resisting her harasser -- would be covered under anti-retaliation protections.

** A similar dynamic sometimes emerges in the labor law context, where employees are protected insofar as they engage in "concerted action". On face, this gives employers who see the potential for emergent concerted labor action an incentive to fire the source employee before any organization can begin. But unlike in the discrimination-retaliation context, both courts and the NLRB have concluded that such "preemptive strikes" also violate labor law, even where they come before any conduct that itself would qualify as "concerted action" and even where they successfully preclude any such action from later manifesting.

A Tale of Two Harassers

Jill Filopovic points out the key differences between Democrats and Republicans on sexual harassment and misconduct within their ranks.

It isn't that Republicans perpetuate it and Democrats don't. Both parties have their share of wrongdoers.

The difference is that Democrats -- slowly, fitfully, imperfectly -- are beginning to hold their abusers to account. While Republicans, by and large, continue to shield the predators in their ranks (starting with the one in the Oval Office). There's a reason, Filopovic notes, why Republicans still point to Chappaquiddick and the Bill Clinton affairs -- rounding past 20 years ago at this point -- as their preferred form of whataboutery. In the more recent major cases, Democrats have been much stronger, while Republicans still prefer to protect the boys club.

We saw a great example of this recently in Colorado: A Democrat and a Republican in the state legislature were accused of sexual harassment (the former was a member of the state house, the latter of the state senate). In both cases, an independent investigator substantiated the allegation. The Democrat was expelled, after refusing calls from his own party leaders to resign. Indeed, every single Democratic member of the house voting to do so (Republicans split 16-9 in favor of expulsion).

The Republican? He enjoyed the firm support of his caucus leader, and when Democrats forced a vote on the issue, he kept his job -- with all but one Republican backing him against a motion to expel.

What Should You Do When Linda Sarsour is Accused of Covering Up Sexual Harassment? Investigate It!

Some of you might have seen a Daily Caller article reporting on a former employee at the Arab American Association who accused Linda Sarsour, then the AAA's Executive Director, of enabling sexual harassment against her in the workplace.

Some of you might not have seen it, because thus far it has basically only been picked up by other sites within the conservative bubble (the only non-right-wing site I've seen running the story is Newsweek).

And that's a shame. Not in the cheap shot, "where are you on this, lib-tards!" sort of way, but because the story deserves to be investigated by a real media source in order to figure out what's going on.

The Daily Caller, after all, is not the most credible of sources. And the author of the piece is Benny Johnson, whom you might recall got fired from Buzzfeed due to repeated acts of plagiarism. So it's not per se unreasonable to cock an eyebrow at the veracity of the story.

That said, aside from the website and the byline, there are quite a few factors about the story which are significant indicia of credibility. There is a named accuser on the record, Asmi Fathelbab, who likewise names a specific harasser, Majed Seif. Fathelbab gives details on her employment at the AAA and when and how it ended, these can all be easily verified. Likewise, other reporters could presumably find the same sources that the Caller did who corroborate Fathelbab's story.

Fathelbab also appears to have a twitter account. Up until the last few days, when she posted about this story, it had lain dormant since 2016 -- her last tweet was a retweet: "Sarah Palin endorses Donald Trump. The bible says these two names in the same sentence signifies the end times." She wasn't the most active contributor to social media, but it doesn't seem like she was in the tank for the right.

To give you a flavor of what the accusations are, here are some details from the Caller's story:

The problems began in early 2009 when a man named Majed Seif, who lived in the same building where the Arab American Association offices are located, allegedly began stalking Fathelbab.

“He would sneak up on me during times when no one was around, he would touch me, you could hear me scream at the top of my lungs,” Asmi Fathelbab tells TheDC. “He would pin me against the wall and rub his crotch on me.”

Asmi claims one of Majed’s alleged favorite past times was sneaking up on her with a full erection.

“It was disgusting,” she tells The Caller. “I ran the youth program in the building and with that comes bending down and talking to small children. You have no idea what it was like to stand up and feel that behind you. I couldn’t scream because I didn’t want to scare the child in front of me. It left me shaking.” 

The Daily Caller was provided with a link to Seif’s Facebook page and confirmed his identity, location and employment. 

Fathelbab says she went to leadership at the organization to report the sexual assault. She alleges she was dismissed by Sarsour outright. “She called me a liar because ‘Something like this didn’t happen to women who looked like me,'” Asmi says. “How dare I interrupt her TV news interview in the other room with my ‘lies.'”

According to Fathelbab, Sarsour threatened legal and professional damage if she went public with the sexual assault claims.

“She told me he had the right to sue me for false claims,” Asmi recalls, adding that the assaulter allegedly “had the right to be anywhere in the building he wanted.”

Desperate after multiple dismissals by Sarsour, the distraught employee says she went to the president of the board of directors, Ahmed Jaber.

“Jaber told me my stalker was a ‘God-fearing man’ who was ‘always at the Mosque,’ so he wouldn’t do something like that,” Fathelbab claims. “He wanted to make it loud and clear this guy was a good Muslim and I was a bad Muslim for “complaining.”

A furious Sarsour allegedly raged against Fathelbab for continuing to report her sexual assault in the building. According to Fathelbab, her allegations would result in her getting written up for disciplinary action. She told TheDC she was once forced to talk to a detective from the community liaison division about the consequences of making false claims to the authorities.

After Fathelbab’s contract was up, Sarsour allegedly threatened to keep her from working again in the city.

“She told me I’d never work in NYC ever again for as long as she lived,” Asmi says. “She’s kept her word. She had me fired from other jobs when she found out where I worked. She has kept me from obtaining any sort of steady employment for almost a decade.”

Two people who knew Fathelbab during her time at the Arab American Association spoke with TheDC on condition of anonymity. Both corroborate her story, recalling that Asmi would return “emotionally distressed and in a panic” from work, often describing it as an “unsafe” work environment.

Another New York political operative, who spoke on the condition of anonymity, claims that Sarsour was “militant against other women” at the Association. This operative, who has worked for over 12 years with the Arab American Association, says they remember Asmi and witnessed her getting harassed in the building.

“They made it about her weight, saying she was not attractive enough to be harassed and then swept it under the rug,” the source said. “It was Linda Sarsour, Ahmad Jaber and Habib Joudeh who took care of it.” Habib Joudeh is the vice president of the Arab American Association of New York.

The source even identified Fathelbab’s alleged assaulter without prompting, “Majed Seif, the man who lived in the building.”

The operative, who is a practicing Muslim in the community, says a toxic culture at the Arab American Association led to the environment of harassment.

There's plenty of information here which would unravel quite quickly if it's all a concoction by an admitted plagiarist writing for a hack right-wing website. Which, of course, is all the more reason for someone not an admitted plagiarist writing for a hack right-wing website to investigate it. To my knowledge, nobody has tried to re-report the story (as far as I can tell, the sites that have picked it up are simply writing about the Caller's investigation, they haven't done any independent reporting).

What I'm trying to say is this: If your thought upon seeing this article was that a Daily Caller article by Benny Johnson attacking a prominent progressive activist maybe should be taken with a grain of salt -- you're right! But that's not a reason for more credible media sources to ignore the piece, that's a reason for them to try and replicate it. There's a myth that suggests feminists demand, at the first whiff of anyone accusing anyone of sexual harassment, that the accused be strung up on a lamppost. But that's not true. The demand is that we take these claims seriously enough to actually investigate and look into them.

And that's what the next step here should be. If it turns out that the Daily Caller piece is a drive-by on Sarsour, that will be valuable to know. And if turns out that it's a credible accusation of Sarsour contributing to a toxic, harassing environment in her workplace and retaliating against a woman who sought to speak up -- well, that's important to know too.

UPDATE: Buzzfeed's article is the first (I've seen) to try to do additional reporting. It certainly doesn't seem to be in dispute that Fathelbab had made complaints at the time, and that Sarsour ultimately concluded they lacked merit (though the precise nature of the complaints is under dispute, and Sarsour denies engaging in any of the "body shaming" behavior alleged).

Abuse in the Clerkship Chambers

I've never met Heidi Bond.

But I knew who she was.

Her blog ("Letters of Marque", now long defunct) was one of several law school blogs I read regularly when this site was first starting out. I found her a fun and engaging writer, and she seemed to be succeeding first as a law student and then a legal professional. I knew she had gotten prestigious clerkships, for example, first with Ninth Circuit Judge Alex Kozinski and then on the United States Supreme Court. For awhile it looked as if she was headed toward legal academia.

Then she seemed to drop off the map. Much later, I learned she was writing romance novels as "Courtney Milan." A bit weird, but hey, good on her. Sometimes the best law graduates are those who manage to escape law altogether. I still consider the most successful graduate of my law school class to be Natalie Shapero, who's now a professional poet.

Heidi has now written an account of her time clerking for Judge Kozinski. It is a harrowing read, but I encourage you to do it. It is an account of gender harassment that chills precisely because it didn't ever escalate to physical abuse or violent behavior, and because it involves a young woman who seemed to exemplify "elite" credentials, but nonetheless clearly and unambiguously bears the marks of exploitation.

I've never met Judge Kozinski. But like pretty much all law students, I knew who he was.

It's difficult to overstate Judge Kozinski's reputation amongst intermediate appellate judges -- in terms of renown within the legal community, he probably ranks second only to Richard Posner. He was famous for his independence, his sharp legal mind, and his witty, almost casual, style of writing (e.g., his notorious "The parties are advised to chill").

Among law students seeking high-level clerkships, Judge Kozinski had a more specific reputation -- two of them, actually. The first was that he was known as a direct pipeline to a Supreme Court clerkship (the holy grail for ambitious, elite law students). The second was that he was known to be a complete and utter nightmare to work for.

To be fair, the latter part of the reputation didn't (to my knowledge, at least) have a gendered component. It was more of a Devil Wears Prada sort of deal. Kozinski was a brilliant monster, he'd abuse the hell out of his clerks, but if you survived the year he would open every professional door you could possibly imagine.

And while I was interested in a Supreme Court clerkship, I wasn't interested in that sort of experience. I had a friend who clerked for Judge Kozinski while I was still in law school, and every update on his year made him sound like a shell of a human being. So Judge Kozinski wasn't high on my list of clerkship targets (I don't remember if I applied, I certainly didn't get an interview, and I ended up clerking instead for the fabulous Judge Diana E. Murphy of the United States Court of Appeals for the Eighth Circuit).

We can talk about whether "simple" abuse, sans the gender component, should be tolerated in the workforce. That's a separate debate. But as Heidi's testimony makes clear, in Judge Kozinski's case it was not in fact sans gender (the Washington Post collects the accounts of several other female clerks recounting harassment or inappropriate behavior by Judge Kozinski).

This is all a lot of run-up, and you might expect me to have some additional insight on offer at this point. But I really don't. It seems obvious that the clerkship environment is one ripe for abuse -- the exceptionally strong norms of confidentiality, the intense professional pressure, the fact that the person with such power over your life and future career is a judge for crying out loud (and you're probably going to be a lawyer, so you have especially strong reasons not to get on a judge's bad side). It is a sterling example of how vulnerability can still exist among people with degrees from the top schools and access to the most prestigious jobs.

So I'm not really surprised by Heidi's account. But I am sad. In her recommendations, Heidi writes

Law students are often told in glowing terms that a clerkship will be the best year in their career. They are never told that it might, in fact, be their worst—and that if it is their worst, they may be compelled to lie to others in the name of loyalty to their judge.

As someone who did have a glowing clerkship experience, this is what gets me. I know how wonderful it can be to be a clerk. I know how rewarding, and how exhilarating, and how enriching, and how inspiring it can be. So when other people have clerkships and don't have that experience, I feel cheated on their behalf. They were stripped of something that should have been wonderful.

Anyway, that's all I have to say. But again, I encourage you to read Heidi's post. It is a powerful and compelling, if sometimes quite difficult read. And while I doubt she knows me, I'll add my voice to the chorus thanking her for posting it.

The Many Voices of Silence

One of the more vexing questions raised by the recent flurry of sexual assault allegations against Harvey Weinstein was why, if "everybody knew", nobody spoke up? Why did people -- colleagues, victims, friends, press -- stay silent for so long? Is it right to blame them (all of them? some of them? which ones?) for not talking? Why?

On this subject, I'd like to share a story (I might have written about it before, though if so I can't find it) from when I was in college.

I was working a summer job at a law firm. Two of my closest friends from that summer -- also college students, both women -- worked together in the mail room; I worked by myself in another wing of the office. What that meant was that we didn't really see each other during working hours, but we did eat lunch together pretty much every day.

About a week before the end of the summer, in our daily lunch walk, one of them said she wanted to ask me something personal. She said that she thought she was being sexually harassed by her supervisor, and she wanted to know what I thought she should do about it. Should she say anything? Should she report it? The summer was about to end anyway; maybe she should just ride it out.

The "thought" part is important, because part of the conversation was her being unsure whether what was happening was sexual harassment. She seemed to be consistently talking herself into and out of her own position on the matter. She'd say things that to my mind clearly sounded like harassment, but when I'd concur in the assessment she'd second-guess herself and start redescribing the events more as if he was just sort of a generically lousy boss. Then eventually she'd reach the end of the pendulum and return back to it being harassment. She went back-and-forth in that vein for awhile, and never really settled on a conclusion.

I'm not really sure why she thought I'd have any unique insight. I wasn't any older than them, and had no particular experience in the area. The best advice I could give -- and to this day I don't know if it was good advice -- was that if she felt like it was sexual harassment she should report it, and if she felt like the guy was simply a bad supervisor she should wait out the week and leave.

Meanwhile, the second friend -- who also worked in the mailroom and to whom I periodically was turning to for clarification -- was making gestures and facial expressions to the effect of "I want absolutely no part in this." I could tell this all was bothering her as well, but she was firmly on the "don't say anything, don't do anything" side. I asked her why.

She told a story of being harassed at her middle school. And there was no "thought" there: she was being groped in the halls, people were tearing off her blouse, it was truly sickening behavior. And what did she do? She did complain. She and her parents went to the principal, told him what was going on, and demanded he put a stop to it.

The result? Nothing happened.

Well, not "nothing". The principal wasn't happy to have this thrust on her plate, and so now the administration started retaliating against her for complaining. Her entire position at the school became untenable. So she transferred to a different school -- one less convenient and less academically prestigious.

The moral she learned was "don't complain about sexual harassment." Hence, she made clear, she would neither confirm, nor deny, nor participate in any way in any conversation about any sexual harassment she or her friend may or may not have experienced in the mail room.

I'm not entirely sure how this story ended, but I don't think anybody ended up saying anything to the powers-that-be. Why not? Well, I didn't in part because I don't think either of them wanted me to, in part because I didn't know what I should say, and in part because I didn't view it as my place to speak (particularly given Friend #2's vivid description of the potential consequences for them if I talked). I imagine Friend #2 didn't talk because of the "lessons" she learned the last time she tried to fight back against harassment. And if Friend #1 didn't talk, it might have been because she was afraid the same might happen to her, or because she ultimately wasn't confident in her own credibility as a complainant, or because the end was in sight and she just wanted to put things behind her.

There are all sorts of reasons for all sorts of silence. One of my personal mentors, Martha Nussbaum -- surely one of the most powerful (in all senses of the term) women in the world today -- spoke incisively about why she never reported her sexual assault and why, even now, she continues to think it was and would continue to be useless to have done so. Silence can be complicity, and sometimes it's nothing more than that. But sometimes it is much more than that. Silence is the function of an entire network of power in which everybody feels alone, everybody feels powerless, everybody feels like they can't make a difference and that the only thing that will be gained from speaking up is hurting those who deserve it least.

Put another way, the condemnations of those who "knew" and said nothing often act as if the problem was just lack of character virtue -- if people cared more, then they wouldn't remain silent. This, to my estimation, dramatically understates the cultural forces which encourage and demand silence at every turn. The forces are not -- or are not just -- threats of reprisal. They're also bonds of trust ("you promised you wouldn't say anything if I confided"), norms of role ("it's not your place to do this for me"), and desires for lost privacy ("I just don't want this to become the center of my life"). When I hear about something that "everybody knows" but nobody says, my assumption isn't that "everybody" is a callous monster. I assume that there is something deeper going on.

When it comes to sexual assault, silence occurs in isolation, while resistance comes in groups. This is why one woman catching Weinstein bragging about sexual assault on a wiretap set up by the NYPD didn't bring Weinstein down, but many women telling a reporter (who lacks guns, or handcuffs, or prison threats) causes a cascade. Taken alone, we can't imagine how our speaking up could possibly make a difference -- it will only bring trouble. They stay silent because if they speak up:

• They'll be threatened ("you'll never work in this town again"); and/or
• They'll be ignored ("she's just seeking attention"); and/or
• They'll be mocked ("what makes you so special that you think Harvey Weinstein would make eyes at you?"); and/or
• They'll be shamed ("what did you think you were getting into, going to a meeting with him alone?"); and/or
• They'll be discredited ("Weinstein is a public figure; if he was a predator there's no way he could've kept it a secret for so long.").

And after all that heartache? Weinstein remains untouched, but the accuser has to live with the knowledge that her accusation meant nothing.

But when enough people refuse to cooperate, that massive array of power, which felt like it was an impregnable fortress, starts to topple like dominos. The people who could end your career in Hollywood now need to rush to show they're not beholden to a tainted figure like Harvey Weinstein. The "attention" oddly dissipates because it's spread across so many victims. The mockery falls flat because it is evident that Weinstein was a serial assailant. The shame doesn't stick because so many verify how he got so many women in a vulnerable position.

But the thing is, it's difficult to make that jump from being relatively alone to relatively in a community. It requires a lot of things, and courage is certainly one of them. But again, I don't think the problem is simply one of bad hearts. It's about bad culture. And I don't expect things to change much until that culture is unwound.

Fortune Favors the (Not So) Bold

This week, we talked about intersectionality in my class (on "Just Political Participation"). I am a fan of intersectionality, which of course puts me squarely in the mainstream of the contemporary campus zeitgeist. Nonetheless, I suggested that intersectionality, far from being a good mechanism for securing collaboration and solidarity across diverse marginalized groups, actually has a deeply problematic relationship with "coalitional" organizing. I suggested that the understanding of intersectionality as the idea that "all oppressions are linked as one", such that they are best tackled by a universal front of "the oppressed" working in tandem elides important points of differentiation and tension among marginalized groups -- both "horizontally" (are the interests of gay Latinos necessarily harmonious with Black women?) and "vertically" (will addressing the marginalization of Black women necessarily redound to the benefit of Black men?). As my examples, I discussed:

1. Sexual violence on campus, and how it interacts with race. Programs and policies which make it easier for administrators to sanction persons accused of sexual misconduct may well be necessary for securing the equal educational status of women (including women of color) on campus. But given the central space "sexual misconduct" occupies as a tool of terrorizing black men, it is also likely that such reformations will exacerbate racist judgments against that community -- particularly when dealing with subpopulations (like black male athletes) who are already racialized as hypersexual and predatory.
2. The Israeli/Palestinian conflict, and the particular salience of the Mizrahi Jewish community which does not fit neatly into standard accounts of either the "Jewish" (coded as Ashkenazi-European) or "Middle Eastern" (coded as Arab-Muslim) narratives. Mizrahi Jews are suspicious of the left (identified as European and associated with significant oppression and marginalization from Israel's establishment to the present), suspicious of Ashkenazi Jewry (identified as self-satisfied and monopolizing valid Jewish identity, dismissing the legitimacy of Mizrahi ways of being), and suspicious of the Arab world (associated with their marginalization and dispossession under anti-Zionist banners). Understanding that is critical to understanding the posture of Israel contemporaneously -- but it does not suggest and indeed undermines too-easy efforts at "solidarity" where Mizrahi Jews are assumed to be easily subsumable into dominant Ashkenazi (Israel is the place where all Jews are respected as Jews) or Middle Eastern (Israel is the colonial interloper that blocks the self-determination rights of Middle Easterners) narratives.

Based on what the popular press tells us about University of California-Berkeley students, I should be dead by now.

We know -- don't we? -- that it is impossible to disturb college shibboleths about the glories of intersectionality and the universal front of oppression we all share against the evil White man. And we know -- don't we? -- that one cannot suggest any potentially unfair or deleterious outcomes associated with reforming college practices vis-a-vis sexual violence. And we all know -- it goes without saying -- that even the slightest hint that Israel might not solely stand as a European colonial imposition that is the height of global imperial evil is enough to get you run out of this college town on rails. Right?

Well, as usual wrong. I've said it before and I'll say it again: The Berkeley kids are alright. Deal with these issues with charity, thoughtfulness, nuance, and respect, and they'll respond in kind. Berkeley students, in my experience, continue to prove themselves to be exactly what you'd hope for from the student body of the greatest public university in the world. They are thoughtful, engaged, curious, and very eager to deal with the complexities and difficulties posed by the subjects put in front of them -- with no "safe harbor" for the supposed campus orthodoxies that shall-not-be-questioned. That was my experience this week, where I presented some very "hot" issues in ways that certainly did not perfectly map onto how they're commonly portrayed on campus ... and the result was nothing more than a good, solid, thought-provoking discussion. As class should be.

Could Misogyny, Of All Things, Finally Destroy Donald Trump?

In our latest spin of the "outrageous Trump remarks" wheel, we landed on misogyny. Specifically, comments Trump made during taping for Access Hollywood where he graphically talked about sexually assaulting women:

During the lewd conversation captured by a microphone Trump was wearing on his lapel, Trump recounts how he tried to "fuck" an unidentified married woman before bragging that he is "automatically attracted to beautiful (women)" and just starts "kissing them." The conversation came just months after Trump married his third and current wife, Melania.

He also said: "When you're a star, they let you do it. You can do anything ... Grab them by the pussy. You can do anything."

How lovely. But this has stood out in that it has seemed to generate a particularly ferocious condemnation from Trump's fellow Republicans. Paul Ryan, set to campaign side-by-side with Trump for the first time, withdrew his invitation and declared himself "sickened". Reince Priebus was far more blunt than I've ever seen him: "no woman should ever be described in these terms or talked about in this manner. Ever." Jon Huntsman went from endorsing Trump to demanding that he drop out. Even Trump gave a non-apology-apology of the "I apologize if anyone was offended" variety (Jeb Bush: "no apology can excuse away Donald Trump's reprehensible comments degrading women.").

And while the comments themselves really cannot honestly surprise anyone, the reaction to them is a bit striking. Liberals have certainly noticed, and been quite wry -- "oh, it was okay to call Mexicans rapists, and to suggest banning all Muslims, and to fan a resurgent conservative anti-Semitism -- but this was the step too far?" Indeed, while there have been other moments where Trump has said outrageous things and political commentators have declared him dead, only for him to emerge stronger than before (think the John McCain "captured" comments), this feels different -- he is the Republican standard-bearer, there is no deluding oneself that by condemning Trump one can simply switch support to another conservative.

Honestly, it is hard to explain. And I'd be very curious to hear what someone like Kate Manne -- who has written very incisively on the role of misogyny in this election and in our society -- thinks of this development. Right now -- improbable as it may be -- it looks like Trump's misogyny might have finally closed the door on his candidacy. There's almost -- almost -- a sense in which it is heartening (though I won't pop any champagne until November 9).

And Do You KNOW What Dancing Leads To?

A woman sued Girls Gone Wild for filming her without her consent at a bar. Basically, she was dancing at the bar, and somebody pulled her top down, exposing her breasts to the camera. The jury ruled against her, in what has to be some of the most stunningly offensive logic ever deployed:

After deliberating for just 90 minutes on Thursday, the St. Louis jury came back with a verdict in favor of the smut peddlers. Patrick O'Brien, the jury foreman, explained later to reporters that they figured if she was willing to dance in front of the photographer, she was probably cool with having her breasts on film. They said she gave implicit consent by being at the bar, and by participating in the filming - though she never signed a consent form, and she can be heard on camera saying "no, no" when asked to show her breasts.

I have to admit, it never occurred to me that dancing at a bar equaled implied consent to be filmed having your clothes stripped off (that "no" once again meant "yes" is tragically too common to comment on). But I guess I have one of those crazy, feminist conceptions of consent that doesn't let you have any fun at all.

Domination

A new study indicates that women in supervisory positions are most likely to experience sexual harassment at work. This is counterintuitive to the popular view that sexual harassment is most often perpetuated against women who are in marginal positions, exploited by superiors who can dangle their livelihoods in front of them. Rather, as the study authors indicate:

“This study provides the strongest evidence to date supporting the theory that sexual harassment is less about sexual desire than about control and domination,”said Heather McLaughlin, a sociologist at the University of Minnesota and the study’s primary investigator. “Male co-workers, clients and supervisors seem to be using harassment as an equalizer against women in power.”

Via. Score one for the second-wave.