When Did Americans Become Afraid of Due Process?

John Keats

English poet John Keats wrote about a phenomenon he called “negative capability.” Some people are such advanced thinkers, Keats supposed, that they could hold two contradictory ideas in their heads simultaneously, without reaching for a facile resolution. Simple minds need everything to equal out, but according to Keats, complete contradictions don’t faze superior minds. Which makes sense hypothetically, but we’re seeing it makes bad policy in practice.

The recent rash of public excoriations for sexual harassment in high places casts important light on how contemporary society perceives women as subordinate to men’s desires. While the shakeout at the peaks of entertainment, journalism, and politics has garnered the most attention, the popular #MeToo uprising demonstrated it permeates all levels of society. Though powerful people probably harass disproportionately, since as The Atlantic writes, Power Causes Brain Damage, this is a women issue, not a power issue.

As a person who prefers to side with the powerless in social issue debates, I’m glad to see powerful people getting their comeuppance. Men like Harvey Weinstein and Kevin Spacey have had make-or-break power over aspiring young artists’ careers for so long, they’ve forgotten what it means to be hungry, or what we’ll do to assuage that hunger. The mere fact of a decades-long, well-loved career, like Matt Lauer or Garrison Keillor, shouldn’t shield anyone from criticism.

(I say “men” because the accused have mostly been men. At this writing, singer-songwriter Melanie Martinez has become the highest profile woman thus accused, though less than forty-eight hours in, it’s impossible to say how her story will shake out. And the occasional woman doesn’t counteract the statistical preponderance of men in this meltdown.)

So yes, I’m happy to see powerful abusers brought low. Except…

Matt Lauer

I’m not the only one to notice this meltdown has largely jettisoned due process. People who have dedicated years, sometimes decades, into difficult careers, are seeing them torpedoed by accusations, sometimes only one accusation. Dozens of women came forward criticizing Harvey Weinstein. Between NBC and Variety, we have four corroborated accusations against Matt Lauer. Garrison Keillor has only one accuser—and details have been frustratingly sparse.

Don’t mistake me. Most of these accused carry a palpable whiff of guilt around them. Besides Louis CK’s frank confession, the mumbling non-denials we’ve heard from Spacey and Weinstein indicate they know they did wrong, and cannot honestly deny it. But even American courts will tell you, a confession isn’t binding without corroborating evidence. Even when the accused confesses, due process must happen for a conviction.

The Weinstein Company board fired their namesake after days of deliberation. But if NBC’s official statement is credible, less than thirty-six hours passed between the first corroborated accusation and Matt Lauer’s firing statement being read aloud on-air. (That statement, incidentally, is not credible; Lauer's voracious sexual appetite was known for years.) The pace of firings appears increasingly hasty; Minnesota Public Radio still hasn’t commented, beyond vague generalities, about Garrison Keillor.

It’s difficult to avoid comparisons with McCarthyism. Though popular Hollywood personalities like Dalton Trumbo and Ring Lardner, Jr., were never convicted of or confessed to Communist sympathies, the studio system successfully spiked their careers for decades. Some never had their reputations restored. The mere fact that Trumbo was, indeed, a Communist, and Lardner showed strong leftist sympathies, doesn’t excuse the way they were railroaded.

The enduring popularity of courtroom dramas like Perry Mason might explain why we’re reluctant to permit harassers due process. These shows create the impression that trials exist to exonerate the falsely accused, since the police consistently arrest the wrong person first. It’s clear these accused aren’t the wrong people, especially as Matt Lauer, like Louis CK, has confessed and sought forgiveness. Even he believes he’s guilty.

Harvey Weinstein

But we have trials to protect the rights of the guilty, too. The slow, deliberative process ensures we don’t respond from panic, rage, or fear. America has a history of using false, or specious, accusations to railroad the accused, often with tragic consequences. That’s why we entrust law enforcement to state agents, not private vigilantes. Especially when accusations appear quickly and vigorously, like right now, we must slow the conviction process.

It’s possible to acknowledge, like Keats, that these accused sure look guilty, but also that they deserve due process. Indeed, arguably, the guilty deserve a full hearing more than the innocent. Both the accused and the accuser deserve to be heard. And that’s not happening right now. This cuts to the heart of our belief in ourselves as a just people.