#Metoo and due process and free speech

Damn is this piece from Harvard Law Professor and New Yorker writer, Jeannie Suk Gersen so good.  You should totally read all of it.  Excerpts anyway:

t was decidedly unfunny, last month, to see the words “Down w Sullivan!” spray-painted on the doors of Winthrop House, the residence of Ronald S. Sullivan, Jr., the first African-American faculty dean of an undergraduate house at Harvard. (Sullivan is also a colleague of mine at Harvard Law School and a renowned defense attorney.) In January, he announced that he had decided to represent Harvey Weinstein as defense counsel in Weinstein’s upcoming trial for rape. In an open letter to the Winthrop House community, Sullivan explained that it was a defense lawyer’s duty to insure that the most hated individuals in society receive the fair legal process that is due to anyone against whom the state’s punitive power is arrayed. Student groups, including the editorial board of the Harvard Crimson, condemned his choice, and some students demanded that Sullivan be removed from his position as dean because his decision to be Weinstein’s lawyer made them feel unsafe and posed a conflict with his leadership role in the Winthrop House community…

Well into the second year of the #MeToo movement, as allegations ripen into legal cases, people want and expect the courts to deliver decisions that will truly address the scope of sexual violence in our society. But, as any lawyer knows, many #MeToo cases will not end in legal vindication. Why not? Because the alleged behavior doesn’t match legal definitions, or because of statutes of limitations, or insufficient evidence, or questionable witnesses, or police misconduct, or prosecutorial overreach, or doubtful juries—in short, for all the reasons that cases can fall apart when subjected to scrutiny in court. When defense lawyers do their job, one effect is to make it harder for the government to impose suffering on their clients, whether innocent or guilty. This is a notion that most liberal Americans like, when we talk about mass incarceration or the war on drugs. It is often less comfortable in the context of #MeToo… [emphases mine]

Lawyers have always been vilified for taking on unpopular clients, but, in the #MeToo era, defense lawyers endanger their good standing even in the most liberal communities, Harvard being only one example.

At first blush, #MeToo supporters might consider this a good thing. Why shouldn’t the movement include censure of lawyers for defending monstrous people who stand as symbols of harm to women? In our constitutional system, lawyers are considered essential to due process. As a matter of constitutional law, denying someone a defense lawyer is depriving that person of their rights, especially if the risk of punishment is involved. Just as crucially, a world in which lawyers are afraid to defend people against a certain kind of accusation is a world in which those accusations can never really be tested or verified, where guilty verdicts bear the whiff of a sham. When I was a prosecutor, I represented the state. Now, as an academic, I teach my students to be proud of their work whether they are prosecuting or defending those accused of crime, whatever the crime may be. Punishment is only legitimate if it is grounded in due process, I tell them

Whether the #MeToo process will be due process depends upon the principled work of lawyers, especially defense lawyers. But Sullivan’s experience suggests that the price of doing that work, in liberal communities, may be not only harassment and threats but also official inquiries and penalties…

A chill has descended on our intellectual lives—on the positions we feel free to question and express. If it is implicitly understood that statements running counter to #MeToo orthodoxy, including defense of the accused, may provoke reprisal, then surely those statements are less likely to be made and heard. Why risk the loss of acceptance, reputation, or even employment, merely to explore an idea?

The lesson is not difficult to grasp. It is not about lawyers, nor is it about the men accused of sexual misconduct in court or convicted in the court of public opinion. In this moment, the real lesson is about free expression and free minds. When the views of thinking people, whether lawyers, teachers, editors, or writers, are determined by our self-assessed risk of losing jobs or social standing, it doesn’t take a totalitarian government to repress our thoughts. We have done it to ourselves.

Damn, that’s good stuff.  Last time I taught Gender & Politics #metoo was literally just getting under way and we kind of dealt with it on the fly.  Pretty sure this Gersen article is going into my syllabus for next time and should make for some interesting discussion.

About Steve Greene
Professor of Political Science at NC State http://faculty.chass.ncsu.edu/shgreene

2 Responses to #Metoo and due process and free speech

  1. Jim Danielson says:

    My first thought was, we can not have fair system of justice if lawyers are afraid to defend someone because of outrage.
    My second thought was for Nasrin Sotoudeh, the lawyer arrested in Iran for defending women who were fighting for freedom against religious tyranny.

  2. R. Jenrette says:

    Maybe public education would benefit from bringing back civics but ridding it of most of the rote part. The rote part is the memorization of the rules, like how to pass a bill. Instead it would start with an issue – like free speech. Present critical court cases that are now the rules on an issue.
    It doesn’t have to be like law school but a synopsis of how we got where we are today on the issue.
    Deciding what issues to address may be tricky in today’s political environment but the process learned from studying one or two issues can be used to study any issue.

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