In this morning’s Morning Docket, I linked to a Washington Post article that highlighted the awkwardness of characterizing Al Franken’s behavior as “alleged” when we’re staring at a photograph. Isn’t that image enough? What about his immediate admission (to his role in the photo at least — he claims to have a different recollection of other aspects of the account)?
What makes the piece thought-provoking is its focus on the impact words like “allegedly” can have on the perception of the women coming forward. The coverage doesn’t say they were harassed, it says they were allegedly harassed, and for many that qualifier is enough to erode confidence in the charges.
Many voices are calling on the media to change how it covers stories like Franken’s or Harvey Weinstein’s. They want qualifier terms like “allegedly” removed or at least changed. Still others claim the media only uses these qualifiers for victimized women, which isn’t true but that selective memory reflects the outrage over the stigmatization the term brings.
More than once I’ve personally heard the phrase, “those are just allegations,” as if allegations are lesser claims rather than potentially valid claims awaiting adjudication.
In the Washington Post piece, Professor Camille Hébert of Ohio State Law sums up the frustration:
“I’m a lawyer, and I understand why lawyers advise this sort of qualification, to try to avoid libel claims,” said Camille Hébert, a professor at Ohio State University’s Moritz College of Law who specializes in sexual harassment.
But, Moritz added, “these sort of qualifiers are incredibly frustrating for people like me and others, who advocate against sexual harassment and assault. . . . In this situation, at least, it seems to me that the media might be going beyond cautious and instead leaving the impression that we can’t even believe women’s claims of harassment and assault when our eyes and pictures provide proof that it happened. This leads to the impression that women’s claims certainly shouldn’t be trusted when there is no such documentary evidence.”
Diana Moskovitz at The Concourse is more direct:
To hear the keepers of the craft tell it, alleged is important because it signifies that the writer doesn’t know the exact, final truth. This is often true. They’ll argue that it’s important to show that what is said in cases is an allegation or an accusation and not a fact. They’ll assert that a source could be wrong, and that this hedge may prove important when, days later, reporters have to come back with different information and explain discrepancies. This is, they’ll say, America—the land of reasonable doubt, a very good legal concept we all can agree with. Report what you know, the saying goes. How can journalists be certain of anything if they weren’t witnesses to what happened? It is a sign, they’ll say, of scrupulousness, practically a sign of journalistic virtue.
Which is a load of shit.
This might be a good time to note that The Concourse’s former parent company was sued into oblivion. And while the immediate cause of Gawker’s demise had nothing to do with careless attention to the word “allegedly,” the fact that Peter Thiel felt defamed when Valleywag outed him was the real culprit. Thiel couldn’t win his case, but he could scour Gawker’s pages for actionable claims. He struck gold with Hulk Hogan’s privacy claim — he could have just as easily found some defamatory fact asserted without an “allegedly.” The challenges facing the media are real and can’t be cast aside with ease.
But Moskovitz does offer a solution to the “allegedly” conundrum that everyone should consider: use “said.” Report that women have said that Harvey Weinstein harassed them. It’s a true statement and doesn’t opine as to the truth of the matter. There’s nothing about it that exposes a publication to a defamation claim and if there’s any risk that this prevents women from being marginalized and ignored, then it’s worth adopting.
Unfortunately, while this is a valuable tactic today, it’s already doomed. Consider the NAACP and the UNCF. Two organizations that named themselves with words that were considered enlightened alternatives in their day, but that would be inappropriate today. Writing in Slate, Professor John McWhorter advances a theory that progressive terminology can only remain enlightened for so long — once language becomes accepted, the negative impulses behind the old phrasing import themselves on the new. In other words, how long until someone sneers, “Those are just things she said.”
That’s not a reason not to do whatever we can in the moment to avoid stigmatizing victims, it’s just an acknowledgement that “solutions” are not perfect.
Moreover, using “said” doesn’t solve the Franken question (not that Moskovitz was trying to — her post predates the Franken allegations). A picture can’t “say” something. Does it “show” something? Yes… though what does it show? Franken grabbing a woman’s breasts? Franken about to grab a woman’s breasts? Franken pantomiming grabbing a woman’s breasts? All of these are harassment, but consider the writer committing this to paper — can they go all in and say what the image “shows”? Not really, which is why they’ll say “apparently shows” or “seems to show,” and that’s right back to square one.
Even his admission doesn’t resolve the problem. He admitted to an inappropriate and unfunny joke. Sure, but what exactly was that joke? Without qualifiers, reporters can’t go beyond the four corners of that admission. Publications that offer more commentary than straight news can introduce hypotheticals — “assuming he touched her” — and argue the point, demonstrating the seriousness of the crime and tilting the balance of the piece just a little bit closer toward appreciating the gravity of the victim’s claims. But even that begins from the premise that the victim can’t be trusted on face and, ultimately, doesn’t fully repair the damage of qualifying language.
In the end, there’s no easy path around the libel laws. As Professor Hébert notes, the libel laws don’t provide much room for enlightened exceptions. It’s not like anyone likes to write or say “allegedly” all the time. It’s clunky and awkward and usually laughably superfluous. It’s there to keep the media reporting.
Talk is reasonably cheap on social media, where some are calling for established media outlets to buck the trend and stop hedging their reporting of sexual misconduct or face boycotts. That sounds noble in theory, but to side rhetorically with the person making the claims before the case is tried is taking on an awful lot of litigation risk in a challenging environment. A lot of outlets, in particular the small, non-corporate outlets who do a lot of the best coverage in the area will just stop writing about it at all to avoid enterprise killing litigation. Boycotting reporters working on these cases for choosing to cover themselves legally could result in a troubling chilling effect.
Waiting until a story has 30 sources may provide the confidence to go all in, but it’s rare that the floodgates open like that. More often it’s one voice going public that starts a process. If there’s no way for media to report the stories of those lone voices without being sued, we’ll never hear any of these stories.
Ultimately, the critical legal theory tradition has the right of it here. There is no single action that will fully repair the damage that defamation laws do to reporting on sexual misconduct, it’s a matter of recognition and constant vigilance. We need a populace that better understands that words like “alleged” and “accused” aren’t normative, they’re descriptive. Articles like the Post and Concourse pieces do the service of educating audiences about how libel laws work and why qualifying language gets put in stories in the first place.
Robbing the language of its stigma is more helpful in the long-run than trying to run headlong into the litigation risk wood-chipper.
A photo shows Al Franken touching Leeann Tweeden’s chest. Many media reports still say he ‘allegedly’ groped her. [Washington Post]
Against Allegedly [The Concourse]