Combatting the lynch mob

  • Subtitle: Legal Ethics
Written by  Posted Date: October 5, 2015
Illustration: Dushan Milic
Illustration: Dushan Milic
Billie Holiday, in her 1939 song Strange Fruit, sang: “Black bodies swinging in the southern breeze. Strange fruit hanging from the poplar trees.” She was singing about lynch mobs. In the southern United States, in the late 19th century and first half of the 20th century, mobs of white people lynched black men for crimes that were presumed and never proven. Historians estimate about 3,500 black men were murdered in this way. With some notable exceptions, the legal profession looked the other way.

The lynch mob was a repudiation of everything that is good about the law.

Until recently, it seemed extinct, a relic of a horrible bygone age, but sadly, like a monster in a horror movie, it has been born again, this time wearing a digital disguise. Twitter, Facebook, and their pale imitators allow, even encourage, the instant assembly of a group whose members come together to self-righteously condemn and destroy someone who, for whatever reason, has offended them. Members of such a vigilante group typically are vague on the facts and have not thought seriously about the issues. They are nothing more than a mob baying for blood.

This appalling development is sometimes called “public shaming.” One of the most famous victims of digital public shaming is Justine Sacco, whose 2013 tweet from Heathrow Airport before she boarded a flight to Cape Town, an inept attempt at irony and humour, was interpreted as racist by some (“Going to Africa. Hope I don’t get AIDS. Just kidding. I’m white!”). By the time Sacco’s flight landed, through a process of re-tweeting coupled with extreme (and sometimes obscene) comments, she was infamous, her reputation was in tatters, and she had been fired by her employer. Sacco has yet to reconstruct her life.

Which brings me to Jian Ghomeshi. You may remember in October 2014 allegations surfaced from a variety of sources that Ghomeshi had sexually assaulted several women. The Twittersphere exploded. Initially, there were expressions of support for Ghomeshi and doubt about the allegations, but the tide quickly turned. After the first few hours, almost all those who tweeted about Ghomeshi assumed the allegations were true and reviled him in extravagant terms. Within a few days, he was fired from his talk show job. His public relations firm dumped him. His friends turned their backs. His publisher cancelled a book contract. His agent dropped him. He went to California to hide out.

All this took place before criminal charges were laid — that happened about a month later. Whatever the outcome of his trial — and he may be found not guilty — his life and career have been substantially damaged if not completely wrecked.

Then there is the recent case of Minnesota dentist Walter Palmer, by now the most famous dentist in the world. Earlier this year, he used a bow and arrow to shoot Cecil the Lion in Zimbabwe, apparently contrary to local law. At the end of July, news and photos about Palmer killing Cecil somehow got on to Twitter and Facebook, and Palmer’s world went mad. On just one day, July 29, there were close to a million tweets about the incident, almost all of them hideously critical of Palmer and many calling for his blood in the most vivid terms.

As several journalists put it, “The hunter became the hunted.” Palmer’s home was vandalized. He was expelled from his dentistry practice. He went into hiding. He feared for his life.
Ghomeshi and Palmer are by no means isolated examples of the crude persecution that social media makes possible.

Anyone can be unjustly accused of anything. For starters, you can be accused of not being a nice person (e.g., “Hey, buddy, you’re a racist!”). There are laws and codes of behaviour that offer some protection against this kind of accusation, although they’re largely ineffectual, as anyone who has been the object of unfounded rumour or gossip knows. Much more seriously, like Ghomeshi and Palmer, you can be accused of criminal behaviour. There are traditional systems and rules to ensure, so far as possible, that, in the case of crimes, guilt is clearly established before punishment is imposed. There’s that thing called “presumption of innocence.”

But the Ghomeshi and Palmer cases dramatically illustrate that these systems and rules don’t apply to a social media mob, which will pronounce you guilty and impose punishment in the twinkle of an eye. In this way, social media subverts and undermines a critical part of the criminal justice system that many people, particularly lawyers, laboured mightily for years to put in place.

How do you mesh the demands of the traditional criminal justice system, developed carefully over centuries, with the reality of the new world of social media, a chaotic behemoth barely a decade old? Part of the tension is between the right to free expression and other individual rights that can be threatened by freedom of expression. How to resolve that tension is an enduring and delicate political and ethical conundrum. Most would agree on one thing: Free expression does not trump everything. But when should it give way?

The legal profession has an ethical obligation to protect the criminal justice system by pushing back vigorously against untrammelled public shaming, particularly when it involves accusations of criminal behaviour. But how? For one thing, by going public when necessary. So, for example, in Ghomeshi’s case, leaders of the profession and bar associations should have entered the social media debate and publicly cautioned about presuming guilt. They should have used the very same tools used by the lynch mob. They should have played on the same playing field. They should have tweeted their hearts out.

In the new world, the old, ponderous, and slow ways of expressing an opinion are no longer good enough for anyone, including members of the legal profession.

Philip Slayton is immediate past president of PEN Canada, an organization that promotes and protects freedom of expression.

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Comments   

+1 # Informed CitizenChris Budgell 2015-11-02 14:14
Mr. Slayton's perspective seems to me to be valid (and one I'm sure has been expressed before).

My perspective, based on years of trying to contend with the legal system in its own forums, is that the legal profession could and should start to deliver on its promise about "the rule of law". What that would require is encouraging the public to understand what it really means instead of pumping out an endless stream of rhetoric (about e.g. "the independence" of the Bar and the Bench). Most people actually prefer being informed to be bamboozled.
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+2 # lawyerDaniel Tangjerd 2015-10-06 14:39
Good afternoon Philip. Thank you for a very thoughtful and thought-provoking article. I sometimes wonder if my 14-year old son will grow up in a society where "freedom of speech" and "freedom of expression" are genuine rights, or mere memories of a bygone era. I agree completely with your lynch-mob comparison. I suppose one would really have to be on the receiving end of such a persecution to fully appreciate the pain and the damage it can cause, but I am certain that the best protection any of us has is for all of us to consistently speak up and courageously insist upon the right to express opinions, especially the unpopular ones. My fear is that freedom of expression will die silently because of the mob keeps us quiet.

Sincerely,
Daniel Tangjerd
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+2 # hardly lynching, maybe justifiedJohn G 2015-10-05 21:49
Three wildly disparate cases, none of them equal to an actual lynching. The first was a lapse of taste that had very deplorable consequences. The second (Gomeshi) was one in which the tone changed as more information emerged. While the information was not 'evidence', it was not nothing, either. I doubt that leaders of the Bar could have upheld the presumption of innocence in the social media for long. If the PR firm quit, maybe it had a reason.

The third case, the hunting dentist, was even clearer - the guy violated the law in a way he could not have believed was legal, and even if it had been, he demonstrated the depths that trophy hunting sinks to. A public shaming seems pretty appropriate.

We have not seen, in the only actual criminal case mentioned, whether social media have hurt the chance for a fair trial with the usual safeguards.
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+2 # Billie Holiday's songAlbin Foro 2015-10-05 18:10
is about real human hangings by the KKK, and as practical history the KKK could have taught the much viliied ISIL lessons in human abuse. To compare that with a bunch of idiotic text messages of whatever provenance, and social misunderstanding or otherwise that might arise from them, is ludicrous. As a matter of tort, none of the examples given would likely attract ordinary libel claims if the message writers were known. Participation and attention in these goofy media is voluntary and not riskless. But when this writer sees a real lynch mob he'll know it.
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+2 # lynch mobBen Carter 2015-10-05 17:52
So you think that being hung from a tree is the same as having nasty things written about you on the internet? Which would you prefer to be done to you? This article is an insult to the thousands of black men who were lynched.
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+2 # MrLorne Campbell 2015-10-05 17:44
While I agree wholeheartedly with Professor Slayton's observations about the lynch mob mentality fostered by social media's keyboard warriors, I doubt that having "the leaders of the profession and bar associations" tweeting their hearts out could quell the swell of rage at Ghomeshi in the twittersphere - unless they got at it before the story got traction and were able to re-frame the issue. Once the story broke and developed momentum, voices of reason would have been buried in a blizzard of vitriol and presumed guilt.
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Philip Slayton

Philip Slayton is president of PEN Canada, an organization of writers that protects and promotes freedom of expression. Follow him on Twitter @philipslayton.

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