There is no such thing as “The Court of Public Opinion” (but maybe there should be).

There is no such thing as The Court of Public Opinion. There is no such thing as The Court of Public Opinion.

There is no such thing as The Court of Public Opinion. When people use the phrase, they strongly imply—even outright state—that newspaper articles, op-eds, “litigation by hashtag,” and general opinion-having by the unwashed masses constitutes a kind of parallel legal system in which “mob justice” is meted out by “villagers with torches.” In the Court of Public Opinion, they believe, “the one-eyed man with the most Twitter followers is king,” and all the checks and balances of law and order are suspended:

“In the Court of Public Opinion there are no rules of evidence, no burdens of proof, no cross-examinations, and no standards of admissibility. There are no questions and also no answers. Also, please be aware that in the Court of Public Opinion, choosing silence or doubt is itself a prosecutable offense…the Court of Public Opinion is what we used to call villagers with flaming torches. It has no rules, no arbiter, no mechanism at all for separating truth from lies. It allows everything into evidence and has no mechanism to separate facts about the case from the experiences and political leanings of the millions of us who are all acting as witnesses, judges, and jurors.”

If you say the phrase “The Court of Public Opinion” enough times, one might be persuaded that it exists. But there is no such thing as “The Court of Public Opinion.” There is no such thing as “The Court of Public Opinion.”

All the quotes above are from Dahlia Lithwick, who wrote a piece for Slate called “Woody Allen v. Dylan Farrow: The Court of Public Opinion is now in session.” In it, she was nice enough to praise the essay I wrote on Sunday, while vigorously disagreeing with my opening line, in which I wrote:

“This is a basic principle: until it is proven otherwise, beyond a reasonable doubt, it’s important to extend the presumption of innocence to Dylan Farrow, and presume that she is not guilty of the crime of lying about what Woody Allen did to her.”

She has a point: there is something perverse in using legal terms like “presumption of innocence” in a non-legal context. But that was my point: I wanted my reader to jump to the conclusion that they were reading a sentence about Woody Allen—the person who, once, could plausibly have been charged with a crime—and be startled to discover that they were not, that I was asserting the parallel right to be taken seriously on the part of the accuser. I wanted my reader to come to think about the ways we automatically give one side of the dispute the benefit of the doubt—the way “We don’t know what happened in that attic” becomes a mantra—even while presuming that kind of ignorance requires us to dis-credit the story that Dylan Farrow has maintained, consistently, for over two decades. To presume that “we don’t know,” we must un-know what Dylan has said. To create the façade of our ignorance, we must ignore her.

People like Lithwick like to proclaim a vast and all-encompassing ignorance on the part of everyone as to what really happened, a massive vortex of uncertainty in which no one knows anything. “You are entitled to your opinions about what happened between Allen and Farrow in 1992,” Lithwick writes, but you are not entitled to your own facts: “these are opinions and inferences, not ‘evidence.’”

This is true. I don’t know what happened, because I wasn’t there. But do you know who does know what happened in that attic twenty years ago? Dylan Farrow. She was there. And her testimony is credible.

Meanwhile, Woody Allen denied ever going into the attic space at all, until his hair was found there, and then he suddenly admitted that actually he had been in the attic. It doesn’t “prove” anything, but please, tell me more about the inconsistencies in Dylan’s testimony.
You are not entitled to pretend that you know what happened in that attic, but you are entitled to think that Dylan knows, because she does know. You are entitled to credit her statement with the force it deserves. You are entitled to listen to her statement and call it evidence.

This is the rather simple fact that Lithwick obscures when she writes that my first line “sets up readers to pick sides without hearing all of the actual evidence.” But she has it backwards. Dylan Farrow’s statement is evidence. It’s first-hand witness testimony, the single most credible source of information about what happened. I’m not saying we should treat her statement as unimpeachable or sufficient or iron-clad. But we should treat it as what it is, credible and damning. And unless we have reason to doubt her—and so far, we do not—we should respect the fact that it paints a very damning picture.

I’m not interested in punishing Woody Allen. I have no power to do so, and I didn’t produce any evidence against him or pretend that I have any. Dylan Farrow did that, and she’s a grown women with her own choices and agency. It’s on her. All I have done—and all any of us can do—is listen to her, and respect what she said.

It is all the more important to do this, moreover, because there is no such thing as “The Court of Public Opinion” (There is no such thing as “The Court of Public Opinion”). Lithwick talks about “villagers with torches”; I see no torches. She claims that we are participating in what is “essentially a barroom brawl”; I think that’s a remarkably strange way to describe what is happening, given the absence of pugilistic drunks. She uses phrases like “Mob justice” but I would put to you that there is no mob in history less threatening than a collection of tweets and retweets.

That said, I find Lithwick’s reaction fascinating, because it hinges on two assumptions. First, there is a deeply anti-populist strain to her reasoning, the idea that people are basically irrational. She constantly comes back to the assertion that the vox populi is all vox but no brain, talking about “the one-eyed man with the most Twitter followers” being king, and psychologizing our “personal opinions” as “an (understandable) outpouring of rage and blame.” But these are the sorts of thing that a person who doesn’t really use twitter would say about it. Stephen King, for example, has over 300,000 followers, but when he called Dylan Farrow a bitch, his followers told him to go fuck himself, and he did. And the idea that only courts can think reasonably—that the rest of us are just wildly spinning fountains of psychopathology—is an odd thing for a person to claim in an opinion column, especially when she grants to herself the loftier wisdom to see and to judge our failings (and especially when she opens her op-ed by talking about how courts get it wrong constantly). She can assert and believe that the democratic mass is emotional and hysterical, and she is entitled to her opinions. And I am entitled to believe the reverse.

The much more strange assumption, however, is that Woody Allen’s good name is a kind of property that he both possesses and has an inalienable right to retain, something which should not be taken away from without proper due process. This is the only thing he stands to lose, after all; since the statute of limitations applies, the worst case scenario is that “the public” will come to the conclusion that he’s a scum-bag and a pedophile, and say so, and then they might not go and see his movies as much as before. Or something.

Given the absence of torches, brawling mobs, or any kind of process by which anything at all would happen to Woody Allen as a result of this whole thing, I am left to suggest that Lithwick prefers British libel laws over the America standard of evidentiary proof, possibly without realizing. To suggest that Dylan’s testimony obscures “the actual evidence,” she must presume that Dylan’s statement does not, in and of itself, constitute evidence.
Is Woody Allen entitled not to be considered a sexual predator? Is a man’s good name something that one woman’s first-hand testimony should not be allowed to impeach?

I don’t think so. But I think Lithwick agrees much more with me than she realizes; she is opposed to the “nonlegal deployment of a legal notion” and so am I. The difference is that we disagree about where this is being done. She thinks that Dylan’s statement is not evidence, and that crediting it with evidentiary standing obscures the other evidence; I think that trying to draw sharp lines between “opinion” and “evidence,” in this way, is a “nonlegal deployment of a legal notion.” If public opinion were a court, then we could, and should, have a conversation about what can be admitted into evidence. But since it is not, since there is no such thing as “The Court of Public Opinion” (There is no such thing as “The Court of Public Opinion”), we should be—and are—free to draw our own conclusions.

Freddie DeBoer made a different kind of argument a few days ago, first in the comments and then at his (feverishly updated) website, under the title “everything about the criminal justice system is political.” Freddie’s a smart guy—and he’s written some stuff that I really like—but he’s also prone to a kind of myopia that I think is in full and glorious flower here: the ability to utterly transform the words of the person he’s criticizing into a bizarre and unrecognizable parody of itself (After quoting the section of my essay in which I wrote the phrase “though I could be wrong,” for example, DeBoer observes that the essay is “very typical of his great certitude”).

That said, Freddie’s argument is worth taking seriously—if you can look past the various points at which he postures as The Last Honest Man on the Internet—because he makes the inverse claim as Lithwick’s, it seems to me: she argues that the difference between Real Court and Gossip Mob Justice is absolute and fundamental, while he argues that there is no difference at all, that it is wrong-headed to trust the division between public opinion and the legal system, citing the famous Central Park jogger case, recently the subject of a Ken Burns documentary:

“The Central Park jogger case involved a rush to judgment for a sex crime, one where injustice was abetted and deepened at every turn by the utter certainty of those in the public and the media that the accused were guilty. The notion of a firewall between the public outcry about the case and its actual prosecution collapses completely in the course of the Central Park jogger story. Voices from many different perspectives within that case confirmed what should have been apparent at the time: that the public demand for justice influenced the legal case at every turn, putting pressure on politicians who put pressure on detectives and prosecutors for a swift conviction. “You can only imagine the pressure the police were under to solve the case and solve it quickly,” says one interviewee. In the beginning of the documentary, someone calls the case a proxy war. It was a proxy war carried out in the courtroom, and public perception of the defendants’ guilt undoubtedly affecting the case in myriad ways.”

Freddie thinks this is a useful lens through which to view the Woody Allen affair, that “this basic dynamic plays out in the American legal system writ large”:

“The notion of a clear line between politics and the criminal justice system is not supportable once you are minimally exposed to the actual reality of how that system works. Talk to almost anyone involved in criminal law, particularly in major cities. Talk to a public defender in a big city. Talk to a legal reporter. Read books about the rise of the Giuliani era in New York. Panic about crime creates the political and social conditions that cause aggressive policing and prosecution, which given the reality of this country’s caste system, inevitably hurts poor people of color more than others. Cycles of rising prison populations and tolerance for aggressive policing are directly and unambiguously the product of public perceptions of crime. The legal system is an inherently political entity. The idea of a clear division between public opinion and the judicial process cannot withstand even minimal scrutiny.”

Lithwick knows that rape culture is a thing, but wants us to respect the great firewall that protects people accused of crimes from a democratic mass that can’t be trusted; DeBoer, on the other hand, thinks that this great firewall is a total fiction, erected to obscure the fact that the entire carceral apparatus is a political arm of an oppressive state, one that hides its white supremacist functioning behind a veil of legal process.

The problem is that DeBoer doesn’t seem to think that rape culture is a thing, though as with Lithwick, DeBoer and I agree more than he wants to admit. I think he’s right that our legal system uses a pretense of objectivity to give legitimacy to a carceral apparatus that basically functions to keep our (mostly non-white) underclass under various kinds of violent and repressive surveillance. White Supremacy exists, and we are infected by it, through and through. But I also think our juridico-political system functions to keep our female underclass under a different kind of violent and repressive social control, by creating the “rape victim” as a class of witness who must be supported by the testimony of real witnesses, like men or Hard Data, for example, and by establishing the broad fiction that sexual violence does not exist until proven in court. We live under the fiction that men are not committing sexual violence against women, constantly—a fiction that women who keep silent do a great deal of work to maintain—and while only a stunningly large minority of women will actually be raped in their lifetime, every women will have experienced the experience of being “put in her place,” often by the implicit threat of sexual violence (even if it’s only the latent threat). The fact that being black and being a woman are two different ways to be put in your place—violently or with only the latent threat of violence—and that the criminal justice system is deeply imbricated with the politics of both, however, does not mean that convicting Woody Allen in the court of public opinion will have the end result of sending black men to jail, as DeBoer strongly but ludicrously implies (and not only because there is no court of public opinion). This case is as lily-white as Woody Allen’s New York City, and the comparison can only be misleading: the people whom our justice system most pervasively and comprehensively refuses to serve (who are appropriate to this case) are the victims of sexual violence.

But the real problem is that both DeBoer and Lithwick seem to agree that mob justice is running amok, especially on twitter. DeBoer writes that “The expectation on social media now is that any discussion of due process is tantamount to being an apologist for rape, and the social punishment is immediate and severe.” This is nonsense. It’s true that twitter is a place where one cannot call Dylan Farrow a bitch without being told to go fuck yourself; it’s also true that DeBoer, who is not on twitter, doesn’t know what he’s talking about when he makes “social media” out to be a place where mob justice rules. There seems to be a growing consensus among Serious and Sober Media People that twitter feminists are the greatest public threat the republic has faced in years, but it’s all a lot of nonsense; no one is being lynched here, and it’s downright ridiculous to pretend that social media is a seething cauldron of violence. Plus, let’s be clear about one thing: Woody Allen is going to go on living comfortably, making his movies until the day he dies, and if Freddie DeBoer has a theory for how even an imaginary twitter consensus that Woody Allen assaulted his daughter will end up harming black people, I suspect it involves underpants gnomes.

And the there is this: maybe a Florida prosecutor will think twice next time she considers the murder of a black male to be a non-event, thanks to the fact that broad public outcry at the fact that George Zimmerman was not charged—outcry that primarily occurred on “social media”—made the name “Trayvon Martin” into a symbol for our justice system’s embedded white supremacy, and the fact that there are people that don’t like it. So who knows. Maybe if Woody Allen becomes a public symbol for the fact that men sexually assault women and girls constantly—and that we, as a society, prefer to live in denial about it—then maybe a few more women will feel supported enough not to stay in their place, out of fear. Maybe fewer men will think sexual assault is a victimless crime.

Who knows. Frankly, I am too depressed to be optimistic. But I do feel strongly about this: if public outcry at the fact that racial and sexual violence persistently goes unpunished is “mob violence,” then we could do with a lot more of it. I’m with the toxic twitter mob. Or as I like to call it, “the democratic public.”