Summit Daily editorial: In a post-Harvey Weinstein era, digital vigilantes reject a failed justice system
November 10, 2017
When the New York Times and the New Yorker exposed Harvey Weinstein as a serial sexual predator last month, a floodgate of accusations broke wide open, washing away the careers and reputations of a long list of media titans, from Kevin Spacey to comedian Louis C.K..
Although rumors swirled around these men for years, they continued to occupy the high ground of power. Meanwhile, their victims suffered in silence, worried that speaking up might sink their careers. Few of them sought legal recourse for fear of public humiliation or financial ruin.
Those days are over, and that's largely a good thing.
But this has come to pass not because our criminal justice system has suddenly evolved to better serve victims of sexual assault and harassment, and it likely isn't a consequence of America's most powerful media and entertainment companies choosing to put people before profits.
What appears to have finally shifted the paradigm is a new kind of vigilante justice, one that plays out on Facebook walls, Twitter feeds and me-too hashtags.
Vigilantism has negative connotations — and rightly so. The idea of taking matters into your own hands when our institutions fail to right wrongs is a deeply unsettling concept in a democracy. The rule of law, not the rule of the mob, is the cornerstone of our republic.
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And yet, because we've often failed to live up to our own standards, we are perhaps now receiving the justice system we deserve. Today, we are the judge, jury and executioners in this court of public opinion that is now so successfully reckoning with predators who have escaped retribution for so long.
But what does due process look like in our anarchic digital world? Do esoteric analyses found deep in a subreddit replace our evidence-based judicial system? Who determines guilt and who metes out punishment? And just how do we deal with those who disseminate false claims?
Our country's libel laws exist to hold institutions such as newspapers accountable for what we publish. We cannot simply malign members of our community with wild accusations that are not supported by facts or evidence. If we did, we would be rightly sued. That standard also includes the letters to the editor we receive. Were we to publish a malicious and dishonest letter from one of our readers, we would be on the hook along with the author.
However, that isn't the case for the internet, where almost any kind of speech, true or false, flourishes, including those nasty letters to the editor we decline to print.
Because of the 2016 presidential election, we're now painfully aware that social media is replete with hoaxes, hot takes and hateful speech. We have a 1996 law, ironically titled the Communications Decency Act, to thank for that. It exempts internet companies like Facebook and Twitter from the libel laws that continue to guide the conduct of print publications ranging from the New York Times to the Summit Daily News.
As Mark Zuckerberg has argued many times before, companies like his are platforms, not publishers, and should not be held to the same standards. Put simply, newspapers are required to be responsible for the content they publish, while social media giants are not.
It doesn't seem exactly fair. And yet, we can't deny that these social platforms have given formerly voiceless and powerless people an unprecedented opportunity to be heard. They don't have to convince gatekeepers — like a skeptical newspaper editor or a district attorney — that their story is credible. They just hit the "Post" button and wait for it to go viral.
The #MeToo campaign has shown that there is great strength in numbers. Using that simple hashtag, women across the country have stepped forward to speak about sexual abuse they've suffered at the hands of powerful men. The dark side to this is that it has never been easier to tell a lie that can completely destroy a life.
Here in the Summit County microcosm, we witnessed last month our brave new world of justice play out in both the court of public opinion and the court of law, which, like a newspaper, is held to a higher standard than a Twitter feed.
In 2016, a Summit County woman came forward to accuse four men of sexually assaulting her in a Silverthorne apartment after a night of heavy drinking and drug use. Last month in court, she testified under oath. In an act of complete vulnerability and courage, she told her story, warts and all. She was relentlessly grilled during cross-examination, where it was implied that she was a person of loose morals and low character. The jury heard her side in the case, but also the perspective of the accused, who maintains his innocence and claims it was all consensual.
It was an adversarial, unpleasant and ugly process.
But on the bright side, this court case was perhaps an encouraging example of how the criminal justice system is evolving to better handle sexual assault cases that hinge on the concept of consent. In the past, that gray area has been what makes sexual assault cases so difficult to prosecute, often turning the process into a game of he-said, she-said.
Back in April, another Summit County sexual assault trial resulted in a stalemate because the jury couldn't decide whether a black-out-drunk woman in her early 20s did or did not consent to sex with a maintenance man at a Copper Mountain Resort housing complex. At one point, the defendant's attorney said, in reference to consent, "He is not a mind reader."
In the most recent sexual assault case, the jurors weighed the evidence presented to them and came to the conclusion that the man was guilty of felony sexual assault, and that the woman was too impaired to have given consent. But before the jury reached a verdict, internet commenters had already jumped to their own conclusions, though few of them actually attended the trial.
Some of the comments called for castration. Others blasted the Summit Daily, which covered every day of the trial, for even presenting defense-side arguments in print. We deleted some Facebook comments, but only those we felt were profane or abusive. Facebook may not care about maintaining a civil discourse, but we do.
We also care about the rule of law, which is why we must continue to scrutinize our justice system. It is far from perfect, but we cannot afford to abandon it in exchange for the pitchfork and torches of social media outrage.
The Summit Daily editorial board includes publisher Meg Boyer, editor Ben Trollinger and two community members, Jen Schenk and Jonathon Knopf.