Note: On November 30, 2017 I did this piece which everyone seemed to ignore. It suggested that we may be entering a new era of Salem witch hunts and McCarthyism when it comes to how we judge sexual impropriety in a age where accusation is equal to guilt. Since then several others have raised similar questions.
Sexual harassment and assault are wrong. But it is not so clear that the court of public opinion is the best way to adjudicate the truthfulness of any allegations or statements about public figures and officials in era where alternative facts seem to be facts of life. The problem here is that there is a fundamental confusion among the concepts of the marketplace of ideas, the court of public opinion, real courts, and how all of them operate in a hyper-democracy that the United States has become.
Determining what is truth or true is never easy. But in law and democratic politics there are rival notions of finding the truth.
In US law the adversarial process and courts are the mechanisms at arriving at truth. Questions of guilt or innocence in criminal law or culpable or not in civil law are determined in a structured setting where there are formal procedures that determine what is admissible evidence, factors to consider when determining the credibility or witnesses, and there are procedures put into place that seek to guard against bias. The adversarial process is not perfect, but it does usually provide a structured reliable path that determines the truth of a matter.
Democracies are messy. At their best truth is determined through the marketplace of ideas as described by philosopher John Stuart Mill where competing ideas challenge one another in a process that allows for truth to emerge. The marketplace of ideas presupposes truth exits, that there are ways to find it, and that rules can guide its discovery. Truth is not necessarily what 50% plus one of the population thinks. Yet the marketplace of ideas does not always work, instead degenerating to simply where majority rule decides what is true via the court of public opinion.
There is a long line of political thinkers, historians, and scholars ranging from James Madison, Alexis deTocqueville, James Bryce, and even to Elizabeth Noelle-Neumann who worried that in America the powers of public opinion would produce a tyranny of the majority. Passions aflamed, majorities might rush to judgment and suppress the rights or others. When it works well, public opinion and majority rule are great ways to determine who should be the next president of the United States, or for the public to adjudicate rival claims made by candidates to decide which they prefer, but it is not clear that either are good mechanisms to decide guilt, culpability, or truth.
In most cases there is a big different between whether someone is legally guilty or liable for an act versus whether someone is fit to serve in office. This is the difference between law and politics. Law is about real courts, politics is about the court of public opinion. But when the two are merged–as in case of determining whether allegations against Senate candidate Roy Moore or Senator Al Franken are true and how they address their fitness to serve in office–then the rules are unclear. What standards of proof do we need to decide if the accusers are telling the truth and are credible and how do their stories overall fit into defining whether Moore or Franken should be senators is not clear.
And the problem is now exacerbated in our hyper-democracy. Here accusations are flung out immediately into the social media without any serious vetting in a world where it is all about being first to report, maximize hits or likes, or generate audience and profits.. Accusations, rumors, and innuendo can be shot immediately through Facebook and Twitter, distorted by partisan politics, confirmation biases, and cognitive dissonance. Accusation is enough to render someone guilty, liable, and unfit for office. Image the Salem witch hunts and the McCarthy communist accusations in a social media era and that is what has emerged. It is tyranny of the majority, the pressures of uncontrolled public opinion operating through an unconstrained court of public opinion judging individuals in ways that make it impossible for them to prove their innocence.
The court of public opinion in a hyper-democracy is not suited either to determine legal or real truth as real courts or the marketplace of ideas can. In the court of public opinion there are no rules, no definitions of truth, no standards of conduct that provide clarity. What we are left with are rival ideologies and pronouncements of opinion masking as truth.