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Thursday, November 30, 2017

Workplace Sexual Harassment Epidemic Misses Chance To Address Larger Issues

The current news "wave" of sexual harassment allegations against high-profile elected officials and media celebrities is not about redress for the victims.

It should be about creating safer workplaces for women -- and also, for men. This is a stated goal from some corners, but it is unlikely to occur. That's because, unfortunately, the true objective from many other corners is quite different and one which overlooks and ignores victims as mere individuals, little more than collateral damage, but they are useful for the role they play here. Arguably, it's double victimization.

Without the victims, who will soon be forgotten (although their already-sustained consequences will linger), and without the appalling (and in at least one case, likely criminally indictable) sexual misbehavior of these predators (some of whom have admitted indirectly to some allegations), the larger but hidden agenda at work cannot be advanced and achieved. 

The indefensible nature of the behavior is necessary. It supports the horrible accusations, so often made with full knowledge of their falsity but nonetheless useful for intimidation, that anyone raising questions about evidence, the credibility of accusers (years if not decades after the fact) or the cultural standards for defining sanctionable, punishable offenses, never mind actual culpability, is essentially condoning, approving or even participating in the even more horrible behavior.  

The conflation between just highly-inappropriate (and flatly boorish) behavior, which behavior often crosses into the illegal in the workplace and can easily turn into criminal, is also with a purpose. Confusing the population as to what behavior is "allowed" is useful fosters apprehension, insecurity and indecisiveness, weakening any sense of a universally-accepted (and respected) "bright line" standard (whether legal or cultural) for behavior. As legal and cultural uncertainty grows, the "accepted" standard becomes that which is set by the loudest and boldest voices.

Unfortunately, the risk of undermining general respect for the law, and for authority, in our society will be stoked by such passions.

When that respect is diminished, respect for standards of behavior gets reduced as well. This is true, whether the standards are "set" by generally-shared cultural norms or by state law.

The real tragedy here is that we have seen the powerful exercise abuses of power. These abuses involve much more than misconduct which contains a sensational, sexual component, and they involve much more than celebrity wrongdoers whose actions would not generate media attention if they were not celebrity names.

The shame and missed opportunity is that the general topics of abuse of power in the workplace, and of outrageously abusive behavior in general across society, will be ignored.

Perhaps that's because there are too many other people who are benefiting from those abuses.

Who will speak for their victims?

Wednesday, November 29, 2017

Legal Concerns After The Sudden Firing Of Today Show Icon

The long-term host of The Today Show on NBC, Matt Lauer, was fired today barely 24 hours after the first complaint about his behavior during his 25 years at the network, according to a memo circulated by Andrew Lack, the network's president for news.

The stated reason was "inappropriate workplace conduct."

But there might be 28 million other reasons: Lauer's reported salary was $28 million. That's a lot of bread, for any broadcast network, in an industry plagued by declining ratings amid systemic audience shifts away from traditional broadcast television and towards alternative technologies and media.

Lack's memorandum stated the network received a "detailed complaint" this past Monday night about the 59-year-old Lauer's behavior. He acknowledged it was the first complaint ever received, then continued by claiming the network "was presented with reason to believe [the alleged incident] not have been an isolated incident."

As the purge -- or is it, the putsch -- of Men (Allegedly) Behaving Badly continues, of concern should be the apparent Star Chamber treatment of some of the biggest "stars" in show business, politics and, likely, other arenas in public life, celebrities or "big names" all. It is not certain -- and from a mathematical perspective, unlikely -- that everyone named in a complaint is guilty. 

What does this all mean?

The incredible pace with which the network moved after receiving, it claims, the first and only complaint this past Monday night must raise questions about the strength of the evidence, the credibility of the network's response and investigation and the network's true motives. For now, without knowing more or having the access to the critical documentation, the incredible speed with which this decision was apparently made suggests haste, at the very least.

Should the NBC documents be accurate, this means that a major employer went from 0 to red zone termination territory, from receipt of complaint through the stages of investigation, inquiry, collection of evidence and likely some review by internal (and external) legal counsel, to decision, in less than 36 hours.

(Quick questions here for the audience: Could your job be in jeopardy from a vengeful, envious or devious co-worker, angling for that promotion or your very job, and now armed with a convenient way to eliminate the competition? In the current environment where it may be more possible than ever to achieve competition-eliminating results through allegations which might be easier than ever to make, and be believed, without going through the traditional scrutiny, do not discount the temptation of false allegations by people without scruples.  As for employers, if you act in haste without proper procedures, could you be at risk of wrongful termination lawsuits?)

Such speed could -- and emphasis needs to be placed on that word, "could," because there are so many actual hard facts not available right now -- mean the "evidence" was really strong. As in damning, no-explanation-necessary, this-is-unacceptable behavior.

We don't know the behavior, the context in which it allegedly occurred or the validity of the evidence. The focus here is on hard, legal facts, not the potentially salacious details of any allegation. 

We also don't know Lauer's side of the story. Stay tuned, as that's sure to be coming sooner than later.

Quick question: Was 24 hours (and likely, far less time) enough time for anyone to determine that whatever "evidence" may have been presented was indeed genuine evidence, i.e., not fabricated, distorted or otherwise manufactured to support whatever allegation was made?

The speed alone will give rise to suspicions (and conspiracy theories, any second now) that the firing is either a cover-up of something else (misconduct by someone else?), perhaps an intentional distraction, or that it was a pre-ordained move instigated by someone in upper management with either a strong grudge or other motive.

One thing to remember: Such a move might be grounds for "termination with cause" and could be motivated by a desire to get out of the high salary Lauer was commanding. You don't think saving $28 million wouldn't motivate a network, plagued by declining market share (which is affecting all old-guard media), to look for every possible way to get from under that burden?

Something else to remember: We have not heard from Lauer or his representatives. They surely will be very busy today. Lauer's employment is reportedly governed by an employment or personal services contract, and the terms of that will surely be hotly contested.

A third thing to remember: We don't know the details of the allegations. But what will now be the "bar" or "standard" for what is merely "inappropriate workplace" behavior, or "fireable" offenses?

Celebrities generally are plagued by opportunists, scam artists and the like. They now may be under career-threatening danger from anyone in their pasts with a grudge, real or imagined, who has access to questionable evidence (which is more available in the age of smartphone cameras, etc.).

And those statements are applicable -- to the celebrities who are innocent.

The current fever pitch of scandal is encouraging virtue-signaling-by-firing, perhaps with due process being discarded. But we should also pause to think whether this "trend" might ruin -- permanently, irreversibly -- careers, reputations and even lives.
Lauer started his broadcasting career in 1980 and began his NBC stint in 1992 with dual gigs co-hosting studio programs at the network-owned New York flagship station WNBC. 

Wednesday, November 1, 2017

Surprising Support For Free Speech Restrictions, Hate Speech Bans: Cato Survey

The First Amendment we know and love would be under serious attack if most Americans had their way, according to some shocking, underlying findings from a Cato Institute survey.

The Institute's Free Speech and Tolerance Survey was conducted in conjunction with YouGov, collected responses from over 2,500 Americans in late August, just days after the infamous Charlottesville, VA protests. 

A substantial portion of the population, and strong majorities of both African-Americans and Latinos, believe that supporting someone's legal right to say something racist is as bad as saying it yourself. Over six in ten Latinos (61%) and nearly two-thirds of African-Americans (65%) believe that "supporting someone's right to say racist things is as bad as holding racist views yourself." Over one-third of whites (34%) of whites and 43% of all respondents agree with that view. 

Survey results indicate many Americans have often-contradictory opinions but nonetheless favor some draconian remedies which might be considered "content based restrictions" on free speech. Such "content based restrictions" serve as a "fault line" which our federal courts have used in recent decades to strike down laws, regulations and practices of federal, state and local governments found to be unconstitutional restrictions on free speech. 

While that suggests our judiciary might be counted on to protect government overreach or popular abuses (its traditional role in checking the other branches), the other risk must also be considered: that popular sea changes in attitudes could lead to massive future shifts in what the courts consider protected free speech.

More than half of respondents -- 56% -- believe it is possible to have free speech, while simultaneously banning hate speech. 

The difficulty of defining hate speech was recognized by most survey respondents.  

Most Americans -- 59% -- believe people should be "allowed" to express unpopular opinions in public, even if they are "deeply offensive to other people." On the other hand, four in ten agree that government "should prevent people from engaging in hate speech against certain groups in public." While that opinion is still a minority, 40% support for what amounts to criminalizing "hate speech" should set off alarm bells.

There are also significant racial, ethnic and political-party-identification divides. While two-thirds of white respondents oppose government bans on "public hate speech," nearly three in five African-Americans (56%) and Latinos (58%) support such bans. Among self-identified Republicans, 72% oppose such bans, while more than half of self-identified Democrats (52%), 59% of African-American Democrats and 65% of Latino Democrats support them. 

Interestingly, over five in nine (55%) white Democrats oppose the bans, indicating that on matters of free speech, white Democrats are more in line with average Republicans than with minority members of their party. 

Self-described libertarians (82%) oppose these bans, while nearly two-thirds of "populists" (defined in the report as "social conservatives who also support bigger government") support them.

Attitudes among current college students may be most worrisome. The survey found that current college students are split (49-49%) in favor and opposition to government bans on hate speech. 

Most respondents (79%) find hate speech "morally unacceptable." The Cato Institute's conclusion is that many respondents do distinguish between "allowing" and "endorsing" speech they find unacceptable. However, this finding, when taken in conjunction with the primary finding that 40% agree that government "should prevent...hate speech," shows that roughly one-half of respondents support banning speech which they find unacceptable. 

Finally, a surprising finding: 24% -- one in four -- think hate speech is currently illegal. 

The takeaways? 

A substantial portion of the American population is currently willing to impose their own moral judgments on "hate speech" -- however arbitrary -- on others.

What does this mean for the future of the country?

Current racial and ethnic disparities in the propriety of government restriction on speech indicate that future demographic trends could put free speech at risk or at least result in changing legal standards as to what is constitutionally-permitted free speech. These trends may be accelerated if the nation continues to experience significant immigration from parts of the world without robust traditions of civil rights and cultural tolerance for differences in opinion, and assumes newcomers do not readily adopt traditional American attitudes towards free speech and constitutional rights. These trends may be further supported by the significant support among current college students for hate speech restrictions, assuming both that this segment of the population does not as a group experience a significant attitudinal shift and that it is responsible for producing the next generation of judges, legislators, government regulators and other opinion leaders most likely to influence or impose their values on the society at large.