The Outrage Machine Comes For "Inappropriate Conduct": Unexpected Consequences Of The #MeToo Moment

Summary executions aren't what America is all about.

Well, that was unexpected.

When I wrote my last column about the overreaction of the #MeToo wave in the context of Garrison Keillor’s forced disappearance from Minnesota Public Radio, I had no idea that it would touch such a nerve — and do it in a way that I did not remotely expect.

To be frank, I expected to get even more hate mail than I do when I write critical things about prosecutors. I even felt kind of bad that I wasn’t writing about what we’re really, really not supposed to call the Rosenstein Memo.

But it turned out that the column struck quite a nerve. Above the Law tells me that it was one of the top three most read columns I’ve ever written, and was shared more than 1,500 times, which is not typical for someone who doesn’t write about whether a firm is matching Cravath.

Even more surprising was the number of emails that I received. I got more than a dozen emails from people all over the country, and only two of them were negative.

Since that column came out, we’ve seen an even bigger wave of highly questionable responses to vague allegations.

Ryan Lizza was fired from the New Yorker for undefined misconduct that he strongly denied in a way that, it seems to me, he would not do if there were actually something there:

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In a statement, Mr. Lizza said the company’s decision to fire him “was made hastily and without a full investigation of the relevant facts” and “was a terrible mistake.”

“I am dismayed that The New Yorker has decided to characterize a respectful relationship with a woman I dated as somehow inappropriate,” he said via email. “The New Yorker was unable to cite any company policy that was violated.”

Radio legend Leonard Lopate was abruptly suspended from WNYC for “inappropriate conduct,” which is a curious choice of words. That doesn’t smack remotely of assault, nor does it even sound like harassment, or else I suspect WNYC would have used that term. The New York Times described Lopate’s reaction this way:

Mr. Lopate told The New York Times that he was “baffled” and “really quite shocked and upset” by the suspension, which he said came without warning at 11 a.m. Wednesday as he was preparing for the noon broadcast of his show.
“It makes no sense to me,” he said. “I am sure any honest investigation will completely clear me. That’s the only thing I’m concerned about — the damage to my reputation.”

Again, he may be lying. But does that kind of denial, when you consider the vagueness of the charge, sound like he’s lying?

Jonathan Schwartz, another WNYC legend, was also suspended for unspecified “inappropriate conduct.” He did not give a statement to the New York Times, but there also doesn’t seem to be any hint of sexual assault or even sexual harassment there.

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In the #MeToo era, I worry that we are losing the ability to distinguish truly reprehensible behavior — Harvey Weinstein, Matt Lauer, Kevin Spacey — from behavior that doesn’t even come close to that.

Perhaps the best—and most sheerly millennial reaction came from actress Amber Tamblyn, in a New York Times op-ed that is a caricature of the view I am describing:

You’re either with our bodies or against our bodies. The punishment for harassment is you disappear. The punishment for rape is you disappear. The punishment for masturbation in front of us is you disappear. The punishment for coercion is you disappear.

Instead of picking that apart, just think about the frightening language that it uses. We don’t usually talk about “disappearing” people in America. They talked about that in Chile, or in the Soviet Union. But we don’t really talk that way here. Now, however, it seems that we do. The Outrage Machine must be fed, and it doesn’t like nuance.

We are in the middle of, as Emily Yoffe put it in a typically brilliant Politico piece earlier this week, what seems to be the same kind of overcorrection that the Obama administration forced down the throats of college campuses starting in 2011.

To be clear, sexual harassment should not be tolerated. But not everything that is inappropriate constitutes harassment, and not all harassment is created equally. It is one thing for sexual predators like Harvey Weinstein to be summarily terminated. But it’s another thing, at least from what we’re seeing so far in the press, for people like Keillor, Lopate, Schwartz, and Lizza to be thrown under that same bus.

Why should people who read a legal blog care about this? Because people who read a legal blog typically care about due process, and not just in a constitutional sense. Anyone who cares about the rule of law should also care about making sure the punishment fits the crime — and that the punishment is not rendered before we really know what the crime is. Proportionality matters.

And so does mercy. Sometimes, people make mistakes. I’m not talking about sexual assault, of course. But sometimes romantic overtures can be misinterpreted or unwanted, or comments meant in jest can be interpreted in unintended ways.

We don’t live in a perfect world. We live in a messy world full of imperfect people. Sometimes, when people make mistakes, it’s important to correct them. But the gleeful summary execution with which we seem to be treating many of these issues strikes me as both disproportionate and against what we value as Americans.


Justin Dillon is a partner at KaiserDillon PLLC in Washington, DC, where he focuses on white-collar criminal defense and campus disciplinary matters. Before joining the firm, he worked as an Assistant United States Attorney in Washington, DC, and at the Civil Rights Division of the Justice Department. His email is jdillon@kaiserdillon.com.