Billie Holiday, in her 1939 song Strange Fruit, sang: “Black bodies swinging in the southern breeze. Strange fruit hanging from the poplar trees.” She was singing about lynch mobs. In the southern United States, in the late 19th century and first half of the 20th century, mobs of white people lynched black men for crimes that were presumed and never proven. Historians estimate about 3,500 black men were murdered in this way. With some notable exceptions, the legal profession looked the other way.
The lynch mob was a repudiation of everything that is good about the law.
Until recently, it seemed extinct, a relic of a horrible bygone age, but sadly, like a monster in a horror movie, it has been born again, this time wearing a digital disguise. Twitter, Facebook, and their pale imitators allow, even encourage, the instant assembly of a group whose members come together to self-righteously condemn and destroy someone who, for whatever reason, has offended them. Members of such a vigilante group typically are vague on the facts and have not thought seriously about the issues. They are nothing more than a mob baying for blood.
This appalling development is sometimes called “public shaming.” One of the most famous victims of digital public shaming is Justine Sacco, whose 2013 tweet from Heathrow Airport before she boarded a flight to Cape Town, an inept attempt at irony and humour, was interpreted as racist by some (“Going to Africa. Hope I don’t get AIDS. Just kidding. I’m white!”). By the time Sacco’s flight landed, through a process of re-tweeting coupled with extreme (and sometimes obscene) comments, she was infamous, her reputation was in tatters, and she had been fired by her employer. Sacco has yet to reconstruct her life.
Which brings me to Jian Ghomeshi. You may remember in October 2014 allegations surfaced from a variety of sources that Ghomeshi had sexually assaulted several women. The Twittersphere exploded. Initially, there were expressions of support for Ghomeshi and doubt about the allegations, but the tide quickly turned. After the first few hours, almost all those who tweeted about Ghomeshi assumed the allegations were true and reviled him in extravagant terms. Within a few days, he was fired from his talk show job. His public relations firm dumped him. His friends turned their backs. His publisher cancelled a book contract. His agent dropped him. He went to California to hide out.
All this took place before criminal charges were laid — that happened about a month later. Whatever the outcome of his trial — and he may be found not guilty — his life and career have been substantially damaged if not completely wrecked.
Then there is the recent case of Minnesota dentist Walter Palmer, by now the most famous dentist in the world. Earlier this year, he used a bow and arrow to shoot Cecil the Lion in Zimbabwe, apparently contrary to local law. At the end of July, news and photos about Palmer killing Cecil somehow got on to Twitter and Facebook, and Palmer’s world went mad. On just one day, July 29, there were close to a million tweets about the incident, almost all of them hideously critical of Palmer and many calling for his blood in the most vivid terms.
As several journalists put it, “The hunter became the hunted.” Palmer’s home was vandalized. He was expelled from his dentistry practice. He went into hiding. He feared for his life.
Ghomeshi and Palmer are by no means isolated examples of the crude persecution that social media makes possible.
Anyone can be unjustly accused of anything. For starters, you can be accused of not being a nice person (e.g., “Hey, buddy, you’re a racist!”). There are laws and codes of behaviour that offer some protection against this kind of accusation, although they’re largely ineffectual, as anyone who has been the object of unfounded rumour or gossip knows. Much more seriously, like Ghomeshi and Palmer, you can be accused of criminal behaviour. There are traditional systems and rules to ensure, so far as possible, that, in the case of crimes, guilt is clearly established before punishment is imposed. There’s that thing called “presumption of innocence.”
But the Ghomeshi and Palmer cases dramatically illustrate that these systems and rules don’t apply to a social media mob, which will pronounce you guilty and impose punishment in the twinkle of an eye. In this way, social media subverts and undermines a critical part of the criminal justice system that many people, particularly lawyers, laboured mightily for years to put in place.
How do you mesh the demands of the traditional criminal justice system, developed carefully over centuries, with the reality of the new world of social media, a chaotic behemoth barely a decade old? Part of the tension is between the right to free expression and other individual rights that can be threatened by freedom of expression. How to resolve that tension is an enduring and delicate political and ethical conundrum. Most would agree on one thing: Free expression does not trump everything. But when should it give way?
The legal profession has an ethical obligation to protect the criminal justice system by pushing back vigorously against untrammelled public shaming, particularly when it involves accusations of criminal behaviour. But how? For one thing, by going public when necessary. So, for example, in Ghomeshi’s case, leaders of the profession and bar associations should have entered the social media debate and publicly cautioned about presuming guilt. They should have used the very same tools used by the lynch mob. They should have played on the same playing field. They should have tweeted their hearts out.
In the new world, the old, ponderous, and slow ways of expressing an opinion are no longer good enough for anyone, including members of the legal profession.
Philip Slayton is immediate past president of PEN Canada, an organization that promotes and protects freedom of expression.