Legal risks in reporting on academic sexual harassment

Gossip, according to Google Images

This is on the nuts and bolts of reporting sexual harassment.

Last fall my colleague Liana Sayer and I offered to help people report on sexual harassment in academic sociology (other posts on this: #MeToo). Although we have corresponded with a number of people, we have yet to make any public reports. One reason for that is legal risk.

The first advice I got from a number of people was to get a lawyer, and to get libel insurance. I did both of those things (libel turns out to be a kind of personal injury, like hitting someone in your car, so you can get covered for it under an umbrella policy).

After attending a media law conference (long story), and having gathered enough evidence to consider moving ahead with publication in one case, I spoke to several lawyers, and eventually retained Constance Pendleton, a media law expert and partner at Davis Wright Tremain. Here is some of what I learned from speaking with her.

First, if the case involves harassment within one workplace (school), it may be better to go through the official reporting procedure rather than making a public case, at least from the perspective of protecting the accuser. This involves lawyers and documents, which is good. However, for reasons I mentioned here, that often doesn’t work. And that process often ends with a promise of confidentiality that shields the harasser from public exposure (a key institutional goal of many university sexual harassment officers).

Second, the risk of getting sued as an individual is high. We don’t have a lot of experience in the current context with lawsuits against accusers, but the cases that have come forward have often involved major investigations by big organizations, not individuals publishing accusations on their blogs. So it’s hard to know how they will play. However,  even the cost of “easily” winning a case is likely to be a lot, something in five figures. And in the process, the accuser you are trying to protect could be forced to testify, or at least produce an affidavit, even if you have kept them anonymous in the story. Truth is a defense against libel, but if your true statement is “someone told me this,” you can still be found responsible if you can’t prove that what the person told you is true, or if it can be shown you acted maliciously in reporting it.

In the case of being sued, the things you need are the things a good journalist would want in reporting such a story, such as original documents, contemporaneous records, witnesses, and so on. There is a reason for that: journalists who report this stuff are heading off such lawsuits themselves. But I didn’t fully appreciate some key differences between a citizen journalist and a real news organization. These include the reputation of the news organization, which shields them (practically if not legally) from charges of acting maliciously. Also, they have lawyers already, so it doesn’t cost them as much to defend cases. And they have an interest in defending their reputation, so everyone knows they will fight. Finally, there are some legal protections for revealing information if you do it in the public interest, and that’s an easier case for news organizations to make. (This is my shallow, lay understanding of the situation, not legal advice).

Regardless of my thoughts on procedural fairness, which is hotly debated, these are reasons why I wouldn’t report on rumors alone, or report a case where I didn’t know the accuser’s identity and had no way of verifying the supporting information.

News reality

Given all this, The best thing might be for a news organization to report the story, rather than reporting it independently. I haven’t ruled out the latter course, but it’s much riskier. (And there may be hybrid solutions, such as writing a reported piece as a freelancer for a news organization.) Unfortunately, or maybe fortunately, news organizations that are interested in reporting on sexual harassment are getting bombarded with cases to report. They have to choose selectively from among these cases, and the variables involved are beyond my control.

In the case of Michael Kimmel, for example, reported by the Chronicle of Higher Education (paywalled, bootlegged), the story includes one accuser who requested anonymity, and one senior sociologist who affirms the existence of rumors, and the charge is unwanted advances and demeaning comments. In this environment, that would not normally be enough to warrant a news story by a major publication, naming the accused. Not very much evidence and not such an egregious case (no reported threats, quid pro quo, or violence). That’s not an excuse, that’s a fact of the media landscape. The difference here is Kimmel is famous, and that he is “delaying” receiving a major award (plus it’s an award for being a feminist). If you brought the same facts and evidence to a news organization, but about a non-famous senior sociologist, you are unlikely to make it past editorial triage.

In summary, the very cases that I most want to expose — the common harassment that occurs between non-famous people all the time in academia — are difficult to work with. Risky for the citizen journalist, but maybe not important enough to jump the line at major news organizations. That said, I still favor public exposure as an approach in this environment, where policies remain weak and formal proceedings are unlikely to produce satisfactory results — but harassers and their employers are on the defensive and much of the public is watching and willing to get involved. And I still want to help. But it’s harder than I thought it would be. Live and learn.