Lewinsky calls for online civility, will speak twice in South Coast Massachusetts this academic year

Goodman as Linda Tripp, Molly Shannon as Lewinsky, in
1998 (SNL). President Clinton's escapades were good business
for SNL, which released a Best Of collection in 1999.

Monica Lewinsky has become a public figure in a whole new light in recent years, leaving behind the scandal that took her name, rather than his, mostly to differentiate scandals.  As Time put it, "Monica Lewinsky" was once the butt of a joke, many jokes.  John Goodman playing Linda Tripp (see WaPo reemergence in 2018) made for instant-classic Saturday Night Live bits (see Tripp's later perspective and a brief recollection with Goodman).

The world has changed, #MeToo, and Lewinsky figures into it differently today.  She has described herself as an original victim of cyber-bullying, before it was a thing.  Aptly, she's become an outspoken advocate against it, and a mite more effective in that capacity than the present First Lady.  Lewinsky broke her relative silence in Vanity Fair in 2014 and subsequently became a VF contributor and Twitter personality.  John Oliver interviewed her on Last Week Tonight in his excellent program on "public shaming" (below) (cf. Jon Ronson's definitive 2016 treatment of the subject in his book, So You've Been Publicly Shamed, featured here on The Savory Tort in 2017).

Apparently Lewinsky's "second act" is only getting going.  Among her many projects, she is contributing to the fall 2020 season of American Crime Story, on FX, The Hill reported, in which Sarah Paulson will play Linda Tripp decidedly more darkly than John Goodman did.  Meanwhile on stage, Lewinsky has become an advocate for online civility.  Building on her 2015 TED talk, The Price of Shame, she's booked into an aggressive public speaking agenda.

I can't help but find Lewinsky to be a compelling figure.  Aside from her curious, mostly involuntary role in American history, she embodies the mass media's power to destroy reputations with the impunity the First Amendment affords.  Yet her story unfolded in the highest of political arenas, the American executive office, in which First Amendment values are most urgently implicated, and First Amendment absolutism is most persuasively justified.  Whatever the merits of the case that shaped her perspective, she shares today a meritorious message: If the internet can be tamed, to do more good than harm, it will be by people and their choices, not by law and regulation.

Lewinsky is slated to speak in South Coast Massachusetts in fall and spring.  On October 17, 2019, Lewinsky will give an endowed lecture at Bridgewater College (more from WHSV).  On May 15, 2020, Lewinsky will speak in the New Bedford (Massachusetts) Lyceum at the Zeiterion Performing Arts Center ("the Z"); tickets are on sale now.

Roundup and other stories: Monsanto, Sandy Hook, Aaron Hernandez, Monica Lewinsky, Summer Zervos, and One Montana Statute

A number of stories have broken in the last couple weeks that, ordinarily, I would like to write about on this blog.  I've been traveling a good deal and unable to keep up, so here's a short, uh, roundup.  Hat tip to my Torts II class, which is ever vigilant.

---

Strict product liability—Roundup.  In phase one of a bifurcated trial proceeding, plaintiff Edward Hardeman succeeded in causally tracing his cancer to glyphosate, the active ingredient in Roundup herbicide.  (NYT, Mar. 19.)  Bayer, which purchased Roundup maker Monsanto, saw its stock price tumble on the German exchange, Fortune reported.  This finding follows the notorious $289m award (later reduced to $78m) entered in favor of Dewayne Johnson against Monsanto in California state court in August 2018 (Phys.org), now on appeal (Justice Pesticides).  Recap is tracking Hardeman v. Monsanto, 3:16-cv-00525, in federal court in the Northern District of California.

---

Gun liability—Sandy Hook.  The Connecticut Supreme Court issued its long awaited ruling in the Sandy Hook families' case against gun maker Remington, allowing the case to go forward on one theory of Connecticut consumer protection law.  (NYT, Mar. 14.)  The court delivered 4-3 upon the dubious conclusion that the U.S. Congress, in immunizing gun makers from liability upon a host of tort theories, did not mean to preempt remedies under state consumer protection statutes such as the Connecticut Unfair Trade Practices Act.  The dissent was unpersuaded.  Meanwhile many a pundit had commented on the gun regulatory response pending in New Zealand since the Christchurch attack, marking the contrast with U.S. legislative paralysis amid shootings here.  The case is Soto v. Bushmaster Firearms International, LLC, No. SC-19832.

---

Wrongful death, collateral estoppel—Aaron Hernandez.  The Massachusetts Supreme Judicial Court reinstated the conviction of former NFL player Aaron Hernandez in the June 2013 murder of Odin Lloyd.  Lower courts had thrown out the conviction after Hernandez hanged himself in prison in 2017.  Massachusetts law appeared to require that the conviction be vacated upon the common law doctrine of "abatement ab initio," because the defense appeal was not resolved when the defendant died.  Instead the Massachusetts high court held that the doctrine is antiquated, and the record should read "neither affirmed nor reversed."  In the case of Lloyd, the victim's mother had settled her civil claim.  But the Court recognized 

the potential impact abatement ab initio can have on collateral matters, including undermining the potential application of issue preclusion....  There are a host of potential other interests than can be affected by the outcome of that prosecution and, although we must be mindful not to let any one of those other interests override a defendant's rights, they are worthy of recognition when considering the best approach to follow when a defendant dies during the pendency of a direct appeal.

The case is Commonwealth v. Hernandez, No. SJC-12501 (Mass. Mar. 13, 2019).

---

Invasion of privacy, infliction of emotional distress—Monica Lewinsky.  John Oliver did a brilliant segment on, and interview with, Monica Lewinsky on his Last Week Tonight.  Looking back at comedians' crass jokes in the 1990s—Oliver includes himself, but it's Jay Leno who is cringeworthy—makes one uncomfortably aware of how far #MeToo has evolved our perception of power dynamics in the workplace.  The sum of the experience is newfound empathy and more than a little angst over online bullying. I now follow Lewinsky on Twitter, as she's a more effective anti-bullying spokesperson than Melania Trump.

---

Defamation, Supremacy Clause—Summer Zervos. The Appellate Division of the New York Supreme Court ruled that Summer Zervos's defamation suit against President Trump may go forward despite the President's constitutional objections.  Zervos alleges that Trump defamed her through his spiteful attacks on her credibility over claims of his sexual misconduct after she was a contestant on The Apprentice.  In Clinton v. Jones style, the President sought to have a stay in the action until his White House service concludes.  The U.S. Supreme Court rejected that claim in Clinton, ruling that the lower court could manage the case with deference to the demands of the presidency—a conclusion, incidentally, that might have been proved erroneous in light of subsequent events.  Anyway President Trump tweaked the tack, arguing that because this case arises in state law in state court, vertical federalism, as expressed in the Supremacy Clause, should not permit the arguably untenable subservience of a sitting President to the supervisory authority of the state court.  The Appellate Division concluded 3-2 that the problem can be managed; as in the past, for example, a President might testify via video.  Some court orders might violate supremacy, the court explained, such as a contempt ruling, but that mere possibility does not warrant stay of the action in its entirety.  The Appellate Division also ruled that the charge essentially of "liar" is not mere rhetorical hyperbole, but is capable of defamatory meaning.  The case is Zervos v. Trump, No. 150522/2017 (N.Y. App. Div. Mar. 14, 2019).

---

Criminal libel, First Amendment—Montana statute.  The U.S. District Court for the District of Montana struck down the state's criminal libel statute for want of an actual-malice-as-to-falsity standard of fault.  The case arose from an ugly dispute in election of a county district judge.  The statute came close to the actual malice standard, requiring knowledge of a statement's defamatory character, but making no mention of recklessness.  The federal court acknowledged that the state high court had read First Amendment standards into other state statutes.  But the criminal libel law had been applied without modification.  Moreover, although the law originated from 1962, before New York Times v. Sullivan and Garrison v. Louisiana in 1964, the legislature had amended the statute more than once, in fact once amending it to ensure truth as a defense, so had passed up chances to bring the statute into full constitutional conformity.  Recap is tracking Myers v. Fulbright, No. 9:17-cv-00059-DWM-JCL (D. Mont. Mar. 18, 2019).  Professor Eugene Volokh wrote about the case for Reason.

Book Review: So You've Been Publicly Shamed, by Jon Ronson

In an afterword to his 2015 book, Jon Ronson reported that So You’ve Been Publicly Shamed was not the first-draft title.  

Indeed, it must have been a struggle to name this wide-ranging volume.  Ronson explores shame in many contexts, from the woman whose off-color joke about AIDS on Twitter “blew up [her] life” (as the N.Y. Times put it) to the clients of a busted prostitution outfit, to the featured participant in “a German-themed BDSM orgy” (as the New Statesman put it).  I’m not here naming the Twitter woman, because if you read the book, I think you’ll agree she’s been named—and shamed—more than enough.

By Ronson’s broad definition of public shaming, I’ve been there.  Ronson does little to distinguish those who fairly earned some degree of public shaming—such as a journalist who made up quotes—from those who were disproportionately rebuked, or just misunderstood, or falsely maligned.  Ronson’s light touch with judgment—he admits he has not always been so evenhanded in his own social media life—frustrated me at first, as I’m one who likes to see justice done, or at least to wring my hands when it’s not.  However, I came to appreciate Ronson’s approach.  His reluctance to reach normative conclusions forced me, as reader, to acknowledge my own.  Do I really know how This American Life fact-checks, say, David Rakoff, versus Mike Daisey (see “Retraction”)?  Do I need to have an opinion at all on what consenting adults do in their sex dungeon?  (See also extended adventures with Jon Ronson in the porn world at his 2017 podcast, The Butterfly Effect, coming to iTunes free in November.)

Judgment would get in the way of Ronson’s search.  Chapter to chapter, Ronson leads us in a dogged effort to understand the shaming mob.  (Cf. the excellent work of Prof. Ken Westhues on mobbing.)  When does the mob spring into action, and when does it not?  Ronson tells stories of public shamings from the perspectives of the victims.  He went to the trouble of tracking them all down to get their stories; the Internet doesn’t usually bother.  (In my experience, neither does The New York Times, nor even a respectable author.)  Can the victim do anything to fight back against a public shaming?  Ronson gives us a fascinating glimpse into the sometimes shady world of online reputation management.  And ultimately:  Is there such a thing as redemption in the Internet age?

That was the question that kept me turning pages.  Coverage of Ronson’s book since 2015 really obsessed on the implications of social media, but this book is about so much more than that.  Despite my ongoing research into online erasure, or “the right to be forgotten” (e.g., here and here, and an exciting panel discussion at NCA 2016, reported here and here), I was surprised to see Ronson make the connection.  He considers the RTBF later in the book, tackling the conflicted feelings about RTBF that a lot of people in the journalism world have over interacting rights to expression, privacy, and identity. 

I continue to be captivated by the redemption problem, which I wrote about in a Washington Post opinion column some years ago.  I won’t tell where Ronson’s search leads, because that would spoil the fun.  Suffice to say, there’s plenty of work yet to do, if justice is really our aim.