Welcome to a two-part special edition of Loki’s Law Blog, where we have now managed to avoid discussing laws, flaws, and tacos for a very, very long time.
Part the first will be a general discussion about due process, and more importantly, why due process, much like the First Amendment, is the common, wrong retort of people everywhere (and by everywhere, I mean on the internet). Part the second will be my thoughts about what are generally known as “problematic faves,” or works of art (or, art-like product) that were created by, or feature, someone who did something evil, bad, distasteful, or wrong.
Apparently necessary disclaimer. These are my own thoughts. These are not directed toward any individual or individuals. I am not claiming to solve the world’s problems, or to explain these issues to people who already understand them. Just sharing what I’m thinking.
Due Process. Due process is the poor second cousin to the First Amendment on the internet. Much like the First Amendment, it is almost always invoked incorrectly; just not quite as often. The usual way you see it happen is the following:
Person A: Dude. That guy totally did it. He’s a bad, bad man.
Person B: How dare you! Innocent until proven guilty. You’re depriving Creepy McCreepface of his due process rights!
So, yeah, no. Much like the First Amendment, a major requirement of due process (absent some exceptions, or contractual issues which we won’t go into) is state action. Which, boiled down, means the government has to be involved in some way. This can be (somewhat) attenuated, such as the due process rights you have when you’re suing someone else (because you’re using a court, and therefore, due process), or when there is a government benefit, or you have a government employer. But the vast majority of the time, when you see the conversations on the internet, people are discussing criminal actions. In which case, “due process” isn’t quite what they are getting at.
Due process is, quite literally, the process you are due. Notice and an opportunity to be heard. You can’t be deprived of liberty (imprisoned) without due process of law. In effect, “due process” is a synecdoche to refer to the constellation of rights, some specific (right to a jury trial) some granted by caselaw, that apply to protect criminal defendants. Normally, people are referring specifically to the idea that due process requires a conviction, by a unanimous jury of your peers (well, almost always a unanimous jury of your peers, but see Oregon and Louisiana) under the “beyond a reasonable doubt” standard.
Please note that I am abridging and simplifying the vast majority of due process, but the primary takeaway is that due process (procedural- substantive due process gets more complicated) refers to the process you receive from the state before the state can do something to you.
So what does this have to do with internet conversations? Here’s the thing. Me? You? Random companies? They are not the state. We don’t have to provide due process to form opinions, and to take actions on those opinions. Let’s illustrate this with an easy case-
You think your brother is stealing your happy pills when he’s invited over. You don’t have to provide him “due process” before you revoke his Thanksgiving invitation.
This applies to companies as well. Let’s say that a large sandwich company learns that spokesman has been accused of all sorts of bad behavior with children. They don’t have to wait for the court process to end before saying, “You know what Jared, we’d rather not have you associated with Subway any more.” (Subject to contract, of course).
And this is the important point. Hell might be other people, but other people can’t lock you up (well ... um, not legally). But for the government to act against you, there has to be rules and (wait for it) procedures ... a process that it has follow. You don’t have to follow that process. You can form your own opinions without waiting for a conviction. And that applies to companies and employers, as well.
So when you see the common internet refrain of “innocent until proven guilty,” and “you’re violating his due process rights,” remember that it’s just a shortcut way of saying, “Shut up, I don’t want to hear it.” You are not a juror in a criminal jury, and you are not the government.
The Jeffrey Jones Conundrum. Do you like Beetlejuice? Ferris Bueller’s Day Off? Amadeus? Ed Wood? Those movies, and many others, have Jeffrey Jones in them. As you may, or may not, know, Jeffrey Jones has a ... difficult past that may enter your mind when watching these films. Or, take the easy example of Roman Polanski. Guy raped kids. Pretty sure I don’t have to use “allegedly” at this point. And yet he directed Chinatown, Rosemary’s Baby, and many others. Hitchcock? Well, the issues with Tippi Hedren alone make him a pretty bad man. Bertolucci and Brando? About that scene. Woody Allen? Oh .... And the beat goes on. And that’s just movies; just try to enjoy a Picasso after reading his biography.
There’s been a lot of people that have thought deeply and well on the issue of “problematic faves,” primarily because the longer you think about it, and the broader your definition of “problematic” is, the more difficult it is to enjoy almost anything. Perhaps the easiest, or worst, example is Leni Riefenstahl. On the one hand, I’m not sure that there is anything more “problematic” (how about evil?) than the director who produced Hitler’s best-known propaganda works- and did so knowingly and enthusiastically. On the other hand, her techniques were groundbreaking and it is impossible to fully understand the evolution of film, documentaries, and even modern sports coverage without understanding those films. So ... what do you do?
The reason I thought of these issues was when I heard that, inter alia, Louis C.K.’s voice was removed (re-dubbed) on already existing episodes of the animated series, Gravity Falls. Don’t get me wrong- I totally get it. Having his voice for a giant, sweaty, one-armed monster (ahem) in a kid’s show is probably not a great idea. But then, of course, Kevin Spacey was digitally removed (and replaced) in All the Money in the World shortly before release. Again, I completely understand this.
All that said, I am worried. Because now, unlike before, we actually have the technology to alter those things that are already done. And there are some (ahem, Lucas, Spielberg) that would do so. I don’t want to see Beetlejuice with Jeffrey Jones digitally replaced with another actor (and, heck, probably Alec Baldwin too at some point in the future). And that’s where this ties into what I wrote before regarding due process; I think it’s completely fine for companies to disassociate themselves with people. FX doesn’t owe Louis C.K. continued shows. But we, as individuals, should have the ability to determine what we view, and why, and in what context. I understand that there are those who would never watch Chinatown because of Polanski, but there are also those who would watch it because of the amazing acting, and the importance of that film to film history. I would never recommend that NBC show the “Leni Riefenstahl Appreciation Film Festival,” but I am glad that people can still view those films, in appropriate context, to understand the evolution of film (see also, The Birth of a Nation). History is not tidy, and good things may be done by bad people, while bad things may be done by good people; the same applies to art.
Which is why I often get confused when I see on-line ... conversations ... about these issues. Too often, I see one side using the present to attack the past (if we know that Person A is a bad person, therefore all their stuff must be bad), and the other side using the past to justify the future (if Person A made all this good stuff, then they should keep making good stuff). Neither of those viewpoints makes sense to me (although I could be wrong). To use Polanski as an example (or ... um ... Woody Allen), just because they created great art in the past, doesn’t mean we should keep honoring them NOW knowing what we know. And that doesn’t mean we should keep working with them and associating with them. By the same token, Chinatown and Zelig (you thought I would say Annie Hall, didn’t you) are part of our history. People can make their own judgments as to whether or not they want to watch them, knowing what they know.