A Return to Public Square Trials? How Cancel Culture and Perp Walks May Undermine Trial Impartiality and Criminal Justice
A simple internet search of the term ‘cancel culture’ produces a series of daily stories on how online shaming has impacted an increasing number of individuals and companies, raising new social and legal questions. The term refers to the practice of withdrawing support or completely rejecting public figures or companies after they have done or said something considered objectionable or offensive, namely expressed through social media in the form of group shaming [1]. This modern form of ostracism against someone who is ‘canceled’ depends, above all, on a judgement made in the court of public opinion. Unlike courts within a legally well-established judicial system, courts of public opinion rely on trends and opinions which may or may not be grounded in factual evidence.
Nonetheless, judgements in the courts of public opinion are not novel. Cancel culture appears to resemble the practice of perp walk, which is a scheduled public appearance where police officers escort a recently arrested individual in handcuffs through a public area where they can be photographed for the benefit of the media [2]. Especially in the United States, cancel culture and perp walks both open the possibility for the general public to produce its own judgement of the perp before the matter is addressed by the judicial system. This judgement is often facilitated by social media in the case of cancel culture, and it is not guided by any procedural rights or guarantees for the ‘canceled’ individual or the suspected criminal. The ‘canceled’ individual is tried under laws that have not been established within criminal or civil laws: social media users on any side of the political spectrum can unilaterally decide who should be ‘canceled’. While perp walk and cancel culture appear to be the modern-day public shaming sanctions, replacing those that date back to the Medieval Ages, modern procedural judicial rights have evolved substantially to serve as mechanisms against tyranny and arbitrary abuse of power that cancel culture and perp walk counter.
Cancel culture and prep walk both expose individuals to trials outside courtrooms. These individuals suffer damages for being tried and convicted by the general public without procedural guarantees ensuring impartiality, fairness and defense. Publicly judging a person before the matter is brought to a platform tailored for judicial purposes thus seems to impair due process, fairness, and impartiality. In fact, they tend to result in substantial damages (mostly reputational damages) that could be the reason for tort claims (libel and defamation claims). These phenomena have raised several questions: why are procedural judicial rights needed and what are their origins? To what extent can cancel culture cause damages on the agent without there being a legal cause for punishment? Are current procedural judicial rights sufficient to secure fairness and justice in the face of cancel culture?
Due Process and the Right to a Fair and Impartial Trial: First Generation Civil and Political Rights
To answer these questions, it is first necessary to delve into the origin of procedural criminal rights, which were responses to certain forms of human rights violations. In current modern democracies such as European Union countries and the United States, criminal punishment without a fair and impartial trial is a violation of civil and political rights. Procedural criminal rights are the result of a long history of shaming sanctions imposed arbitrarily on individuals without due process [3]. Shaming sanctions date back to Ancient Greece and to the medieval practice of using marketplaces to expose transgressors to public humiliation [4]. These public square trials would be reliant on the public’s fervor to punish anyone claimed to be a wrongdoer without requiring a high standard of proof. To exert public humiliation, executors of public trials would also resort to multiple devices that, today, are almost akin to torture devices [5].
As a result, in 1215, the Magna Carta enumerated rights in order to avoid arbitrary punishments. Section thirty-nine explicitly asserts that no “free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, will we proceed with force against him, or send others to do so” without being granted a lawful judgement [6]. A few centuries later, during the French Revolution of 1789, the Universal Declaration of the Rights of Men and of the Citizen similarly laid out several provisions to ensure that no man is unlawfully punished. Above all, article nine states, “all persons are held innocent until they shall have been declared guilty,” establishing the presumption of innocence, a principle still maintained today [7]. This clause is particularly relevant in the context of cancel culture and perp walk, where ‘canceled’ individuals or those taken under police custody are heavily covered in the media and invariably presumed guilty by public opinion. In fact, the individual can be found guilty and punished even before he sets foot inside the courthouse as seen in the case of Dominique Strauss-Kahn. This happens even within the context of cancel culture, though ‘canceled’ individuals do not usually undergo a formal criminal trial for the action that led to the ‘canceling.’ Ultimately, convicting before judicially trying the individuals violates the presumption of innocence principle and impairs one’s right to due process, fairness, and impartiality under the eyes of the law.
Perp Walk Across the Atlantic
Despite the long-standing consensus around due process rights such as the presumption of innocence, the practice of perp walk is not illegal in the United States unlike in most E.U. countries. Understanding this distinction is important to frame the problem of cancel culture. In European media, images of arrested people are rarely distributed as it is deemed that any depiction of someone as being potentially guilty of any immoral action impairs the realization of justice. Perp walk is viewed as being inherently punitive and akin to modern day shaming sanctions [8]. The reason that this differs from U.S. practices derives mainly from the fact that European law is more sensitive to questions of human dignity. The very first chapter of the Charter of Fundamental Rights of the European Union is devoted to the preservation and protection of human dignity by securing the right to life and integrity of the person, as well as establishing a prohibition against torture and cruel, inhumane or degrading treatment or punishment [9]. In the context of perp walk, personal dignity is understood as having control over one’s personal image.
However, the case of perp walks in the United States is more complex even though the practice is well-established. It remains important to consider whether the perp walk’s shaming effects can be considered as infringements on the Fourteenth Amendment and substantive due process [10]. A clear example of the damaging effects of this practice involves Dominique Strauss-Kahn, the former managing director of the International Monetary Fund. Strauss-Kahn’s infamous 2011 perp walk following sexual assault allegations not only shocked public opinion in France and throughout Europe, but also carried long-term consequences. Although the charges were dismissed at the request of the prosecution due to the claimant’s lack of truthfulness and conclusive evidence, Strauss-Kahn lost his chance of becoming the Socialist candidate to the French Presidency. His professional career imploded with this arrest and the public shame that resulted from his perp walk. Strauss-Kahn himself has claimed several times that his right to be presumed innocent was gravely violated and that he was punished regardless of the fact that the claims were ultimately deemed baseless [11].
Cancel Culture Contravening Procedural Criminal Rights: Parallels with the Perp Walk
Similar to perp walk, cancel culture damages human dignity as it censors and punishes people who may have made mistakes in judgement. It is not relevant to our purpose to establish whether or not the statements made which gave rise to the canceling are moral or correct; rather, it is important to recognize how cancel culture can have humiliating, punitive effects equivalent to those of shaming sanctions. On the one hand, canceling an individual appears to violate principles of criminal justice such as the presumption of innocence and right to due process and a fair trial. In an era where statements are made online, it would be hard to counter whether something was or was not said by the canceled. However, this does not preclude one from the right to a fair and impartial trial if a case were to be brought to court.
Currently, the canceled individual is not given any procedural guarantees for defense, nor is he tried under a predefined set of laws. Cancel culture relies on the public’s arbitrary decision of who and what to cancel and can result in the production of a regime that is extremely restrictive of freedom of speech and expression. Although it can be argued that cancel culture serves as a mechanism of accountability, it is at least hard to pinpoint—from a legal standpoint— the legitimacy of this instrument. As an accountability mechanism outside of the scope of the traditional judicial structure, it becomes even harder to regulate what speech needs to be punished. To what extent can one be publicly ostracized for something said before attaining the legal age of majority of eighteen? Who is the power-holding authority responsible for making such decisions when this cancel culture mechanism falls outside the traditional parameters of the judicial system? Inevitably, there arises questions of whether cancel culture has become a new censorship regime that follows laws other than national and international regulations on freedom of expression.
Damages of Cancel Culture: Invoking Tort Law?
With the violation of procedural criminal rights and prompt punishment of an individual by ruining his reputation, the damaging effects of cancel culture can be evaluated from the perspective of tort law. The purpose of tort liability is to shift the burden of losses to responsible parties and compensate the deserving victims; it is a system created to remedy an injury by restoring damages [12]. It evaluates the existence of someone at fault that caused a certain harm to someone else. This fault needs to be established through the “central idea [in tort law]... that liability must be based upon conduct which is socially unreasonable. The common thread woven into all torts is the idea of unreasonable interference with the interests of others.” [13]. Thus, in the context of cancel culture, it is important to establish whether canceling is acceptable. As previously pointed out, not only does it seem unreasonable to publicize someone’s past errors in judgement solely to cause them harm, but it could also be viewed as a violation of civil and political rights. As derived from the legal Reasonable Person Standard, one must act with care and good judgement as any reasonable person would so as not to cause injury to others [14]. Thus, if it is socially unreasonable to purposefully cause injury to a person, then the damages that result from the action can constitute a tort [15]. Cancel culture can inflict real personal pain well beyond the digital realm such as job loss, revoked admissions, threats or psychological distress. Indeed, job loss appears to be the most common damage of cancel culture as companies try to shield themselves from negative reputation and publicity following calls from the public. Since business partners or employees may be targets of canceling, companies could suffer brand damage in a matter of moments in the realm of social media if they do not take action.
For these reasons, companies are returning to the use of morality clauses, a contractual provision preventing employees from acting in ways that would harm the reputation of the employer or go against the employer’s values, to facilitate firing ‘canceled’ people [16]. Morality clauses are by themselves controversial and had fallen out of use after the 1920s due to possible over-reaching effects and abuses. Thus, canceled individuals may easily be inflicted the punishment of losing their livelihood without having gone through the lawful proceedings that one has a right to. Nonetheless, if one argues that tort liability exists in cases of cancel culture, it is important to determine which type of tort is applicable. Although defamation is often the applicable tort when addressing reputational damage resulting in job loss or psychological distress, it appears to be inapplicable in the context of cancel culture given that veritas non est defamatio: truth is an absolute defense against defamation claims [17]. This refers to the idea that when defamatory statements are made about an individual’s true actions, a defamation claim will not stand as the reputational damages derive from what one has really been said. As cancel culture relies on judging someone for something said on a tweet or a post, the canceled individual may not have grounds to make a libel claim since what has been said remains on the internet for posterity, indicating the veracity of the defamatory claims. Ultimately, this matter might need to be addressed under a freedom of expression perspective and whether or not it is legally permissible to abridge speech on social media platforms.
Let us consider the example of Richard Jewel, a security guard who was falsely accused of the Centennial Olympic Park Bombing in 1996. As Jewel discovered a backpack with pipe bombs and saved many people by evacuating the area, he was first portrayed by the media as a hero. Nonetheless, the FBI soon began considering Jewel as a suspect which resulted in Jewel undergoing a “trial by media.” Different news outlets portrayed him as an “aberrant” person and a failed law enforcement officer who planted a bomb so that he could look like a hero [18]. Some went as far as to criticize his personal and private life. This public square trial had severe consequences on Jewel’s mental health and affected his personal and professional life: he was compared to a serial killer, was forced to be locked at home because going outside meant facing a crowd of media vans and a curious public, he lost his employment, amongst other accusations. However, the FBI never pressed charges and Jewel was cleared from all suspicions as the real perpetrator came forward. Jewel filed several libel suits against newspapers and the FBI and settled with most of them. Although his name was cleared, his life was never the same again. Indeed, Clint Eastwood produced a movie on this controversial case and Jewel reported still feeling stares when he was out in public, even a year after his name had been cleared. Although this was not a direct case of social media cancel culture, public trials by the media can create significant long-lasting damages that are not as easily reversed as the FBI simply halting an investigation [19].
Since cancel culture and perp walk question the application of procedural criminal justice rights such as presumption of innocence, they can ultimately amount to attacks to human dignity. The harm conferred to a canceled individual may be considered as an unlawful form of punishment and one can argue that the individual has grounds to formulate a tort claim. However, problems may arise when considering the type of tort to establish and the causation factor of tort liability: who is the one at fault for the damages suffered? Are all the social media cancelers to be held liable for the damages or solely the first inciter? Are social media platforms or companies themselves liable as well? These legal questions remain unanswered due to the novelty and controversy of cancel culture, but determining the existence of tort liability may be the solution to increasing discourse and debates online rather than what former U.S. President Barack Obama termed “casting stones” [20]. It is necessary above all that courts address this matter to balance the question of human dignity and freedom with regulation of public discourse.
Edited by Ashley Tan
Bibliography
[1] “Cancel Culture.” CANCEL CULTURE | Definition in the Cambridge English Dictionary, https://dictionary.cambridge.org/us/dictionary/english/cancel-culture.
[2] “Perp Walk.” PERP WALK | Definition in the Cambridge English Dictionary, www.dictionary.cambridge.org/us/dictionary/english/perp-walk.
[3] Masschaele, James. “The Public Space of the Marketplace in Medieval England.” Speculum, vol. 77, no. 2, 2002, pp. 383–421. JSTOR, www.jstor.org/stable/3301326.
[4] Ibid.
[5] Ibid.
[6] “The Magna Carta Project.” Magna Carta Project - 1215 Magna Carta - Clause 39, www.magnacarta.cmp.uea.ac.uk/read/magna_carta_1215/Clause_39.
[7] “Declaration of the Rights of Man - 1789.” Avalon Project - Declaration of the Rights of Man - 1789, Avalon Project, www.avalon.law.yale.edu/18th_century/rightsof.asp.
[8] Paciocco, Palma. “Pilloried in the Press: Rethinking the Constitutional Status of the American Perp Walk.” New Criminal Law Review: An International and Interdisciplinary Journal, vol. 16, no. 1, 2013, pp. 50–103. JSTOR, www.jstor.org/stable/10.1525/nclr.2013.16.1.50.
[9] Charter of Fundamental Rights, Citizensinformation.ie, www.citizensinformation.ie/en/government_in_ireland/european_government/eu_law/charter_of_fundamental_rights.html#l52ea8.
[10] Harden, Blaine. “Parading of Suspects Is Evolving Tradition; Halted After a Judge's Ruling, 'Perp Walks' Are Likely to Be Revived -- in Some Form.” The New York Times, The New York Times, 27 Feb. 1999, www.nytimes.com/1999/02/27/nyregion/parading-suspects-evolving-tradition-halted-after-judge-s-ruling-perp-walks-are.html.
[11] “French Law, American Custom And The 'Perp Walk'.” NPR, NPR, 17 May 2011, www.npr.org/2011/05/17/136397556/french-law-american-custom-and-the-perp-walk.
[12] Roberts v. Williamson. 111 S.W.3d 113, 118 (Tex. 2003), https://scholar.google.com/scholar_case?case=13580576374315523710&q=roberts+v.+williamson,+111+s.w.+3d&hl=en&as_sdt=6,33&as_vis=1.
[13] Carr, Nanci K. “How Can We End #CancelCulture-Tort Liability or Thumper's Rule?” CUA Law Scholarship Repository, 2020, https://scholarship.law.edu/jlt/vol28/iss2/6/.
[14] “Reasonable Person.” Legal Information Institute, Legal Information Institute, www.law.cornell.edu/wex/reasonable_person.
[15] Carr, Nanci K. “How Can We End #CancelCulture-Tort Liability or Thumper's Rule?” CUA Law Scholarship Repository, 2020, https://scholarship.law.edu/jlt/vol28/iss2/6/.
[16] Chan, Goldie. “How Brands Can Legally Handle Cancel Culture In 2020.” Forbes, Forbes Magazine, 10 July 2020, www.forbes.com/sites/goldiechan/2020/07/10/how-brands-can-legally-handle-cancel-culture-in-2020/?sh=185580235d6a.
[17] “Is Truth a Defense in Libel Lawsuits?” Freedom Forum Institute, www.freedomforuminstitute.org/about/faq/is-truth-a-defense-in-libel-lawsuits/.
[18] “Richard Jewell Files Suit Against The Post.” The New York Times, The New York Times, 24 July 1997, www.nytimes.com/1997/07/24/nyregion/richard-jewell-files-suit-against-the-post.html.
[19] Coleman, Nancy. “How the Investigation Into Richard Jewell Unfolded.” The New York Times, The New York Times, 13 Dec. 2019, www.nytimes.com/2019/12/13/movies/richard-jewell-bombing-atlanta.html.
[20] Rueb, Emily S., and Derrick Bryson Taylor. “Obama on Call-Out Culture: 'That's Not Activism'.” The New York Times, The New York Times, 31 Oct. 2019, www.nytimes.com/2019/10/31/us/politics/obama-woke-cancel-culture.html.