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The Court of Public Opinion v. Bill Cosby

There's a reason the court of public opinion isn't allowed to make rulings, decide cases and send people to prison. There's a reason it's considered so toxic to the pursuit of actual justice that jurors are often shielded from it and judges will move legal proceedings to avoid its influence.
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(Photo: Olivier Douliery/MCT)

There's a reason the court of public opinion isn't allowed to make rulings, decide cases and send people to prison. There's a reason it's considered so toxic to the pursuit of actual justice that jurors are often shielded from it and judges will move legal proceedings to avoid its influence. The court of public opinion is one whose decisions don't and shouldn't hold any weight for the simple reason that they're arrived at without the benefit of systemic safeguards designed to at least try to make things fair and are almost always the product of emotion and arrogance. In the court of public opinion there may witnesses, but their testimony can't be scrutinized or cross-examined. There's no burden of proof or standards for the admissibility of evidence. There's no judge presiding over everything to exclude irrelevant facts. But a verdict by the court of public opinion can have consequences almost as devastating as one delivered by a real court.

Slate's Dahlia Lithwick said quite a bit of what I just did back in February in response to the internet's decision to relitigate 20-year-old molestation accusations against Woody Allen. Her argument was that, despite having the best of intentions and despite the reality that sexual assault cases are notoriously difficult to prosecute, "litigation by hashtag" was no way to achieve justice for anybody. She said that while everyone is entitled to his or her opinion, each of us has to accept that these opinions and inferences aren't facts and that social media isn't a court that can effectively adjudicate a "case" and render a decision that deserves to have any impact whatsoever in the real world. Nine months ago, Twitter assumed that due to the legal system's oversight a grave injustice had been done in 1993 and it was up to its righteous armies to correct it. Battle lines were drawn and anyone who so much as admitted that they had no idea what the hell really happened to Dylan Farrow was considered an enemy. It was a good time for misplaced moral certitude and a lousy time for, well, anything but.

And now it's happening again. This time with a series of sexual assault accusations involving Bill Cosby.

Right about the time we were hitting Peak Woody in February, Gawker published a piece aimed at reminding America -- and clueing impressionable Millennials in for first the first time -- about rape allegations made against Bill Cosby by 13 separate women, with the incidents supposedly happening from the 1970s to the 2000s. While the piece got a lot of circulation, the story didn't really hit a point of cultural critical mass until a standup bit by comic Hannibal Buress about Cosby suddenly went viral. In the routine, Buress not only accuses Cosby of having "the fucking smuggest old-black-man public persona" but he flat out calls him a rapist. The crack is seen as the tipping point that finally put into the public consciousness the idea that one of the most iconic comedians in history -- a trailblazer who ironically paved the way for young black comics like Hannibal Buress -- might be a serial sexual abuser. Since then, we've been inundated with think-pieces wondering, as The Washington Post did, whether the world is starting to turn against Bill Cosby and feminist media personalities proving that at least a few people definitely are.

It all came to a head yesterday, when someone working social media for Cosby -- someone who's almost certainly out of a job today -- made the mistake of thinking that Twitter is populated with people who a) know Cosby as anything more than an 80s TV star, and b) wouldn't be willing to cut him down to size regardless. A "Meme Cosby" hashtag backfired in spectacular fashion, with various pictures of Cosby being emblazoned with phrases like "My two favorite things: Jell-O pudding and rape," "Would a rapist wear this hat? YES!" and "I am... a serial rapist." It was a disaster no matter how you sliced it, irrespective of which side of the debate you happened to be on.

But watching Bill Cosby endure a "trial by meme," possibly the purest illustration of the new generation flipping off the sanctity of the idols of the last, it was hard not to go back to what Dahlia Lithwick wrote about Woody Allen. It was hard not to wonder about the dangers of even the best-intentioned internet mob assuming the role of judicial vigilantes and taking on the cases the legal system supposedly dropped the ball on.

Whether you choose to accept it or not, no charges have ever been filed against Bill Cosby for the crime of rape. In other words, you can't call him a rapist without defaming him -- because in the eyes of the law he's not a rapist. There's always the possibility that his wealth and status as a cultural icon have shielded him from prosecution, since it's undeniable that no one over the age of 35 wants to live in a world where Bill Cosby can be a rapist. Our national psyches are simply "printing the legend" and suppressing a narrative that would create too much cognitive dissonance. His critics these days make exactly this argument: that like many powerful men before him, Cosby has used his cultural authority to ensnare and groom prey and wielded it like a weapon above the prey's head should she ever consider trying to expose him. He operates with impunity because he knows no one will ever hold him accountable. This is, of course, the "wrong" that social media is now trying to right because it believes it's the only entity that can.

But what about things like facts? It's admittedly very hard to imagine that 13 separate women would all tell similar stories -- and by no means would anyone want to give victims of sexual assault the idea that they shouldn't come forward because no one will believe them -- but accusations are simply not convictions. They can't be. In a piece in The New Inquiry that was widely circulated during the Woody Allen controversy, writer Aaron Bady argued that those making accusations of sexual assault should be entitled to the same presumption of innocence as the people they accuse. No one's saying that an accusation of rape should be assumed to be a product of mendacity, but Bady's is a difficult assertion to digest given that it's impossible to grant the presumption of innocence to two opposing parties -- somebody has to be wrong -- and to transfer it from the accused to the accuser defies our entire system of justice. Agree or not, Cosby is innocent until proven guilty -- and he hasn't been proven guilty of anything.

Convicting him of a crime, however, probably isn't the goal of the social media jury; tarnishing his reputation is. Doing the job the justice system can't gives the Cosby Crusaders both a sense of absolute self-righteousness and a feeling of having accomplished something by upending an oppressive and unfair system. Putting an asterisk next to his name and bio because they're convinced it's deserved -- that's what this entire campaign is likely about for a lot of people. The question remains, though: what if they're all wrong? What if Bill Cosby never did a damn thing? It takes a court to decide his guilt or innocence. And despite the court of social media public opinion making its position loud and clear, a real court hasn't spoken.

RELATED: There are those who believe that the "power of the internet" can and should be used to prevent the rich and powerful from getting away with their bad deeds. We saw a lot of that thinking during the revival of the Woody Allen controversy. At the time, I said this: "The power of the internet can indeed be an amazing force for good. But it’s also proven itself to be the most effective force for the rapid dissemination of misinformation and conjecture the world has ever seen, to say nothing of it as the perfect engine for assembling a big, stupid, self-righteous mob." Read more here.