Margot Cleveland has done excellent work, explaining what the press did not find* (in the little research it did) regarding James Damore’s now-infamous discrimination-at-Google memo, and presenting the possible wrongful termination arguments available to him. She now has an entire year’s worth of real-world case analysis for her labor employment students at the University Notre Dame.
I have an extra credit questions for her students. What other claims might Damore have after this week? Prof. Cleveland teases the answer with her conclusion:
Once before a jury, Google will be hard-pressed to justify Damore’s firing because the jury will be force-fed the actual words Damore wrote, not the press’ hysterical gloss. In this regard, Google was in a no-win situation: Once the Neanderthal narrative formed, Google had no real choice but to fire Damore—which doesn’t make it right or, as Google is likely to find out soon, legal. In the meantime, the rest of the country will be treated to a nice civics refresher course and a deep-dive into federal employment and labor law.
The key words here: “the press’ hysterical gloss.”
Elsewhere on The Federalist, Bre Payton has a cheat sheet of the assorted exaggerations and mischaracterizations made by the press about the memo, including Gizmodo’s choice, as first to publish the memo, to strip it of all supporting links and graphics. Without the supporting research, the memo can appear more like a “screed,” as Gizmodo claims in the title. Modifying the source material to fit the sensational slant of the title alone should be enough to worry their legal advisors.
Beyond that extreme tampering with quoted source material, the declarations that the memo is anti-diversity, as made by Gizmodo and multiple outlets from the Washington Post to Huffington Post, are difficult to square with Damore’s text. Conor Friedersdorf at The Atlantic noted this by Tuesday, calling it the most common error in the coverage of the memo, stating “I cannot remember the last time so many outlets and observers mischaracterized so many aspects of a text everyone possessed.”
(He has a more optimistic view of the press than I do, but then I’ve spent large chunks of the summer reviewing either easily accessible data that big outlets and observers didn’t bother to read, much like this memo, or essential data it has not occurred to the fourth estate to seek. Frankly, I cannot remember the last time even a handful of outlets did the research and got a story right.)
The Media Whipped Up A Frenzy Without Caring For Truth
Damn the facts. The mainstream press, as is their wont, whipped up a frenzy around a touchy cultural issue. It seems so good for business. The topic surges. Social media hashtags keep the churn going. The advertisers and backers are happy—and if they stay happy maybe newsrooms won’t need to offer buyouts to their editorial staff like the New York Times did this summer. Modern newsrooms need the churn.
Thus, within days, over a weekend no less, an engineer at Google, who was concerned about his employer’s discriminatory practices in the workplace, had become an “ignorant sexist shitball.”
Hey, has Google fired that ignorant sexist shitball yet?
— John Scalzi (@scalzi) August 7, 2017
We are still a few days shy of a week since his internal memo was published by the media, and his name is now tied to sexism. His career prospects are severely limited as well. The only job offers he will see again are from outlaw outfits like WikiLeaks. What mainstream company would take a risk on him?
A reputation destruction like that is what defamation actions are for, although historically the ruining was rarely so swift. It could not have been. Letters took time. Print took time. Word of mouth took time. Telegraphs, televisions, and telephones sped things up, but information on the old technology moves like cold molasses compared to what we are used to today. The defense to defamation is still truth—one can’t defame a thief by calling him a thief—but the memo alone, the actual memo, testifies to the opposite of sexism. Damore does not want to see people singled out based upon their sex or anything other than training and ability. His data backs him up, which is of course why early published versions of the memo omitted it.
The press wanted the Neanderthal narrative. It created it and fed it, until Google was in that modern Catch 22, when a company that has fostered politically correct policies is now caught in them. Being such champions of popular diversity, Google probably figured it would face more public backlash for hypocrisy against political correctness and/or internal rebellion from female employees if it allowed someone with the sexist reputation Damore now had to remain employed. And so, the Neanderthal narrative created by the press cost Damore his job and made him a sexist pariah in the public eye.
The Press Can’t Take Back Its Hyped Narrative
By Tuesday evening, CNN at least seemed to have snapped out of the media mania and recognized the danger. It removed “anti-diversity” from its titles on the memo articles. But of course, by then, the damage was done to Damore. No apologies or retractions can undo what has been done to him. The Internet age doesn’t work that way. The hyped narrative travels quickly. The truth still takes time.
Fake news retractions get far less attention. pic.twitter.com/wxudkm8mwo
— Orwell & Goode (@OrwellNGoode) June 15, 2017
Most journalists haven’t realized what this means for them. It means they have no margin for error. If a writer is careless with a fact, loose with a timeline, there is no window for effective correction anymore. There is no period when the defamatory statement is limited to the subscription area of the print publication or the defamed person is worried about further spreading the statements by suing. The quick and global internet changed all that old analysis about slander or libel; we even used to have two legal terms, to deal with the differences in communication.
So far the press has gotten lucky in that it has typically messed up with public figures or institutions, each of which have defamation suit limitations. But it is getting bolder. Private citizens defamed by the press will be limited by what attorneys they can afford or crowd fund but not much else. The Internet will favor the citizen for this. And the Internet will provide the evidence, as well. I think divorce lawyers might have been the first to discover the evidentiary buffet that is social media. For defamation lawyers, Twitter alone provides crowd sourced tracking and surveys of a reputation’s notoriety and decline, helpfully timestamped.
The rules haven’t changed. Journalists’ ethics still call, “Seek truth and report it.” But the industry practice has grown lax, just when the practical environment has grown unforgiving.
*The EEOC has a helpful outline of Title VII retaliation claims. For easy future reference.