Airbrushing history in the age of ‘Me Too’

Airbrushing history in the age of ‘Me Too’

In a pointless act of censorship, CNN removed the episodes of the TV show “Parts Unknown” that featured actress Asia Argento. It did so because it learned that she had settled an unrelated lawsuit against her by actor Jimmy Bennett, who claimed she had sex with him when he was 17. This news had no bearing on the quality or accuracy of the episodes, but CNN removed them anyway. It did so even though it would have been legal in most states for Argento to have had sex with him, since he was above the age of consent in those states. As Reason’s Robby Soave notes:

While Argento’s alleged conduct does indeed meet the definition of sexual assault, this is only because the age of consent in California is 18. In most other states, it’s 16 or 17. Since Bennett was 17 at the time of the encounter, it would have been legal for Argento to have sex with him in 39 of the 50 states.

This censorship, although voluntary on CNN’s part, reminds me of the Russian practice of airbrushing people out of photos if they fell out of favor. People purged by Russia’s Communist government in the 1930s would be edited out of photos after they were arrested. For example, after the arrest and execution of engineer Alexander Malchenko, “he was airbrushed out of all reproductions” of a famous photo that also featured Communist leaders.

But CNN censored the Argento episodes anyway: Episodes of Anthony Bourdain’s “Parts Unknown” that featured her were removed from CNN’s streaming service, after Argento paid Bennett $380,000 to settle his sexual-assault claim. “In light of the recent news reports about Asia Argento, CNN will discontinue airing past episodes of ‘Parts Unknown’ that included her, until further notice,'” a network spokeswoman said.

This idea of censoring what we read or see based on the misconduct of its author or creator is very dangerous. Many writers, actors, artists, and musicians have done time in prison for serious crimes. Caravaggio was a murderer and a brilliant painter. Like book-burning, it would be cultural vandalism to throw away what they created just because of their sins.

Professors also want to censor authors who allegedly misbehaved. Law professors have suggested that law students should not even be assigned the rulings of a mildly-conservative judge who recently retired from a federal appeals court. That judge, Alex Kozinski, was one of the smartest and most respected judges on the federal bench, and his opinions were among the most frequently-cited federal appeals court decisions. He was accused by a few former clerks of sexual harassment, for allegedly doing things such as telling offensive sexual jokes or showing dirty pictures. It is not clear that what he was accused of, even if true, rose to the level of illegal sexual harassment, under court rulings such as Skouby v. Prudential Insurance Co. (1997).

But in today’s politically-correct academia, just reading the rulings of a judge accused of misconduct is deemed “triggering” for fragile law students. A well-known law professor says that for the time being, he will continue to assign students to read Judge Kozinski’s landmark decisions in areas such as intellectual property; but “eventually” he may search for “other opinions” by different judges that he “can substitute” for those of Judge Kozinski.

Because so many judges have behaved badly in the past, this faulty logic could lead to law students being deprived of access to countless landmark court decisions. Justice William O. Douglas, the longest serving Supreme Court justice, was a notoriously badly behaved judge. As Harvard law professor Noah Feldman recently discussed, he was one of several mid-twentieth-century Supreme Court Justices who behaved atrociously.

As Michael Medved and LU’s Jerome Woehrle have noted, Justice Douglas apparently engaged in acts that today would be considered textbook examples of sexual harassment. But he issued landmark rulings in First Amendment, equal protection, and environmental cases. His expansive concept of standing to sue opened the courthouse door to all manner of new lawsuits, transforming the law. His opinions are required reading in law schools across America.

Will law professors stop assigning his opinions to students because of his unsavory personal life? Law professors, who are overwhelmingly left-leaning, have made no move to stop assigning Justice Douglas’s opinions — at least, not yet. A cynic might say this is because Douglas is an icon to some liberals: Ninth Circuit Judge Margaret McKeown, a progressive, recently called him a “legal giant” because of his liberal rulings.

But former Supreme Court clerks who ended up in academia often had a very negative opinion of Douglas’s conduct. Judge Richard Posner, a former law professor and onetime law clerk to Douglas’s colleague, Supreme Court Justice William Brennan, had this to say about Douglas:

Apart from being a flagrant liar, Douglas was a compulsive womanizer, a heavy drinker, a terrible husband to each of his four wives, a terrible father to his two children, and a bored, distracted, uncollegial, irresponsible, and at times unethical Supreme Court justice.

My former boss, the late federal judge Larry Lydick, told me about how Justice Douglas would show up to judicial conferences and grope women — even the wives of federal judges — sometimes triggering fights with their husbands.

As Professor Feldman notes, Justice Douglas had a very troubled personal life:

He was married four times, each time to progressively younger women. As the alimonies added up, he needed cash, and ended up relying on secret payments from a shady businessman. People said that Douglas loved humanity and hated people. Such was his obsessive hatred of [his colleague Justice Felix] Frankfurter that he dubbed the Austrian-born Jewish justice “Der Fuhrer” — during the Holocaust. Frankfurter…called Douglas “one of the two completely evil men I have ever met.”

Ironically, law students would likely regret losing access to Douglas’s opinions due to their brevity. While law professors tend to be fans of the liberal results reached by Douglas in most of his opinions, they are less thrilled about the quality of his reasoning. As Douglas’s own former law clerk, Stephen Duke observed, “Few law professors are unabashed admirers of the work of Justice Douglas. His opinions were terse” and lacking in legal argument, such as “analysis,” “extension of precedent,” or any “search for the ‘original intent’ underlying constitutional provisions.” Worse, “Douglas’s opinions were often obscure in their reasoning and even their holdings. Many were drafted in twenty minutes. Some were written on the bench during oral argument. … His published opinions often read like rough drafts.”

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Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. Hans also writes for CNS News and has appeared on C-SPAN’s “Washington Journal.”


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