Cancel culture. Cancel culture. The right wing trumpets it so many times it rings in my ears. Freedom of speech, the right's mouth pieces claim, is "silenced" by the liberals and socialists who, conservatives say, control the nation's media and universities, canceling out all but their own speech.
But it is not those on the left that threaten free speech in any systematic way. It is those on the right that have a long and continuing history of silencing those who espouse even moderately progressive ideas and programs.
Worse, even as the right claims to hold the Constitution and its First Amendment free speech rights in high esteem, it aggressively attacks the Constitution's Fifteenth Amendment voting rights guarantee, which came into being only after 800,000 died in the Civil War to save the Union and end slavery.
Moreover, the right has been waging its own war on speech, assembly, and association going back well in the 20th century.
Look at the right's history of silencing former communist party members, or those it called "fellow travelers," no matter how old their participation was. In the post-World War II years, the right-wing House Un-American Activities Committee and Senator Joe McCarthy used the fear of communism to silence progressives by threatening employers into firing or blacklisting employees in the motion picture industry, the leaders of the Congress of Industrial Unions (CIO), as well as those in government or teaching in universities. Fueling the attacks, many newspapers and radio networks acted as megaphones.
Then, of course, there was still Jim Crow creating a virtual wall of silence in the overwhelmingly white-dominated South. After the United States passed the 1964 Civil Rights Act, I first went to work for the National Association for the Advancement of Colored People as a newly minted civil rights lawyer.
As I traveled South, the Ku Klux Klan, with local law enforcement often joining in, murdered civil rights workers seeking to maintain their brutally violent racist culture. The murder of four black girls in a Birmingham church in 1963 and Bull Conner unleashing dogs and powerful fire hoses on nonviolent demonstrators awakened press to the brutality. But even then it took unparalleled violence and additional civil right murders to create the necessary momentum to pass the 1965 Voting Rights Act.
The last four years show we never left that dark period behind. The right is still viciously attacking the basic exercise of First Amendment rights—and waging the most sustained attack on voting rights since Jim Crow.
We just survived four years with Donald J. Trump. His response to those in the media who had the integrity to report his lies, evasions, and dog whistles, was to "cancel" White House press conferences, and use twitter to broadcast his falsified version of the news. Like Bull Connor in Birmingham, Trump encouraged violent police conduct against demonstrators marching under Black Lives Matter banners as well as bullies, whom he praised at his own rallies for assaulting protesters.
Even more insidiously, Trump endlessly and systematically attacked the media for publishing what he called "fake news." Nor was he alone in misleading the public. Fox echoed him, as did the opinion pages of the Wall Street Journal and the media newcomers that sprang up even further to the right, playing to the Republican Party and Trump's base among the 74 million people who voted for him. Trump and his captive party still do that. They trumpet "Fake News" and "Stop The Steal," with the media acting as an echo chamber.
The right's purpose is clear: Blot out mainstream media. Substitute "the lie" for news.
This is the backdrop of the present-day struggle to preserve for Black Americans their constitutional right to vote and have their votes counted, as guaranteed in the Fifteenth (1865) and Nineteenth (1920) Amendments. After the United States withdrew its troops from the South in 1876, the white ruling classes, their land owners, politicians, and sheriffs, gradually stripped Black Americans of their voting rights as well as virtually all their citizenship rights, placing them at the bottom of a cruel racial caste system.
This began to change after the Supreme Court's 1954 school desegregation decision, Brown v. Board of Education, and then Congress' 1964 Civil Right Act. These ushered in the end of Jim Crow, and Congress re-established the right to vote in 1965 and provided federal provisions to ensure its enforcement. As a result, Black voting steadily increased.
In 2013, however, a conservative Supreme Court struck down key enforcement provisions of the 1965 Voting Rights Act which applied to the old Confederate states as well as a few Northern states that had engaged in exclusionary voting tactics. After voters of color helped elect Barack Obama to two terms, and then helped Joe Biden oust Donald Trump and flip the Senate in 2020, the far right voter suppression machine shifted into overdrive.
Republicans are now pressing state legislatures and local governments to do whatever it takes—including closing polling places, limiting the use of absentee ballots, ending Sunday voting, reducing early voting days and shortening voting times, eliminating drop boxes, requiring voters to have certain identification documents, even prohibiting people from giving water to those in long voter lines—to drive down voter turnout.
Put simply, they seek to "cancel" the Constitutional amendments which afford all Americans the right to vote. Cancel culture indeed.
Now when Black citizens exercise their rights to ask corporate America to boycott the states passing such laws, the right threatens that if corporations engage in actions intended to help preserve voting rights, the affected states should strip them of government benefits such as tax breaks. To back up their threats, the right has Senate Minority Leader Mitch McConnell in their corner demanding that corporate America not side with Democrats and what he calls "far left mobs." Stay out of it, he says, after years of getting and obtaining their support.
Bottom line: The right wing not only seeks to cancel progressive's free speech but the voting rights of tens of millions of Americans. The right's claims to defend free speech and fight back against "cancel culture" are bogus, little more than a thinly disguised mask. Progressives should not let the right get away with it. These issues are critical to the survival of our democracy.
Use Of Statistical Evidence In Complex Wage Litigation
Adam T. Klein and Tarik F. Ajami. Statistical evidence has taken its place as a core class of evidence in complex employment cases. Yet despite the centrality of statistics in the field, there is precious little caselaw addressing the use of expert statistical evidence in complex wage-and-hour litigation. However, as a growing number of practitioners have recognized, class and collective wage-and-hour litigation is as well-suited or better-suited for the use of statistical experts as are Title VII and other employment actions.
Why So Many Victims Of Sexual Harassment Stay Silent, Still
Kathleen Peratis, The Atlantic, January 4, 2013
Two decades after Anita Hill's testimony against Supreme Court nominee Clarence Thomas, women are still punished for confronting their harassers.
I'm a lawyer, a long-time practitioner of employment discrimination law, and a partner at Outten and Golden LLP in New York City. I guess I am what some people disparage by calling a "slick lawyer," a way to put down those who are passionate about justice. The work is hard and in Anita Hill's day even more so than today, claimants were so far ahead of the times that they were often unsuccessful in their legal claims. The law was so inhospitable in the 1990s and for many years thereafter that had Anita brought a legal claim—which she never did—it is likely that she would have lost in a court of law.
At about the same time as Anita Hill's claims exploded onto the public scene, my firm was involved in a very similar case, unsuccessful at the trial stage and then successful on appeal, which is why I am able to speak publicly about it. The details of this case give you a flavor of what the law was like in 1991. The claimant was a woman named Lisa Petrosino who worked for Bell Atlantic, which is now Verizon, repairing telephone lines. She worked out of a garage in Staten Island with an all-male crew who tormented her every day. The banter among the men in the workplace was crude and misogynistic, which would have been bad enough for Lisa, but they also singled her out. They drew crude pictures of headless women, women with their legs spread in the air, pictures of men having sex with animals, and of her having sex with supervisors, and left them in terminal boxes she was assigned to work on so she would find them. She felt threatened by the depictions of dismembered women. She said, "It's not that I don't have a sense of humor, but this stuff is not funny." They ridiculed her appearance, they told her to "calm her big tits," they said she complained because she was "on the rag." Bell Atlantic not only did nothing to stop it, their supervisors joined in. Bell Atlantic's lawyers, one of whom was a woman, argued that none of this was illegal, it was just boys being boys. The federal district court judge agreed with them and dismissed the case.
The Supreme Court had decided years before that sexual harassment and hostile environment were illegal, but the prejudices of the trial judges remained. In Lisa's case, the trial judge saw no illegality. The appellate court finally reversed and sent the case back to the trial court for trial, and at that point, the case was settled. So the wrong was righted, in a way, but only in a way. Like Anita, Lisa suffered greatly along that road to justice. Some women are transformed by the vindication of a legal victory but some find the process totally debilitating and demoralizing. Women who go public still get punished. It's a sad reality, but some of my happiest clients are the ones who settled for less than their claim was worth and even the ones who decided not to complain at all. Women were punished in 1991, they were punished in 2000, and the sad reality is they are punished still today. I was recently retained by a woman who works at a major education institution in New York City. She was having a business dinner with her boss and he put her hand on his crotch, on his erect penis, freaking her out. She will probably sue and it will be harder on her than she can imagine. These cases do happen less now than they used to but when it happens to you, that is cold comfort.
But let me tell you a little bit about what is actually illegal, then and now. The definition of an illegal hostile environment has not changed—it is an environment where there is an atmosphere of hostility and misogyny that is either severe or pervasive. These words are subject to interpretation, of course, but in most courts, "severe" means that the bad actor, as we call him in my business, has engaged in at least some unwanted or unwelcome touching. I will explain the "unwanted" part in a minute. As for the "touching," it doesn't have to be rape, but to have a really good case for hostile environment discrimination it has to be serious. In the absence of unwanted touching, the claimant has to show that the bad actions were pervasive, and that means a pattern of incidents. How many? No one can quantify what is enough and as in any legal case, it will depend on many things, such as how the claimant and the other witnesses come across to this particular judge or jury.
I mention that the conduct has to be "unwelcome." This is very important because it provides defendants with the opportunity to blame the victim by saying she was a willing participant. It is the "You asked for it" defense. "Why did you send your boss birthday cards or light-hearted emails, if you were bothered by his conduct?" "Why did you get drunk at the holiday party?" "Why did you let your boss come to your room when you were traveling?" "Why did you tell all those off-color jokes?" "Why did you wear a skirt so short, if you're not a slut?" "Why didn't you quit?"
Because this road is so tough, I often hear clients say, "Why me? Why did this have to happen to me? Why has my life been turned upside down by this creep who had no right to do this to me?" And it is unfair. But the law has been transformed by the many women who have bravely stepped up and paved the way for the rest of us. That is what Anita did.
This post is adapted from I Still Believe Anita Hill: Three Generations Discuss the Legacies of Speaking Truth to Power.