Thursday, October 22, 2020

What Was Wrong With Jeffrey Toobin's Conduct?

 by Michael C. Dorf

In our public life we face multiple current and looming catastrophes: a surging global pandemic; resulting economic devastation; a grotesquely hypocritical rush to fill a Supreme Court vacancy; devastating wildfires and other climate-change-worsened natural disasters; and a Presidential election in which the incumbent has repeatedly indicated his intention to reject the outcome and deploy political violence to remain in power. It can be overwhelming.

Thus, as a service to my readers, today I offer a distraction in the form of analysis of a trivial matter--the suspension of New Yorker writer and CNN analyst Jeffrey Toobin after he was seen masturbating during a Zoom-based meeting in which various figures were gaming out possible election scenarios. I haven't kept close count, but this is at least the second sex-related scandal involving Toobin. He also made news a little over a decade ago when he unsuccessfully resisted the claim that he had fathered a child with a younger lawyer with whom he had a long extramarital affair.

Without meaning to minimize the harm that Toobin has done to others as a result of his apparent unwillingness to control his sexual appetites, we might think that the consequences he suffers should be restricted to his personal life. Ah, but some readers will object, while infidelity may be a private (albeit serious) wrong, visibly masturbating in the workplace--which, according to some versions of the story, is what Toobin did last week--is not just gross but a violation of workplace norms. And described at that level of generality, it is.

Yet surely the fact that Toobin exposed himself by accident and while over Zoom should matter, shouldn't it? Let's consider a few variations on Toobin's conduct.

I'll begin with a mundane example. At Cornell, as at many other universities, there is a general rule forbidding eating and drinking in classrooms, except with special permission. The rule is not strictly enforced. Certainly students will sometimes show up to class with coffee or the like without anyone objecting, but if a student were to eat a messy lunch or have a pizza delivered to class without special permission, that would be a clear breach of the rule for which there would likely be some consequence, at least in the form of an admonition. Does it follow that eating lunch during a Zoom-based class violates the rule?

The answer depends on how the rule is written and its purpose. If the rule is simply about keeping classrooms clean, then it does not apply to remote classes. However, it might serve additional purposes. Perhaps university administrators adopted a no-eating-in-class rule because they thought that eating would distract the eaters and/or those around them from focusing on the material. That rationale could apply to a Zoom-based class too, although part of the determination whether it should might depend on the nature of the distraction. Maybe the sole distraction-based rationale was the worry that the aroma of food and drink would distract those who did not have their own food and drink. If so, then the rationale does not apply to Zoom, which transmits sights and sounds but not smells. Or perhaps the rule--at least in the law school context--aims at professional socialization. A lawyer would not eat in a courtroom, so a lawyer in training oughtn't eat in a classroom. Yet much lawyers' work occurs outside of the courtroom. I have been to numerous meetings of lawyers at which food was served, and (in non-pandemic times) every law school with which I'm familiar hosts numerous events for faculty and students at which food is served.

Exasperated readers are probably by now thinking, okay, so maybe the no-food-in-class rule doesn't apply to a Zoom class, but surely the no-exposing-your-genitals-in-class rule applies. And indeed it does. But to all appearances, Toobin violated that rule accidentally.

When I posted a tweet to that effect earlier this week, a reader objected. I had tweeted: "Not realizing the door to the home office was open while my partner was in a Zoom meeting, I walked past still dressed in my bike shorts and, upon realizing my mistake, felt a wave of sympathy for Jeff Toobin." Came the response: I "respectfully disagree with your analogy here (this wasn't an accidental flash)."

Wasn't it? Sure, Toobin presumably intended to masturbate, but no one contends that he intended to masturbate in front of the people in the Zoom meeting. So let's disaggregate what Toobin did wrong.

For one thing, Toobin mistakenly thought his camera was off when it was on. I suspect that just about everyone eventually makes some version of this mistake. Think about how often someone on a Zoom meeting starts to speak without first unmuting their microphone. Camera mishaps are probably not quite as frequent but nonetheless very common. I've set up my Zoom studio so that the video captures my image from roughly a couple of inches below the knot of my necktie (if I'm wearing a tie). Thus, when I teach or participate in a meeting via Zoom, I pay attention to how I'm dressed from the waist up, but I'll often wear jeans. Suppose my camera were to slip out of position, revealing my jeans.

Well sure, you might think, it would be modestly embarrassing to be seen wearing jeans with a jacket and tie, but no big deal. And you'd be right. By contrast, we can charge Toobin with recklessness. He ought to have been much more careful about what he might be seen to be doing while on a Zoom call.

But let's push on that a little. Suppose you're on a very long Zoom call and you need to go to the bathroom. If you have the right kind of setup, you can probably do so without alerting anyone. You turn off video and mute your microphone. If you have wireless headphones or earbuds, you can then continue to pay attention to what others say, while you slip out for a couple of minutes. But what if you don't have wireless headphones or earbuds? You might take your wired setup (on a mobile phone, tablet, or laptop) with you to the bathroom. You could still avoid embarrassment by ensuring that your video is off and microphone muted, but now the risk seems larger.

Can't happen? Tell that to whichever Supreme Court Justice flushed the toilet during a telephonic oral argument in May. Suppose that  the oral argument had been conducted via Zoom and the world had seen rather than just heard a Supreme Court Justice going to the bathroom. How different would that have been from Toobin's faux pas?

Hold on! People sometimes need to go to the bathroom. If that happens during an in-person class or meeting, you excuse yourself and leave the room for a few minutes. If it happens during a Zoom meeting, you might do the same or, because you don't want to miss anything, you continue listening but don't participate for a few minutes. By contrast, no one needs to leave a class or meeting to go masturbate.

Fair enough. Still, I have observed people in Zoom meetings doing all sorts of things for which there is no immediate biological need--things that they surely would not do in an in-person meeting. Here are a few: cooking; doing the dishes; answering a phone call; chatting with someone else in their home; receiving a package delivery; lying down in bed rather than sitting upright in a chair. None of those activities would have gotten Toobin suspended.

To summarize thus far: Toobin was careless with respect to what was visible on Zoom; and he engaged in an optional/non-urgent activity while in a Zoom meeting in a way that would be unjustified if the meeting were in person. Yet described that way, these sorts of acts are so common that neither would even be noticed, much less result in a suspension. So what is it about Toobin's particular conduct that was so bad?

Maybe what Toobin did was no big deal and we're just hung up on sex in general and masturbation in particular. Some of my readers may be too young to remember, but in 1994 the Surgeon General was successfully pressured to resign because she had (quite sensibly) suggested that teenagers should be encouraged to masturbate rather than to engage in unsafe sex. Quite a lot has changed since then, but it's not clear to me that people's uneasiness about masturbation has.

Another possibility is that Toobin's recklessness with respect to this particular act is different in kind from recklessness with respect to something like a toilet flush. I have even seen suggestions that Toobin was not just caught on camera while doing something else but looking at the Zoom screen for sexual stimulation--in which case we are in Louis C.K. territory, or perhaps even worse. C.K. at least nominally got permission from the people in front of whom he masturbated.

Yet another possibility is that Toobin was essentially innocent of everything but carelessness. It is not entirely clear that Toobin was still "in" the meeting when he inadvertently exposed himself. Toobin's own statements suggest that he might have thought his part in the meeting was over or that he wasn't needed for some period. If so, then it's nobody else's business (except his wife's) that during what Toobin thought was his off time, he chose to masturbate rather than play the cello, read Tolstoy, or watch cat videos on YouTube.

However, it's also possible that Toobin knew he was still in the meeting. Accordingly, I want to conclude by raising one final possibility on the assumption that Toobin was deliberately (for lack of a better term) multi-tasking. I wonder whether Toobin's conduct was wrong because of the disrespect it evinced towards his colleagues. Here a useful comparison might be to Bill Clinton, who, on several occasions, engaged in telephone conversations with members of Congress while receiving oral sex from Monica Lewinsky. The members of Congress on the other end of the line did not realize what Clinton was doing, but even so, he exhibited profound disrespect towards them.

Perhaps there should be no more reason to feel disrespected if you learn that someone with whom you are having a conversation is engaged in a sexual act (by themselves or with another) than if you learn that they are doing the dishes. But that's not the society in which we live. In our actual world, if Toobin was deliberately multi-tasking, then what he did would have been a gesture of extraordinary disrespect even if no one had accidentally seen him.

Toobin isn't Harvey Weinstein or Kevin Spacey. He shouldn't be forever banished from public life for his gross error. But (again assuming deliberate multi-tasking) neither is he simply a victim of having used improper Zoom etiquette. Toobin's true offense (under the multi-tasking assumption) was the underlying conduct. Zoom was merely the vehicle by which he was found out.


Kara said...

I'm reading so many takes that we shouldn't get bent out of shape about this because it was an accident; that Toobin thought no one could see him. But the fact of the matter is, he was engaging in sexual activity on business time while doing professional work. And because he did so carelessly, others were exposed to his actions (or more accurately, he was exposed to them).

Let's say I were working in an office building and I decided to slip into an empty office and masturbate. I forget to lock the door. A coworker comes along and opens the door and sees me. In that situation, I would be disciplined and most likely fired.

I don't see how being on a Zoom meeting changes that dynamic.

Diane Klein said...

Really? In an empty office, in which your "crime" was failing to lock the door, you would be FIRED for this? On what imaginable grounds? I personally would put what he did generally into the "breach of professionalism" category, and it's hard for me to see how anything but Puritanism, really, accounts for disciplining him in a serious way that would not have been imposed had he been (to take an example intended to be more similar) caught massaging his un-shod foot. That is something that most of us would regard as mildly embarrassing - both because we don't show our bare feet at work and because of the "not paying attention" side. To think of this is RADICALLY different is, to me, mostly Puritanism (not to say that one who is aware of our norms ought not to have the good sense to abide by them).

Antonio M. Haynes said...

I am not sure why we assume it was actually an accident other than Toobin's say so. Presumably Toobin's colleagues know him very well, and if they all truly thought it was an accident, I cannot imagine they would have reported it to other journalists. It seems to me much more plausible that he had previously shown a level of disrespect to his colleagues that caused them to treat this "accident" as more serious than that.

Joe said...

One article says this:

"New Yorker spokesperson Natalie Raabe said: “Jeffrey Toobin has been suspended while we investigate the matter.”

Which to me seems fine. He has been doing this analyst game for a while now & it is fine to put him on some degree of extra scrutiny and responsibility of due care than someone working remotely only for Covid reasons or whatever.

This includes that if something suspicious-like happens, you investigate. For instance, the woman that was involved in that Central Park incident recently had her dog taken away for a little while as the organization involved checked to see if she wrongly abused said dog. The dog was then returned.

The first comment sets up a more extreme case -- a place of business can to be surely require people not have sex at the office, especially if non-consenting co-workers might come upon them. Yes, if a temp did that, I wouldn't be shocked if they were fired. The comparison to exposure of one's genitals and rubbing one's foot also seems rather off to me as well. Is it really "Puritan" to think rubbing a foot on a subway might be embarrassing (the foot is REALLY funky!) while masturbating is a tad more?

Invisible Man said...

Seems like the New Yorker is properly handling this. At minimum, it was carelessness on his part, but I guess people add an "ick" factor to it. He was, for lack of a better phrase, controlling his body. He did not put his hands on anyone or appear to intend to have people view the masturbation. I think he has already paid a huge price.

Right or not, I am not sure this lewd(?) behavior can be divorced from his public persona and, in that regard, neither the New Yorker or any company has any moral duty to continue to employ him.

Personally, I think this blip should not change his status, unless more information is forthcoming.

Invisible Man said...

Seems like the New Yorker is properly handling this. At minimum, it was carelessness on his part, but I guess people add an "ick" factor to it. He was, for lack of a better phrase, controlling his body. He did not put his hands on anyone or appear to intend to have people view the masturbation. I think he has already paid a huge price.

Right or not, I am not sure this lewd(?) behavior can be divorced from his public persona and, in that regard, neither the New Yorker or any company has any moral duty to continue to employ him.

Personally, I think this blip should not change his status, unless more information is forthcoming.

Jason S. Marks said...

I think, professor, that your premise and analogy miss the point of the behavior, namely, that Toobin did not engage in an embarrassing accidental unintentional personal act but an intentional sexual act, knowing at a minimum that he did so while still in visual frame of the workplace Zoom meeting continuing simultaneously.

Let us take your analogy about jeans as bottoms to a more formal wear above waist. I think a more accurate analogy would be if a professor conducted class with formal wear above waist and knowingly having no clothing whatsoever below the waist. Would this be considered appropriate workplace behavior? I would argue it would qualify as a viable claim of sexual harassment and potentially a hostile workplace if a regular behavior.

Professor Klein felt this act got more coverage because of Puritanism, but I think that misses the point of the outrage.

Since the pandemic, the American workplace moved to Zoom for many. So too should the law of the workplace. Would any of us want our school teachers to teach our children from their homes knowingly in a state of partial nudity that risked the chance it would appear on Zoom? In many states, that "incidental exposure" could qualify as a crime. I think we all can agree we would find that inappropriate in any context because it is not just a "whoops" incidental accident, but an intentional accident waiting to happen. What if the teacher in my hypothetical masturbated but was never seen? Is that any less inappropriate?

Intent may be determined by circumstantial evidence, and when we examine it here, I do not think it fair to characterize Toobin's behavior as accidental. Let us give him the best reading of his intent -- he did not go in the other room of his house and masturbate; rather, he chose to stay in camera range of a business meeting. That judgment alone leaves his accidental intent highly questionable. Indeed, it shows a horrible lack of judgment and insults his coworkers whether seen or unseen.

If it would be inappropriate for a coworker or professor to expose himself and masturbate in the physical workplace, it should be no less in the cyber workplace.

Let's use another analogy. What if Toobin or a professor thought the mic was off and yelled a racial slur about a colleague to someone in his house/workplace? Would that be acceptable behavior, just because it was not caught? What if a lipreader discerned the slur? The line of bad judgment is just too apparent to me.

I think we can resist the whole cancel culture problem and simply evaluate what Toobin did under governing law. The fact that what he did could give rise to a claim of sexual harassment should be cause for approbation. Should he be banned forever like Harvey Weinstein? No. Should he lose his job at the New Yorker? That should be for the New Yorker to decide under their policies and practices. If he does lose his job, we should not see this as cancel culture but rather the exercise of terrible judgment and perhaps a cry for help.

Fred Raymond said...

" himself by accident...."

In this specific case, what does that mean? He mistakenly thought he had his camera off, but it was on?

Gigi said...

" in which your "crime" was failing to lock the door" - um, no, the crime is having sex in the office in the first place! You think people having sex and/or masturbating in an office when there are coworkers around is no big deal?? I don't think most employers would agree with you.

I don't think it's unreasonable to say that an employee should maybe keep their sexual activity away from the office during work hours. Pretty sure people who do that even after hours when no one is around are likely to get fired.

CJColucci said...

Maybe Toobin can return to the New Yorker with a profile of Rudy Giuliani.

egarber said...

As a comparison / contrast study, we should examine any overlaps with at least two other episodes:

1. Rudy's run in with Borat.
2. Marv Albert's alleged assault, which opened up a view into his private life.

All sorts of differences across the three, of course - most notably potential violations of law that don't apply evenly. Still, some of it might venn out a bit.

In any case, I'm too lazy to do any real analysis here. :)