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.