Non-Judicial Punishment is a key part of democracy and free-market capitalism, and highly problematical, at the same time.
In judicial punishment, a judge or jury decide upon guilt or innocence, and the scope of the punishment, working within a tremendous body of rules and processes meant (always with less than complete success) to justly and fairly mete out punishment.
Today’s topic is the less formal method known as “shunning”, and sometimes labeled with the pejorative “cancel culture”. Political officers and candidates have no right to use those two words, since public decisions based on the stated opinions and conduct of individuals and organizations are inherent in the democratic process of government they signed up for, and the constitution they swore to protect and defend.
It’s the way elections work: the electorate is supposed to decide whether to vote for a candidate, or not, based on that candidate’s stated opinions and past behavior. So, we reward the winner and “punish” the loser. We’ve all witnessed how voters are cheated by untruthful sources, but ultimately democracy rests upon a properly informed voter making choices based upon that information.
We decide where we will shop, invest, and sometimes work, based on the behavior of companies and the statements of their leaders and spokespeople. Being able to decide what business you deal with is a key part of having a free market.
However, there is also the non-judicial punishment of individuals: the penalty of shunning that is meted out by large populations of mostly-pseudonymous people on the internet. These people are expressing their 1st amendment right to free speech, often to punish someone who is well worthy of such punishment but will not be reached by any judicial means.
Consider the lack of features of the judicial process that exist in such non-judicial punishment. Obviously, the accused doesn’t get the chance to have evidence heard fairly in a court and evaluated by a jury of their peers. The last time I was empanelled on such a jury, I heard 21 days of testimony from witnesses and experts, and was well able to make a decision, which (as required, or “innocence” is automatic) was unanimous among the jurors.
Nobody works one hundredth so hard upon a non-judicial punishment, perhaps with the single exception of the vanishing breed of investigative journalists. There is no formal “jury”, no standard for guilt or innocence, no sentencing guideline and limit, no accountability among those who mete out punishment.
Most troubling is the lack of any form or end to the sentence other than indefinite shunning. When their sentence is indefinite, the shunned are never given a chance to prove that they have reformed their behavior, and to thus reach the end of their shunned status. An indefinite sentence does not admit to the possibility of reform or even the desirability of reform. Thus, what should be a learning opportunity becomes little more than revenge.
In the news is the shunning of a 68-year-old autistic computer programmer named Richard Stallman, known as founder of the Free Software movement, which you may be more familiar with in its perhaps-less-ideological form, “Open Source”.
Mr. Stallman is personally known to me. I could testify that he is extremely obnoxious. Due to his handicap, he has little perception of what the feelings and reactions of others might be to his thoughts and actions, even when they are based on a talmudic personal focus on freedom and ethics. Thus, his opinions and conduct can be repulsive to others due to errors stemming from his lack of empathy – again, his handicap. Mr. Stallman likes women, but his interaction with them has been awkward and embarrassing in my personal presence, without ever reaching the level of forcing or violence. I can’t speak with authority regarding any of the claims against him that I haven’t witnessed. But the major accusation seems to be that his presence created an uncomfortable environment for women, which fits behavior I have witnessed. This may have acted to exclude greater participation by women in the Free Software Foundation and its projects, and similar is said for environs of MIT where I have no personal experience.
Some time ago, Mr. Stallman became the object of shunning. More recently, the board of the Free Software Foundation, his employer, decided to re-admit him to a seat on that organization’s board after having expelled him – with his own cooperation – for some time. In doing this, I believe that the FSF board felt that punishment should have an end, especially in the case of the first punishment, and should include an opportunity for the punished to demonstrate that he has reformed his behavior.
FSF has been Mr. Stallman’s employer for about four decades. Thus, they are bound by the Americans with Disability Act and other applicable law to make accommodations for a handicapped employee. Mr. Stallman’s behavior clearly has a basis in his handicap. Without at least days of study, I can’t even start to understand the implications of ADA in this situation. Because FSF’s original removal of Mr. Stallman from its board appears to have been a reaction to public perception, I would assume that there are some.
This leaves me somewhat surprised by the behavior of a number of companies and organizations that have emitted rather monochrome opinions. I would have everyone consider the issues I’ve discussed, and elaborate upon them, before they decide to cast stones.