The Media Today

The trials of Harvey Weinstein

January 7, 2020

Yesterday—two years, three months, and one day after Jodi Kantor and Megan Twohey, of the New York Times, published the bombshell investigation of Harvey Weinstein that ignited the #MeToo movement—Weinstein entered a courtroom in Manhattan for the first day of his criminal trial. The weight of expectation hung heavy: “Weinstein” remains a byword for an ongoing global reckoning with sexual abuse, and his is the first major #MeToo case to go before a US criminal jury. On the eve of the trial, Kantor and Twohey, writing with Jan Ransom, acknowledged this symbolism. But they urged circumspection. “The outcome already is anticipated as a verdict on much more than one man’s alleged wrongdoing,” they wrote, yet “the jurors will be hearing a narrow legal case, with an already-fraught back story and a highly unpredictable result.”

Dozens of women have publicly accused Weinstein of sexual misconduct, but the trial will hinge on just two of them: Mimi Haleyi, a former production assistant who has accused Weinstein of forced oral sex, and an anonymous woman who says he raped her. A third alleged victim was dropped from the case. Others declined to participate, or couldn’t, due to New York’s statute of limitations and geographical jurisdiction. In their piece, Kantor, Twohey, and Ransom stressed that the trial could look very different from the picture we’ve built of Weinstein since the fall of 2017. “I can’t think of another case where the defendant comes into trial at a larger disadvantage in terms of perception,” Mark A. Bederow, a former prosecutor, told them. But “evidence in the courtroom very often is not the evidence that appears in the public realm.”

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The public realm—led, importantly, by its press—is still in play, of course. This week, The Cut, a vertical at New York magazine, put Weinstein’s victims front and center. As part of a special package, Amelia Schonbek listed the 100 women who have accused Weinstein of wrongdoing, and Irin Carmon spoke with several of them, to put the trial in perspective. A photo portfolio by Amanda Demme illustrates the package; it shows 21 of Weinstein’s accusers, dressed in black, with their hands on their hips and their arms linked. “I think we’re at a really interesting moment,” Carmon told CNN’s Brian Stelter on Sunday. “Media and journalism is kind of how we got to this point, and I think that [Weinstein’s accusers] are aware that by coming together, they can also fight back the narrative that’s gonna be laid out by Harvey’s defense at the trial.”

Carmon continued: “I think it’s important to recognize at this moment that the press actually was a weapon that Harvey Weinstein used for a very long time to—in their view—intimidate women, keep them silent, plant stories about them.” The extreme tactics Weinstein used to impede damaging stories about him have been well documented—not least in books by Kantor and Twohey and by Ronan Farrow, whose New Yorker exposé of Weinstein followed Kantor and Twohey’s by a few days. Yesterday, Carmon made clear that she wasn’t just talking in the past tense. When she approached Weinstein’s publicist for comment on The Cut’s package, she wrote, she was sent a 57-slide PowerPoint presentation, titled “The Proper Narrative for Addressing the Harvey Weinstein Case”; the file praised Weinstein’s “huge heart” and dumped on the credibility of his accusers. As his trial neared, Weinstein also took to more conventional media channels to defend himself. Last month, he broke his long public silence with an interview with the New York Post’s Page Six, in which he painted himself as a “pioneering” champion of women in Hollywood. Last week, he exchanged emails with CNN’s Chloe Melas, in which he bashed the media. (As Melas notes, Weinstein may soon be silenced by a court gag order.)

As it progresses, Weinstein’s trial will shed light on an interesting dynamic: what happens when the court of public opinion meets actual court. It calls to mind a piece from August 2019, in which Dahlia Lithwick, a legal writer for Slate, praised #MeToo-era reporting for righting legal failures, but argued that journalism is ultimately no substitute for due process. In the court of public opinion, those accused of wrongdoing “are being punished according to their own thresholds for shame and their best guesses about what behaviors the public will tolerate”—a situation that does no one any favors. “The quantum of shame heaped on the accused is decreasing with time,” Lithwick wrote. “If all that happens as a result of #MeToo is public and journalistic opprobrium, it will go from being a pathway for meaningful justice that has eluded victims to a lose-lose scenario for truth and for change.”

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As the first named perpetrator of the #MeToo moment, Weinstein continues to attract its greatest quantum of public shame. As we watch his trial unfold, we should keep in mind that that quantum may not always mirror what we’re witnessing, because journalistic and legal standards aren’t the same. And we should work to reconcile the tensions between two equally true propositions: that we should want people credibly accused of criminal conduct to face our judicial institutions, and that the outcome in Weinstein’s case—whatever it is—won’t diminish what justice was achieved in the brilliant reporting of Kantor, Twohey, Farrow, and others.

Not that this trial’s outcome will be the end of Weinstein’s legal woes. Yesterday, as he sat in court in New York, prosecutors in LA unexpectedly charged him with four further counts of rape and sexual battery. (As Kantor put it on Twitter, they allege that Weinstein “literally raped and assaulted women day after day.”) The district attorney in the LA case suggested it would not meaningfully proceed until the New York case has wrapped up. The glare of journalistic scrutiny will never leave Harvey Weinstein. It looks like the glare of legal scrutiny is here to stay, too.

Below, more on Harvey Weinstein:

  • Centering the victims: Yesterday, several of Weinstein’s accusers, including the actors Rose McGowan and Rosanna Arquette, addressed a press conference outside court. The Financial Times put a big picture of McGowan on its front page—a break from the ubiquitous imagery of Weinstein entering court on a walker.
  • Broadening the trial: While the trial centers on two alleged victims of Weinstein, one of the charges at issue is “predatory sexual assault,” which involves a broader pattern of wrongdoing, and carries a possible life sentence. In the run-up to the trial, prosecutors were granted the right to call three more women to testify to this pattern; they will include the actor Annabella Sciorra, who alleges that Weinstein raped her. As Carmon notes, such additional witnesses were a key element in the conviction of Bill Cosby in 2018.
  • Global news: Megan Garber writes, for The Atlantic, that Weinstein haunted this year’s Golden Globes, which were awarded on Sunday, the eve of Weinstein’s trial. “Two years ago, the Globes insisted that change—meaningful, systemic, permanent—had come to Hollywood.” This year’s message was different: “Time may be up, but time also has a way of regressing to the mean.” Vanessa Friedman, fashion critic for the Times, was more upbeat: Sunday’s red carpet, she wrote, signaled a break from the days of Weinstein, and opened a decade that could see “awards show fashion finally break free.”

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Jon Allsop is a freelance journalist whose work has appeared in the New York Review of Books, Foreign Policy, and The Nation, among other outlets. He writes CJR’s newsletter The Media Today. Find him on Twitter @Jon_Allsop.