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She Said and the Limits of Contract

Copyright © 2024 by Ari Armstrong
April 3, 2023; ported here on May 31, 2024

Since discussing The Individualists with Matt Zwolinski a few days ago, I've been thinking more about libertarian views of property and contract. I watched the film She Said with that discussion freshly in mind.

The film, about the New York Times's investigation into Harvey Weinstein's abuse of women, is a good portrayal of the journalistic process regarding stories heavily reliant on eye-witness testimony. In this case, the difficulty was that many of the victimized women did not want to speak on the record, and some had signed non-disclosure agreements in exchange for payouts.

One thing (hardly the most most important thing!) this horrible story does is point to some potential problems in how some libertarians view rights of contract. Some, but not all, of Weinstein's bad behavior toward women constituted some sort of criminal assault (which libertarians agree should be prosecuted). In some cases, he used emotional pressure and psychological manipulation against women, not physical force. Moreover, many of Weinstein's associates either turned a blind eye to his misdeeds or else actively covered for him. In such cases short of criminal assault, it is not always obvious what libertarians want government to do about such problems.

Ideally, people would consistently stand up to bullies, report them to the police when they cross legal lines, quit any work position involving a bully, and report the bully's misdeeds, resulting in strong censure inside and outside the organization in which the bully operates. In the real world, people (especially women in cases of sexual harassment) often face very real and very large financial and social penalties for speaking up, and organizations often find it more convenient to sweep a bully's misdeeds under the rug than to resolve them.

How might a libertarian respond? I see several possible positions:

1. In cases that don't involve criminal assault, leave it to the victims to stand up for themselves, speak out, quit if necessary, etc. This position is less than satisfying for reasons suggested.

2. Call on victims (and supportive organizations) to sue bullies on grounds that an employment contract does not entail sexual harassment. But would such action be strong enough to stop or deter such harassment? Another problem: Would libertarians allow an employment contract that explicitly says employees may be subject to sexual harassment (described in whatever euphemistic language the organization chooses)? That seems bad!

3. Explicitly declare in law that employment contracts may not sanction sexual harassment and that employment relations cannot permit them, on penalty of potential tort actions by the victims. This step seems okay to me, but we should acknowledge that it involves legally delimiting the boundaries of acceptable contract. An obvious problem here is in reasonably drawing the line between sexual (or just personal) interest and sexual harassment. I don't think a guy complimenting a woman's attire or asking a women on a date (or the reverse) normally should be considered harassment. On the other hand, demeaning a woman in sexualized language or asking her for sexual favors in a workplace context clearly is harassment.

4. Add to the provisions above extra powers of government to investigate and crack down on sexual harassment in the workplace. This also seems okay to me, but this is the sort of governmental "regulation" that libertarians tend to oppose (and the sort that I once explicitly opposed, although I did not write specifically about this issue that I recall).

The movie brings up a couple of other difficult issues.

Before, I was writing as though the line between criminal assault and noncriminal harassment is easy to draw. But I'm not sure it always is. If a woman is radically dependent on a particular job for her physical well-being, and a man employing the woman demands sexual favors as a condition of her continued employment, is that a sort of rape? Morally, at least, it is similar. Yes, we can advocate liberal, free-market policies that result in more opportunities for people. We can encourage private charities to help struggling women (and men). Most people, including Zwolinski but excluding many libertarians, also want government to provide a safety net to help alleviate the sort of strong economic dependencies at issue.

Also, what are the proper limits of non-disclosure agreements? The film explicitly talks about such issues. I think most everyone would agree that a contract cannot (justly or legally) require non-disclosure of criminal activity. But what about misbehavior that falls short of a crime? Specifically, what about the sort of non-disclosure agreements barring victims from speaking about sexual harassment? Again, I think government rightly delimits the boundaries of contract. I'm not sure what the law currently says on this matter or how relevant laws vary from place to place. Here I'm more worried about how libertarians think such matters should be handled.

Broadly, She Said is a well-produced film about an important event in the long struggle for equal and decent treatment of woman in society. Although it does not show graphically disturbing scenes, focusing instead on verbal descriptions of Weinstein's abuses, it might be very upsetting especially for women who have suffered sexual harassment or abuse. I hope that a lot of people (including a lot of libertarians) watch the film, not only because it is well-crafted, but because it explores important social problems still with us. We can't solve such problems until we face them squarely.

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