During the 1990s, the media convinced Americans that frivolous lawsuits were out of control.
The canonical example was the 1994 “McDonald’s hot coffee” case. In the mythic version, a woman spilled coffee on herself while driving, received minor injuries and then got rich by suing the fast food chain that sold it to her. In reality, 79-year-old Stella Liebeck wasn’t driving, suffered third-degree burns over 10% of her body and only decided to sue after McDonald’s refused to pay for her medical care. Liebeck’s jury award of $2.9 million made headlines, but the punitive damages were almost immediately knocked down to $640,000. She ended up settling with McDonald’s for even less.
Looking back nearly 30 years later, the most remarkable thing about the McDonald’s case is that all of these debunking details were available at the time. The very first AP story about the case noted Liebeck’s severe burns and McDonald’s refusal to pay damages. Within weeks of the verdict, the Wall St. Journal published an A1 story in which jurors said they had initially been skeptical of Liebeck’s motives, but changed their minds after learning that McDonald’s sold its coffee so close to boiling that it had caused at least 700 other severe burn cases in the previous decade.
The real story of the McDonald’s case was always available, it just didn’t matter. By the time the Liebeck verdict came down, Americans had already spent nearly a decade hearing about ambulance-chasing lawyers, “jackpot justice” awards and the debilitating “tort tax” on American businesses. As early as 1986, Ronald Reagan speeches included a laugh line about a woman who sued her doctor after a CAT scan caused her to lose her psychic powers. (In reality, the woman had an allergic reaction to a surgical dye, suffered severe headaches for the rest of her life and had her lawsuit thrown out. She never received a dime.)
This underlying narrative explains why the mythic version of the McDonald’s case was so durable. Sure, some of the details didn’t check out and the facts turned out to be a bit more complicated than they seemed at first glance. But still, journalists argued at the time, we know frivolous lawsuits are a problem in America that’s worth highlighting.
But they weren’t. Civil lawsuits were actually falling throughout the 1990s. Seven-digit payouts attracted headlines, but they were vanishingly rare — just 3% of plaintiffs got punitive damages at all; the median award was $38,000 — and nearly always got overturned on appeal.
The central premise of the “frivolous lawsuits” panic — it is too easy for citizens to sue corporations — was an obvious lie, a blinking, howling whopper that wouldn’t have held up to five seconds of consideration without the endless stream of overblown anecdotes propping it up.
You know where I’m going with this. For years now, panicked headlines and grave magazine features have warned Americans about the threat of an increasingly illiberal left. This narrative has appeared in countless stories about “The New Intolerance of Student Activism,” and endless editorials decrying the latest episode of “cancel culture.” Roughly a dozen national-level journalists have turned oversensitive sophomores and arcane YA fiction dramas into a beat.
I have (God help me) read a huge amount of this coverage and the thing that strikes me, over and over again, is the sheer sameness of it. Thousands upon thousands of words dedicated to the same arguments, the same low-stakes anecdotes, the same tortured historical analogies. Other than slight tweaks to the headlines, few of these stories even attempt to offer any original reporting or perspective.
And so, because I don’t have time to debunk all of these articles, I’m going to pick on two of them. Last month, The Economist and The Atlantic published long features purporting to explore the phenomena of “Left-Wing Illiberalism” and “New Puritanism,” respectively. While both stories display the superficial features of investigative journalism, a deep dive reveals the same motivated reasoning, nonexistent evidence and indefensible editorial standards that misinformed the public about frivolous lawsuits.
It’s happening again. And here’s how to spot it.
1. Low Stakes
The central premise of the “wokeness” panic is that the progressive left represents a slippery slope toward authoritarianism. In the Atlantic, historian Anne Applebaum decries “modern mob justice” and compares social media shamings to Mao’s Cultural Revolution and Stalin’s purges.
“The censoriousness, the shunning, the ritualized apologies, the public sacrifices—these are rather typical behaviors in illiberal societies with rigid cultural codes, enforced by heavy peer pressure,” she says.
The Economist dedicates an entire chapter of its “Left-Wing Illiberalism” cover story to the similarities between present-day wokeness and the “confessional state” of Medieval Europe.
I don’t think I’m reaching for the stars when I say that if you’re going to compare a modern-day political movement to some of history’s worst episodes of repression and mass murder, you had better have some strong evidence to back it up.
So what are the telltale signs that we’re entering a new era of mass repression?
According to the Atlantic, an editor got fired:
After losing his job as editor of The New York Review of Books in a #MeToo-related editorial dispute—he was not accused of assault, just of printing an article by someone who was—Ian Buruma discovered that several of the magazines where he had been writing for three decades would not publish him any longer.
Applebaum goes out of her way to say that she’s not going to “reinvestigate or relitigate” any of the cases she includes in her article, but by implying that Buruma was fired simply for printing an article by someone who was once accused of sexual assault, that is exactly what she’s doing.
The article in question was not a movie review or a treatise on Namibian politics. It was a first-person account of the allegations in question by the alleged perpetrator. Buruma circumvented his own magazine’s editorial standards to allow the author to characterize himself as an innocent victim of a witch hunt. He later admitted that he made no effort to confirm whether any of the essay was true, nor to contact victims to corroborate the author’s version of events. These are significant ethical lapses. After a wave of staff and public backlash, Buruma stepped down.
Again: Applebaum is marshaling this anecdote as evidence for the claim that young progressives are carrying out Stalinist purges of their ideological enemies. Was Buruma falsely accused? No. Did he make an honest misstep, show contrition and lose his job anyway? Also no — to this day, Buruma refuses to acknowledge that he did anything wrong.
It’s not obvious that what happened to Buruma was disproportionate. After her article came out, Applebaum implied that because the victims of America’s “new puritanism” hadn’t broken any laws, the consequences applied to them were fundamentally illegitimate.
This is laughable. Buruma, the senior editor of a national magazine, was forced to step down after publishing an article that invited widespread public backlash. As a result, his reputation suffered. This is something that happens in journalism constantly. Jonah Lehrer didn’t break any laws, but he was effectively banished from journalism after making up Bob Dylan quotes. Rolling Stone editor-in-chief Jann Wenner stepped down after publishing the infamous University of Virginia rape story. Applebaum is arguing that these consequences are not only unjust — regardless of the underlying facts — but evidence of creeping totalitarianism.
And Buruma’s not the only example of this. The Economist cites the case of Colin Wright, a post-doctoral student who had difficulty finding a job after publishing a series of essays “arguing that sex is a biological reality” (TERFese for “trans people don’t exist”). Elsewhere in her Atlantic piece, Applebaum recounts the tale of composer Daniel Elder, who had his music pulled from performances because he criticized Black Lives Matter protesters.
By contrast, here is an excerpt from Frank Dikötter’s history of the Cultural Revolution, the event to which these authors are explicitly inviting us to draw parallels:
Party activists joined the local militia in locking their victims into their own homes or makeshift prisons. They were taken out one by one. Some were clubbed to death, others stabbed with chaff cutters or strangled with wire. Several were electrocuted. Children were hung by their feet and whipped. One eight-year-old girl and her grandmother were buried alive. More than 300 people were killed, including entire families and their children, as the killers wanted to make sure that there would be none left to take revenge years later.
On one hand, a few prominent figures faced routine professional consequences for their publicly stated views. On the other, thousands of people, including children, were beaten to death in the streets despite having done nothing wrong.
If you want to argue that one of those things will lead to the other, fine. But you should at least be honest about how slippery the slope needs to be for that to happen.
2. Irrelevant Examples
One of the first things you notice about the “frivolous lawsuits are out of control!” panic is how much space journalists gave to examples that … weren’t frivolous lawsuits.
In 1995, the New York Times opened an article called “Hey, Waiter! Now There's a Lawyer in My Soup” with the story of a couple who threatened to sue a restaurant for exposing them to secondhand smoke but never filed. In 2004, Newsweek told the tale of a convict who hid from police in a forest and lost three toes to frostbite. “The man threatened to sue the police for not catching him sooner,” the story intones. Period, space. Then: “He couldn't find a lawyer” — i.e. there was no lawsuit, frivolous or otherwise.
In hindsight, these anecdotes actually demonstrated the opposite of the panic’s core thesis: Rather than doling out “jackpot justice” awards to any doofus with a Social Security number and a minor complaint, America’s civil litigation system actually makes it pretty hard — and pretty rare — for frivolous lawsuits to make it to courtrooms.
The same bizarre pattern shows up in the “Illiberal left” panic too. Midway through the Economist’s article detailing the parallels between today’s campus activism and yesterday’s confessional crackdowns, we get this argument (highlights by me):
So here we have a dire warning — illiberal leftists are banning books! — followed by two anecdotes in which no books have been banned.
As with the frivolous lawsuits that weren’t lawsuits, these examples demonstrate the non-existence of the trend the author thinks he is exploring. JK Rowling received widespread criticism after making series of unpopular and bigoted public statements, but has suffered no meaningful consequences. Duncan, a young adult fiction author, received criticism on the concept of an unpublished manuscript and decided not to publish it.
Maybe you think the criticism of Rowling is unfair (it’s not) and find YA dramas exhausting (they are), but this is not censorship in any meaningful sense of the word. If you asked a million Americans to define the term “book banning,” would a single one describe … authors being roasted on social media?
A surprisingly large percentage of “illiberal left” articles pull this same rhetorical trick. In 2019, Laurie Sheck, a New School professor, was investigated by her employer for saying the n-word in class. For weeks, centrist and conservative media outlets sputtered to her defense: The word appeared in a quote from James Baldwin! She was leading a class discussion about racial slurs! Invoking epithets wasn’t even prohibited in any school policies. The case became a totemic example of Wokeness Gone Mad that still pops up in anecdote-parade feature stories two years later.
But that narrative leaves out an important epilogue. The university cleared Scheck and levied no punishment. The pundits were right: She hadn’t violated any school policies.
Scheck’s case, as soon as you tell it in full, turns out to be an example of a university that isn’t captured by leftist ideology. Only a single (white) student had complained about Sheck’s use of the n-word. Like most universities, the New School has a grievance mechanism that allows students to file complaints and obligates administrators to take them seriously. The term “investigation” conjures up comparisons to Orwell and Kafka, but in this case it appears administrators interviewed Sheck and the student, reviewed their policies and moved on. Perhaps you wish the student had never filed a complaint in the first place, but this is the story of a system working as intended, not breaking down.
Applebaum’s Atlantic piece, unsurprisingly, features non-example examples too. She recounts the story of Joshua Katz, a Princeton classics professor who wrote a Quillette article denouncing a “Faculty Letter” that demanded a series of anti-racist changes at the university.
“In response,” Applebaum says, “The Daily Princetonian, a student newspaper, spent seven months investigating his past relationships with students, eventually convincing university officials to relitigate incidents from years earlier that had already been adjudicated—a classic breach of James Madison’s belief that no one should be punished for the same thing twice.”
Applebaum is again misrepresenting the facts of a case to make it seem more troubling than it is. First, there’s no evidence that the Princetonian’s investigation was “in response” to Katz’s political views. All we know is that the sexual harassment story came out seven months after the open-letter controversy. Is it possible that the student newspaper had a vendetta against Katz or that his conservative views encouraged previous students to speak out against him? Sure. But it’s irresponsible for Applebaum to assert that as fact when she hasn’t proved it, nor reached out to the newspaper’s editors to get their side of the story.
Second, Katz’s case had not “already been adjudicated.” According to Katz, the university investigated his relationship with a student in the mid-2000s and placed him on suspension. This was, however, done in secret and the university hasn’t confirmed Katz’s account. Plus, the Princetonian investigation found two other students who allege that he made inappropriate advances toward them. One never filed a formal complaint; the other tried complaining and was stonewalled by administrators.
Again we’re left with an example that demonstrates the opposite of what the writer seems to think it does. Katz was not fired. During the open-letter controversy he even wrote a Wall St. Journal editorial entitled “I Survived Cancellation at Princeton.” Even after admitting that he dated a student, a clear violation of university policy, Katz remains a full professor.
It is impossible to look at Katz’s case and see an example of an “illiberal left” with an itchy trigger finger for firing ideological heretics. If this anecdote demonstrates anything, it’s the lack of seriousness with which elite institutions still treat claims of sexual harassment. It should be appearing in articles about why the MeToo movement exists, not why it’s gone too far.
3. Misleading Statistics
So far I’ve talked about the use of anecdotes in this kind of journalism because, frankly, it consists of little else. But eventually, even professional moral panickers have to provide some numbers to back up their claims.
Take this statistic, literally the only piece of quantitative data that appears in Applebaum’s Atlantic article:
It’s sounds foreboding at first: Nearly two-thirds of Americans feel like they can’t freely express their political views. Take a deeper dive, though, and it’s not clear what it’s saying at all.
This statistic comes from a 2020 Cato Institute survey. The conservative think tank asked 2,000 Americans whether they agreed with the statement “the political climate these days prevents me from saying things I believe because others might find them offensive.” And sure enough, it appears conservatives do a lot more self-censorship than liberals.
The most obvious problem here is the wording of the question. “Offensive” is a term almost exclusively associated with the political left. Conservative media has spent years reinforcing the idea that feminists, minorities and college students are too easily offended. When conservative throw tantrums— Dr. Seuss, face masks, Lil Nas X, the “war on Christmas,” we could do this all day — their paroxysms are almost never described using the O-word.
Therefore, asking someone if they hesitate to express ideas because someone might be offended is essentially just another way of asking if they have ideas that will make liberals mad.
But the more fundamental problem with this question — and the absurd sub-panic about “self-censorship” — is that it’s not clear this “trend” is all that worrying in the first place.
The Atlantic / Economist / Cato view appears to be that having a thought but not expressing it is some sort of rights violation. But it makes no sense to talk about a “political climate” that suppresses ideas without being specific about what those ideas are. Sixty years ago you could say, “Black people and white people shouldn’t get married” in nearly every church, workplace and college campus in the country. These days, people who hold that view hesitate to express it just about everywhere. Good.
We also need to be specific about where this alleged self-censorship is taking place. Most workplaces, either formally or informally, discourage employees from talking about politics with their colleagues. A huge range of controversial political statements, from “marriage is between a man and a woman” to “defund the police” will get you celebrated in some institutions and fired from others. Not only is this a fairly universal feature of adult life, but a broader look at polling data indicates that Americans are freer to express their views without sanction than at any other time in history.
If we put these narrow poll questions aside, it is undeniable that we live in an era of unprecedented access to information. Fifty years ago, if you had a controversial view you couldn’t express at work, you could, I dunno, write it on a piece of paper and put it on a lamp-post? Try to get a letter to the editor of the local newspaper published?
Today you have dozens of free, instantaneous, low-effort ways of disseminating your idea. Write a Medium post and try to make it go viral. Find a message board of like-minded people. Set up an anonymous account and tweet your take at Elon Musk. I truly cannot fathom looking around in 2021 and not concluding that on the whole, speech is freer than it’s ever been.
Maybe that’s true, retort the panickers, but college is a special case. Classrooms are laboratories for hearing challenging ideas and engaging in open debate. Students should have venues — one might even say “safe spaces” — for hearing and expressing challenging ideas.
According to The Economist, this process has broken down.
“Today’s radicals demand the enforcement of codes of behaviour and speech. A poll of more than 4,000 four-year college students for the Knight Foundation in 2019 found that 68% felt that students cannot say what they think because their classmates might find it offensive.”
But these numbers, too, fall apart as soon as you try to put them back on the cherry tree. The survey the Economist cites as evidence that college students “demand the enforcement of codes of behavior and speech” actually finds that 74% oppose campus policies restricting political views offensive to minority groups. Four out of five say they prefer an environment where people are “exposed to all types of speech even if they may find it offensive” to one where offensive speech is prohibited.
And that’s just the one survey! For decades, polling data has consistently shown that university graduates are more likely to favor letting racists teach classes and give public lectures than Americans with less education. There’s even data indicating that college seniors are more supportive of free expression than college freshmen. If anything, college appears to make students more tolerant of speech they dislike.
Refresher: The articles I’m covering here comprise roughly 20,000 words of text and these are the only numbers they provide. We are being asked to believe that America is marching toward totalitarian dictatorship solely on the strength of unconvincing anecdotes and statistics that do not hold up to clicking the link the authors themselves provide.
4. False Equivalence
One of the most incredible aspects of “wokeness panic” journalism is that they admit — right there in the text! — that their central premise is false.
Here’s the Economist blithely noting, in a story sub-headlined “Don’t underestimate the danger of left-leaning identity politics,” that left-leaning identity politics … aren’t all that dangerous.
Applebaum’s Atlantic piece makes the case even more strongly:
America remains a safe distance from Mao’s China or Stalin’s Russia. Neither our secretive university committees nor the social-media mobs are backed by authoritarian regimes threatening violence. Despite the right-wing rhetoric that says otherwise, these procedures are not being driven by a “unified left” (there is no “unified left”), or by a unified movement of any kind, let alone by the government.
Both of these To Be Sures acknowledge the same basic fact: The American right represents a far greater authoritarian threat than the American left. Even if elite colleges and radical activists had the motivation to install a totalitarian regime, there’s no evidence that they have the means or the opportunity. It’s hard to find a single elected Democrat who supports asking Republicans to leave a restaurant, much less censorship, book burning or Nazi-punching.
And yet, the pundits who have published dozens of near-identical “illiberal left” stories over the last five years would like us to believe that this far-fetched, slipperiest-slope-imaginable scenario warrants almost as much attention as the authoritarian creep that is already happening.
Here’s Applebaum again:
In America, of course, we don’t have that kind of state coercion. There are currently no laws that shape what academics or journalists can say; there is no government censor, no ruling-party censor.
This is absurdly, wildly, screamingly untrue.
Do I even need to spell it out? We’re in the middle of a nationwide wave of GOP legislation aimed at banning “critical race theory,” a vaguely defined category that includes everything from teaching the concept of “white privilege” to holding diversity seminars to telling children that slavery was bad. Republican legislatures are micromanaging curricula and getting teachers fired and — pulling my hair out as I type this — actually banning books.
And that’s just the K-12 authoritarianism. In 2017, Donald Trump explicitly threatened to pull federal funds from U.C. Berkeley after students protested a right-wing speaker. In 2020, he signed an executive order banning publicly funded universities from holding diversity trainings that included any mention of "systemic racism," "intersectionality," or "racial humility" (???). In 2019, Trump’s education department ordered Duke University and UNC-Chapel Hill to “remake” their Middle East studies program to include more positive depictions of Christianity and Judaism.
I could go on. There’s the Republican congressional candidate who body-slammed a reporter, the Republican House Rep who jokes about executing Democrats, the Republican attorney general who prosecuted an activist for laughing during his confirmation hearing. Conservatives have developed an entire ecosystem of websites and grassroots organizations dedicated to targeting left-wing professors for harassment.
Nothing remotely analogous exists on the institutional left. Democrats control the house, senate and governorship in 15 states. Yet they have made no effort to ban conservative books or “cancel” racist professors or outlaw microaggressions. The reason right-wing media constantly highlights obscure documents and non-mandatory corporate trainings is that they cannot find legitimate examples of Democrats using their power to install illiberalism.
Articles about the “illiberal left” feel like dispatches from the Upside Down, a parallel universe where American political life looks nothing like it does in reality. Why are readers of national publications constantly being told that they should worry about the left potentially, sometime in the future, becoming as bad as Republicans are now?
America is in the middle of a worrying democratic backslide. At the institutional level, elected Republicans are rolling back voting rights, overturning ballot initiatives, criminalizing protest, stripping power from elected Democrats and sowing doubt about a perfectly valid election result.
At the grassroots level, the majority of Republicans believe that Biden is an illegitimate president, that vigilante violence is justified, that Democrats caused the January 6 insurrection and that the deranged QAnon conspiracy is fully or partly true. America has the lowest COVID-19 vaccination rate among developed nations due almost entirely to conservative politicians and media figures spreading conspiracy theories.
See that? I don’t have to exaggerate events or misrepresent statistics or pelt you with low-stakes anecdotes because I am describing an actual national trend.
I realize it’s boring to list all this. Journalism thrives on unconventional narratives. It may seem like Republicans are a threat to democracy, but the true threat lies on the left is a more compelling story than things are what they seem.
I get it. But the problem with “illiberal left” stories, even when they include a paragraph-seven acknowledgement that Republicans are worse, is that the public does not form its views based on what articles actually say. The length, prominence, headline and graphics have a far greater impact than the content of any given story, much less the blithe, tossed-off caveat that it should not exist.
The writers and editors of these stories, when pressed, often claim that they’re simply exploring a social phenomenon. What’s the harm in talking how norms on the left are changing?
This is a bait and switch. The articles we’re discussing here are called “The New Puritans” and “The Threat From The Illiberal Left.” Nothing about their presentation implies that the danger of the left is minuscule compared to right-wing authoritarianism. A far greater number of people will see the title, skim the content or glance at a newsstand than will ever read these stories in full, much less internalize their self-admitted weaknesses.
This is how moral panics happen. In the 1990s, hundreds of articles warned Americans about the dangers of “political correctness,” a right-wing swamp fungus that functioned almost exclusively as a tool to discredit progressive demands. In the 1980s we got “stranger danger,” a nationwide ulcer of anxiety about creeps in white vans kidnapping children. By the time journalists got around to debunking it (there’s only around 100 stranger kidnappings per year), we’d already passed a wave of laws expanding mass incarceration — and doing nothing whatsoever to keep children safe.
Same thing with the “frivolous lawsuits” panic. According to a 2016 poll, 87 percent of Americans still think there are “too many lawsuits filed in America.” Irresponsible coverage of the McDonald’s hot coffee case, as well as credulous retellings of other non-representative anecdotes, resulted in a significant erosion of legal rights for consumers. It is now much harder for Americans to sue corporations that harm us — and it was already hard enough when Stella Liebeck pulled up to that drive-through.
Moral panics entrench misinformation and foment reactionary backlash. The parents storming town halls and taking over school boards to ban critical race theory have been explicit that their efforts are in response to the alleged “wokeness” of K-12 teaching. This is precisely, word for word, the narrative that the Economist and Atlantic articles, and dozens like them, have promoted.
The “frivolous lawsuits” panic should be seen as a foundational embarrassment for the national media. Rather than educating the citizens of a functioning democracy — the role we journalists love to tell ourselves we’re playing — prestigious publications were de-educating them, reinforcing narratives of national trends that didn’t exist.
They are doing the same thing now, playing with the same fire that has pulled the United States rightward and backward over and over again for the last 40 years.
The media has tremendous power to shape public opinion. Reporters and (especially) editors should not just be aware of their ability to spread moral panics. They should be terrified of it.