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Taking the Bait
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Taking the Bait

Jeffrey Toobin's Zoom disaster had some bigger problems than unprofessionalism.


It’s been a long week, and it’s only Wednesday. So please forgive me for what I am about to do.

Master baiting

Look, I’ll be honest with you. I have tried to tamp down some of the sophomoric silliness that marked some of my earlier writing. I used to write stuff like, “I’ve got to keep on my toes—like Robert Reich at a urinal.” I once wrote that when Geraldo Rivera dedicated an episode of his daytime show to having fat from his ass inserted into his forehead, it took. Alan Dershowitz got taller every time he took Viagra, “Hanging Chad” wasn’t just a technical term of art from the Florida recount, it was a great name for a necrophiliac gay porn movie (a colleague tells me it should have been an autoerotic asphyxiation flick. Fair enough, but I’m not going to waste my last time-jump on correcting that mistake).  In 2002, I predicted: “Mullah Omar will be caught and in short order the phrase ‘punishing the one-eyed cleric’ will cause thousands of boarding school boys to titter for weeks.”

Speaking of onanistic entendre, I need to let something out of my system. No, wait, let me rephrase that. While I’ve tried to take a more mature path in my middle age, I still think this sort of pull-my-finger jocularity is funny. Even funnier: other appendage-pulling humor. No, not every day—you’ll go blind. And despite my better judgment, when the gods of the news cycle deliver something so tumescent into the palm of your—or someone else’s—hand, it’s impossible not to take the bait. I like to think I am the master of my domain, but it’s times like this when it’s hard not to master the bait.

Which brings me to Jeffrey Toobin. Toobin always struck me as a somewhat Dickensian name. Although the “-ensian” part has faded a bit for obvious reasons. 

There is a certain mix of the vaguely dirty and the all-too onomatopoetic to a name that is just one dropped-g from being a gerund, a verbal noun, or a present participle. 

Gerund: “Toobin’ aggressively on a Zoom call used to be just frowned upon. Now it’s banned. Thanks a lot, Bin Laden. “

Verbal Noun: “Pornhub’s okay, but New Yorker election simulations make for even better toobin’—and yes, I said eeeleckshun simyoolations. What did you think I said?”

Present Participle: “He was toobin’ like he was the guy getting a visit from his girlfriend in Midnight Express when he realized the Zoom camera was still on. “

In case you need a refresher, by the way, a participle is a verb acting like an adjective in some way. So a dangling participle is when you have the verb but no object for it. “After laying a large egg, the farmer presented his favorite chicken.” Taken literally, the farmer laid an egg. So if David Remnick said: “Sitting on the Zoom call, the chicken was choked,” then “Sitting on the Zoom call” would be a dangling participle. But “Sitting on the Zoom call, I saw …” well, you get the point. Anyway, the point is moot, because dangling wasn’t the problem here. 

There’s been a lot of handwringing—so to speak—about Toobin, the New Yorker’s legal correspondent. One writer, after running through a string of jokes about Toobin’s prosecution of his “southern district,” insists that we should act like a jury ordered by the judge to ignore evidence. In one of the greatest understatements ever written, he says, “Granted, there are few things more unprofessional than masturbating during a company meeting,” and then goes on to say that Toobin’s just too good at providing perspective to be shunned for toobin’. 

In a country with over 1.3 million lawyers, I love the idea that the one guy caught badgering his own friendly witness is just too indispensable. 

Over at the Daily News, Jonathan Zimmerman, a professor at the University of Pennsylvania, wants to make this seminal moment into a seminal moment. You see, the people who should really be embarrassed are the ones making a big deal about this. Zimmerman makes the perfectly fine point that people should be more upset about Toobin’s past behavior, specifically his adultery, and not hoist him on a petard for hoisting his own petard on a Zoom call. We’re all prudes, you see, because everybody does it, but doing it has been “a big no-no since the advent of the Enlightenment.”

No one tell the new post-liberal crowd that the only thing keeping Zoom calls at the New Yorker from becoming literal circle-jerks rather than just figurative ones is our faith in Locke, Montesquieu, and Bacon. By the way, Francis Bacon, believed technology was the key to the “relief of man’s estate.” Still, I don’t think he would endorse men seeking relief on a Zoom call. Still, I don’t think that’s what Zimmerman is getting at. 

Look, I’m no prude, but there’s room in society for, well, society. The Victorians were way too strict if you ask me, but they did have the big idea right. A decent society doesn’t ask too many questions about what goes on behind closed doors, but in public some basic rules for decent behavior are vitally important. With the advent of the internet, the line between public and private behavior has been blurred and, as with other eras of technological disruption, society is playing catch-up trying to figure out where to draw the new lines. The MeToo movement is just one front of that line-drawing effort. 

Plenty of people think masturbation is just another form of sex—“sex with somebody I love” as that great moral exemplar Woody Allen put it—and that there should be no shame whatsoever about sex of any kind. I don’t really buy that. Certainly, consent is a bright line—and in fairness to Toobin, he definitely had consent. He consented himself silly. Adultery is another bright line, or at least it should be. America would be healthier if there were more shame about cheating on your spouse. But these can’t be the only places where we draw such lines. If Toobin had used a Zoom call break to have sex with a willing partner or even a fairly accommodating and well-compensated sheep, we could still say, “Dude, that’s wrong”—and not just because it’s unprofessional. 

I doubt the MeToobin movement will go far. But if does, I’m out

230, 231, whatever it takes

Shoshanna Weissmann beat me to the punch on what I hoped would be the substantive portion of this “news”letter, which I hoped would somewhat redeem my self-indulgence on the topic of Toobin’s self-abuse. So I’ll be brief. 

I think the debate over Section 230 of the Communications Act is bizarre in far too many ways for me to delineate here. For those interested, I highly recommend not only Shoshanna’s piece, but Scott Lincicome’s lengthy precis on the subject. 

Let’s do a thought experiment. Imagine the New Yorker’s “electoral simulation” wasn’t on Zoom, but on Facebook or Twitter’s weird streaming thing. And just to make things a little simpler, let’s imagine Toobin didn’t work for the New Yorker but was simply a guest. Now, let’s assume Toobin did the exact same thing. Would that be Facebook or Twitter’s fault? I mean. Is anyone blaming Zoom for Toobin’s behavior? Why not? 

Under these circumstances, one would like to think that Facebook or Twitter would immediately cut the feed. Some viewers might be upset that they missed the happy ending, but presumably most would already be too busy bleaching their eyes or swallowing Tide pods. Regardless, the host would be completely within its rights to pull the plug on Toobin’s plug-pulling. 

As Scott writes, Section 230 solves the “moderator’s dilemma.” When I was the editor of National Review Online, we avoided having comments for years precisely because we didn’t want the public to think we were endorsing the inevitable garbage some people ended up posting. The idea that we could be legally on the hook for something GandalfTheWhite8297 posted was even more of a disincentive. What 230 does is get the host off (so to speak) the hook for what people say on their platforms, legally. It does not bar hosts from removing content. GandalfTheWhite8297 has a free speech right to say “Teutons are the master race.” He doesn’t have the right to say it on a website he doesn’t own. 

Facebook bans porn. It doesn’t have to. I’m glad it does. If Toobin was caught handing down-and-up-and-down his opinion, and Facebook cut him off, that would certainly be censorship in one sense, but not in a legal one. 

Now, political speech—including odious speech and outright misinformation—is different from pornography, culturally and legally. But Facebook’s rights hold constant. I think both Facebook and Twitter make some really stupid, occasionally ideologically-biased decisions in the process of exercising their rights (and obligations!) to moderate content. Here the critics of “Big Tech” have some passable arguments on their side, although claims of systemic bias against conservatives are often wildly overblown (in part because claims of being censored are great for clicks and donations).

But what, exactly, do they want to do about it? I gather what they want is to repeal Section 230 and replace it with … what? A new Federal Commission on Internet Balance? I find it just amazing that avowed conservatives, particularly ones who see the Deep State as a fifth column, are so eager to give the government the power to decide what should or shouldn’t be on Facebook and Twitter. I mean, forget asking “What could go wrong?” What could go right? 

(And this doesn’t even address the fact that the Democrats might be on the verge of sweeping Congress and the White House. You think Biden’s FCC is going to bend over backward with its new powers to give Ben Shapiro or PragerU a fair shake (pardon the phrase)?)

I mean, keep in mind that 230 doesn’t just apply to a handful of social media companies. It applies to Yelp, and the New York Times, and AirBnb, and virtually every kind of business that has an internet presence. Let’s assume that we put the wisest, best bureaucrats who have ever bureaucratted in charge of policing balance on the Internet. What makes you think enforcement could be anything other than arbitrary? Facebook posts 100 billion pieces of content every day. You think the Feds have some sort of Eye of Sauron that can deal with that stuff on the spot and have time left over to deal with politically biased reviews of Chick-fil-A on Yelp?

That’s literally what China is trying to do. And yet the same people who pound the table—rightly—about China’s Orwellian approach want our own government to get in the game? 

Again I ask: What could go right?

Photo by Thos Robinson/Getty Images for The New Yorker Festival.

Jonah Goldberg is editor-in-chief and co-founder of The Dispatch, based in Washington, D.C. Prior to that, enormous lizards roamed the Earth. More immediately prior to that, Jonah spent two decades at National Review, where he was a senior editor, among other things. He is also a bestselling author, longtime columnist for the Los Angeles Times, commentator for CNN, and a senior fellow at the American Enterprise Institute. When he is not writing the G-File or hosting The Remnant podcast, he finds real joy in family time, attending to his dogs and cat, and blaming Steve Hayes for various things.