There was a time, not too long ago, that most people who were involved in blogging knew the name Robert Scoble. The Scobleizer was an early tech guru, blogging ninja, and his name popped up the other day when LexBlog’s Kevin O’Keefe looked to a name brand about how to make the donuts.
The inspiration for donuts comes from blogging – as it was and still is – a conversation. Robert Scoble (@scobleizer) and Shel Israel (@shelisrael) authored the book, Naked Conversations: How Blogs Are Changing the Way Businesses Talk with Customers, eleven years ago.
And before you could say “turnkey blog,” Scoble was another sexual harasser on the internet. This, apparently, was already known, though not by me at the time as neither Scoble nor the allegations against Silicon Valley folks are on my front burner.
Perhaps true to his blogging philosophy, Scoble chose to write about it.
In the past week several news outlets reported that I had committed numerous sexual indiscretions against numerous women. I am sorry that so many women feel wronged by me, but I hope to set at least some of the record straight. I apologize for the delay in the response, the allegations are quite serious, and many are from a number of years ago, and before responding I needed to consult with a lawyer, witnesses, my wife and others.
Numerous carries a lot of weight here, so it’s unsurprising that Scoble lawyered up, especially given the atmosphere where “sexual indiscretions,” by a cis-gendered male no less, are worthy of condemnation per se.
I have rejected my lawyer’s advice to not make a statement and in a spirit of healing I would like to address the issue head on with open and honest dialogue.
Boom. Spirit of healing? Open dialogue? Reject your lawyer’s advice? What could possibly go wrong.
Any response creates potential liability, and lawyers optimize for reducing exposure so they advise against responding. But, for the past 20 years I have made my living shining light on people, products, and issues. I am unwilling to not be that person just because people have made allegations against me. This advice from attorneys is one reason why as a community we can’t properly discuss the issues hitting our industry. When companies and individuals can’t speak out for risk that it opens them to a lawsuit it limits the responsible dialogue we can have.
This is true, that a lawyer’s job is to protect his client from doing, or writing, something that confesses his “sins.” It’s similarly true that Scoble hasn’t been shy about speaking his mind, and perhaps it’s admirable that he wishes not to be a hypocrite by hiding behind his lawyer’s words. But the reason we can’t have a “responsible dialogue” isn’t because of lawyers’ advice, but because when you engage in impropriety and confess your sins, you end up losing in court.
And then there’s the problem about having a “dialogue” at all. Nobody wants to talk about anything. Some want to shriek at you, tell you how you’re awful, call you whatever names are prominent amongst their identity subset and condemn you. Talk? There’s nothing to talk about, because you’re wrong and their role is to make sure you know it.
Scoble then goes to the cutting edge of naivete:
TechCrunch and Business Insider “broke” the news, but in a move inconceivable to me, they didn’t do any diligence to verify the accusations made against me. I recognize that these two organizations are basically just Gossip Blogs at this point, and that “If it bleeds it leads” is a way to generate click bait, but I expected more of them.
Much as he’s right that they’re primarily Gossip Blogs, his expectation that part of their job was to defend him against the accusations was bizarrely misguided. It’s a common expectation that anyone reporting on “news” has a duty to be “balanced,” but it’s not their job to create balance out of nothing. If Scoble had a response to the accusations, it would be their responsibility to report it. It’s not their responsibility to create his defense for him.
But Scoble then takes a wild dive down the rabbit hole to explain what he perceived to be his defense, which he believes should have been too obvious to require him to proffer it.
Even the most rudimentary fact check by news outlets would have caught a few obvious things. If I were guilty of all the things said about me I would still not be in a position to have sexually harassed anyone. I don’t have employees, I don’t cut checks for investment. None of the women who came forward were ever in a position where I could make or break their careers. Sexual Harassment requires that I have such power.
Inexplicably, Scoble was of the firm view that only by the coercive use of money or position can sexual harassment occur. Harvey Weinstein can sexually harass, because he can use his ability to make a woman a star to get his way. Scoble? He’s got no power over anyone, so he can’t sexually harass. Then again, some rational people might question why the women with whom Scoble became involved aren’t responsible for their own choices and actions.
While liability accrues from a violation of law, rather than the vagaries of the unduly passionate on the internet, it still does not follow that Scoble’s view of sexual harassment is limited to people in a position of power over another person.
Joanna Grossman, a law professor at Southern Methodist University who has written extensively on this issue, told Ars that Scoble’s understanding of the law is “just wrong.”
“Power in general isn’t what matters,” she said. “There is no requirement that the harasser have power or any specific relationship with the person.”
Another law professor, Susan Carle, of American University, told Ars that Scoble’s claims are only correct in a very narrow sense—Title VII of the Civil Rights Act, a federal law that specifically deals with an employee-employer relationship.
“When he says if these people aren’t employees then sexual harassment law doesn’t apply [it’s] true only in the sense that Title VII doesn’t apply,” she told Ars. “But that doesn’t mean that there wouldn’t be a legal cause of action against him for sexual harassment, but it just wouldn’t be under Title VII, it would be under a tort lawsuit.”
The answer to liability, if it’s ever answered, will be heard in a courtroom rather than debating lawprofs. Whether the conduct Scoble goes on to describe, in unseemly detail, is horrifying or not his fault will similarly be decided, or not. But regardless of how this turns out, the blogging master, Robert Scoble, laid it all out in his own words in public, against the advice of counsel, for all to see.
As for the dialogue, it’s likely to range from whether he should be burned alive at the stake or drawn and quartered first. He may not be “that guy,” but he’s going to be “that guy” no matter what he had to say. He should have listened to his lawyer.