The History of Sexual Harassment Law.

Show: FRESH AIR
Date: FEBRUARY 02, 1998
Time: 12:00
Tran: 020201np.217
Type: FEATURE
Head: The Trouble with Sex
Sect: News; Domestic
Time: 12:06

TERRY GROSS, HOST: This is FRESH AIR. I'm Terry Gross.

The Paula Jones lawsuit against President Clinton and the Monica Lewinsky scandal both connect to sexual harassment law. My guest Jeffrey Toobin says that the doctrine of sexual harassment has become one of the most politicized areas in American law. He examines the history of sexual harassment law in the new edition of the New Yorker magazine. His article is titled "The Trouble with Sex."

Toobin is a staff writer at the New Yorker and a legal analyst for ABC-TV. He covered the OJ Simpson trial for the New Yorker and chronicled the trial in the bestselling book "The Run of His Life." Toobin practiced law before becoming a journalist. He was assistant counsel to special prosecutor Lawrence Walsh in the trial of Oliver North.

This morning, I asked Toobin why he decided to examine the history of sexual harassment law.

JEFFREY TOOBIN, STAFF WRITER, THE NEW YORKER, AUTHOR, "THE RUN OF HIS LIFE," FORMER ASSISTANT SPECIAL COUNSEL TO LAWRENCE WALSH: The Paula Jones case really set me off in studying the law and how it got that way. And basically, what struck me about the Paula Jones case was that there was all this attention being given to, you know, what went on in the hotel room, as if that were the only question that was relevant in a sexual harassment case.

I thought -- and think -- that sexual harassment is really an anti-discrimination law. And to me what's important was: did Paula Jones suffer any consequences from this encounter if it took place? And I wanted to look at how we got from a law that was really about discrimination to a really that was just about sex. And that's what really set me off looking at this story.

GROSS: Well, what exactly does the law say when it comes to sexual discrimination versus sexual impropriety? Is there a distinction made in the law?

TOOBIN: Well, there's certainly not one in the law itself. There has been a sort of judge-made law that has -- that has evolved that really has put sex at the center of this kind of anti-discrimination law. And it's something that I -- I really have a problem with. What's happened is, there have been sort of two movements that has sort of messed the law the up in different ways.

The original founders of the law -- people like Katherine McKinnon (ph), who was a student at Yale when she really pioneered sexual harassment law, thought that sexual relations between men and women were so poisoned by inequality of power that basically they came to the conclusion, as Katherine McKinnon wrote in her pioneering book "Sexual Harassment of Working Women," that basically all sex between men and women in the workplace was a form of harassment.

Judges, who are much more conservative, came to the conclusion that when you had any kind of discrimination claim, there had to be some sort of sexual element involved or it wasn't really discrimination. Both of those ideas seem wrong to me, and that's -- that's where I think sexual harassment law really got off the rails.

GROSS: Now, let's look again at the Paula Jones case. You were saying that this case rests on what went on in that hotel room. She, about six months ago I think, added to her claim that she had a professional setback as a result of what happened with the then-governor in this hotel room. That in other words, she was punished for not going along with his sexual advances -- punished on the job.

TOOBIN: It's worth -- it's worth going over some of the dates that you mention. I mean, this is an incident that is alleged to have taken place May 8, 1991. She amended her complaint to include specific retaliations in the fall of 1997.

So, her claim is it took her more than six years to realize that she had been discriminated against by this -- by this alleged encounter. I think that kind of lapse may speak for itself. If it takes you that long to realize that you were discriminated against in a job that you left five years ago in a state that you haven't lived in for about five years, it -- I think the discrimination might be less than overwhelming.

GROSS: Now, how does the Monica Lewinsky story figure into charges of sexual harassment? She hasn't charged the president with sexually harassing her. And the story, the way it has come out so far, looks kind of like consensual sex if, in fact, anything happened.

TOOBIN: But I think it's worth remembering what Kenneth Starr is investigating. Remember, the mandate to him was: did President Clinton and Vernon Jordan commit some sort of obstruction of justice in urging Lewinsky to lie in her deposition in the Paula Jones case? And just to unpack that thought a little bit, Monica Lewinsky's testimony was relevant in the Paula Jones case because Jones' lawyers wanted to establish a pattern of Clinton having sex with people that he worked with.

And I don't know if Bill Clinton had sex with a lot of people he worked with, but I think there is something poisonous and just unfortunate that the legal system is weighing the legality of consensual sex in the workplace. I think that really is something that's up to the people involved. I think there are all sorts of good reasons not to sleep with the people you work with, but I don't think it's up to the legal system to police that.

GROSS: If you're just joining us, my guest is Jeffrey Toobin, and he's a staff writer for the New Yorker. And in this week's edition, he has an article on the history of sexual harassment law. Toobin is also a legal analyst for ABC-TV.

You say that the sexual discrimination law was invented by accident during the debate over the Civil Rights Act of 1964. Give us a little history on that.

TOOBIN: This was really one of the most surprising stories I ever encountered. In 1964, this was of course one of the most controversial pieces of legislation in decades. And the Dixiecrats, you know, used every tool at their disposal to try to stop it. And Judge Howard Smith was the chairman of the House Rules Committee and an old -- crusty old segregationist.

And on the House floor in the July of 1994, he came up with what he thought was a brilliant gambit to make this -- make -- to make sure this law failed. The law banned discrimination based on race in hiring and promotions. And he offered an amendment. He rose on the House floor and he said: "I'd like to add the word 'sex' -- to ban discrimination based on sex or race in the workplace."

And he said, well you know, this will help our spinster friends find husbands, and it'll stop wars because people will stop killing soldiers. And everybody was on the House floor laughing because a lot of the Southerners and a lot of men generally thought this idea of banning discrimination against women was so ridiculous that it was literally -- quite literally, a joke.

And something very surprising happened. There were only a handful of women who were in Congress at the time -- Martha Griffiths of Illinois, Edith Green of Oregon. And they rose and they said: "you know what? This is a helluva good idea." They said: "there is a lot of discrimination against women in the workplace and by your laughter on this House floor, that shows that women aren't being taken seriously."

So, there was this crazy debate where the real right-wingers were making fun of it. The people really on the left were supporting it. And after only about a couple hours of debate, the amendment was voted on, and with this unlikely coalition, was passed.

The bill then went through many other iterations, but somehow the sex provision stayed in there. It was never discussed again. And that's how sex discrimination in the workplace was outlawed -- by Title VII of the Civil Rights Act -- completely by accident. And the subsequent history of the law has had -- has sort of shown the scars of that.

GROSS: If the person who introduced the idea of sexual discrimination into the Civil Rights Act meant it as a joke, why did he introduce it in the first place?

TOOBIN: Well he thought that the very idea was so ridiculous that it would be like a Trojan horse. It would persuade people who were on the fence about voting on the bill to vote against it, because they weren't just voting on race discrimination, they were voting on sex discrimination.

And he thought by smuggling in this sex provision, he could bring down the whole bill. As it turned out, he was wrong. Both the sex and race discrimination proposals passed.

GROSS: Now, when did sexual discrimination actually start getting used in the courts?

TOOBIN: Well, fairly soon after the '64 Civil Rights Act, you started to see several cases that were very sort of straightforward -- women not getting promoted, not getting hired for jobs they were clearly qualified for. Sexual harassment law took much longer and didn't come in 'til the mid- and late-'70s.

GROSS: And as you've said, one of the most important people in its early interpretation -- in the early interpretation of sexual harassment law -- was Katherine McKinnon. And you say that she introduced the idea that sexual harassment was sexual discrimination. Can you explain?

TOOBIN: Well, this was really a considerable surprise to me because I suppose like most people who've heard of Katherine McKinnon, they associate her and Andrea Dorkin (ph) with their crusade against pornography. And it's ironic, because for all that they've gotten a lot of attention on that issue, they've really had almost no success in changing the law in their direction.

But in fact, Katherine McKinnon when she was a student at Yale wrote a paper and then a book called Sexual Harassment of Working Women that completely revolutionized sexual harassment law. Before McKinnon came along, some women did sue for sexual harassment -- women who said they got fired because they wouldn't put out, as it were. And these -- these cases, they lost. They lost their cases because the judges by and large said: "well this kind of thing, it's just personal between an employer and an employee. It's not discrimination."

McKinnon came along and said: "no, this is the very essence of discrimination" -- that sexual harassment is something that happens to women traditionally and -- and it is a clear form of discrimination. In large part because of her efforts, as well as several other mostly women lawyers, courts began to buy that interpretation -- that sexual harassment was a form of discrimination. And that's where the root of the law comes from.

GROSS: As you said before, the way this was interpreted was that given the relative power of men and women in the workplace, consensual sex among a man and a woman who worked together is a myth.

TOOBIN: Well see -- see -- McKinnon's ideas, I think, were extremely revolutionary and terrific up to a point. But she took her analysis a step farther. She basically said that men and women are in such a state of war in the workplace, and women are so powerless that the mere fact that men and women are having sex, even if the woman says she's consenting, she's not really consenting; that the idea of "consent" is a myth.

And there grew up a body of law, mostly not in courts, but in places like universities, in -- rules -- at employers saying that men and women could not sleep together if they worked together because there was this inherently unequal power relationship. And that's -- and that, to me, was an idea that really made very little sense.

GROSS: My guest is Jeffrey Toobin. His article on the history of sexual harassment law is in the new edition of the New Yorker. We'll talk more after a break. This is FRESH AIR.

My guest is Jeffrey Toobin. His article on the history of sexual harassment law is in the new edition of the New Yorker.

It seems to me that so many institutions have been so confused about how to behave on the subject of any kind of sexual relations between people who work there. You know, on the one hand you have those -- the old nepotism laws of not working with people who are -- who you're related to. You know, and then there's the sexual harassment laws. And on the other hand, we've seen so many marriages emerge from relationships that start in the workplace.

TOOBIN: I mean, you -- you can't separate this -- this sexual harassment story from the changes that were going on in society in the '60s and '70s, and on 'til today. I mean, the old line is a true one, you know: where else are you going to meet people? The fact is men and women who work together are going to wind up romantically entangled. By and large, in my view, that's a good thing, not a bad thing.

And yet, it still creates the potential both for abuse of the people involved and problems for other people who are sort of caught in the reverberations. But the idea that you're going to somehow regulate it out of existence is crazy to me.

GROSS: Now, the Equal Employment Opportunity Commission's first comprehensive guidelines on gender-based harassment defined it as "unwelcome sexual advances, request for sexual favors, and other verbal or physical conduct of a sexual nature." How has that been interpreted in the courts?

TOOBIN: Well that is -- there -- really, again, this is in large part McKinnon's work. There are two main kinds of sexual harassment that are recognized. The first is the one that the EEOC recognized in 1980, which is known as "quid pro quo" -- which is sort of "put out or get out." I think everyone sort of understands that one intuitively.

The second area is more controversial, which is known now as "hostile environment" sexual harassment, which means basically creating conditions that are so sexually charged and sexually oppressive that usually women can't do their work. You know, the most common evidence of this are things like, you know, nudie posters on walls, gross sexual humor. I think those are -- I think it's a legitimate form of sexual harassment. I think that sometimes people get too hung up on the sexuality of it, rather than on the discriminatory aspects of it.

GROSS: What do you mean?

TOOBIN: Well, judges in -- in interpreting "hostile environment," have tended to require that the environment be highly sexual. It has to have sort of dirty words about sex. It has to be pictures of sex. When in fact, I think, again focusing on what the law should really be about, is they should -- judges should worry less about the sexual content than can women do their jobs? There have been terrible cases -- I write about a story in Atlantic City where a woman was not allowed to supervise men who -- who treated her with disrespect; who didn't get the training that she needed; who didn't -- who wasn't allowed to supervise people like male supervisors.

She sued for sexual harassment. I think she should have won, but the judge said: "no, well, it wasn't really sexual." There was nothing -- there were no sort of nudie pictures. That, to me, misses the point of why we have discrimination law. It shouldn't be about regulating sex. It should be about protecting women from discrimination.

GROSS: What do you think the impact of the Anita Hill/Clarence Thomas hearings were on sexual harassment law?

TOOBIN: Well, it was -- it was the earthquake of sexual harassment law. And people who were involved in the field talk about it, you know, as if it were sort of the public coming out party of the sexual harassment issue.

I think in retrospect, there -- there -- it had a number of unfortunate consequences. The first is, you have to remember the political context. Anita Hill came forward with her accusations that Terence Thomas said these sort of gross things to her, and asked her out on dates several times. I mean those, in a nutshell, were her accusations -- and I don't mean to belittle them in any way.

The Republicans who were Thomas' defenders kind of had two choices in which way to go with these accusations. They could have said: "you know what? Maybe he did this, but that's not sexual harassment." Or the course they did take was: "well, anyone who did this is a sick man and a lunatic and a sexual harasser, and Clarence Thomas is none of those things so we're going to attack Anita Hill and say these events simply did not take place."

I think the consequence of that was that Anita Hill's accusations became known to the public as the paradigmatic example of sexual harassment. This is what sexual harassment is: when bosses ask you out on a date and talk dirty to you. In fact, I think that's a very close question whether that is sexual harassment.

I think it was certainly better not said. It was certainly inappropriate, if in fact Thomas did this. But I'm not sure Anita Hill was a victim of sexual harassment herself, certainly as a legal matter. And I think Hill's experience and the public experience of it created the impression that sexual harassment, again, was all about sex -- talking about sex, asking people out. When in fact, I'm not sure Anita Hill was discriminated against at all in her workplace.

GROSS: Do you mean like if you examine the consequences of this behavior on Anita Hill's career, you don't see anything that was damaging?

TOOBIN: I don't know. I mean, there was never a trial on that issue. I think both sides would have had good arguments. I mean, Anita Hill said that she found it difficult to work. She couldn't concentrate on her job at times. But Thomas' defenders could point out that this was extremely intermittent behavior; that she did all of her work as assigned; that she received promotions. There was a -- that she received good job ratings. Thomas recommended her to the professorship that she got immediately afterwards.

I think she would certainly have a very tough case on the issue of damages. I'm not sure on the issue of liability.

GROSS: But didn't -- didn't she say that she felt she had to leave Washington and leave the work she'd been doing to get away from him?

TOOBIN: You know, it's interesting. In preparation for writing this article, I read her book. And that's -- that's part of what she said. But I mean, she also said that she was ready to move on. She didn't like living in Washington that much. And, you know, she certainly landed on her feet. She got a -- she got a law professorship. I'm not sure. I mean, as I say, I think she may have -- she may have had a case, but it was far from, to me anyway, a very -- a clear or overwhelming one.

GROSS: Is anybody raising the question that if there was, in fact, a sexual relationship between Bill Clinton and Monica Lewinsky that it might have been sexual harassment?

TOOBIN: I haven't heard that, although you do hear a lot of code words for sexual harassment in the discussion. You hear that, you know, there was an unequal power and that, you know, she was -- she's just a girl and she just had no choice in the matter and she's so powerless and he's so powerful. I mean, those are -- those are sexual harassment code words.

I have not heard people say that she is -- is formally a victim. I've heard people say that if a relationship did take place, it was a very bad idea on both of their parts -- a sentiment with which I heartily concur. But I don't think -- it -- the relationship resonates to me as sexual harassment.

Again, it's important -- I mean, in this, you know, very fast-moving scandal, the amount we don't know about their relationship, starting with if there really was one, really is a lot bigger than what we do know about the relationship.

GROSS: My guest is Jeffrey Toobin. His article on the history of sexual harassment law is in the new edition of the New Yorker. Toobin is a staff writer at the magazine and a legal analyst for ABC-TV. He'll be back in the second half of the show.

I'm Terry Gross and this is FRESH AIR.

This is FRESH AIR. I'm Terry Gross.

Back with Jeffrey Toobin. We're talking about his article in the new edition of the New Yorker on the history of sexual harassment law and how that relates to the Paula Jones lawsuit and the Monica Lewinsky scandal.

You write in your New Yorker article that you think the Anita Hill/Clarence Thomas case may have made the Paula Jones case inevitable. What do you mean by that?

TOOBIN: Well, it -- what lives on in memory from the Anita Hill/Clarence Thomas case were the kind of gross sexual terms that Thomas used. I mean, everybody remembers "Long Dong Silver" and whether there was a pubic hair on his Coke. I mean, that is -- that lives on in memory of what -- what Thomas is alleged to have done. And that is sort of the public memory of -- of what sexual harassment really is.

By having this sort of purely sexual overture, if it took place, as the chief memory of this case, it again created the impression that sexual harassment was all about passes that superiors made at subordinates, rather than any discrimination that subordinates may have suffered.

What you have in the Paula Jones case is a accusation more or less exclusively that Clinton made a pass at Paula Jones, which was -- which was, according to her, declined. And then very thin, if nonexistent accusations, of any harm that Paula Jones suffered for it. I mean, you have a case that is solely about a man behaving badly. And that, I think, is not the direction that sexual harassment law really should have gone.

GROSS: Well, does the law presume that a woman has to have suffered discrimination on the job? Or, does the law say that an untoward and unwelcome sexual advance is enough of a problem to warrant legal action?

TOOBIN: It -- the law's not entirely clear on it. The -- if you were making a claim under the "hostile environment" branch of the law, a -- a sexual overture that made it -- that was so gross that made it impossible for the woman to do her job subsequently, that might be enough, and that presumably is more or less what Paula Jones is claiming. Usually, there's a requirement of some sort of harm being done -- being done on the job. But again, this varies somewhat.

Also I think it's important to recognize that, you know, Title VII court cases about sexual harassment law are not the only place where sexual harassment law is relevant. Companies, universities, even the military have set up these elaborate structures that essentially have the force of law that -- about sexual harassment.

And there, clearly, a mere sexual advance -- even a reciprocated sexual advance -- can be the cause of enormous penalties in the personal life and professional life of a -- of a supervisor.

GROSS: You write that some of the most thoughtful and original work in the field of sexual harassment is going on now at Yale -- work by a law professor named Vickie Schultz (ph), who soon will be publishing an article. You say she's "reconceptualizing" sexual harassment. Can you tell us what you know?

TOOBIN: Well, it's funny. Vickie Schultz is 40 years old and she comes from a generation kind of after the pioneers in sexual harassment law. And I think what -- what her work is trying to do is sort of recognize that there is this world of consensual sexual relations that does not need regulation; that you need to focus on actual discrimination in the workplace.

And her big complaint is that sexual harassment law is both too narrow and too broad. I mean, it's too broad because it brings in some of these sexual -- some of these consensual relations that don't belong in courtrooms. But it's too narrow because it doesn't consider what she calls "job segregation" in the workplace; that there are so many jobs that are inherently female, the way the society is currently organized, that women only get these jobs. And so many jobs that are inherently male, the way jobs are allocated now -- that sort of sex segregation is a much bigger problem to her than sort of whether people are sleeping together. And I think that's a much more mature, reasonable, and in the long term, better for women approach than sort of policing people's bedrooms.

GROSS: You -- you write that she says that harassment law doesn't necessarily promote women's empowerment or equality as workers. It sometimes appeals to judges to protect women's sexual virtue; their delicate sensibilities.

TOOBIN: See, that's one of the problems that I think the Anita Hill case really created; that -- this sort of woman as victims of male sexuality. That you know, sort of, the male -- the men are course and men are aggressors. And women are delicate flowers who can't, you know, hear about pubic hairs on Coke cans and can't, you know, hear about pornographic movies without getting the vapors.

And you know, I just -- I think that, you know, in the real world there are some cases where women are so constantly abused by this kind of talk that it does make it impossible to do their job. But there is also such a thing as office banter, and a certain amount of crudity that goes on in the real world, that I think by focusing on that, is patronizing to women.

And you know, there shouldn't be lawsuits about, you know, occasionally stray banter or even, you know, consensual sex between people in the workplace, but should focus on what people, you know, are really being allowed to do in the job.

GROSS: Jeffrey, since you've been offering so much of your analysis on the sexual harassment laws, I'm wondering what you think if, say, the CEO of a company that a woman works for calls her into the office, drops his pants, and says "kiss it." Should there be, in your opinion, any kind of penalty for that?

TOOBIN: Well, I mean, yes -- I think -- I think, you know, the boss should be told at least, I mean at a minimum, in no uncertain terms by -- through the chain of command, if this -- you know, this woman, you know, complaints about it, that, you know, you can't do that. And that's totally inappropriate behavior.

You know, I think in order to determine whether a lawsuit would -- should follow from that, you'd have to look at what happened to the woman. You know, did -- what happened to her career? Did it stall? Did it end? Was she fired? Was she demoted? Was she denied promotions?

Or did things -- did things go on as in the past? Did she rise to the level she deserved to rise to? And -- and was there any impact on her career? I mean, I do think that, you know, this kind of behavior is terrible and should be discouraged. I don't think lawsuits are necessarily the answer to every time men behave badly.

GROSS: Why not?

TOOBIN: Well, because I just think law is such a crude tool, and it is so expensive and so haphazard in whether it works or whether it's not. I think, you know, a world in which men and women relate to each other on the basis of lawsuits is just destined for failure. And also, I mean, it's worth remembering, people without power in the workplace by and large lack power in courtrooms also. I mean, they don't have the lawyers. They don't have the resources to file these cases.

And if you're going to throw all your eggs in the basket of filing lawsuits, I just think it's a -- it's destined for failure.

GROSS: Of course, if you argue that it shouldn't happen in the courts -- it should be personnel policy -- that could be pretty haphazard, too.

TOOBIN: Well, I mean, you know, I -- I'm not saying that any of these solutions is perfect. I mean, I think if the CEO is such a pig that he's dropping his pants in the -- in front of work -- in front of women he works with, then the company's going to have a lot of problems.

I -- you know, I hope that, you know, we're going to live in a society that's sufficiently civilized that people who drop their pants, you know, don't get promoted to CEO. I mean, that is, you know -- interpersonal skills should be part of how -- how you interact. I mean, should be part of how you get ahead.

Now, I'm not so naive as to think that, you know, we're going to be able to, you know, stop all of that kind of behavior from taking place, but I think if we're going to rely on Title VII law to police it, that's not gonna be -- that's gonna be an answer that's satisfactory in very more than a tiny handful of cases.

GROSS: My guest is Jeffrey Toobin. His article on the history of sexual harassment law is in the new edition of the New Yorker. We'll talk more after a break.

This is FRESH AIR.

Jeffrey Toobin is my guest -- legal analyst for ABC-TV News and a staff writer for the New Yorker. He has a piece in the new edition of the New Yorker on the history of sexual harassment law.

Now the Paula Jones case is proceeding through the court system, whereas the Monica Lewinsky is being handled by -- the Bill Clinton-Monica Lewinsky story is being handled by the special prosecutor Kenneth Starr.

TOOBIN: Correct.

GROSS: Is there a different way of approaching sexual questions, sexual harassment questions, in the office of the special prosecutor than there is in the court?

TOOBIN: I think they have very different mandates. Kenneth Starr is obligated and allowed to investigate one thing and one thing only, which is: did a crime occur? And whatever sexual harassment is, it is certainly not a crime. And what Starr's jurisdiction includes is: did Bill Clinton obstruct justice -- tell Monica Lewinsky to lie in her deposition in the Paula Jones case? And, presumably, did Clinton himself lie in that deposition?

Those issues are appropriately, I think, under Starr's purview. He's not, I think, going to be investigating whether Clinton himself -- what -- you know, engaged in sexual harassment. That's just not within his jurisdiction nor should it be.

GROSS: You said sexual harassment isn't a crime. I'm a little confused, 'cause I figure sexual harassment is against the law, and therefore if you are a sexual harasser, you've committed a crime.

TOOBIN: To me, crimes are that which are against the criminal law; that which can get you thrown in jail. Sexual harassment can violate civil laws that can subject you to money damages, but that's not a crime. There's lots of bad stuff you can do that can get you in a heck of a lot of trouble, but that's still not a crime. And I'd include sexual harassment in that category.

GROSS: Can you explain something that I found a little confusing? The judge in the Paula Jones case has said that Monica Lewinsky's testimony is -- is not material to the case, and therefore will not be included in the case. And this was something that Kenneth Starr wanted. Can you explain that?

TOOBIN: Well, those are -- there are a couple of different ideas. What Starr asked for was a stay -- a -- to put on hold all discovery in the case; stop all discovery in the civil case so that his criminal investigation could proceed unimpeded.

Judge Susan Webber Wright did not grant exactly what Starr wanted. She said depositions, discovery could go forward in every area except Monica Lewinsky. She said Monica Lewinsky and all subjects related to her were going to be off-limits in the -- in the Clinton trial -- in the Paula Jones/Clinton trial.

That's somewhat different.

GROSS: So, what impact does that have on the possible charges of perjury or suborning perjury against President Clinton? There's a rule that permits prosecution for perjury or subornation of perjury only if the false testimony was material to the case in which the testimony was given. So, if he pushed for a lie that would relate to the Paula Jones case, but it's no longer material to the Paula Jones case because the judge said she won't hear any testimony from Monica Lewinsky, what does that do to the possible charge or perjury or subornation of perjury?

TOOBIN: Personally, I don't think it does anything at all. I think he could still go forward with those cases. The argument, as you make it, is that since the Lewinsky issue is not material to the Paula Jones case anymore, any lie on that subject would not be material. I think there are two main problems with that argument.

First of all, if, let's say, you wanted to prosecute Bill Clinton for perjury about Monica Lewinsky and his deposition in the Paula Jones case, when he made that statement, Judge Wright had not made her ruling yet. So, it was material at the time he made it, and that should be, I think, the relevant concern of the court system.

Also, if you look at Judge Wright's ruling on excluding Lewinsky from the Paula Jones case, she didn't say it wasn't material. She said it was possibly too prejudicial. It would take too much time. It would interfere with the Starr investigation. That's not exactly like saying it's not material.

So I think ultimately, if Starr has a case to make against Clinton on this subject, he won't be hung up on the issue of materiality. But you know, you never know how a judge is going to rule on something like that.

GROSS: You have experience with a independent counsel, not only through covering it, but you worked for Lawrence Walsh when he was the independent prosecutor for the Iran-Contra investigation. So can you just share with us some of your thoughts on this very controversial position?

TOOBIN: I sit and I watch Ken Starr and I think, you know: what is it with these guys? I mean, why can't they -- I mean, I think he's fallen victim to some of the things that -- that Judge Walsh did, you know, in his seven-year investigation. You know, I worked for Walsh for what I thought was a pretty long time, which was 2.5 years. That was barely a quarter of -- I mean, barely a third of his investigation.

I think there becomes this compulsion to nail down every single piece of evidence; to close every possible avenue of investigation. That is simply unnatural in the criminal process. You know, after I left Judge Walsh, I became an Assistant U.S. Attorney in Brooklyn, New York, and I was just an assistant -- a federal prosecutor like hundreds of others in the United States.

And what you do as a federal prosecutor is you look at a entire potpourri of crime in your district. I mean, there's never a shortage of business. And you and your supervisors basically decide, well, how much time are we going to devote to this investigation? How much resources are we going to put into that?

And you have to make judgments based on a wide variety of factors, some having to do with the case before you, but some not. And I think this unnatural focus on a single investigation, which the independent counsel breeds, leads to a distortion of the time and energy that -- that people devote to any single case. I mean, with Judge Walsh, the investigation went on for so long that, because the statute of limitations is five years for most all federal crimes, basically the only crime that Judge Walsh could investigate by the end of his investigation was obstructing his own investigation.

That, to me, is not the way law enforcement should work. Starr is -- is heading right this way, towards -- towards that kind of length and expense. I don't -- I just -- I think that the law has to be dramatically re-cast, and investigators have to show some judgment in knowing when to stop.

GROSS: What have been the most difficult parts for you covering the Paula Jones-Monica Lewinsky-Bill Clinton stories?

TOOBIN: That's an easy one: the absence of facts; the absence of sort of a clear set of facts on what, you know, on what -- on where we can make judgments. I mean, if you look at what is known through news leaks, through investigative reporting, through relatively unreliable means. And if you look at what's known through reliable means, it's a tremendous imbalance in this case -- more than any other news story in which I've covered.

I mean, we -- we -- and I'm guilty of this to a certain extent. I mean, we talk confidently about, you know, whether Ken Starr will prosecute Bill Clinton for perjury in his deposition in the Paula Jones case. We don't know what he said. And in perjury, the precise words are of enormous importance.

Dealing with the absence of facts like that is a -- is a terrible handicap for journalists, and I think people who listen to what we say really have to listen with care about what's speculation and what's -- and what's grounded on what's actually known.

GROSS: There -- there are a lot of stories now in which the whole country and all the press fixate on the story. And so even if the press isn't necessarily functioning as a literal pack, traveling on the bus together, everybody's on the same case. And so, we're certainly in one of those stories now. What are you trying to do so that you're not just kind of repeating the same thing everybody else is doing?

TOOBIN: Well, I think one of the things I try to do is a piece like I did in the New Yorker, which is, you know, the history of sexual harassment and what is sexual harassment law is obviously related to this story, but it is sort of off the -- off the direct Monica-Paula-Bill story of the moment.

But I have to say, I mean I think the press is -- it's good that we engage in self-flagellation a lot and then, oh, you know, isn't it terrible that we're a pack. You know, I'm sorry. The President of the United States is -- is accused of gross sexual misconduct, lying about it -- I think that's a great story. I think it's really interesting. I think it's -- it's rich.

It's got a spectacular cast of characters, including Linda Tripp and Susan Carpenter McMillan (ph) and Bob Bennett and Donovan Campbell -- Paula Jones, you know, lawyer -- and the Rutherford Institute, which is this right-wing organization that's -- that's backing Paula Jones.

You know, I don't make any apologies for being interested in this story. And I -- I just -- I think the press is moving in a pack because they know a good story when they see it.

GROSS: Well Jeffrey Toobin, I want to thank you very much for talking with us.

TOOBIN: Thanks.

GROSS: Jeffrey Toobin's article on the history of sexual harassment law is published in the new edition of the New Yorker. Toobin is a staff writer at the magazine and a legal analyst for ABC-TV.

Coming up, Maureen Corrigan reviews Toni Morrison's new novel.

This is FRESH AIR.

Dateline: Terry Gross, Philadelphia
Guest: Jeffrey Toobin
High: Legal correspondent for ABC News and staff writer for the New Yorker, Jeffrey Toobin. He'll talk with Terry Gross about sexual harassment and the law, and the charges against Bill Clinton in the Paul Jones lawsuit. Toobin's article about it appears in the February 2, 1998 issue of the New Yorker.
Spec: Sexual Harassment; Lawsuits; Paula Jones; Politics; Government
Please note, this is not the final feed of record
Copy: Content and programming copyright 1998 WHYY, Inc. All rights reserved. Transcribed by FDCH, Inc. under license from WHYY, Inc. Formatting copyright 1998 FDCH, Inc. All rights reserved. No quotes from the materials contained herein may be used in any media without attribution to WHYY, Inc. This transcript may not be reproduced in whole or in part without prior written permission.
End-Story: The Trouble with Sex
Show: FRESH AIR
Date: FEBRUARY 02, 1998
Time: 12:00
Tran: 020202np.217
Type: FEATURE
Head: Paradise
Sect: News; Domestic
Time: 12:55

TERRY GROSS, HOST: Nobel-prizewinning author Toni Morrison has just published a new novel called "Paradise," which she says represents the final installment in a three-book trilogy begun with "Beloved" in 1987 and followed by "Jazz" in 1992.

Book critic Maureen Corrigan says that the trilogy is marked not only by Morrison's astonishingly lyric use of language, but also by some of the weaknesses of her world view.

MAUREEN CORRIGAN, FRESH AIR COMMENTATOR: Time magazine recently ran a flattering cover story about Toni Morrison and her new novel Paradise. The headline of the story, however, was an ironic testament to the dumbing down of America. It read: "The Sound and Fury of Toni Morrison." Clearly, the editor's intention was to pay homage to Morrison by invoking the title of a great novel written by one of her literary muses, William Faulkner.

But of course, Faulkner himself lifted that title from Shakespeare, specifically from Macbeth's speech about a tale "told by an idiot full of sound and fury, signifying nothing" -- not exactly the most complimentary lines to apply to Morrison and her work. Surely, I thought, one of those ex-English major editors at Time should have known the Shakespearian allusion and killed that headline.

Now, though, after reading Paradise, that Time headline doesn't seem like such a big gaffe after all. Certainly, Morrison is no idiot and there is a grandness to her writing that commands deserved attention. Like the Shakespeare-poaching Faulkner, she aims for the big effect, borrowing biblical language and intermixing it with down-home slang to imbue her novels with the booming voice of epic American literature.

When her plots match the immensity of that voice, the effect is miraculous, as in her 1987 masterpiece Beloved. But when her plots are too slight to warrant all that majestic rhetoric, Morrison comes off as top-lofty and pompous, like she did in her disappointing 1992 novel Jazz. And, I'm afraid, as she does here in Paradise.

All the sound and fury Morrison conjures up in Paradise certainly doesn't signify nothing. It just doesn't end up signifying nearly as much as it should. Paradise begins on an evil day in 1976, when nine men from an all-black town in Oklahoma, named Ruby, get it into their heads that a group of women living on their own in a nearby self-styled convent are really a coven of witches responsible for all the town's troubles. The men organize a shooting party and murder the women.

After this grisly opening, Paradise roams around in time, looking back to Ruby's distant origins in 1890, when a group of black families decided to journey together through Oklahoma in search of land. Here is a taste of Morrison's evocative description of that pilgrimage.

"All their belongings strapped to their backs or riding on their heads; young ones time-sharing shoes. Raggedy as sauerkraut, they dreamed of clean clothes with buttons, shirts with both sleeves."

Ruby eventually becomes a male-dominated oasis from racism. With no other house around for miles, except the convent -- a female oasis from men. She devotes separate chapters to each of the convent's inhabitants, among them Seneca, a rootless foster child, and Mavis, an abused wife who accidentally killed two of her children.

All of these disparate stories, however, tend to diminish rather than fortify the total narrative effect of Paradise. The important question Morrison is exploring here is: who gets to define and inhabit Paradise?

Unfortunately, though, the belief in a mystical black female essentialism -- a sense of genetic superiority that Stanley Crouch and other critics have argued undermines Morrison's writing, allows her a reflex answer here. Paradise, or at least heavenly moral authority, belongs exclusively to women.

In this novel, they raise the dead, enlighten the living, and suffer emotional and physical martyrdom at the hands of their men. After their mass murder, the convent dwellers even manage to return to Earth as avenging Amazon spirits, tricked out in fatigues.

Despite the many glorious passages that distinguish Paradise, Morrison's insistence on her heroine's divine election by right of their race and their double-X chromosomes grows wearisome. In her next novel, I long for her trademark goddesses to rub shoulders with some dusky Lady Macbeths.

GROSS: Maureen Corrigan teaches literature at Georgetown University.

Dateline: Maureen Corrigan; Terry Gross, Philadelphia
Guest:
High: Book critic Maureen Corrigan reviews "Paradise" the new novel by Toni Morrison.
Spec: Books; Authors; Noble Laureates; Paradise; Toni Morrison
Please note, this is not the final feed of record
Copy: Content and programming copyright 1998 WHYY, Inc. All rights reserved. Transcribed by FDCH, Inc. under license from WHYY, Inc. Formatting copyright 1998 FDCH, Inc. All rights reserved. No quotes from the materials contained herein may be used in any media without attribution to WHYY, Inc. This transcript may not be reproduced in whole or in part without prior written permission.
End-Story: Paradise
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