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Tiger Woods, Non-Disclosure Agreements, and Testimonial Injustice

black and white photo of lawyer holding pen and documents

In May 2023, a federal court judge ruled that Erica Herman, ex-girlfriend of Tiger Woods, must comply with the terms of the non-disclosure agreement she signed at the onset of their relationship. Among other things, the NDA required Herman to pursue any claims against Woods through arbitration rather than in court. Doing so would protect the reputation of the golf superstar.

Herman disputed the validity of the NDA in part because of a piece of federal legislation, the Speak Out Act, which went into effect in December 2022. The Act rendered unenforceable non-disclosure agreements regarding sexual assault and abuse that were entered into before the allegation was made. In short, this means that a person cannot be compelled in advance to remain silent about any sexual assault or misconduct that might occur while involved with the party with whom they have entered into the agreement. Herman alleged that her claims against Woods included accusations of sexual harassment. The judge ruled that there was insufficient evidence for that contention.

This case is among the first to be heard since the passing of the Speak Out Act. The judge was tasked with determining whether the behavior Woods exhibited toward Herman counted as sexual abuse. Herman claimed that Woods suddenly and unexpectedly ended their relationship and kicked her out of the home they lived in together. She alleged that he used the guise of a trip to the Bahamas to get her out of the house and then abandoned her at the airport where a representative of Woods informed her that the locks had been changed and she would never see Woods again. In her arguments for the court, Herman pointed out that she was an employee of Woods when their relationship began, and he abused his position of power repeatedly in sexual ways. Her lawyers argued that Woods, “made the availability of her housing conditional on her having a sexual relationship with a co-tenant.”

This case raises moral questions about NDAs in general and NDAs that apply to sexual assault and misconduct specifically. Those who argue in favor of NDAs emphasize that they are consensual — no one has to sign an NDA if they don’t want to. Once they have signed it, the parties to the agreement are bound by the ethics of making promises. Further, advocates argue that in cases like Woods’s, rich and powerful people can have their lives and reputations destroyed by con artists and jilted lovers who are willing to lie to make some money.

Others, however, argue that NDAs are, in general, unethical unless they are narrowly tailored to protect trade secrets or intellectual property. These agreements always involve an imbalance of power, and, as a result, fully free and informed consent is not possible. Signing such an agreement is often a condition of employment and is therefore inherently coercive. Not all contracts are genuine promises — a person ought to be released by the obligations of a contract if that contract is exploitative or otherwise unjust. Such agreements prevent people from behaving fully autonomously and these restrictions do not serve any compelling interests aside from protecting the reputation of the individual or institution. There are much more important considerations than reputations.

Many non-disclosure agreements constitute instances of what Miranda Fricker has called epistemic injustice. Specifically, such agreements are instances of what Fricker calls testimonial injustice which occurs “when prejudice causes a hearer to give a deflated level of credibility to a speaker’s word.” Humans are social creatures and being taken seriously as a knower is an important part of living a flourishing human life. When a person is exploited by an imbalance of power to sign away their ability to publicly testify to their experiences, they are removed unfairly from the community of knowers and forced to participate in conversations in private when there might be important reasons that those conversations should be public. The moral problems here go beyond potential future harms; NDAs threaten to violate human dignity. The use of power to diminish the impact or importance of a person’s testimony is to treat them as an unlikely source of knowledge and to treat them this way arbitrarily, simply by contractual stipulation, is to treat them as less of a person.

That said, there are often important consequences that hang in the balance. Consider the case of former president Donald Trump and porn star Stormy Daniels. Trump paid Daniels in exchange for her signature on a non-disclosure agreement promising not to reveal the details of their sexual relationship which occurred years earlier. Daniels later took Trump to court, claiming that the NDA was invalidated by the fact that Trump did not sign his name, but rather signed with a series of Xs so that he could retain plausible deniability about the whole affair. Regardless of the specifics of this particular contract, it is arguably a contract that never should have been taken seriously at all. If a person wants to share details about their relationship with a candidate for President of The United States, that should be information that should come to light without any legal consequences so that the voting public can make fully informed decisions when they vote. They can choose not to be influenced by such information or to treat it as unreliable if they think that is what the evidence warrants, but they shouldn’t be precluded from hearing it at all because a powerful person paid a subordinate to sign an NDA.

Movie producer and serial rapist Harvey Weinstein also used non-disclosure agreements to silence his victims. His case offers an important insight into the use of NDAs in sexual abuse cases — when restrictions are placed on who a victim can speak to about their abuse, sexual predators are allowed to use the same tactics with more and more victims and avoid getting caught. The people who broke their NDAs with Weinstein were pivotal in his ultimate conviction.

Fricker notes that in cases of epistemic injustice, harms are often caused by abuses of identity power. It is common for people to be taken less seriously as knowers when they are members of minority or historically oppressed groups. Patriarchy creates conditions of epistemic injustice for women and members of the LGBTQ community. This is of particular concern in cases of sexual abuse because the very people who are the most likely to be abused are the people who are least likely to be heard or taken seriously about that abuse. If an NDA is in place, they won’t be heard at all or will be heard only in arbitration.

Woods and his representatives are concerned about harm to his reputation if Herman’s case against him were to be heard in open court rather than resolved in arbitration. Crucial to their argument seem to be claims about fairness. What they don’t seem to recognize is the privileged position that Woods is in — the unique position to use expensive legal wrangling to force silence to begin with. In this way, Woods can behave in whatever way he would like and then effectively purchase silence from women. What others might take to be fair is the opportunity to dispute allegations in court.

The Speak Out Act is a step in the right direction, but this case highlights existing systemic problems with the court system when it comes to these kinds of matters. Some people have a very narrow view of what counts as sexual abuse or harassment, and in this case the judge appears to be one of them. This situation makes clear the need for further discussion about the nature of sexual misconduct – a discussion which requires conditions of free and open expression.

Privilege and Credibility: On the Muddled Message of ‘Barbarian’

photograph of stone basement floor at bottom of stairs

Although I avoid mentioning its largest twists, this column contains spoilers for some of “Barbarian”’s plot. Most recommend seeing the movie blind, so consider watching first before reading.

Barbarian may have been the biggest surprise horror hit of 2022. Against a budget of $4.5 million, the film earned over $45 million at the box office. The film marks writer and director Zach Cregger’s solo debut. He is known previously for his work with sketch comedy group the Whitest Kids U Know and for co-writing, co-directing, and starring in Miss March, a critical and commercial failure.  Barbarian also received high praise from critics. However, audience reactions seem more polarized. Out of 1022 ratings on Google, the film has an average score of 3.4 out of 5, with a majority of reviews at either 5 or 1 stars.

Horror often involves a split between what the film is ostensibly about and what it is metaphorically about. The monsters or killers we see on our scenes may be indirect ways of getting us to think about horrors in our actual world.

This is common with classics in the genre. The original Texas Chainsaw Massacre, a film literally about a family of cannibals in rural Texas killing a group of lost teenagers, is described by director Tobey Hooper as “being about meat” and is listed by PETA as an example of animal rights cinema. Night of the Living Dead, regarded as the first film to depict zombies as we now know them, is now viewed as offering commentary on race in the United States, even though this was not intended by director George A. Romero. Contemporary horror offers have no shortage of metaphorical content. One of my favorite horror films of recent years, Hereditary, tells a story about a family dealing with a devil worshiping cult. But its themes deal with mental illness, generational trauma, and other horrors we may inherit from our families. The Witch literally depicts a family in the colonial New England wilderness turning against one each other and dying one by one due to the influence of a witch. Yet it seems to tell a larger story about religiosity, isolation, paranoia, and community.

So, what is Barbarian literally about? The film opens with a young woman, Tess, arriving in town for a job interview at a house she had booked through AirBnB. However, she finds the house occupied. This other guest, Keith, has apparently also booked a stay. The house, residing in an abandoned Detroit neighborhood, hides some dangerous and horrific secrets. As the film progresses, Tess unearths these secrets.

But what is Barbarian really about? One theme emerges from the get-go. Tess is reluctant to enter the house after finding Keith there. When she enters to use the bathroom, she asks Keith if he could bring up proof of his reservation. Keith responds sarcastically, stating that she must want him to prove he’s not just a squatter. Later, Keith, trying to be hospitable, offers Tess something to drink while she searches for hotels. She turns down his offer, but he prepares her tea in the kitchen. Tess does not touch the tea.

Tess’ default posture towards men throughout the film is defensive. Her immediate reaction in a new situation is to imagine ways in which her environment or the people within it may threaten her, and how she can best defend herself against these threats. Her behavior reflects the reality faced by women.

The phrase “rape culture” was coined by feminists to describe a society where rape and sexual violence are somewhat normalized. There are many signs of rape culture, which include women having to live in fear of, and take defensive measures against, sexual violence. Men, for instance, may think nothing of walking to their car in an unlit parking lot after a late night at work. But, for women, this situation calls for an almost ritualistic check-list of defensive measures – scan for the exits and spots where someone may be hiding, have your keys in your hand, maybe in a hammer grip, stay on the phone with a friend or loved one so someone knows your whereabouts, or maybe even pre-dial 911 and press call if a stranger approaches you.

This reality is reflected in the differences in behavior of Barbarian’s male and female characters. When Tess first uncovers one of the house’s secrets, she quips “Nope!” and walks away, only returning after carefully and cleverly reducing the potential threat. However, when Tess describes this secret of the house to Keith, he is incredulous, failing to see why she would be disturbed. He later trots headlong into danger. The owner of the house, another male character, is incredibly excited to find its secrets – it’s free real estate! – and gleefully proceeds to measure the square footage of the area despite passing numerous warning signs along the way. Throughout the movie men ultimately fail to notice potential threats, and this leads to their downfall. But in doing so, they continually put Tess in harm’s way.

Barbarian also deals with issues of epistemic injustice. This occurs when someone wrongs another for failing to consider her as a potential source of knowledge. In one scene, after escaping from the horror in the basement, Tess is finally able to call the police. After they arrive, the officers are dismissive and incredulous towards her – she is dirty, haggard, excited, admits to not living in the area, lacks any proof of her identity, and lacks any way to prove that she ought to be in the house she is asking them to enter. They refuse to examine the house, prepare to leave, and accuse Tess of being high or drunk when she becomes angry.

This failure of the police officers to trust Tess may be seen as an instance of what Miranda Fricker calls “testimonial injustice.” Epistemic injustices of this sort occur when, due to biases, one fails to accept the testimony of others as credible.

The officers, seeing Tess’s physical condition and her location in a bad neighborhood, assume that she should not be believed. While drug use or mental instability would explain her condition, her testimony being accurate has equal explanatory power. Hence, by assuming the worst and not taking her testimony seriously, the officers treat Tess unjustly by refusing to recognize her as a credible bearer of knowledge.

Tess herself arguably commits testimonial injustice, though her conduct seem much more defensible. After a job interview where her prospective employer strongly cautions her against staying in that neighborhood, she returns to the rental home. As leaving her car to enter the house, a man apparently experiencing homelessness runs toward her screaming that she needs to leave. Tess, in a panic, narrowly manages to enter the house before he reaches the porch and locks the door. The man then proceeds to repeatedly bang his fists on the door, still shouting, before eventually departing.

This stranger was right – had Tess gotten in her car and left at that point, the story would have ended with her remaining unscathed. But she seems justified in viewing a strange man running towards her shouting as a threat, rather than as someone seeking to help her. It’s the fact that she lives in a world which compels her to act defensively to avoid threats which leads her to dismiss him.

This demonstrates why, ultimately, the message of Barbarian is muddled. At times, it seems to criticize its characters – Tess, the police – for failing to trust strangers.  In some of these interactions – finding Keith at the house, the homeless man shouting – skepticism is justified. Yet had Tess trusted these men, despite the red flags, she would have avoided danger.

One might be forgiven for thinking the message of the film has to do with being more trusting of others. However, in every scene where a woman trusts a strange man, they either fail her or actively seek to harm her. So, it becomes unclear what ultimate lesson Barbarian means to impart.

Perhaps Cregger’s point was to simply demonstrate some societal problems – that women must view men as threats, and that we may do others an injustice when we assume they are not credible. If that was Cregger’s goal, then he succeeded in a stylish, original, and technically impressive way. But if the goal was to say something deeper or more profound, then it is wholly unclear what that something was.

UFOs and Hume on Miracles

photograph of silhouetted figure shining flashlight at light source in the night sky

UFOs appear to be having a cultural moment. A Pentagon report laying out what U.S. intelligence agencies know about UFOs — or, to use the government’s preferred acronym, UAPs (unidentified aerial phenomena) — is expected at the beginning of June. A recent “60 Minutes” segment included interviews with two former Navy pilots who described their encounters with a UFO. The New Yorker ran a long piece about UFOs in its May 10th issue. And last week former Nevada senator Harry Reid penned a long reflection in The New York Times about his interest in the phenomenon.

It is relatively common to see UFOs, such as those tracked by Navy fighters’ infrared weapons cameras, described as “defying the laws of physics”; for example, flying at many times the speed of sound and then coming to an abrupt halt, without any visible means of propulsion. Being woefully ignorant about those laws, it is difficult for me to tell whether this is journalistic hyperbole or a claim to be taken literally. But if we do take it literally, then we can call on the great Scottish philosopher David Hume to help us decide what to believe.

Hume famously defined a “miracle” as a violation of a law of nature. For Hume, a law of nature obtains only when we have an extensive, and exceptionless, experience of a certain kind of phenomenon: for example, our extensive experience of human beings dying “establishes” the law that all human beings die. (As this example suggests, violations of laws of nature are not impossible or inconceivable; they are simply counterinstances to our extensive, exceptionless experience.) If UFOs really defy the laws of physics, then they perform miracles in the Humean sense.

Hume argued that no testimony — i.e., a person’s statement that something is true — can establish the existence of miracles. His argument can be summarized as follows:

1. The evidence against the existence of a miracle is as strong as it possibly could be.

A law of nature is established on the basis of experience, which is the only kind of evidence we can have for a causal proposition. And our experience is both extensive and exceptionless, so it furnishes evidence that is as strong as experiential evidence could be.

2. The evidence for the existence of a miracle from testimony, while perhaps very strong, is weaker than the evidence against the existence of a miracle.

Hume avers that it is always more probable that testimony is false — that the person giving the testimony “either deceive[s] or [has been] deceived” — than that a miracle has occurred. Put another way: to constitute stronger evidence than that which we have against the existence of a miracle, testimonial evidence for a miracle must be such that its falsehood would itself be a miracle — in fact, would itself be a greater miracle than that which the testimony is evidence for.  But for any given piece of testimony, there is always a non-miraculous possibility of its falsehood.

3. We ought to proportion our belief according to our evidence, and evidence for contradictory conclusions cancels out.

Hume here appeals to “evidentialism,” the commonsense idea that we ought to proportion our belief in a proposition to the evidence we have for it. In addition, he says that evidence for a proposition and evidence for its negation “destroy” each other.

4. Therefore, whenever our evidence for a miracle is based entirely on testimony, we ought to believe that it did not occur.

Since the evidence against the existence of a miracle is always stronger than testimonial evidence for it, when testimonial evidence is all the evidence we have for a miracle, we ought to believe that the miracle did not exist or did not occur.

We can now see how the argument can be applied to UFOs. If UFOs really perform miracles, then any testimonial evidence for the existence of UFOs is always weaker than the evidence against their existence. Therefore, we should reject the existence of UFOs if the only evidence we have for them is based on testimony.

It might be objected that we have non-testimonial evidence for UFOs, such as the infrared camera videos. However, these videos are by themselves difficult for most people to interpret or understand, as are most of the alleged photographs of UFOs. The layman must instead rely on the testimony of experts to interpret the videos or photographs for him or her. Thus, even when photographs or videos are held up as evidence of UFOs, it is really the testimony of experts, who provide authoritative interpretations of these materials, that is doing the evidentiary work. And this leads us back to Hume’s problem.

Of course, Hume’s argument is not without its many detractors; objections are legion. One objection revolves around what Hume says about the “Indian prince, who refused to believe the first relations concerning the effects of frost …” The Indian prince had an extensive, exceptionless experience of water in a liquid state. Frost is a counterinstance of the “law” that water is always liquid. Does it follow, then, that the Indian prince could not justifiably believe in frost on the basis of any testimony, no matter how strong? Hume’s response is that solid water is an experience that is not contrary to the prince’s experience, although it is also not conformable to it. The more general problem is that Hume needs to allow for progress in the sciences, including the revision of our understanding of the natural laws. Like many of Hume’s arguments, his argument about miracles set the agenda for much of the succeeding discussion, but left many questions unanswered.

Still, Hume’s argument against miracles is undeniably compelling. As applied to UFOs, the argument shows us the limits of testimony, however well-intentioned or authoritative.

Testimony, Conspiracy Theories, and Hume on Miracles

abstract painting of two faces without eyes facing away from one another

In his Enquiry Concerning Human Understanding, David Hume reports a local rumor from a town in Spain conveyed to him, with a healthy amount of skepticism, by a cardinal. The story was about a man who had undergone a rather miraculous recovery from an ailment. As Hume describes it,

“He had been seen, for so long a time, wanting a leg; but recovered that limb by the rubbing of holy oil upon the stump; and the cardinal assures us that he saw him with two legs.”

The townsfolk were all ardent believers in the miracle, and it was accepted by “all the canons of the church.” The story spread and was believed on the basis of testimony, and was able to pass and be sustained as easily as it was, in part, because of a shared trust among members of the community. Nevertheless, the cardinal himself gave no credence to the story. Despite the fact that many people were willing to testify to its truth, a story about such an event is just not the kind of thing that has any meaningful likelihood of being true. The cardinal “therefore concluded, like a just reasoner, that such an evidence carried falsehood upon the very face of it, and that a miracle, supported by any human testimony, was more properly a subject of derision than of argument.”

Hume relates other stories, common at the time he was writing, of people offering and accepting accounts of miracles. He argues that to adjudicate these matters, our evidence consists in our set of past observations. Miracles are violations of the laws of nature. When we consider whether we ought to believe in miracles on the basis of testimony, we must weigh our past observations of the workings of the laws of nature against our observations regarding the veracity of testimony. The former will always win. We will always have more evidence to support the idea that the laws of nature will remain constant than we will to support the belief in eyewitness testimony which reports that those laws have been broken. As Hume himself states, “the knavery and folly of men are such common phenomena, that I should rather believe the most extraordinary events to arise from their concurrence, than admit of so signal a violation of the laws of nature.”

Hume is not just reporting historical fact but is also prescient (though he might object to that characterization) when he says, “men, in all ages, have been so much imposed on by ridiculous stories of that kind.” More than 250 years later, we’re contending with elaborate conspiracies such as shape-shifting reptilian overlords, 5-G towers that transmit coronavirus, vaccines that implant microchips, and wild accusations of widespread voter fraud sufficient to change the outcome of the election. The Q-Anon conspiracy theory even has representation in the House of Representatives. Believers in this conspiracy think that a powerful cabal of pedophilic baby-eating democrats is secretly running the world, and a child-sex ring. A secret whistleblowing governmental agent — Q — is conveying all of this information to true patriots on internet chat rooms. Q-Anon spread in much the same way that the story about holy water being used to grow new limbs spread — through testimony.

Hume points out that the practice of coming to know things on the basis of testimony depends on certain enduring features of human nature.

“Were not the memory tenacious to a certain degree, had not men commonly an inclination to truth and a principle of probity; were they not sensible to shame, when detected in a falsehood: Were not these, I say, discovered by experience to be qualities, inherent in human nature, we should never repose the least confidence in human testimony. A man delirious, or noted for falsehood and villainy, has no manner of authority with us.”

Society couldn’t function if we couldn’t rely on testimonial evidence. The present political climate elicits feelings of impending existential dread — a sense that truth and meaning are bleeding off the page like amateur watercolor, leaving no visible boundaries. The characteristics that Hume describes are being worn down. We’ve been told not to rely on our memories; it is unpatriotic to pay too much attention to the past. There are no behaviors that should make anyone feel shame; to suggest that someone ought to feel ashamed for deceiving and misleading is to “cancel” that person. In an environment immersed in “alternative facts,” there is no inclination toward truth or “principle of probity.” It is little wonder that in this environment people favor the likelihood of the existence of liberal pedophilic cannibals over the likelihood that anthropogenic climate change is occurring.

With the possible exception of the lizard people who can transform into humans, these conspiracy theories aren’t violations of the laws of nature. That said, a similar kind of inductive argument is possible. Most of these conspiracy theories require a level of seamless complicity among many, many people, who then leave behind no compelling evidence. Election fraud conspiracies, for example, require complicity across states, political parties, and branches of government. So, we’re left with two broad options. Either every person played their role in this flawlessly, leaving behind no trace, or the theory is false, and it arose from “the knavery and folly” of human beings as has so often happened throughout human history. There is a much stronger inductive argument for the latter.

All of this has a moral component to it, but it is difficult to know exactly how to identify it. As Hume points out, humans have certain dispositions that incline them toward truth. On the other hand, they also have strong tendencies to believe nonsense, especially if that nonsense is coherent with what they already believed or might otherwise make them feel good. We could say that everyone ought to have higher epistemic standards, but ought implies can — it makes no sense to say that a person ought to use better methods to form their beliefs when their psychologies prevent them from having any control over such things. There may be no ultimate solution, but there might be some chance that things could improve. Making things better might not be a matter of changing individual minds, but, instead, altering the environments in which those minds are formed. Education should be a high priority and well-funded. We must have policies that reward honesty among public officials and there must be serious consequences when our public figures tell lies.