USA

Yes, Jeffrey Toobin still has supporters, but no real legal grounds

It’s true. Jeffrey Toobin still has supporters in rarified media halls despite reportedly unzipping his pants in front of his journalist colleagues on a Zoom call to pleasure himself.

But even the legal experts are siding with the Twitter mob, saying the star legal analyst for The New Yorker magazine and CNN has little chance of resuming his former duties if his bosses at the Conde Nast title and CNN choose to cut ties.

As critics like actress Rose McGowan and New York Post columnist Maureen Callahan have pointed out, some people who know and worked with Toobin at The New Yorker and CNN are still struggling with the notion that they could soon lose this respected legal analyst for what he describes as a “mistake,” even as the rest of the world declares his career over.

Supporters, including former colleagues inside The New Yorker, have told Media Ink that what he did showed bad judgment but was largely a victimless crime that only embarrassed himself, his family and to some extent the magazine. And while stupid, it was not in the realm of sexual misconduct a la Hollywood’s Harvey Weinstein and Les Moonves.

Some sympathizers have even bandied about ideas for their friend and colleague to gain sympathy by claiming that he’s a sex addict and then seeking out treatment. He could also argue that the pandemic had extended the definition of an office work place into the confines of his own home, some have said.

But according to employment lawyer Michael O’Neill, none of these lines of reasoning would hold up in a legal tug of war.

“The bottom line is that this type of behavior is so out of place in a work setting that the courts are not going to have a problem rejecting the ‘sex addict’ argument,” O’Neill said.

The victimless crime angle, O’Neill added, is besides the point. “If an employer chooses to consider masturbating in the workplace a terminable offense, courts are not going to do a ‘well who does it hurt?’ analysis. That is clearly the prerogative of the employer.”

He continues, “The other obvious point is that other employees cannot be expected to be exposed — no pun intended — to this by another employee. Indeed, employers are obligated to provide a workplace free of unwanted sexual content.”

Jonathan Sack at Sack & Sack adds that Toobin can also be canned simply for “jerking off on work time. Masturbating during work hours is not a part of his job function and please quote me.”

Toobin became the talk of the town this week when Vice reported that he was caught masturbating during a virtual “election simulation” he was participating in with top reporters from The New Yorker and radio station WNYC.

The 60-year-old Harvard alum has called it “an embarrassingly stupid mistake,” saying it he did not intent for his coworkers to see his personal business. “I thought I had muted the Zoom video,” he said.

The New Yorker, which has been sporting Toobin’s byline for 25 years, suspended him pending an investigation and he has taken “leave” from CNN.

Toobin’s fate now rests in the hands of The New Yorker’s editor-in-chief David Remnick, who joined the mag as a writer in the early ’90s around the same time as Toobin. It is a sticky situation for sure, since the two are social friends who live near one another on the Upper West Side.

If Toobin’s ultimately fired, he might still be able to make money in other ways, including by continuing to write books. He’s been cranking out bestsellers, including years for Penguin Random House.

Said O’Neill, “Toobin is a writer. If he writes good books, I think he’s going to continue to be able to get them published. I don’t think he will be on anybody’s masthead for a while, and at 60 years of age, maybe never.

But added, “As you know, time is the great healer.”

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