[Blacklisting, as described here is a rare process but provides lessons and thoughts about co-worker or interpersonal ethics. Sometimes the better way can be elucidated by studying the opposite of the better way.]

Blacklisting and Justice: A Commentary

Summary:

Blacklisting, as considered here, is a seriously damaging process where someone, judged to be a transgressor, is treated poorly, denied opportunities and suffers a loss of reputation. In this essay, this process is analyzed and evaluated in terms of the principles of justice and due process.

In theory, any individual, for any reason, even without prior approval of the relevant community, can blacklist someone. But everyone should decide if a significant transgression has actually occurred, and if the blacklisting punishment fits the transgression. The blacklisting process can involve vigilantism, harassment, bullying, excluding, appeal to mob rule and other inappropriate behaviors. Is rehabilitation a goal, or is the sole purpose to exact vengeance through mean spirited actions? Has the alleged transgressor been properly notified and given a chance? Has a remedy been suggested? Blacklisters may have injuries and just concerns, but some may have inappropriate motivations. Many arguments for justifying blacklisting, such as tradition, are not acceptable. While there must be a way for injured individuals to get justice, blacklisting is very difficult to justify.

(4/1/2024)

1. Introduction

Blacklisting, as a process varies somewhat, but as addressed here, it is a process where someone is judged to be a transgressor, and then treated poorly, excluded, harassed and bullied with a consequent blunting of their opportunities and reputation. Theoretically, any person can call for the blacklisting of any other person, and the expectation is for all others to honor the blacklisting. It can be initiated without the consensus approval of the relevant community or even without convincing evidence of a significant transgression. Anyone assisting the blacklisted person might then blacklisted as well. Threatening others to participate is a major problematic part of maintaining blacklisting. Often, the blacklisting stays in force until it is lifted by the blacklister (Kuhar 2008, 2009, 2011, 2020).

While blacklisters ae usually people who believe they are injured and in the right, this essay will critically examine blacklisting from the perspective of justice and due process, and to comment on whether it can be justified or not.

Some historical examples of blacklisting are well known. One occurred when Hollywood actors and executives were investigated by the House Un-American Activities Committee who sought to eliminate communism. Another was the McCarthyism of the about the same time. Most feel that this era is an embarrassment in terms of the process and its effects (Perlman, also the Miller Center https://millercenter.org/the-presidency/educational-resources/age-of-eisenhower/mcarthyism-red-scare. A description of a type of blacklisting process is found in Kuhar (2020 on pp 10-13 ).

Not all forms of negative judgment and exclusion would be considered blacklisting. For example, suppose there is an inexperienced or untrained person involved in a specific professional activity such as peer review. Leaving this person out of the process could be protective rather than damaging, and it is not blacklisting. Efforts to select the most competent colleagues for special assignments occurs perhaps in every profession (D’Andrea and O’Dwyer 2017, Travis 2009, Rosenstock 2016). Another example might involve a colleague who repeatedly violates rules and policies and is considered a problem. Using standard practices prescribed by human resource departments (documentation of errors and training) are effective ways to deal with this. Blacklisting would not be appropriate.

Sometimes a de facto blacklisting occurs but is not proper. Whistleblowing sometimes results in a social reaction that is effectively blacklisting.  But it is accepted that whistleblowers need to be protected (Joy 2010, Gunsalus 1998a,b, Gadlin 1998). The right action must be taken in spite of possible contrary emotions.

2.  Blacklisting and a search for justice.

Justice is a reasonable frame work within which to examine blacklisting. Assuming it is a search for justice, then the way blacklisting is carried out should reflect its purpose. If it is to get justice, satisfaction and amends, then blacklisting can be like the law where there is due process, amends for a wrong, perhaps a plan for rehabilitation, and where the expected amends reflect the seriousness of the transgression.  Then the focus is on justice, amends, appropriate penalty and even rehabilitation, rather than solely on punishment, and righteous vengeance.

3.  Some questions for consideration.

Given the serious nature of the blacklisting discussed here, consider the following situations and questions.

a.  Is it appropriate to blacklist someone to prevent them from disclosing a crime or some wrongdoing of the blacklister? This is blacklisting to block justice and prevent exposing a wrongdoing. Whistleblowing should be protected as noted above.

b.  Given the serious impact of the blacklisting process, is it acceptable to blacklist someone for a minor insult or some other minor transgression? It is fundamental that punishment must fit the crime.

c.   Is it acceptable to blacklist someone who repeats something negative about somebody, even if the negative thing is already widely known, perhaps even in national newspapers and on the internet?

d.  Is it proper to blacklist someone without first contacting them and offering them a chance to make amends for the transgression? Is it a search for justice or for vengeance only? If the alleged transgressor has not been informed and offered ways to make amends, then it is like being found guilty and sentenced without knowing about it or having representation.

e.  Is any aspect of blacklisting aimed at rehabilitation? Laws in many countries and states consider rehabilitation rather than only punishment.

f.        Is blacklisting someone who is simply associated with the alleged transgressor acceptable?  For example, can a colleague or friend be threatened with blacklisting, even if they have nothing to do with the alleged transgression?

g.  What if the blacklisting of someone seriously damages others, even indirectly? Aren’t the rights of innocent bystanders to be protected?

h.  Is it acceptable to blacklist someone because they are simply disliked? It is unjustifiable to damage someone on the basis of simple dislike alone. Everyone’s likes and dislikes are not the same and can be whimsically different.

i.        Is a blacklisting succeeding because of the power of and fear of the blacklister rather than because of its cause? Coercion and threats are part of the process described here.

j.        Is blacklisting a game? Is there some simple task, such as making recordings that will halt the blacklisting?  If that is so, it seems trivial and then why bother with blacklisting.  A game with destructive consequences is no game.

These examples and questions describe situations where a process like blacklisting should not be honored.

4.      Can addressing transgressions include due process?

Blacklisting begins with some act judged to be a transgression, which can be many things. It could be a serious problem where the authorities should be involved. It can be a serious breach of interpersonal ethics, something damaging to others, or on the other hand, it could simply be a minor insult, even one made privately, with little or no impact.

Given that due process is an essential part of the justice process, the first thing is for the relevant community to evaluate the alleged transgression before actions are taken. What are the facts? Is there unbiased evidence for what is claimed? Is the alleged transgression serious and significant? Can the transgression be amended and resolved by a simple request for an apology and amends?

If it is clear that a serious transgression has occurred, then a consideration of next steps is warranted. If it is not clear that a reasonable transgression happened, then no one from the community should be expected to honor or support a blacklisting. A “reasonable” transgression is one that is worth a community effort that could be hurtful.  Even though blacklisting may be started by an individual, it is a community effort and joint action when it takes place. This involvement of a responsible community underscores the need for a careful ethical decision of when to accept and how to handle a transgression. Individuals in the community must be responsible and courageous. A concern is that community recruitment in the process could lead to excessively emotional and mob-like behavior. Without colleagues to carry out the blacklisting, there is no blacklisting.

Lack of communication with the blacklisted can be a problem. It is important for the alleged transgressor to understand what has happened so that a formulation of justice can be worked out. It seems required for the injured person who wants justice, to initiate contact with the alleged transgressor and explain the problem in an understandable way. Alleged transgressors are not mind readers and justice requires communication. Avoiding this step is like putting someone on trial without their knowing it.

Of course, if one unjustly damages or hurts another, then an apology is due immediately.

5.  The punishment must fit the crime

A fundamental principle of justice is that the punishment must fit the crime (proportionality). This is usually considered part of the eighth amendment (Walen, 2016, Wertheimer, 1975), and all western countries acknowledge it. Injured are vulnerable to become overly passionate blacklisters and carry out excessively punishing acts. But, what is an appropriate punishment; what exactly is it and how long should it last?

6.  Avoiding the use of blacklisting.

Blacklisting can become unwieldly and it has many problematic issues attached to it as described above and elsewhere (Kuhar 2008, 2009, 2011, 2020, Kuhar and Cross 2013). Amends for a transgression can be made, and there can be many ways to make amends. These include a simple apology, financial remuneration, public service, donating to the favorite charity of the offended, and others. Everyone deserves a second chance and the offended needs to be able to find a suitable and fair way to accept amends and move ahead.

Another approach is to restrict punishment to the general area where the infraction occurred. If there was a verbal insult, then a polite verbal apology would counteract any effects of the insult. If there was a professional misdeed, then making amends in that arena is reasonable as well.

A major problem is that the blacklisting process can easily break the law.  There are prohibitions against bullying, stalking, vigilantism, threats and coercion, and discrimination (examples: Civil Rights Act 1964, Rivara and Le Menestrel 2016). Yet, these actions are at the heart of the kind of blacklisting described here. This problem is a very important one.

It is likely that there are colleagues who have been damaging and hurtful to others, maybe intentionally and without good reason. Maybe they could be called sociopathic. These individuals may clearly be transgressors, but is blacklisting as described here really useful? It seems better to find corrective actions through supervisors, ethical groups and perhaps professional organizations. These are acceptable processes with due process and proper use of authorities.

7.  A curious and possibly contradictory situation.

Given what has been said above, the situation is a curious one.  It may be that, on the overall balance of the situation, the blacklisted one may be the least guilty, and the blacklisters more guilty of improper behavior. In such a case, it would be problematic for others to honor and go along with any kind of blacklisting. Courage could be a factor in not honoring the process (Kuhar 2011, Kuhar and Cross 2013). Courage is important and can be cultivated and developed (Kuhar 2013).

How does one handle or censure the blacklisters who are in the wrong? Depending on the situation, it can be difficult to hold them accountable for their actions. Supervisors and colleagues must play a role here.

8.  Can blacklisting be justified?

Blacklisters, for various reasons, may feel justified that their actions are correct and right.

 But, for the many reasons stated here, the actions are not justified.

Blacklisting often means breaking the law. It is taking the law into someone’s own hands (vigilantism). It is bullying, harassing, denying opportunities and more, which are illegal. It may promote a mob psychology where reasonable control is reduced or discarded. Is there a requirement that the alleged transgressor be adequately notified of the problem? Without the restraint of justice and due process, blacklisting can be used by the powerful and popular who are feared regardless of the justice of their position.  Finally, the motives of some blacklisters can be highly questionable; are they trying to avoid justice and embarrassment? A single person without community consensus or due process, can blacklist for any reason. Also, the findings that there is emotional damage to individuals accused of misconduct even if they are vindicated (Lubalin and Matheson 1999, Goodman 1997) emphasizes the importance of careful decisions about accusing and punishing.

Blacklisting can be a natural consequence of an expression of anger. While anger can provide energy for constructive actions, it can also lead to improper aggression. Obviously, everyone is responsible for the consequences of their anger. Programs for the management of anger have been developed.

What do we do with transgressors and problem colleagues? A discussion of such a situation is discussed in a recent book in Chapter 7 (Kuhar, 2020). Sometimes involving professional authorities is needed, and sometimes simple avoidance of such colleagues is best.  

Blacklisters have said in defense of blacklisting, that “Sometimes there is no other way.” It seems that could be true, but how often could that be true and under what circumstances? One can imagine a situation where someone has escaped justice because of lack of proof for some heinous crime, say a brutal rape, and then flaunts an admission of guilt, but they are now without risk because of the double jeopardy rule. It is automatic to want to punish such heinous behavior, especially when the crime was serious and repugnant, or in a similarly extreme situation.

Another reason given for justifying blacklisting is that it is a “tradition.” But this is a very weak argument. All kinds of behaviors have been “traditional” in some groups at certain times.  Consider segregation, apartheid, lynching, harassment, and depriving women and minorities of their rights. Various committees of the United Nations have made it clear that no custom or tradition can justify depriving someone of their rights (Reid 2013).  Just because it has been tradition for even a long time, it cannot be a justification for blacklisting behavior.  Problematic traditions must rightfully give way to the rules of law, fairness and justice.

Blacklisters can be very hurt individuals who need help, perhaps from the community. They should get the help they need, but excessive actions like blacklisting should not be supported. Justice and its associated processes provide an excellent framework for examining, evaluating, and remedying various alleged transgressions. For the many reasons discussed above, blacklisting cannot be justified.

References.

Civil Rights Act. (1964). Harassment | U.S. Equal Employment Opportunity Commission (eeoc.gov), Accessed on 4/1/2024.

D'Andrea, R. and O'Dwyer, J.P. (2017) Can editors save peer review from peer reviewers?

PLoS One.  Oct 9;12(10):e0186111. doi: 10.1371/journal.pone.0186111.

Gadlin, H. (1998) Can you whistle while you work? Sci Eng Ethics 4:65-69.

Goodman, B.  (1997) scientists Exonerated By ORI Report Lingering Wounds, The Scientist, June 9

Gunsalus, C.K. (1998a) How to Blow the Whistle and Still have a Career Afterwards. Sci Eng Ethics 4:51-64

Gunsalus, C.K. (1998b) Preventing the need for whistleblowing: practical advice for University administrators. Sci Eng Ethics 4:75-94

Joy, A.B. (2010) Whistleblower. Point Richmond Bay Tree Publishing. https://www.amyblockjoy.com/book/. Accessed on 4/1/2024.

Kuhar, M.J.  (2008)  On Blacklisting in Science. Sci Eng Ethics 14:301-303.  PMID 18668347

Kuhar, M.J. (2009) Blacklisting Among Scientists. Synapse 63:539-540.  PMID 19253401.

Kuhar, M.J. (2011) Collegial ethics: what, why and how. Drug Alcohol Depend. 119(3):235-8.

Kuhar, M.J. (2020) The Art and Ethics of Being a Good Colleague. Second Edition.  Amazon.

Kuhar, M.J. and Cross, D. (2013) Collegial ethics: supporting our colleagues. Sci Eng Ethics. 19(3):677-84. doi: 10.1007/s11948-012-9364-9.

Lubalin, J.S. and Matheson, J.L. (1999) The fallout: what happens to whistleblowers and those accused but exonerated of scientific misconduct. Sci Eng Ethics 5: 229-250. 

Miller Center. https://millercenter.org/the-presidency/educational-resources/age-of-eisenhower/mcarthyism-red-scare . Accessed on 4/1/2024.

Perlman, A.  Hollywood blacklist https://www.britannica.com/topic/Hollywood-blacklist. Accessed on 4/1/2024.

Protecting students on campus act of 2024. https://www.govinfo.gov/app/details/BILLS-118s3580is. Accessed on 4/1/2024.

Reid, G. (2013) The trouble with tradition. https://www.hrw.org/node/259925. Accessed on 4/1/2024.

Rivara, F. and Le Menestrel, S. (Eds) National Academies of Sciences, Engineering, and Medicine. (2016). Preventing Bullying Through Science, Policy, and Practice. Washington, DC: The National Academies Press. doi: 10.17226/23482.

Rosenstock, F.N. (2016) Blacklisting: The dirty side of travel nursing. Nephrol News Issues.  May;30(5):20, 23

Travis, J. (2009) Research funding. U.K. funder accused of 'blacklisting' repeatedly unsuccessful applicants. Science. Mar 27;323(5922):1657. doi: 10.1126/science.323.5922.1657a.

Walen, A. (Winter 2016 Edition), Edward N. Zalta (ed.) "Retributive Justice", The Stanford Encyclopedia of Philosophy, URL = https://plato.stanford.edu/archives/win2016/entries/justice-retributive/. Accessed on 4/1/2024.

Wertheimer, A. (1975) Should Punishment fit the crime? Social Theory and Practice Vol. 3, pp. 403-423