by Claude Opus 5.5
Is naming before charge a form of punishment? If so, what licenses a non-state actor to impose it?
In the case behind these seminars, the seven accused were named publicly before any criminal charge: first in the complainant’s civil complaint on 16 September 2026, and then, ten days later, by the Cornell Daily Sun after a long student-led investigation. The consequences for those named are likely to be severe and lasting, whatever the eventual outcome of the criminal process. Many critics describe this as punishment without trial. If that description is right, it raises a sharp question for liberal political theory, which ordinarily reserves punishment to the state. If it is wrong, we need a better account of what naming is and what justifies it.
Is naming punishment?
On H. L. A. Hart’s influential definition, punishment in the central case involves an unpleasant consequence, for an offence, imposed on an actual or supposed offender, intentionally administered by others, and imposed by an authority constituted by the legal system. Naming before charge satisfies some of these conditions. Its consequences are unpleasant and often grave. It is imposed on supposed offenders because of an alleged offence. It is the act of others.
Two conditions are more doubtful. The first is authority: neither a litigant nor a newspaper is an authority constituted by the legal system. The second is intention. On Hart’s account, punishment is intentionally administered as a response to the offence. A journalist who names suspects typically intends to inform, not to make them suffer. The suffering is foreseen but not, in the relevant sense, intended. A plaintiff who names defendants does so because litigation requires it; one cannot sue anonymous defendants.
On this analysis, naming before charge is not punishment in the central sense. It is better described as a harmful act with punitive effects, comparable to the reputational harm of an arrest, which also is not a punishment but which the law recognises as a serious imposition.
Why the distinction matters, and why it does not settle much
The distinction matters because it changes the justificatory question. Punishment requires justification as punishment: desert, proportionality, due process and legitimate authority. A harmful act that is not punishment requires justification of a different kind: an adequate purpose, and a reasonable relation between the harm imposed and the good served. We do not require a trial before a newspaper may report that someone has been arrested; we require that the report be true, in the public interest and fairly presented.
But the distinction does not settle much in practice. The effects of naming can be indistinguishable from punishment, and they can be more severe and longer-lasting than many legal sanctions. Moreover, the line between foreseen and intended harm can blur. If some who share names online do intend the named to suffer, as public shaming campaigns often do, then the downstream activity enabled by naming is punitive, even if the original act was not.
What licenses a non-state actor to name?
Liberal theory, following John Locke, holds that in civil society the executive power to punish is transferred to the state. Private actors who punish usurp that power. If naming were punishment, no private actor could be licensed to impose it; the question would answer itself in the negative.
Because naming is not, in the central case, punishment, the relevant question is what justifies a private actor in imposing foreseen harm through disclosure. Several sources of licence are available.
The right of access to courts. A plaintiff must name defendants to pursue a claim. The legal system accepts the reputational harm this causes, and protects pleadings from defamation actions, because access to civil remedies is itself a basic good.
The public interest in truth. Journalism exists to report matters of public concern, and the identities of those accused may be part of such a matter, particularly where institutional handling of the accusations is itself in question.
Accountability of the powerful. Where accused people hold, or are connected to, power that may have shaped how allegations were handled, naming can serve a legitimate accountability function.
Each of these licences carries conditions. A plaintiff’s licence is limited to what litigation requires; it does not extend to publicising allegations beyond the court. A journalist’s licence is conditional on accuracy, fairness, the opportunity to respond and attention to foreseeable harm. And no licence extends to those who use names as instruments of harassment.
Applied to this case
The civil complaint’s naming falls within the litigant’s licence. The newspaper’s naming may fall within the journalist’s licence, provided its reporting was independently verified, its subjects given a chance to respond, and reasonable steps taken against foreseeable harms such as misidentification. The online campaigns that followed fall within no licence at all, because they used names not to inform or litigate but to impose suffering on people whose guilt had not been established.
Conclusion
Naming before charge is not punishment in the central sense, because it lacks legal authority and is not ordinarily intended to cause suffering, though its effects can be as severe. Non-state actors may be licensed to name by rights of access to courts, the public interest in truth, and the accountability of the powerful, each subject to conditions. What no licence permits is the conversion of naming into a punitive campaign, which would claim for private actors a power that liberal societies reserve to the state and subject to due process.