Revenge Is A Link Best Served Cold

Engraving by Gustave Doré illustrating the Erinyes, chthonic deities of vengeance and death (via Wikipedia/Wiki Commons)

I have been remiss in not writing about a recent debate in the Blawgosphere regarding the constitutionality of recent anti-revenge porn legislation, spearheaded by Professor Mary Anne Franks of the University of Miami School of Law. Given the theme of this post, I leave it to the reader to “Google it yourself” to find out the historical background to the criminalization of revenge porn movement and mainstream media coverage.

What I’m more interested in for present purposes, is the developing story concerning the lack of “dissenting opinions” and critiques of the Franks Model of Revenge Porn Criminalization, highlighted over at the Law Prawf Collective known as “Concurring Opinions”. Read an interview of Franks on Revenge Porn over at Concurring Opinions here.

Enter Scott Greenfield, the author of Simple Justice who has painstakingly analyzed and critiqued the legislative model to criminalize revenge porn on a number of levels, specifically, highlighting the criminal law and First Amendment problems inherent in Franks’s model law.  Greenfield writes,

Should it [the Revenge Porn Law] be called the Carlos Danger, I mean, Anthony Weiner Law? Therein lies the problem.  While Eugene [Volokh] may say a law to prohibit the evil revenge porn could be drafted, this surely isn’t it. This law would create a morass of “he said, she said” problems at best, and criminalize conduct such as the revelation of misconduct by mayoral wannabes.

My personal disgust at the existence of revenge porn websites, and some hard consequences that follow the victims that they neither deserve, by dint of their having been complicit in the taking of naked photos, nor should suffer, make the need to prevent the harm real.

But the solution to very real problems can work its own wrongs, its own harms, as reflected in this model law that fails miserably to limit its prohibitions to only the culpable.  I hate revenge porn sites. I hate this law. Criminalizing conduct that causes a harm, but brings within its sweep the innocent as well, isn’t a solution.

And yet the movement to make a new crime is afoot and coming to a state near you.

There is much more to the story, however. Rather than summarize each of Scott’s incisive posts and, amusingly, Professor Franks’s hyperbolic comments, I commend readers to check out Scott’s related posts:

New York to Revenge Porn: Any Selfies of Lawprof Mary Anne Franks? (Update x2)

How Long Before the Safe Harbor, Article 230, Falls? (Update)

Mark Bennett, at Defending People, has also taken up the “Dissenting Opinons” banner. With the precision of a surgeon’s scalpel, Bennett cuts through the sophistry to expose the flaws in Franks’s single-issue advocacy and anti-revenge porn crusade in a post entitled: Six Ways to Screw Up Your Persuasive Writing , identifying the inherent flaws in pseudo-logic:

  1. Over­state your case: “[T]his kind of con­duct is an act of sex­ual use with­out con­sent, that is, a form of sex­ual abuse.“The thing about laws restrict­ing speech is that speech is treated dif­fer­ently than con­duct. Franks can stamp her foot and insist that revenge porn is sex­ual abuse, but say­ing it doesn’t make it so.

  2. Mis­state the law: “Right now, only two states, New Jer­sey and Cal­i­for­nia, cur­rently treat non-consensual pornog­ra­phy as a crime in itself.“Texas’s improper pho­tog­ra­phy statute treats non-consensual pornog­ra­phy as a crime in itself: “A per­son com­mits an offense if the person…transmits a visual image of another…without the other person’s con­sent; and…with intent to arouse or grat­ify the sex­ual desire of any per­son.“1 I’ll bet Franks missed other states’ statutes.

  3. Make hand­wav­ing gen­er­al­iza­tions: “The First Amend­ment doesn’t pro­tect threats, obscen­ity, child pornog­ra­phy, and a very long list of other things.“In fact, the list of other speech unpro­tected by the First Amend­ment is quite short.In her work­ing paper on the sub­ject (PDF), Franks lists the cat­e­gories of speech that she thinks are unpro­tected: “stalk­ing, harass­ment, true threats, child pornog­ra­phy, incite­ment, obscen­ity, fight­ing words, libel, fraud, expres­sion directly related to crim­i­nal con­duct, or dis­crim­i­na­tion.” For this she cites, in foot­note 31, U.S. v. Stevens.Stevens men­tions “obscenity…defamation…fraud…incitement…speech inte­gral to crim­i­nal con­duct,” and child pornog­ra­phy. Stevens does not men­tion “harass­ment,” nor does it men­tion dis­crim­i­na­tion men­tioned in the con­text of unpro­tected speech, and much dis­crim­i­na­tory speech is clearly pro­tected.2 I don’t believe that this law professor’s mis­rep­re­sen­ta­tion of Supreme Court First-Amendment prece­dent is neg­li­gent.There are argu­ments that other cat­e­gories of speech—for exam­ple, harass­ment and vio­la­tions of privacy—should be unpro­tected; these argu­ments have never been accepted by the U.S. Supreme Court. In order to uphold Franks’s pro­posed statute, the Supreme Court would have to cre­ate a new cat­e­gory of unpro­tected speech—speech viola­tive of pri­vacy. I’m not say­ing it couldn’t hap­pen, but it hasn’t hap­pened yet, and the last time the Court had an oppor­tu­nity to cre­ate a new cat­e­gory of unpro­tected speech, in U.S. v. Stevens, it declined.

  4. Demo­nize dis­agree­ment: “I think resis­tance to these laws can arise from a vari­ety of fac­tors. Some peo­ple – includ­ing some lawyers, much to my sur­prise – are just une­d­u­cated about the First Amend­ment and really seem to think that it pro­tects all forms of expres­sion.… But then there’s a whole cat­e­gory of peo­ple who aren’t con­fused at all – let’s call this the ‘threat­ened sex­ist’ cat­e­gory.“So if you don’t agree with Franks, you are either igno­rant or a threat­ened sex­ist.3 I know I am sup­posed to be impressed by Franks’s CV, but the inabil­ity to see the other side of the argu­ment except in con­de­scend­ing or offen­sive terms—is usu­ally the sign of a second-rate mind and a third-rate lawyer. She must be a really hard worker.

  5. Use false analo­gies: “Pre­sum­ably these peo­ple also believe that if a woman has sex with one man, she has given that man the right to invite all of his friends into the bed­room to have sex with her too.“Non­sense unwor­thy of response. The basic prob­lem here, I sus­pect, is that for pur­poses of her polit­i­cal cru­sade, Franks doesn’t want speech to be dif­fer­ent from con­duct, but it is different.

  6. Lie: “One New York lawyer/blogger was so freaked out by the law I wrote that he wrote an entire post about it that didn’t con­tain a sin­gle argu­ment against it – only the incred­i­bly juve­nile and taste­less insin­u­a­tion that I must be work­ing on this issue because I was a vic­tim of this con­duct myself.“This being the Inter­net, you can read the post to which she’s passive-aggressively refer­ring here, and judge for your­self the truth of her description.

I have strong feel­ings about pro­tect­ing kids. I have strong feel­ings about pro­tect­ing women from abuse. Those strong feel­ings are trumped by my strong feel­ings about the First Amend­ment, as they should be—even odi­ous speech needs protection—but I’m will­ing to con­sider argu­ments for restrict­ing this par­tic­u­larly odi­ous speech.

Mark’s post above should be mandatory reading in any law school legal writing curriculum, as should his follow-up scholarly dissensus called: “Are Statutes Criminalizing Revenge Porn Constitutional?” . With footnotes!

The fact remains, revenge porn is odious. The point is, criminalizing revenge porn is dubious on a number of fronts; the most telling on free speech grounds. Using the sledgehammer of criminal law to crack a tort law nut is a typical knee-jerk reaction to jerks on the internet. Mind you, the Court of Appeal for Ontario did recently recognize the invasion of privacy tort of intrusion upon seclusion in Jones v. Tsige, 2012 ONCA 32 (CanLII),  so it’s not as though victims of revenge porn have no legal remedy, even in Ontario, but that’s a debate for another time.

What really concerns me is the strange lesser ranking and indexing of Scott’s posts on Google, which he writes about in his post:  Stuff About Google I Don’t Understand:

Shortly after publishing this post, where Franks is named in the title, I searched Google to see what, if anything, else had been written on the subject. My post was there in the results, on the first page, about midway down. After Kaimipono Wenger posted the faux interview of Franks atConcurring Opinions, I heard from commenter “AP” who told me the weird story of how his comment to Wenger’s post included a link back to mine.  He did what any normal person would do, cut and pasted the link into the comment.  And yet, it somehow morphed:

AP – October 10, 2013

Sorry Mary Anne but Scott Greenfield’s post was filled with many arguments against your law. People should take a look for themselves here: http://blog.simplejustice.com/2013/10/08/new-york-to-revenge-porn-any-selfies-of-lawprof-mary-anne-franks/

Tricky stuff. Note how the  URL is blog.simplejustice.com?  Except the URL here is blog.simplejustice.us, and not .com.  The implication, since it would be impossible for the link to change on its own, is that somebody went in there and altered the link to kill it.  Another commenter there, ClarkB, reposted the link noting the error. AP tried to post some additional comments, but they were never approved.

So this amounted to a curious, but ultimately uneventful, attempt to conceal the existence of a dispute. Frankly, Co-Op has no duty to be fair to anyone else, including me, and if they want to put on a play about the glory of one of their own, so be it. Concealing disagreement is a time-honored tradition of academics, and this happened on their turf. I have mine. They have theirs. That’s how stuff happens.

What Scott considers to be par for the course in legal academia as “concealing disagreement”, is what is known as “link vandalism”. this is but one of a plethora of black hat SEO tactics to dissemble, manipulate, or confuse an online opponent, by hijacking or misdirecting any links to the source. Here’s the Wikipedia definition:

Link vandalism

Adding or changing internal or external links on a page to disruptive, irrelevant, or inappropriate targets while disguising them with mislabeling.

I won’t bore you with the details, but what first was used to combat comment spam, trolls, and bots, now appears to be a stealth tactic used by legal academics to squelch criticism and maintain the facade of consensus ad idem, contra mundum. For a more nefarious, albeit speculative, theory on why Scott’s posts are mysteriously ranked lower on Google searches, or do not appear at all, see, Jake DiMare’s comment here.

The French diplomat Talleyrand is credited to have once remarked: “La vengeance est un mets que l’on doit manger froid.” [Revenge is a dish that should be eaten cold.]  Le Dictionnaire Marabout des pensées des auteurs du monde entier. Verviers: Gérard & Co. 1969.

In the end, whether or not you believe that revenge porn should be criminalized, reasonable people will disagree.

However, if you want to persuade me, then stop trying to game the system. Instead, present your legal arguments, fairly characterize your dissenter’s arguments, and let the reader decide.

Sound arguments are like music to the rational mind.

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