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:
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:
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.
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.
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.
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.
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.
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:
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.
- Legal Developments in Revenge Porn: An Interview with Mary Anne Franks (concurringopinions.com)
- Do Revenge Porn Laws Actually Help Anyone? (motherboard.vice.com)
- New California ‘revenge porn’ law may miss some victims (cnn.com)
- New California ‘revenge porn’ law may miss some victims (forobserve.wordpress.com)
- “Revenge porn” banned in California (cbsnews.com)
- In defence of revenge porn (kernelmag.com)
- Post ‘revenge porn’ in California and you may go to jail (news.cnet.com)
- Should Government Ban Revenge Porn? (reason.com)
- New York Times Editorial Board: Calling for the Criminalization of Revenge Porn (concurringopinions.com)
- The 1st Amendment Is Not a Guardian of Taste (txwclp.org)