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I guess I missed it at the time because it’s on Forbes.com, which I try to avoid. But last April Danielle Citron wrote Debunking the First Amendment Myths Surrounding Revenge Porn Laws:
Disclosing someone’s nude image in violation of trust and confidence (often known as nonconsensual pornography or revenge porn) is a destructive invasion of privacy that can cause irreversible harm to a person’s physical and emotional well-being, professional reputation, and financial security. Lawmakers are rightfully paying attention. Seven states have criminalized the practice; 18 states have pending bills; Representative Jackie Speier has expressed interest in making it a federal crime.
Some object to criminalizing invasions of sexual privacy because free speech will be chilled. That’s why it is crucial to craft narrow statutes that only punish individuals who knowingly and maliciously invade another’s privacy and trust.
Citron and Franks disagree on this point: Franks’s model statute requires neither knowledge nor malice. It would punish people who disclose nude images if they “knew or should have known”—a negligence standard—that disclosure was nonconsensual.
The narrower the statute, the harder it is to prove, and proponents of criminalization want to make their crimes easier to prove.
Other features of anti-revenge porn laws can ensure that defendants have clear notice about what constitutes criminal activity and exclude innocent behavior and images related to matters of public interest.
That statute hasn’t been written yet. Mary Anne Franks’s model statute, for example, would capture the innocent behavior of sharing naked baby pictures.
Even so, some argue that revenge porn laws are doomed to fail because nonconsensual pornography does not fall within a category of unprotected speech. To criminalize revenge porn, they say, the Court would have to recognize it as new category of unprotected speech, which it would not do.
“Which it would not do” is a strawman. Nobody who knows First Amendment law knows that the Supreme Court will not recognize another category of unprotected speech. In U.S. v. Stevens, in fact, the Court wrote, “Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law.”
On the other hand, nobody who knows First Amendment law knows, as Citron pretends to know, that the Supreme Court will recognize another category of unprotected speech.
Another argument is that even if law could secure civil remedies for revenge porn, it could not impose criminal penalties because the First Amendment treats criminal and civil laws differently.
Below I will demonstrate conclusively that the First Amendment treats criminal and civil laws differently, and explain why.
These objections are unfounded and deserve serious attention lest they be taken seriously.
Oh, good. Serious attention to the objections. So that they won’t be taken seriously.
Let’s first address the argument that revenge porn laws are unconstitutional because they do not involve categorically unprotected speech like true threats. Advocates rely United States v. Stevens, which struck down a statute punishing depictions of animal cruelty distributed for commercial gain.
Yes, yes we do. That’d be the U.S. v. Stevens that said, “From 1791 to the present, however, the First Amendment has permitted restrictions upon the content of speech in a few limited areas, and has never included a freedom to disregard these traditional limitations” and then went on to list nine historic and traditional categories of unprotected speech.
In Stevens, the Court rejected the government’s argument that depictions of animal cruelty amounted to a new category of unprotected speech. As the Court explained, the First Amendment does not permit the government to prohibit speech just because it lacks value or because the “ad hoc calculus of costs and benefits tilts in a statute’s favor.” The Court explained that it lacks “freewheeling authority to declare new categories of speech outside the scope of the First Amendment.” The Court did not say that only speech falling within explicitly recognized categories (such as defamation, true threats, obscenity, imminent incitement of violence, and crime-facilitating speech) are proscribable. To the contrary, the Court specifically recognized that other forms of speech have “enjoyed less rigorous protection as a historical matter, even though they have not been recognized as such explicitly.”
In short, the Court said that it would have to recognize another category of unprotected speech to uphold the statute, and it declined to do so.
Disclosing private communications about purely private matters is just the sort of speech referred to in Stevens that has enjoyed less rigorous protection as a historical matter.
This is simply Citron’s position.
Here’s our first runin with the “disclosing private communications about purely private matters” theory of revenge-porn liability. The Supreme Court hasn’t said that disclosure of private communications as unprotected speech, or it would have listed “disclosure of private communications about purely private matters” as a category of unprotected speech in Stevens or Alvarez. That would make this argument easy.
Categories of unprotected speech are categories. Everything within them is unprotected. There is not protected defamation and unprotected defamation. There is not protected child porn and unprotected child porn. There are not protected true threats and unprotected true threats. All defamation, all child porn, and all true threats are unprotected and can be punished by the state.
Are all “disclosures of private communications about purely private matters” unprotected? If not, this is not a category.
Professor Neil M. Richards, whom Citron cites later in this article, writes that “when disclosure privacy conflicts with free expression, we should choose free expression, subject to a few limited exceptions.” Richards’s view does not support disclosures of private communications about purely private matters as a category of unprotected speech.
We do not need a new category of unprotected speech to square anti-revenge porn criminal laws with the First Amendment.
That’s true enough—we don’t need a new category; we just need the Supreme Court to recognize a historically unrecognized category of historically unprotected speech, something that it has shown itself reluctant to do: “Our decisions in Ferber and other cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”
Now for the cases establishing that precedent.
Smith v. Daily Mail, decided in 1979, addressed the constitutionality of a newspaper’s criminal conviction for publishing the name of a juvenile accused of murder. The Court laid down the now well-established rule that “if a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish the publication of the information, absent a need to further a state interest of the highest order.”
As you can tell from the name, it’s a civil case. The inference that Citron would have us draw from the quoted language is that there’s a different rule for truthful information about matters not of public concern. To draw that inference we would have to reason that the Supreme Court described this narrow rule because a broader rule would not be true. That would be fallacious. “Speech about matters of public significance is constitutionally protected, therefore speech about matters that are not of public concern is unprotected” demonstrates the logical fallacy of denying the antecedent.
The only Supreme Court cases that we can confidently depend on for the principle that speech about matters that are not of public concern is unprotected speech are Supreme Court cases saying that speech about matters of public concern is unprotected. We might guess from cases saying that things like speech about matters not of public concern are unprotected, but cases like Smith don’t get us anywhere close.
Ever since the Court has refused to adopt a bright-line rule precluding civil or criminal liability for truthful publications “invading ‘an area of privacy’ defined by the State.” Rather the Court has issued narrow decisions
The link is to The Florida Star v. B.J.F., which overturned a civil judgment against a newspaper for publishing the name of a rape victim in violation of a Florida civil statute. Again Citron implicitly denies the antecedent.
In The Florida Star the Court wrote, “We continue to believe that the sensitivity and significance of the interests presented in clashes between First Amendment and privacy rights counsel relying on limited principles that sweep no more broadly than the appropriate context of the instant case.” In other words, the Court will look at the law as applied to the facts and rule. That is how the Court’s civil First Amendment jurisprudence works. It is not how the Court’s criminal First Amendment jurisprudence works.
I’m a trench lawyer. I’m not an academic. I don’t write law review papers (haven’t for 20 years, at least). I write briefs and argue to courts in the face of fierce opposition. Citron’s arguments might be nice in academia, but they won’t stand up to litigation.
that specifically acknowledge that press freedom and privacy rights are both “plainly rooted in the traditions and significant concerns of the society.’”
So what? Christianity is also plainly rooted in the traditions and significant concerns of the society, but it doesn’t trump the First Amendment; nor does privacy. Again, Citron looks for substance in the white space.
Consider Bartnicki v. Vopper. There, an unidentified person intercepted and recorded a cell phone call between the president of a local teacher’s union and the union’s chief negotiator. During the call, one of the parties talked about “go[ing] to the homes” of school board members to “blow off their front porches.” A radio commentator, who received a copy of the intercepted call in his mailbox, broadcast the tape. The radio personality incurred civil penalties for publishing the cell phone conversation in violation of the Wiretap Act.
Bartnicki was an appeal of a civil case; such appeals are as-applied, rather than as-written, challenges to the law.
The Wiretap Act forbids the disclosure of intercepted communications. It is not a content-based restriction on speech. It does not favor one sort of speech over another; it is content-neutral. The standard for upholding a content-neutral restriction on speech is lower than that for upholding a content-based restriction like a revenge-porn statute. And still the Court struck the penalty in Bartnicki.
The Court characterized the wiretapping penalty as presenting a “conflict between interests of the highest order—on the one hand, the interest in the full and free dissemination of information concerning public issues, and, on the other hand, the interest in individual privacy and, more specifically, in fostering private speech.” For the Court, free speech interests appeared on both sides of the calculus. The Court recognized that “the disclosure of the contents of a private conversation can be an even greater intrusion on privacy than the interception itself.” The penalties were struck down because the private cell phone conversation about the union negotiations “unquestionably” involved a “matter of public concern.”
Once more Citron looks for validation in the gaps between the words. She wants Bartnicki, in which the First Amendment won over a content-neutral civil statute to stand for the proposition that the First Amendment might lose to a content-based criminal statute.
It doesn’t. It can’t.
Because the private call did not involve “trade secrets or domestic gossip or other information of purely private concern,” the privacy concerns vindicated by the Wiretap Act had to “give way” to “the interest in publishing matters of public importance.”
This is not a “because”; it is two separate thoughts. The entirety of the sentence that Citron quotes first is, “We need not decide whether that interest is strong enough to justify the application of § 2511(c) to disclosures of trade secrets or domestic gossip or other information of purely private concern” (my emphasis).
Try as I might, I cannot attribute Citron’s omission to anything other than intellectual dishonesty. Such dishonesty doesn’t get a real lawyer anywhere, when another real lawyer with a real client is getting paid real money to demolish his argument. Academia!
The state interest in protecting the privacy of communications is strong enough to justify regulation if the communications involve “purely private” matters, like nude images.
That’s not what Bartnicki v. Vopper says. In fact, Bartnicki v. Vopper explicitly says that it’s not saying that. The Supreme Court has expressly reserved the question of whether truthful publication of private matters unrelated to public affairs can be constitutionally proscribed.
Neil Richards has persuasively argued,
This is the argument from authority. It may be persuasive to Citron (or she may just be giving tummy rubs to a fellow prof who thanked her “for helpful comments and conversations” in the linked article (here’s a PDF). But “persuasive” is a low bar when you want to believe.
and lower courts have ruled,
I’m not sure which courts Citron is thinking of, but lower courts are not the Supreme Court. This issue is going to be decided there, and it’s a bold court that bucks Stevens and Alvarez on overbreadth challenges to content-based restrictions on speech. It’s a bolder court that recognizes a category of unprotected speech that the Supreme Court has not yet recognized.
a lower level of First Amendment scrutiny applies to the nonconsensual publication of “domestic gossip or other information of purely private concern.”
Read Richards’s article: he does not actually argue this. What he does (at pp. 377–79) is discuss the rule from Smith v. Daily Mail, reaffirmed in Bartnicki, that “If a newspaper lawfully obtains truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need…of the highest order.” From this rule he extracts, denying the antecedent, “A third exception under current law is that disclosures of private information that is not of legitimate concern to the public (or “newsworthy”) are entitled to a lower level of First Amendment protection.”
But Richards goes on to say: “[Lawprof Daniel] Solove relies on this exception when he argues that because the Supreme Court has hinted that speech on matters of private concern is less protected than other kinds of speech, the Court ‘has thus left open an area for the public-disclosure tort to thrive.’ This interpretation of the law probably overstates the vitality not only of the disclosure tort, but of disclosure-based theories of privacy more generally.” (Emphasis is mine.)
Richards notes, further, that “courts are reluctant to second-guess the views of individual citizens about what the legitimate topics of public debate really are. The power to declare facts or topics to be off limits to public discussion is in a very real sense the power to censor[.]” (Emphasis is mine.) With regard to “information of purely private concerns,” however, Richards concludes, “it is hard to imagine a category beyond the dissemination of videos of sexual or other intimate bodily activities that would satisfy this exception.”
The only two cases using the quoted language are Bartnicki and, from the California Supreme Court, DVD Copy Control Ass’n v. Bunner, which makes the weak denying-the-antecedent assertion that “Bartnicki implicitly acknowledges that a balancing of First Amendment interests against government interests in the trade secret context may yield a different result.”
Bunner was pre-Stevens. In Stevens the Court explicitly rejected a balancing test for determining whether speech was unprotected, finding “startling and dangerous” the Government’s proposition that “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.”
Appellate courts have affirmed the constitutionality of civil penalties under the wiretapping statute for the unwanted disclosures of private communications involving “purely private matters.”
Citron doesn’t identify the cases or appellate courts she’s talking about. The only post-Bartnicki case that I know of is Boehner v. McDermott, out of the D.C. Circuit. There one factor was that the rules of the ethics committee that Rep. McDermott served on barred him from disclosing an illegally made audio recording of Rep. Boehner; because of that, the court held, McDermott’s disclosure of the recording was not protected by the First Amendment.
The wiretapping statute is content-neutral, and civil appeals are as-applied challenges. What the appellate courts have done on as-applied challenges to content-neutral statutes says nothing about what they will do on an as-written challenges to a content-based statute, which is the sort of challenge that defendants would be well-advised to bring to a revenge-porn penal statute.
That said, as Richards writes, “there is a crucial distinction between breaking the law to obtain information and the innocent dissemination of news generated by that law-breaking.”
Along similar lines, lower courts have upheld claims for public disclosure of private fact in cases involving the nonconsensual publication of sex videos. In Michaels v. Internet Entertainment Group, Inc., an adult entertainment company obtained a copy of a sex video made by a celebrity couple, Bret Michaels and Pamela Anderson Lee. The court enjoined the publication of the sex tape because the public had no legitimate interest in graphic depictions of the “most intimate aspects of” a celebrity couple’s relationship. As the court explained, a video recording of two individuals engaged in sexual relations “represents the deepest possible intrusion into private affairs.”
Michaels is another civil case, with an as-applied challenge to the judgment. This time, though, the court is not even an appellate court but the U.S. District Court for the Central District of California, from 1998 and not cited approvingly by any court since. This case represents a judge’s personal opinion. Unfortunately, the case was not appealed, so we don’t know what the Supreme Court might have to say about it.
What’s the difference between an as-applied challenge and an as-written challenge? In the as-applied challenge the defendant (here, Internet Entertainment Group, Inc.) is arguing that its speech is constitutionally protected. In an as-written challenge the defendant is arguing that regardless of whether her speech is constitutionally protected, the statute punishes a substantial amount of constitutionally protected speech because of its content, and is void, which bars her prosecution.
Citron’s argument presumes that the outcome of the as-applied challenge in the civil case in a district court helps predict the outcome of the as-written challenge in a criminal case elsewhere. That is a stretch.
If there had been a criminal statute forbidding IEG’s conduct and IEG had been indicted, IEG could have made an as-written challenge to the statute, which would not have depended on IEG’s conduct but only on the language of the statute. The result might very well have been different.
These decisions support the constitutionality of efforts to criminalize revenge porn.
Nude photos and sex tapes are among the most private and intimate facts;
Generally though probably not universally true.
the public has no legitimate interest in seeing someone’s nude images without that person’s consent.
Citron is not saying that the public’s interest in seeing transgressive art photos is outweighed by the subjects’ right to privacy, but that such an interest is not legitimate. This is quite a blithe normative assertion. Never? Art photos? Anthony Weiner’s penis?
How about a legitimate interest in seeing someone’s non-nude images without that person’s consent? I think that we would agree that such an interest is often legitimate. Why is nudity magical?
Professor Richards makes the point repeatedly that the power to make this call—legitimate interest or not—is the power to censor.
A prurient interest in viewing someone’s private sexual activity does not change the nature of the public’s interest.
Did you know that “prurient” doesn’t mean merely sexual, but sleazy? So how about a sexual interest? Is sex legitimate? Is sexual interest legitimate?
It seems to me that the interest in titillation would, in a non-puritan society, be seen as legitimate. It might be insignificant compared to the subject’s interest in remaining private, but “no legitimate interest” is overselling the case.
On the other hand, the nonconsensual disclosure of a person’s nude images would assuredly chill private expression.
Without any expectation of privacy, victims would not share their naked images.
Sure they would: they have no legally recognized expectation of privacy now, and yet they share their naked images.
With an expectation of privacy, victims would be more inclined to engage in communications of a sexual nature.
Maybe. See above.
Such sharing may enhance intimacy among couples and the willingness to be forthright in other aspects of relationships.
I’m down with that.
The fear of public disclosure of private intimate communications would have a “chilling effect on private speech.”
First Amendment law is not concerned with private parties’ actions having a chilling effect on private speech, but rather with state action. The fear of harsh criticism of mediocre ideas can, like the fear of public disclosure of private communications, have a chilling effect on private speech, but we don’t look to the state to punish it with imprisonment.
In other words, if Jane’s speech chills John’s speech, that’s not a matter of First Amendment concern. If the state’s speech chills either Jane’s or John’s speech, it is.
When would victims’ privacy concerns have to cede to society’s interest in learning about matters of public importance? Recall that women revealed to the press that former Congressman Anthony Weiner had sent them sexually explicit photographs of himself via Twitter messages.
Ah, yes. There‘s Weiner.
His decision to send such messages sheds light on the soundness of his judgment. Unlike the typical revenge porn scenario involving private individuals whose affairs are not of broad public interest, the photos of Weiner are a matter of public import, and so their publication would be constitutionally protected.
I discuss the problem of the “in the public interest” exception at length here. TL;DR: it’s vague, and a defendant can’t rely on it when she wants to speak.
Who decides whether a disclosure is a Weiner situation? As Professor Richards says in the article that Citron found so persuasive, “The idea that courts should police what publications are of ‘legitimate concern to the public’ and which are not raises a serious risk of censorship.… [W]hile the line between public and private is easy to understand in the abstract, in practice it is very hard to draw with any confidence or predictability.… Giving a court the power to declare information ‘illegitimate’ under a malleable standard is to give that court the power to censor expression that it (or a jury) dislikes, and is at odds with modern commitments to the freedom of speech.” (My emphasis.)
Another way to understand the constitutionality of revenge porn statutes is through the lens of confidentiality law. Woodrow Hartzog persuasively
Lawyers know that calling an argument “persuasive” makes it less persuasive. Law profs should learn this.
contends that revenge porn is a “legally actionable breach of confidence.” As Neil Richards and Daniel Solove have argued, confidentiality regulations are less troubling from a First Amendment perspective because they penalize the breach of an assumed or implied duty rather than the injury caused by the publication of words. Instead of prohibiting a certain kind of speech, confidentiality law enforces express or implied promises and shared expectations.
The third link is to Cohen v. Cowles Media Co., in which the newspaper was held liable for breaching its duty of confidentiality to the plaintiff, who gave information to the newspaper under an explicit confidentiality agreement, only to see the newspaper publish it.
“Alex” asked here, “do the disclosure prohibitions in [Texas Code of Criminal Procedure article] 39.14(e) violate the First Amendment?” Cohen helps us with a framework to answer that question: since you wouldn’t even have the information but for the explicit confidentiality clause, the First Amendment isn’t violated by your revealing it.
Richards and Solove are right: treating revenge porn as a breach of confidence is a less-bad idea than treating it as a disclosure of private facts. Only the person breaching the confidence (the person who took the pictures, or the person who received them from the complainant who took them) is likely to be a party to the complainant’s confidence. So the class of people who could be prosecuted for the publication would be narrower (as Hartzog writes, “While romantic partners who receive explicit materials might be prohibited from further disclosure, websites and other third-party recipients are not bound by the same rules because they presumably have no relationship with the person depicted in the media”), and the state’s burden would be higher. The more difficult it is to prove a case under a penal statute restricting speech, the less likely the statute offends the First Amendment.
The more difficult it is to prove a case under a penal statute, the less authoritarian-minded people like the statute. So, because the class of people who could be prosecuted for the publication would be narrower and the state’s burden higher, the model revenge-porn-criminalization statute does not treat revenge porn as a breach of confidence.
I haven’t seen a revenge-porn-criminalization statute that treats revenge porn as a breach of confidence. They all seem to say that it’s a crime to disclose an image if, at the time of disclosure, the defendant knew or should have known that the complainant had not consented. For Cohen‘s reasoning to support a revenge-porn criminalization statute, the defendant would have to have received the image because of a shared understanding at that time that she would not disclose them outside of the relationship. This would be a high burden—appropriate to a criminal case—for the state, but not insurmountable.
There is, however, the RAV v. St. Paul problem: the Supreme Court wrote in RAV that a category of unprotected speech “may not be made the vehicle for content discrimination unrelated to [its] distinctively proscribable content.” Likewise, the Court would not likely allow a content-neutral rule (“breaches of confidentiality may be penalized”) to support a content-based restriction. If the state is going to outlaw breaches of confidentiality, it must outlaw breaches of confidentiality regardless of their content.
Since maybe three people will have gotten this far in this post, I will give more thought to a breach-of-confidence revenge-porn-criminalization statute and write a post on that.
Now for the view that civil revenge porn remedies might stand but that criminal penalties cannot because the First Amendment has different rules for them.
Alright! Let’s go!
Generally speaking, the First Amendment rules for tort remedies and criminal prosecutions are the same.
In the first sentence of this section Citron demonstrates that she doesn’t intend to prove her thesis: that the First Amendment has the same rules for criminal penalties as for civil penalties. “Generally” is a weasel word. Either the rules are the same, or they are different. If they are “generally” but not universally the same, then they are different. It would be
You can say that the rules are the same, but the procedures are different, and different procedures yield different results.
Tort judgments are reviewed after a jury has heard the facts and decided liability. Courts review them based on the particular facts. The question in a tort liability case is, “is this speech protected?”
Courts review penal statutes as-written, without regard to the facts. The question in a criminal case is, “regardless of whether this speech is protected, does this statute criminalize a substantial amount of protected speech, that is, speech not in a category of unprotected speech?”
Asking different questions yields different answers.
On the point, Eugene Volokh has said
Here comes another argument from authority. Volokh is not persuasive because he is Volokh; he is persuasive when he discusses the application of applicable Supreme Court opinions.
that the Court has “refused invitations to treat civil liability differently from criminal liability for First Amendment purposes.”
In civil cases, the plaintiff has convinced the judge that the speech is unprotected (in summary judgment proceedings) and has convinced the jury that a money judgment is appropriate, before the case gets to the Court of Appeals. In criminal cases, the defendant has been jailed before anyone has ever considered that his speech might be protected.
The Court has not acknowledged that it treats civil liability differently than criminal liability. Practically, it treats civil liability differently than criminal liability. In FCC v. Pacifica Foundation the Court strongly hinted that it would treat civil and criminal liability differently: “The statutes authorizing civil penalties incorporate § 1464, a criminal statute. But the validity of the civil sanctions is not linked to the validity of the criminal penalty.” If the validity of the civil sanctions and the validity of the criminal penalty are not linked, then they may be treated differently.
There are procedural differences, unacknowledged but obvious, between civil First Amendment procedure and criminal First Amendment procedure, and procedure is everything.
There are civil cases analogous to criminal cases in that the speaker may be punished for speech that has been defined up front. These are “prior restraint” cases.
There are civil cases analogous to criminal cases in that the penalty may be punitive rather than merely compensatory. These are punitive damages cases.
Both prior restraint cases and punitive damages cases are treated differently than ordinary tort liability cases.
In an e-mail exchange, he pointed to “New York Times Co. v. Sullivan, Garrison v. Louisiana,
New York Times Co. v. Sullivan was the 1964 case first applying the First Amendment to civil liability. Before that, tort liability was not considered state action. It was in Sullivan that the Court said, “What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel.”
Garrison v. Louisiana was another 1964 case, in which the Court applied Sullivan to a criminal defamation case. The court held that the state could not punish criminally what it could not punish civilly.
Read together, Sullivan and Garrison—from the earliest days of the First Amendment’s application to civil cases—say that the substantive law of defamation is the same in civil and criminal court.
Fourteen years later in FCC v. Pacifica, however, the Court suggested that the substantive law of indency might be different in civil and criminal court: “The statutes authorizing civil penalties incorporate § 1464, a criminal statute. But the validity of the civil sanctions is not linked to the validity of the criminal penalty.”
and the Court’s rejection of Justice Stevens’ proposal in the late 1970s to bar criminal prosecutions for obscenity.” In New York Times v. Sullivan, the Court explained, “What a State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law.” As the Court recognized, the treatment is the same though the threat of civil damage awards can be more inhibiting than the fear of criminal prosecution
That may be true when you’re dealing with corporations, but try convincing someone who is facing a felony conviction that the threat of civil damage awards is more inhibiting than the fear of criminal prosecution.
and civil defendants do not enjoy special protections that are available to criminal defendants, such as the requirement of proof beyond a reasonable doubt.
There is a reason that criminal defendants have protections that civil defendants don’t have: they are facing the power of the state. Even with those protections, criminal defendants are at a severe disadvantage. A criminal defendant doesn’t have the benefit of an anti-SLAPP statute, her adversary always has grossly more resources than she does, she cannot file a motion for summary judgment, and if she loses she loses much more than money: she loses her good name and her freedom.
You’d rather be prosecuted for speech than sued for speech? Not if you’re smart.
It’s worth noting Volokh’s view that “the vagueness doctrine may be more in play in criminal cases than in civil cases (compare FCC v. Pacifica Foundation and its stress on absence of criminal liability); a mens rea of recklessness or worse may be required for criminal liability in public concern libel cases (by analogy to Gertz v. Robert Welch’s holding about punitive damages).” In his view (and in mine): “I don’t think that the revenge porn statutes that I’ve seen suffer from vagueness problems.”
For the revenge porn statutes that I’ve seen not to suffer from vagueness problems, “in the public interest” would have to be “sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.” Is that what you’re saying, Professor Volokh?
Volokh hasn’t given much public attention to the constitutionality of specific proposed revenge-porn statutes; there is probably a reason for this. I wonder if Citron is transgressing by quoting his private e-mail.
More to the point, if the vagueness doctrine is “more in play in criminal cases than in civil cases,” then civil and criminal liability are treated differently, and we’re just haggling over the price.
So these two myths should be seen and understood for what they are: misleading and uninformed. If we are going to oppose revenge porn efforts, let’s be honest about why. Opponents may reject them on policy grounds. They can worry that it is a bad idea to criminalize revenge porn. They can insist it is no big deal, though I’d disagree as would the countless victims, advocacy groups like the Cyber Civil Rights Initiative and Without My Consent, and my colleague Mary Anne Franks. Let the discussions on the merits begin.
So this “debunking” should be seen and understood for what it is: fallacious and dishonest.
Let’s be honest about why we oppose revenge-porn-criminalization efforts. Because we are libertarians who oppose criminalization of more things generally. Because the term “revenge porn” means different things to different people, is slippery, and seems to grow every year. Because we think that civil penalties are better calibrated to address the harms of revenge porn.
Most importantly, though, because even though we might agree that there is revenge porn—the malicious disclosure of erotic pictures—that is worthy of condemnation and perhaps should be criminalizable, we also recognize that to uphold a revenge-porn criminalization statute the Court would have to either shoehorn it into an already-recognized category of unprotected speech or recognize a new category of unprotected speech. Franks and Citron have proposed, for example, that revenge porn be treated as obscenity (already-recognized category) or “purely private speech” (new category), either of which would allow the state to criminalize not only the distribution of revenge porn, but also the consensual creation of the images themselves.
Citron proposes that revenge porn could be criminalized as a breach of confidence. This might wire around the Stevens problem but create a RAV problem. We will be able to more meaningfully discuss that once we see a proposed statute treating revenge porn as a breach of confidence. Until then we cannot, as Citron suggests, “[l]et the discussions on the merits begin.”
P.S. “F**cking” is fisking. Sicko.Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (18.104.22.168) .)
In France if you print cartoons inciting discrimination and hatred against Muslims, you may be murdered by a band of armed thugs. This is censorship.
In France if you print cartoons inciting discrimination or hatred against Muslims, you may be arrested, tried by a court, and imprisoned for a year. Only if you resist can you be murdered by a band of armed thugs. This is civilization.Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (22.214.171.124) .)
Being of questionable character, she then quietly changed her model law, without conceding her initial model law was fundamentally flawed, or acknowledging that her detractors had a point, to add her “public interest” exception. This, she contended, cured all First Amendment problems, aside from all the others she continued to vehemently deny
Whoever intentionally discloses a photograph, film, videotape, recording, or any other reproduction of the image of another person whose intimate parts are exposed or who is engaged in an act of sexual contact without that person’s consent, under circumstances in which the person has a reasonable expectation of privacy, commits a crime. A person who has consented to the capture or possession of an image within the context of a private or confidential relationship retains a reasonable expectation of privacy with regard to disclosure beyond that relationship.
(a) Definitions: For the purposes of this section,
1) “disclose” means sell, manufacture, give, provide, lend, trade, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, advertise or offer.
2) “intimate parts” means the naked genitals, pubic area, buttocks, or female adult nipple of the person.
3) “sexual contact” means sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex.
1) This section shall not apply to lawful and common practices of law enforcement, reporting of unlawful activity, or legal proceedings.
2) This section shall not apply to situations involving voluntary exposure in public or commercial settings.
Franks acted pretty sure in November 2013 that that statute was defensible. Then she quietly changed it. Here is her model revenge-porn-criminalization statute from July 2014:
An actor may not knowingly disclose an image of another, identifiable person, whose intimate parts are exposed or who is engaged in a sexual act, when the actor knows or should have known that the depicted person has not consented to such disclosure.
A. Definitions. For the purposes of this section,
(1) “Disclose” includes transferring, publishing, distributing, or reproducing;
(2) “Image” includes a photograph, film, videotape, recording, digital, or other reproduction;
(3) “Intimate parts” means the naked genitals, pubic area, or female adult nipple of the person;
(4) “Sexual act” includes but is not limited to masturbation, genital, anal, or oral sex.
B. Exceptions. This section does not apply to
(1) Images involving voluntary exposure in public or commercial settings; or
(2) Disclosures made in the public interest, including but not limited to the reporting of unlawful conduct, or the lawful and common practices of law enforcement, criminal reporting, legal proceedings, or medical treatment.
I’ll bet Franks is really sure about this one. Trust her.Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (126.96.36.199) .)
Revenge-porn-criminalization mouthpiece Mary Anne Franks writes in her Guide for Legislators:
The law SHOULD contain … narrow exceptions for disclosures made in the public interest. Otherwise, individuals could be prosecuted … for recording and reporting unlawful activity, such as flashing.
Franks’s model statute “does not apply to”:
Disclosures made in the public interest, including but not limited to the reporting of unlawful conduct, or the lawful and common practices of law enforcement, criminal reporting, legal proceedings, or medical treatment.
A commenter here asked, “why isn’t it in the public interest for people to continue to engage in sharing harmless pictures of innocent kids?”
This raises questions, among them:
- When someone publishes something that is otherwise forbidden, who decides whether something is in the public interest?;
- What does it cost the speaker to get that decision;
- What is in the public interest, and what isn’t?; and
- What is the effect of the “public interest” exception on the chilling effect of the statute?
Suppose that Jane publishes something that offends John, and John calls the police. If the publication isn’t in the public interest, it is felonious. Who decides whether something is “in the public interest,” so that Jane is free, or is not, so that Jane is a convicted felon?
The cops could decide off the bat that Jane’s publication was “in the public interest,” and tell John to get a life. Or they could call…
The prosecutor, who could decline charges because Jane’s publication was “in the public interest,” or she could punt to…
The grand jury,1 which could no-bill Jane because her publication was “in the public interest,” or could true-bill her.
The judge doesn’t have the power to hear the case, decide that the publication was “in the public interest,” and dismiss the case over the prosecutor’s objection. Not, at least, until the State has rested its case at trial, when she can order a directed verdict. If she doesn’t, the case goes to…
The jury, which could acquit Jane if it had a reasonable doubt about whether the publication was “in the public interest.” If the jury doesn’t do so, Jane gets convicted. She may go to jail or prison, may be put on probation, or may make bail on appeal and go on to…
The court of appeals, which could rule that Jane’s publication was “in the public interest” as a matter of law. The Court of Criminal Appeals or the U.S. Supreme Court could do the same thing.
If the cops or the prosecutor decide that his speech was “in the public interest,” Jane might get off without being arrested, making bail, or getting a lawyer.
If the cops and the prosecutor both see her speech as not “in the public interest,” Jane will be cuffed and stuffed, have a public record made of her arrest, have to spend money getting out of jail, have to get a lawyer, have to take time off from her daily routine to go to court, and have to worry about the possibility of a conviction.
If, after she is charged, the charge is dismissed or she is acquitted she can petition for expunction, but this will cost her additional money and lawyer fees.
If she is convicted and appeals, the process keeps getting more expensive for her.
So what is Jane shooting for here? What does “in the public interest” mean? “The reporting of unlawful conduct” and “the lawful and common practices of law enforcement, criminal reporting, legal proceedings, or medical treatment,” sure. But not only that—the list in the model statute is explicitly non-exclusive: “including but not limited” to those things.
The commenter quoted above asked, “why isn’t it in the public interest for people to continue to engage in sharing harmless pictures of innocent kids?”. This is the wrong question. The right question is not whether the category of disclosure in which Jane is involved is generally in the public interest, but whether the particular disclosure by Jane is “in the public interest.”
Is it “in the public interest” for Jane to send a picture of her naked child to her mother? While I think it’s in the public interest for people to be able to send each other pictures of their naked children, I also think that free speech generally is in the public interest, which makes me the weirdo in this discussion. But while free speech generally is in the public interest, that particular disclosure is a purely private matter.
So the commenter and I disagree on whether Jane’s disclosure of the baby picture is in the public interest. And it’s a reasonable disagreement. We have juries to determine issues on which there can be reasonable disagreement.
“In the public interest” is a sop to the Weiner fetishists—those whose sole objection to revenge-porn criminalization is that statutes penalizing revenge porn would have forbidden the publication of Congressman Anthony Weiner’s penis pictures. “See,” the zealots can giddily say, “that would have fallen under the public-interest exception! So it wouldn’t be forbidden by this statute!”
Don’t fall for it. Cops might not have thought that the disclosure of Weiner’s pictures of his own jamschwaber was in the public interest. The prosecutor might not have thought that it was in the public interest. The jury might not have thought that it was in the public interest. Because “in the public interest” is not defined, the judge, the court of appeals, the Court of Criminal Appeals, and the Supreme Court might all have deferred to the jury.
Most people see as “in the public interest” those things that advance their agenda, and to see as “not in the public interest” those things with which they don’t agree. If the woman who leaked Weiner’s sexts had been prosecuted under the model statute in a jurisdiction very friendly to Weiner, everyone who in theory should have stopped the prosecution might have agreed that the disclosure was not in the public interest.
Imagine if flag burning, pornography, or criticism of public officials were a crime unless it was “in the public interest”: whether the state could get a conviction would depend on whether the community sided with or against the speech.
How does Jane know before speaking whether she will be subjected to prosecution? As a practical matter, we can’t count on elected officials or jurors to declare that unpopular speech is “in the public interest,” so absent a definition, what “speech in the public interest” means is “politically correct speech.” If Jane’s speech is politically popular, she is okay; if it is not, she is in danger.
How does the speaker know before speaking whether he will be subjected to prosecution?
Suppose that John is violent and dangerous. It’s “in the public interest” to reveal that, no? Suppose that there is some disagreement about whether John is violent and dangerous. Still in the public interest to disclose that Jane thinks he is? How about if, instead of violent and dangerous, Jane thinks that John is promiscuous and unfaithful? If other women know that, they’ll be better off. So is disclosure “in the public interest”? What if Jane illustrates her posts about John’s undiscriminating infidelity with pictures of John? What if the pictures happen to be nudes? Where do we cross the line from “in the public interest” to not “in the public interest”? I challenge you to name that point.
There is no principle on which we can decide what is “in the public interest.” It’s a feel-good phrase intended to make us think that the really important speech will still be protected. The problem is that the really important speech isn’t universally recognized as “in the public interest.” The really important speech is seen by the majority as not “in the public interest.” The really important speech is politically incorrect.
“In the public interest” is not some magic phrase that renders a content-based speech restriction constitutional and safe. Most people would choose not to speak rather than risk prosecution, even if they think they have a defense that will probably apply. A content-based statute that forbids speech unless it is politically correct is as chilling as a content-based statute that forbids all speech.
The model statute’s sop for the Weiner fetishists is no answer to the constitutional argument, and no cure for the problem caused by all overbroad content-based statutes: the problem of chilled speech.Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (188.8.131.52) .)
We’re talking about Texas criminal procedure here because that’s what I know best. ↩
I interrupt my regularly scheduled blog post for this.Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (184.108.40.206) .)
— ACLU National (@ACLU) September 23, 2014
That’s a tweet from the American Civil Liberties Union. The link within it is to a blog post written by Lee Rowland (@berkitron), Staff Attorney, ACLU Speech, Privacy & Technology Project.
Sharing that image would be “disclos[ing] an image of another, identifiable person, whose intimate parts are exposed … when the actor knows or should have known that the depicted person has not consented to such disclosure.”
Disclosing an image of another identifiable person whose intimate parts are exposed when you should have known that the person has not consented to the disclosure would violate the model revenge-porn statute proposed by Mary Anne Franks.
So in Franks’s perfect world, as in Arizona, sharing that image would be a crime unless it were done “in the public interest.”
But while Rowland decries the Arizona statute, she approves of the model statute.
Go figure.Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (220.127.116.11) .)
When I argued Ex Parte Lo at the Court of Criminal Appeals, I used section 33.021(c), the “actual solicitation” portion of Texas’s Online Solicitation of a Minor statute as an example of a constitutional limitation on speech. I hadn’t given section 33.021(c) a lot of close attention, but it talked about “soliciting” a “minor” for sex, and soliciting a minor for sex is generally recognized as unprotected speech.
Looking at it more closely, it’s obvious that the “solicitation” described by section 33.021(c) is not necessarily solicitation (because a defendant cannot raise his lack of intent to meet as a defense) and the “minor” described by section 33.021(c) is not necessarily a minor (because it can be an adult who represents himself to be a minor, but whom the defendant knows not to be a minor). Non-solicitation of a minor is constitutionally protected speech, as is solicitation of a non-minor.
But now that the section 33.021(c) cases are rolling in and I’m challenging the constitutionality of that statute, my ill-thought-out argument in Lo, holding up section 33.021(c) as an example of a speech restriction done right, is coming back to bite me in the butt: in its opinion in Lo the Court of Criminal Appeals adopted, in dicta, that particular argument.
Now I’m much more careful about agreeing that a content-based restriction on speech is valid. So this caught my eye:
Arizona’s law clearly violates the First Amendment, because it criminalizes protected speech,” said Lee Rowland, staff attorney with the ACLU’s Speech, Privacy, and Technology Project. She added, “States can address malicious invasions of privacy without treading on free speech, with laws that are carefully tailored to address real harms.”
I wonder how Rowland derived this principle of First Amendment law. Neither “malicious speech,” “invasions of privacy,” “malicious invasions of privacy,” nor “really harmful speech” is a category of speech that the Supreme Court has identified as unprotected. I suspect that the principle is not well-considered, but only what Rowland would like the law to be. For Rowland’s enthusiasm for criminalization of more speech is undisguised:
I refer to HB2515 as Arizona’s “naked photo law” because referring to it as an “anti revenge porn” law does a disservice to the advocates and victims who are putting pressure on state legislatures to criminalize revenge porn. Professor Danielle Citron at the University of Maryland Francis King Carey School of Law and Professor Mary Anne Franks at the University of Miami School of Law have been at the forefront of the conversation about criminalizing revenge porn, and have drafted model revenge porn legislation.
The Arizona law bears little resemblance to their proposals.
Note that the link is not to model revenge porn legislation, but rather to Citron and Franks’s law review argument in which they produce a farrago of feeble First Amendment arguments for criminalization of revenge porn—arguments such as “not matters of public concern” and “obscenity,” either of which, followed to its logical conclusion, would allow the criminalization of all erotica.
Here is Citron and Franks’s model revenge porn legislation, to which Rowland approvingly refers, and which she claims “bears little resemblance” to the Arizona law:
An actor may not knowingly disclose an image of another, identifiable person, whose intimate parts [naked genitals, pubic area, or female adult nipple] are exposed or who is engaged in a sexual act, when the actor knows or should have known that the depicted person has not consented to such disclosure.
…B. Exceptions. This section does not apply to
(1) Images involving voluntary exposure in public or commercial settings; or
(2) Disclosures made in the public interest, including but not limited to the reporting of unlawful conduct, or the lawful and common practices of law enforcement, criminal reporting, legal proceedings, or medical treatment.
IS UNLAWFUL TO INTENTIONALLY DISCLOSE, DISPLAY, DISTRIBUTE, PUBLISH, ADVERTISE OR OFFER A PHOTOGRAPH, VIDEOTAPE, FILM OR DIGITAL RECORDING OF ANOTHER PERSON IN A STATE OF NUDITY OR ENGAGED IN SPECIFIC SEXUAL ACTIVITIES IF THE PERSON KNOWS OR SHOULD HAVE KNOWN THAT THE DEPICTED PERSON HAS NOT CONSENTED TO THE DISCLOSURE
B. THIS SECTION DOES NOT APPLY TO ANY OF THE FOLLOWING:
1. LAWFUL AND COMMON PRACTICES OF LAW ENFORCEMENT, REPORTING UNLAWFUL ACTIVITY, OR WHEN PERMITTED OR REQUIRED BY LAW OR RULE IN LEGAL PROCEEDINGS.
2. LAWFUL AND COMMON PRACTICES OF MEDICAL TREATMENT.
3. IMAGES INVOLVING VOLUNTARY EXPOSURE IN A PUBLIC OR COMMERCIAL SETTING
Rowland says that they “bear little resemblance,” but the only distinction between the Arizona statute that Rowland is suing to enjoin, and the model statute that she approves is that the model statute would allow a defense for disclosures in the public interest, other than those listed in the Arizona statute’s (B)(1–3).1
A general public-interest exception doesn’t cure a content-based restriction’s unconstitutionality: the statute is no less chilling on speech merely because the speaker can hold out hope that, once he has been arrested and charged and is facing prison time, he might convince a jury that his speech was in the public interest.
is our nation’s guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and liberties that the Constitution and laws of the United States guarantee everyone in this country.
These rights include:
- Your First Amendment rights – freedom of speech, association and assembly; freedom of the press, and freedom of religion.
- Your right to equal protection under the law – protection against unlawful discrimination.
- Your right to due process – fair treatment by the government whenever the loss of your liberty or property is at stake.
- Your right to privacy – freedom from unwarranted government intrusion into your personal and private affairs.
Criminalization is the opposite of liberty. That a staff lawyer with ACLU’s Speech, Privacy, and Technology Project—one of the lawyers suing on behalf of the ACLU to invalidate a revenge-porn statute—refers approvingly to the criminalization of revenge porn, and links approvingly to Citron and Franks’s article, is troubling. The organization’s representative speaking on these issues should be a lawyer who values liberty even when it’s uncomfortable and politically incorrect to do so. By all indications, Lee Rowland isn’t that lawyer.Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (18.104.22.168) .)
Franks’s criticism of the Arizona statute is not only that it does not “include a public purpose exception,” but also that it applies an “overbroad definition of nudity.” The Arizona statute defines “state of nudity” as:
(a) The appearance of a human anus, genitals or a female breast below a point immediately above the top of the areola.
(b) A state of dress that fails to opaquely cover a human anus, genitals or a female breast below a point immediately above the top of the areola.
Arguably this is less nude than the “intimate parts…exposed” of the model statute, so that the definition of nudity is “overbroad,” but the better argument is that transparently-clothed intimate parts are “exposed.” In any case, there is nothing constitutionally magical about nudity, nor about the nipple rather than the breast below the top of the areola. ↩
IS UNLAWFUL TO INTENTIONALLY DISCLOSE, DISPLAY, DISTRIBUTE, PUBLISH, ADVERTISE OR OFFER A PHOTOGRAPH, VIDEOTAPE, FILM OR DIGITAL RECORDING OF ANOTHER PERSON IN A STATE OF NUDITY OR ENGAGED IN SPECIFIC SEXUAL ACTIVITIES IF THE PERSON KNOWS OR SHOULD HAVE KNOWN THAT THE DEPICTED PERSON HAS NOT CONSENTED TO THE DISCLOSURE
Ariz. Rev. Stat. § 13-142 (effective 2014).
(b) A person commits an offense if the person:
(1) intentionally displays, distributes, publishes, advertises, offers, or otherwise discloses visual material depicting another person engaged in sexual conduct; and
(2) knows or should have known that the depicted person has not consented to the disclosure.
Almost the same thing, right? There is a distinction: while the Arizona statute criminalizes the publication of an image of another person “in a state of nudity,” the Texas statute requires “sexual conduct,” which includes “lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the areola.” But lewdness is in the eye of the beholder, and does not differentiate the statutes in a constitutionally significant way.
The Arizona statute is the subject of an ACLU lawsuit,1 Here’s the complaint the ACLU filed. With the agreement of the Arizona Attorney General, the U.S. District Judge in that case blocked enforcement of the law. That doesn’t bode well for House Bill 101.Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (22.214.171.124) .)
If the ACLU bothers to oppose it it must be really bad. ↩
Scott Greenfield wants the backstory? Here’s the backstory.
I asked the Collin County Sheriff’s Office for Sergeant (now Investigator) Christopher M. Meehan’s personnel file. Robert J. Davis, representing the Sheriff’s Office, requested an opinion from the Attorney General allowing the Sheriff’s Office to withhold the bulk of the cop’s personnel file for various reasons, ranging from the specious (“There is certainly no information contained in the personnel file of Investigator Meehan which is a a legitimate concern to the public…”) to the offensively stupid (the language quoted in 2015.6).
I haven’t yet written about the New York Police Department’s petulant response to criticism (as a Libertarian, I don’t want to discourage them in making only the arrests that they “have to”: you go, guys!), but that, Justin Keiter‘s petulant response to my naming him as the lawyer engaging in what an appellate dissent called “egregious misconduct,” and Davis’s response to my public-information request on behalf of the Collin County Sheriff’s Office are all of a piece: public servants behaving as though they are masters.
The master gets to criticize the servants. The master gets to know which servants are engaged in misconduct. The master gets to poke around in the servants’ business.
The servant who forgets this needs to be let go.Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (126.96.36.199) .)
[A]ll trial lawyers who make improper arguments…have no business lamenting the public’s low perception of lawyers. They need only look in the mirror.
I wasn’t even very hard on him: I just republished part of a dissenting opinion criticizing a closing argument that Justin Keiter had made, and connected Keiter’s name with it.
Keiter took the criticism hard. I was riding on the elevator today when Justin got on with a little smile on his face. He looked around, saw me, stopped smiling, faced front and got off the elevator at the next stop. (Other people on the elevator noticed. They commented.) A year later he can’t even bear to look at me.
Judges criticize prosecutors, but almost always without using their names. I won’t guess at Justice Jennings’s motivation for not naming Justin Keiter in the opinion. Apparently there’s no reason the public should know who the lawyer responsible for “egregious misconduct” (Jennings’s words) was.
Indeed, the majority’s opinion in this case will actually encourage such improper behavior and ensure that it continues.
He is probably right—the majority’s opinion will encourage improper behavior. But the dissent that doesn’t name the perpetrator won’t do much to stop it.Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (188.8.131.52) .)
There are dangerous pedophiles in the world, and some of them are civil lawyers. But that is no reason to assume that Dallas lawyer Robert J. Davis is either a pedophile or dangerous.
Because assuming that a civil lawyer like Robert J. Davis is a dangerous pedophile would be like assuming that a criminal lawyer is in cahoots with dangerous drug dealers.
And I wouldn’t do that. Most civil lawyers are not dangerous pedophiles, so if I had to take a position on the question I would be comfortable saying this: Robert J. Davis is neither dangerous nor a pedophile.
In that way I’m unlike Robert J. Davis, who wrote in a letter to the Attorney General:
It is self-evident that the release of Investigator Meehan’s personnel file to an attorney who represents alleged drug dealers could pose a threat to Investigator Meehan and his family’s personal safety and well being.
It’s probably several orders of magnitude more likely that a randomly chosen civil lawyer will diddle children than that a randomly chosen criminal-defense lawyer will reveal an officer’s information to people who would pose a danger to that officer.
But still, trust Robert J. Davis with your kids if you want to. I’m sure it’ll be okay.Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (184.108.40.206) .)
When the media need an opinion on some legal issue, often they will go to the nearest law school. The reasoning—which is sound in theory—is that if a professor lists, say, “immigration law” as one of her subjects, then she will be an expert in the subject.Most law professors, who live lives of quiet desperation writing academic articles that few will ever read, are happy to opine on any subject. Unfortunately, while they sometimes have deep knowledge of narrow areas of law, in other areas—even areas that they teach—they are swimming in the shallow end of the pool.A case in point:
The Texas Court of Criminal Appeals tossed out part of the “improper photography and visual recording” statute. Some reports make it sound like the Court has given the green light to “pervs” taking video or pictures up a woman’s dress. University of Houston law professor Peter Linzer says that’s not so. “Notice this didn’t involve what they call “upskirting” or anything like that. This was a guy taking pictures underwater, of some young girls in bathing suits and there’s nothing wrong with that” says Linzer.
This ruling was based on one specific case out of San Antonio where it was suspected a man took the pictures for sexual gratification. “The Court of Criminal Appeals struck that down because that’s getting in your mind. That’s saying that if you pick up the Bible and want to read about David and Bathsheba and you ”get off” on adultery, that’s a crime. Well we can’t make that a crime. We can’t do that because then how do we decide what’s going on inside people’s heads” Linzer explains.
Peter Linzer demonstrates unfamiliarity with the facts, with the procedure, and with the substantive law.
The fact is that Mr. Thompson was accused of taking pictures above water. It probably doesn’t change the point,1 but where Linzer got “underwater” is a mystery. Maybe it just sounded better to him.
The procedure was an as-written challenge to a penal statute. When an as-written First Amendment challenge is successful (as in this case) the law is void not only in the cases of speech that we think there’s nothing wrong with,2 but also in the case of speech that we think there is something wrong with.
If, as in Thompson, the law forbidding pool pictures and upskirt pictures is thrown out because of an as-written challenge in a case that happens to have involved pool pictures, upskirt pictures are no longer illegal either.
The substantive law that the Court of Criminal Appeals applied in the case was strict scrutiny of a content-based restriction on speech. The substantive law that the Court of Criminals should have applied in the case was a categorical approach: does the statute forbid a substantial amount of speech that doesn’t fall into an unprotected category?
Under either approach a statute forbidding upskirt photos would fail because upskirt photos do not fall into any category of unprotected speech. For such a statute to survive Constitutional scrutiny the courts would have to recognize a new category of unprotected speech into which upskirt photos fall.
That the Supreme Court would do that is not inconceivable, but whether the Supreme Court will someday recognize another category of unprotected speech has nothing to do with the subject of the article: the effect of the Court of Criminal Appeals’ opinion in Ex Parte Thompson, invalidating the “photography in public” portion of the Improper Photography statute.3
Someone at the Harris County DA’s Office weighed in as well:
The Harris County D-A’s office is interpreting that as well saying, “It remains illegal if the victim did not know she or he was being photographed. Anything in public appears to be legal. …”
You know what’s awesome? When you can give an opinion to the press on a subject and say directly contradictory things in consecutive sentences.
Peter Linzer and the DA’s Office could have avoided making people stupider by declining to comment to the press on a case with which they weren’t familiar in an area to which they hadn’t given much thought. By choosing not to do so they did the public a disservice.Copyright © 2013 Houston criminal-defense lawyer Mark Bennett. This feed is for personal, non-commercial use only. The use of this feed on other websites breaches copyright. If this content is not in your news reader, the page you are viewing infringes the copyright. (Digital Fingerprint: 9fddc86334d71f22cfdb4b70fe23bb0e (220.127.116.11) .)
Does it? Is an underwater picture more like an upskirt picture than an above-the-water picture is? ↩
Linzer, who thinks there is “nothing wrong with” photos of young girls in swimsuits, taken for sexual gratification, is definitely not invited to my kids’ next pool party. The behavior is creepy, as is the behavior of taking upskirt photos, but there is not a First Amendment Exception for creepiness. ↩
The “transmission of public photographs,” “photography in a dressing room,” and “transmission of dressing-room photographs” portions of the statute are still law, for the moment. ↩