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 February 26, 2015 in 

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There are two types of advocates of revenge-porn criminalization: there are those who actually propose and try to defend unconstitutional statutes, and those who dispense with First Amendment objections with a wave of a hand, but don’t offer any statutory language that might pass First Amendment Muster.

Mary Anne Franks is an example of the former. She will write (and rewrite) her model statute and defend it to the last breath with great passion but very little legal reasoning.

Lawprofs Danielle Citron and Neil Richards are the latter. They defend the idea of revenge-porn criminalization, but don’t suggest language that might be acceptable (Citron disagrees with Franks’s approach—she thinks that an acceptable statute will “only punish individuals who knowingly and maliciously invade another’s privacy and trust“; Franks disagrees, and her model statutes don’t include those requirements).

In “Regulating revenge porn isn’t censorship” Citron and Richards write:

Yet some critics argue that regulating nonconsensual pornography risks censoring protected speech, including pornography. Under the First Amendment, critics argue, we cannot take that risk.

But it is possible to be both pro-porn and anti–revenge porn, and laws can be designed accordingly. What matters under the First Amendment and what is often misunderstood is not whether we can regulate revenge porn but why and how.

For “some critics” they link to my post fisking Citron’s Forbes Forbes piece on the subject.

They also write—

The defenders of revenge porn ignore this fact and offer no response other than a curious insistence (bordering on affection) for the continued availability of amateur and celebrity revenge porn, as if they have some personal stake in its continued free flow.

—which puts Richards squarely in the sleazy dishonest camp, with Citron and Franks, of those who, knowing better, accuse people opposed to criminalization of favoring the activity that would be criminalized.

That notwithstanding, I’ve read some of Richards’s writing on privacy and the First Amendment, so I was curious how a revenge-porn criminal statute could pass First Amendment muster.

I asked Richards via The Twitter Machine:

He replied:

What he may not have known is that I had already read him. I quoted him back at himself:

What he’s saying in those quotes is that giving courts a standard such as “not newsworthy” or “of purely private concern” gives them the power to censor expression that they dislike, and is at odds with modern commitments to the freedom of speech. Which is a very different thing than a well-crafted law will criminalize “1 sexually explicit photo 2 known to be shared in trust 3 not newsworthy.”

He crawfished:

I would be interested in reading a breach-of-confidence revenge-porn statute, but I’ve yet to see one, and Richards is apparently a dry hole. He’s hand-wavey on the defense of his platonic well-crafted law, too:

But regulating revenge porn doesn’t have to work that way. We can regulate revenge porn if it was secretly recorded, because there is no right to secretly capture sexually explicit images of ordinary people or celebrities. We can regulate it if it is distributed in violation of an express or implied trust and an expectation of privacy. And we can regulate it if it is intended to intimidate, threaten or harass and accomplishes that purpose.

With links and everything! Except that the first link is to a book by Citron; the second to a book by Richards; the third to an Atlantic article; the fourth (headache-inducingly) to an ACLU press release about the lawsuit challenging Arizona’s revenge-porn statute, which says nothing about intimidation, threats, or harassment; and, finally, some law: Rice v. Paladin Enterprises, Inc., in which the Fourth Circuit Court of Appeals reversed the District Court’s grant of summary judgment in favor of the defendant who had published a manual for murder.

Except that the Supreme Court has never said that there is no right to secretly capture sexually explicit images. Nor has it ever held that privacy trumps the First Amendment, nor that speech violating a trust is ipso facto unprotected.

Perhaps if the speech is intended to intimidate, threaten, or harass (rather than merely to embarrass or offend), it is unprotected. Non-content-based restrictions forbidding such speech have been upheld, but such restrictions need meet only intermediate scrutiny, lower scrutiny than the strict scrutiny that content-based restrictions face, so that’s no indication that a content-based restriction like a revenge-porn statute will be upheld.

Besides, try suggesting to the carceral feminists, fans of criminalizing revenge porn, that a criminal statute should include as an element the intent to intimidate, threaten, or harass.

Good luck with that.

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2 Comments

  1. Steven M. Warshawsky March 2, 2015 at 5:08 pm - Reply

    I wonder if your insistent focus on what the Supreme Court has said in the past, while legally sound, misses the larger point, which is that the “anti-revenge porn” advocates are creating a legal and, more importantly, political-cultural environment that is more favorable to their views, such that the courts, including the Supreme Court, ultimately will side with them on this issue. Yes, they may be wrong “doctrinally,” based on today’s doctrine, but they appear to have the upper hand politically, which probably means that tomorrow’s doctrine will be different.

    I predict that eventually the laws and the courts will move in their direction. We’ve seen this happen before with political-cultural movements that overwhelm existing legal doctrine (gay marriage is the most recent example). The anti-revenge porn crusade has become a mainstream liberal political issue, with more and more adherents (because who can be “in favor” of revenge porn? except perhaps troglodyte conservatives). The legal/philosophical arguments against criminalizing revenge porn do not carry the same emotional and political weight in this debate.

    The sad truth is that most people are not principled constitutionalists (I see this in my own practice doing false arrest cases) and simply do not care if people they don’t like have their “rights” violated to promote public order and safety, etc.

    As for the law professors you seek to challenge and show the error of their ways: As you probably know, at bottom they are engaged in politics, not law. Unfortunately, your doctrinal arguments have no impact on them or on the larger political culture.

    • Mark Bennett March 2, 2015 at 6:16 pm - Reply

      It’s a fair question, but the answer is no. I recognize that they are trying to create an environment favorable to their views; one of their approaches is to convince the uneducated that the law is already on their side, and that the experts agree. The best I can do there is to keep pointing out that the law is not on their side, that Citron, Richards, and Franks are all saying different things, and that Franks’s model statutes don’t pass muster with either Citron or Richards (though they’ll never come out and say it, because politics).

      At the moment they appear to have the upper hand politically because state legislatures are passing these unconstitutional statutes. As state courts hold these statutes unconstitutional, the tide will turn, and it will be too late for a constitutional statute. And if the statutes even make it to the Supreme Court, the court is moving toward a more stringent First Amendment regime, and would have to turn on a dime to approve anything remotely resembling Franks’s model statutes. Which is good, because some of Franks’s arguments (the obscenity argument; the purely private concern argument) suggest that her ultimate goal is to criminalize all pornography.

      I don’t think I’m going to convince the voters or the legislators or, all alone, the courts. My goal is to educate the lawyers who will be in a position to make and win the challenges.

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