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

Update 2 (See the bottom for update 1): Mark Bennett has done the heavy lifting in his scholarly deconstruction of the arguments in favor of a law criminalizing revenge porn, both by Franks as well as Danielle Citron.  It’s thorough. It’s researched and cited.

And unlike the arguments in favor of undermining speech, it’s accurate and does not rely on false assertions as to the state of the law. Bennett’s post authoritatively answers the questions of those who want to leap over the law to reach their endgame.

_____________________________________

I’m almost ashamed of myself for this title, because I have no doubt that University of Miami law school professor Mary Anne Franks comes by her opinion honestly, and has only the best of intentions in promoting her cause.  The problem is her cause, like so many causes wrapped up in sexual politics, is the evisceration of free speech in the name of protecting women.

Gawker brings us the news, that a few New York legislators want to hop on the left coast revenge porn train to internet Nirvana. Hey, if California can do it, why not New York?

Last week, California criminalized revenge porn. Now, New York state legislators are proposing a bill that would also target people who distribute nude photos of others without their consent. Unlike California’s law, which can only be used to prosecute individuals who personally took naked photos of someone else and then disseminated the images against the subjects’ will, New York’s proposition would theoretically apply to making sexually explicit self-portraits public.

Take that, Cali. Not only can New York make it a crime too, but we can out-crime you any day. Meet a New York criminal-in-the-making:

(Note: This is not an image of Mary Anne Franks, or to the best of my knowledge, anyone associated with her.)

Democratic assemblyman Edward C. Braunstein and upstate Republican senator Joseph A. Griffo have gone so far as to issue a press release about their plan to save people from themselves, explaining how they will make a more perfect world.

Senator Griffo said, “This so-called phenomena of ‘cyber-revenge,’ is a tawdry form of exploitation. From what we know, the majority of its victims are women who don’t know that their images and likenesses has been bartered and sold over the internet. Currently, these victims have limited options when their pictures taken with their consent, were posted online. They would have to enlist a lawyer and threaten to sue the person responsible for sharing the photo or the website hosting them, for invasion of privacy.

Enlist a lawyer? Threaten to sue? Use the best legal system ever created?  Well, that certainly sucks.  But why make it a crime?

Criminalization is preferable to civil suits by victims because civil suits do not deter those who upload or disclose new images after a civil suit has ended. Furthermore, a lengthy trial is emotionally exhausting and prohibitively expensive. Moreover, the websites that distribute non-consensual pornography are given broad immunity for civil liability under federal law through the Communications Decency Act. Therefore, criminalizing disclosure of these photos may prevent websites from benefiting from the harmful images.

Plus, it makes for a great re-election campaign centerpiece, not that anyone cares about such things.

So naturally, Gawker includes the deepest thoughts of the least desirable source, the scourge of revenge porn and poster boy for why this should be a crime, Hunter Moore.

Hunter Moore, a Warped Tour scene goon turned proud revenge-porn thug, posted a YouTube rant about the legislation. A summary: “You fucking retards.”

Perfect. The First Amendment at stake, and we have Hunter Moore out front.  But is there a constitutional right at stake here?  Not according to the Griffo and Braunstein press release, which turns to 2007 Harvard law grad Franks for refuge:

Mary Anne Franks, Associate Professor of Law at the University of Miami School of Law, who helped draft this legislation, stated, “This bill sends the strong message that New York will not tolerate this devastating form of virtual sexual assault. Additionally, this bill demonstrates that it is possible to clearly prohibit a narrow category of malicious conduct while respecting legitimate First Amendment concerns.”

It respects “legitimate” First Amendment concerns? Well, that’s heart-warming. Please explain.

This bill is narrowly drawn so as not to infringe on First Amendment rights, as there is no constitutional protection afforded to individuals who consume or distribute sexually explicit images of individuals without their consent.

Zat so?  So the nice gal who revealed Anthony Weiner’s selfies is a criminal? Had there been pictures of then-Governor Eliot Spitzer without his bespoke drawers, there would have been no constitutional right for the New York Times to put it on Page One?

The problem isn’t that revenge porn is harmful. It is. It’s terribly harmful. Or that Hunter Moore isn’t one of the lowest scumbags on the internet. He is. The problem is that there is a First Amendment right to distribute “sexually explicit images of individuals without their consent,” and to claim otherwise is just utter nonsense.

Or more to the point, the Cyber Civil Rights crowd, having linked all this to gender politics, have decided that their protection of women from harm is more important than the First Amendment, and that the trade-off of free speech rights for everyone else in exchange for criminalizing revenge porn is a worthy deal.

Update:  At Concurring Opinions, Mary Anne Franks gets interviewed by a sycophant and offers this fascinating tidbit:

That’s disturbing. Do you think this is a widely-held view?

It’s hard to say, because so often these people don’t have the nerve to put their names or faces behind their misogynist rants. It could all just be coming from one guy in his basement who never sleeps. Seriously, though, I have been a bit surprised by just how transparent some of these objectors are about the fact that they are motivated by nothing more than sexism. 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.

I wonder who that New York lawyer/blogger might be? He must be a terrible person, writing an entire post without a single argument against Mary Anne’s precious baby.  So if she omits my name, fails to link to the offensive post and lies about it, maybe nobody will notice that her baby is ugly. Oh, and don’t try to say anything to her, as her sweetheart interview notes:

Kaimipono D. Wenger – October 10, 2013

Quick admin note: Trolling or harassing comments will be zapped on sight. Consider yourselves on notice.

Nothing like letting people know that he will not tolerate any further meaness from us misogynists. I consider myself on notice.  Sadly, Mary Anne forgets that once a person loses her credibility, it’s gone forever. It’s never a good idea to add liar to the list.

 

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

  1. DHMCarver

    I like the concept of “legitimate First Amendment concerns” — which presupposes there are illegitimate First Amendment concerns?

    1. BL1Y

      Yes. This is precisely the view of the (far? center?) left. Free speech advocates, in their eyes, are only concerned with saying hateful, bigoted, and oppressive things.

      Harassment/Verbal Assault : Free speech :: Slavery : States’ rights.

      1. SHG Post author

        Uh oh. She’s mad at you too and says you just learned what Snapchat is. We must be stupid because otherwise we would have no choice but to agree with her religion that nothing should stand in the way of validating her.

    2. BW

      Professor Volokh thinks that it is possible to draft a statute criminalizing revenge porn that passes constitutional muster. (His discussion is here: http://www.volokh.com/2013/04/10/florida-revenge-porn-bill/. I hope that doesn’t violate the hyperlink rule.) Where do you disagree with his First Amendment analysis?

      [Ed. Note: Yes, it violates the no link rule, but since Eugene is a regular around here anyone, I'll let it slide.]

      1. SHG Post author

        Eugene says that, but do you see it? Neither do I. Does he show any language that he thinks will fly? He has yet to come up with viable law. He has yet to see one he thinks passes constitutional muster. And for the most part, he tosses in a bunch of qualifiers which don’t reflect the limitations that any of the proponents of such legislation would find acceptable. So while he does say so, there is nothing to talk about until he comes up with a statute that he thinks passes muster. Theoretical is fine, but the devil is in the details.

        1. BW

          Thanks for responding, but I think it’s quite clear what Professor Volokh thinks is constitutional. He writes that a law “banning nonconsensual posting of nude pictures of another, in a context where there’s good reason to think that the subject did not consent to publication of such pictures, would likely be upheld by the courts.” He adds that, “I think courts can rightly conclude that as a categorical matter such nude pictures indeed lack First Amendment value. ”

          Which of his claims to you dispute? If none, then perhaps Professor Franks is correct?

          1. SHG Post author

            I’m afraid you’re not getting this. Laws aren’t conceptual. Laws are made up of elements that criminalize conduct. You can ask the question a hundred times, but you’re shooting blanks. If you have no statute, you have no question and you’re wasting time and bandwidth with cheap talk.

            And as for Eugene’s conceptual statement, what crime would he charge the woman who revealed Anthony Weiner’s picture with, since she would certainly fit within his conceptual narrative. Is Eugene (or you, or Franks) suggesting that her revelation of Weiner’s photo lacked First Amendment value? It’s absolutely core First Amendment speech, and yet Eugene would have it criminalized? I know Franks wouldn’t care, but I can’t imagine Eugene wouldn’t if he thought it through.

            There is nothing in Eugene’s concept that excludes her, and clearly she would be a criminal under Franks’ model law, so unless he can come up with a way to criminalize the evil without bringing in fully protected speech at the same time, it’s just cheap talk.

            Edit: By the way, much as I like Eugene, his saying so doesn’t make it so. He says some off the wall stuff from time to time which ultimately proves astoundingly wrong.

  2. BL1Y

    This is a problem more appropriately handled by social norms (for what they’re worth…) and technology. Snapchat gets us …I dunno, 98% of the way there?

    Assuming fogies like SHG aren’t keeping up with THE FUTURE OF LAW, I’ll explain Snapchat: It’s an electronic messaging service that deletes your message shortly after they’re read. Think Mission Impossible, “This tape will self-destruct…” It’s possible for people to take screen captures of snapchatted pictures in order to preserve them, but Snapchat notifies the sender at that time.

    Presumably, the vast majority of these pictures are taken while the relationship is on good footing, and the recipient has no nefarious intention. It’s when things turn south that the porn revenger digs through his stash and puts the pictures to ill use. So, at the time the recipient is choosing whether or not to save the picture, he will likely not have the motivation to do so. There you go, 98ish percent of the way there (assuming people actually make use of the technology that’s available).

    So, why isn’t Mary Anne Franks pushing for a technological or social solution? Because to a hammer every problem looks like a nail.

  3. Mary Anne Franks

    “Almost ashamed,” Mr. Greenfield? Seems like you should be thoroughly ashamed of resorting to tasteless, sexist insinuations instead of actually making an argument. Now, I know you don’t like words like “sexist,” but it is interesting to note that there are plenty of male lawyers and law professors who have either worked on behalf of revenge porn victims or gone on record stating that narrowly drafted laws against revenge porn do not violate the First Amendment, and yet you haven’t suggested any of them are motivated by the existence of incriminating photos. But that’s not all that’s shameful about your post. You should be ashamed of the bizarre logic that leads you to the conclusion that people only work to address injustices they have experienced personally. Is everyone who fights for fair procedures for criminal defendants a criminal? Is the idea of fighting for change based on principles of fairness and justice so foreign to you? You should also be ashamed of implying that if people have in fact experienced injustice firsthand, their attempts to address it are illegitimate. By this logic, rape victims should never fight for stronger laws against sexual assault. By this logic, no wrongfully convicted individual should have a say in how to improve our flawed criminal justice system. Again, a strange view of “justice.” But there’s even more for you to be ashamed of. What kind of lawyer passes judgment on a law he clearly hasn’t read? What kind of lawyer proclaims that a bill “eviscerates free speech” without a single citation to the text itself? While it is clear that you hold your own opinion in considerable esteem, you should be aware that simply shouting “this violates the First Amendment!” doesn’t make it so. From the beginning of my work on this issue, I have made my model legislation freely available and invited feedback and critique. My model state law, which legislators in New York, Wisconsin, and Alabama are using as a basis for their efforts, is available on http://www.endrevengeporn.org, one of the very sites you linked to in your post. You can also find there two versions of a working paper on the subject that delves into First Amendment and other issues. You and your readers who are so eager to offer your opinions about these legal efforts (including those who are confused by the definition of the word “legitimate,” or have apparently just learned what Snapchat is and think it is some kind of magical revenge porn eraser) might try educating yourselves about the discussion first.

    1. SHG Post author

      Aw, Mary Anne. Must you add disingenuous to the list? You were named here because you were named in the press release. You were named here because you were credited with the law in California. So now you’re crying sexist? You’ve chosen to put yourself out as the frontman (is that sexist too?) because you wrote a model law. Now you complain about it? Very disingenuous. So you only like being in the spotlight when its flattering?

      I’ve read your model statute, as I’ve written about previously. It sucks. Sorry, but your baby is ugly. You didn’t realize I had read it, written about it, before? Oops. Maybe you couldn’t find the time while promoting yourself and your model law. But the part that’s most embarrassing is when you write:

      Is the idea of fighting for change based on principles of fairness and justice so foreign to you? You should also be ashamed of implying that if people have in fact experienced injustice firsthand, their attempts to address it are illegitimate.

      Who are you to make yourself the arbiter of fairness and justice? You’ve decided that you get to decide fairness and justice by criminalizing speech, and that the First Amendment isn’t nearly as important as your beef. You’ve decided that the Mary Anne Franks’ version of justice is worth the sacrifice of everyone else’s constitutional rights? And you argue that I think highly of my opinion? Don’t try to wraps yourself in wrongful convictions. Laws like yours are the source of them. Now go run to the other lawprofs and cry about how the mean, old lawyer called you names.

      And learn how to use paragraph breaks. You’re unreadable.

    2. BL1Y

      I argued that Snapchat is a revenge porn preventer, not an eraser.

      And I didn’t suggest it was magical. I presume it’s scientific, as we all know that wizards have an aversion to muggle technology, so this sort of hybrid would be highly unusual. Even Mr. Weasley’s flying car is a combination of magic and mechanical engineering, rather than magic and electronics. And if it did exist, certainly the Ministry wouldn’t allow its wide spread distribution among the muggle population.

      Plus what SHG said about paragraph breaks.

        1. BL1Y

          Or that Snapchat doesn’t violate the norm of hiding magic from the muggle world because it’s a narrowly tailored piece of technology and several male wizards have said it’s okay.

    3. AP

      I have a question. What kind of a lawyer teaches criminal procedure who, as far as your CV shows, has never tried a criminal case?

      1. SHG Post author

        You misogynist! You bully! How dare you point out negative things like lack of any legal experience when all she wants is to be the Queen of Fairness and Justice. Don’t you understand how badly you’re hurting her feelings?

        1. AP

          Listen I’m just one of your fanboys and I’m just thrilled you haven’t blocked me from posting a comment.

            1. BL1Y

              Bourbon butterscotch glazed brioche donut, topped with bacon, from Golden Brown Delicious at Dupont Circle.

              ^More convincing argument than anything Maryanne Franks wrote.

      2. BL1Y

        “What kind of a LAW PROFESSOR teaches criminal procedure who, as far as your CV shows, has never tried a criminal case?”

        Fixed that for you. Also, the question now answers itself.

    4. Marc J. Randazza

      Ms. Franks,

      While you’re sitting on your ass “teaching people how to think like a lawyer,” I’m actually out front on this issue, *litigating* these kinds of cases.

      And you know what?

      I think your law is fucking idiotic. Absolutely. Fucking. Idiotic.

      Nothing but the academic circle jerk and a few vote-starved legislators could possibly consider *criminalizing* the publication of photographs to be tolerable. So go write another law review article about something else you have no first-hand experience about, and leave the legal work to the big boys and girls.

    5. Maggie McNeill

      By this logic, rape victims should never fight for stronger laws against sexual assault. By this logic, no wrongfully convicted individual should have a say in how to improve our flawed criminal justice system.

      So what you’re implying here is that those personally affected by laws are the ones most fit to have input on them, right? Therefore I’m sure you’d agree that sex workers should have the most input on prostitution laws, since we’re the ones most directly affected. And you would obviously be vigorously opposed to those (like your former employer Catharine MacKinnon) who ignore that input, and deny our right to choose sex work for ourselves. I realize this is kind of OT, but I just want to understand your position, which I’m sure will be philosophically consistent with those you’ve expressed here (since you’re a philosopher and all).

  4. Mary Anne Franks

    Shocking! You also can’t get your facts right. I’ve never been associated with California’s bill. And in your previous post on the subject (which no, I wasn’t aware of before now because you are really just not that important), you quoted only part of the model law, conveniently ignoring the parts that cover exceptions and respond to First Amendment concerns. And there, as here, you seem to think the rhetorical equivalent of jumping up and down somehow counts as an argument. But thank you for making it abundantly clear that you (and your adoring fanboys) not only don’t understand much about the First Amendment, you don’t care much about it either. You are really just invested in making the world safe for misogyny is all of its forms. But by all means keep shouting into your angry little echo chamber. I’ve got real work to do.

    Is

    this

    clear

    enough?

    1. SHG Post author

      So the Times got it wrong mentioning you? That must be my fault, and yet I did include part of your law. I didn’t include the whole thing? Like this is a law review argument? Like it’s my duty to include everything that could possibly please Mary Anne? Got it. And while I’m sure I’m not that important, it seems I’m important enough to make you all whiny and butthurt here. I wonder why that is?

      So others are now my “adoring fanboys,” and I’m making the world safe for misogyny. That sort of infantile nonsense may play with male lawprofs who are scared to death to challenge the neo-feminist religion, but it doesn’t work with practicing lawyers. Too bad you’ve never had the experience of practicing law, so you would learn how not to make vapid arguments.

      And

      cool

      use

      of

      spacing. Too bad you didn’t do it the first time.

      1. Turk

        I wouldn’t call it the use of “adoring fanboys” to be vapid, but rather, ad hominem.

        A judge would clobber me if I did that.

        But more importantly, the use of such argument means that such writers don’t have stronger points to make, and have lost their way.

          1. Turk

            So you’re saying I don’t have “adoring fanboys”?

            Well, you might, but the reality is that some may be adoring fangirls. Her comment seems pretty sexist if you ask me.

            1. SHG Post author

              Get real. This is me we’re talking about. So why is it okay for gals to be sexist when guys are misogynists. Oh wait, I already know the answer.

    2. AP

      Real work like appearing on the Today Show to tell us about probation conditions? Have you ever seen a probation order in person? Have you ever had to argue what the terms of a probation order should be?

    3. BL1Y

      Franks: “You are really just invested in making the world safe for misogyny is all of its forms.”

      BL1Y: “Free speech advocates, in their [Franks, et al] eyes, are only concerned with saying hateful, bigoted, and oppressive things.”

      Effing nailed it.

    4. DHMCarver

      (LONG) Prof. Franks, you are being remarkably disingenuous and sexist in your comments on SHG’s posts. You claim that you are not associated with California’s bill, yet a Google search “california revenge porn bill franks” comes up with numerous hits discussing your comments relating to the bill (the general theme seems to be that you think it did not go far enough – which puts lie to your claim that you want a “narrowly tailored” bill). Additionally, a Washington Post article notes that you serve on the board of the Cyber Civil Rights Initiative, whose director is the woman (Holly Jacobs) who spearheaded the California bill. In addition, the CCRI website lists you as one of the people to contact “[f]or more information regarding SB255 or CCRI”. Hardly clean hands, and certainly puts lie to your claim that you have “never been associated with California’s bill.”

      Furthermore, had you spent any time reading SHG’s writing before attacking him, you never would have asked, “Is everyone who fights for fair procedures for criminal defendants a criminal? Is the idea of fighting for change based on principles of fairness and justice so foreign to you?” SHG is a stalwart defender of those who have suffered (or are suffering, or might suffer) injustice due to the inequities in our so-called justice system. He does nothing but defend those who are victims of law enforcement or prosecutorial overreach, and he sounds regular paeans for the nation to have a more humane, more just criminal justice system. Your rhetorical questions show you have no idea what SHG believes, what his core values are, and shows your willingness to jump to conclusions and condemn anyone who might disagree with you. Not great habits of thought for a professor, and positively frightening for one pedaling supposed advances in our criminal statutes.

      Another example of you presupposing your conclusions: “You should also be ashamed of implying that if people have in fact experienced injustice firsthand, their attempts to address it are illegitimate.” The difference might be that some distinguish between “injustice” and “profound shame and embarrassment”. This is an important philosophical and criminological debate, but you happily steamroll over it. SHG’s prior post on revenge porn showed that he is profoundly sympathetic to those who suffer from vindictive lovers in our cyber age, but he is not willing to go where you want to go to stop such activity. That does not make him, or others who object to what they see as the overreach of revenge porn laws “invested in making the world safe for misogyny is all of its forms.” It simply means that he thinks your ends do not justify your means.

      By odd coincidence, I happen to be reading Richard Thomspon Ford’s “The Race Card” at the moment. I would recommend it to you, for reasons that will be evident if you read the introduction.

      Finally, you make the accusation that those who support SHG’s position are “fanboys”. It is interesting that someone who claims to be holier than thou on issues of gender is making the sexist presumption that those who agree with SHG and his concerns that laws such as those you are proposing will lead to further erosion of our civil liberties are men, when very few of the posters on the Simple Justice blog indicate their gender in any manner.

      1. AP

        “Yes! In the face!!”

        Because I adhere to the SJ rule prohibiting links I’ll just say google “Coming to America in the face”

    5. Ahem

      Having read both your diatribes, dear professor, I hate to bring up a sore point, but you never address the fact that your law would criminalize the woman who exposed Anthony Weiner. SHG noted it as an obvious example, and you ignore it. Plenty of hyperbole and ridiculous unsupported arguments, but you totally fail to explain why you think that woman ought to be a criminal.

      With all due respect, you’ve been exposed as an intellectual fraud. Your argument is exactly what SHG says it is, the evisceration of fully protected free speech in your blind zeal to stop revenge porn. You don’t care what collateral damage is done, and you aren’t honest enough to admit it.

    6. TomH

      Let’s see, personal attacks, arguing to false authority, probably a few other ad (whatevers). If this is indeed the real Ms. Franks, she is not much of an academic, a logician, or much of a proponent for her position.

      Instead of screaming that there are other partses of her super-justice-law, maybe she should quote or summarize them to learn us the truth.

      I for one, am not convinced by her diatribe, and find her lacking in credibility based upon her poor advocacy.

    7. Rick Horowitz

      Ms. Franks, I have to say that your rhetorical flourishes here are entertaining. It’s been awhile since I’ve seen pure sophistry passed off as demonstrative of substantive argument, while simultaneously arguing that the substantive argument was lacking in content.

      But the part that really made me quite seriously laugh out loud was “you really are just not that important.”

      And yet you keep coming back.

      To splutter.

      When I read the original article by Scott above, it certainly seemed to be making an argument. In fact, I detected more than one complaint woven into it, including making fun of the hand-waving dismissal by Senator Griffo of the civil remedies because contra Griffo they could be quite useful in combating revenge porn; stating that contra your unsupported claims that “legitimate” First Amendment distributions would not be criminalized by your proposed law, and indicating just how that could happen; and noting that while revenge porn is certainly a terrible thing, it does not justify (further) gutting the Constitution. Sounds like Scott — while definitely scornful and mocking — was also making an argument by holding up, and pointing to what’s actually wrong with statements others have made.

      When I read your response, not so much. There is pretty much nothing in your comment that contains anything other than a misuse of rhetoric (in that it is empty and unbalanced: while missing both ethos and logos, it slathers on the pathos) — in short, it’s basically just a Proustian paragraph of what I think has already properly been characterized as “butthurt.”

      You say: “You should be ashamed of the bizarre logic that leads you to the conclusion that people only work to address injustices they have experienced personally. Is everyone who fights for fair procedures for criminal defendants a criminal? Is the idea of fighting for change based on principles of fairness and justice so foreign to you?”

      Aside from containing a hearty dose of incorrect (as in false) implications that I’m not going to bother to point out (because they’re too obvious), I’m relatively certain anyone who reads what Scott has written would think he fights quite hard for, among other things, “fair procedures for criminal defendants.”

      Yet I seriously doubt he considers himself a criminal. I’m pretty sure even you know Scott doesn’t consider himself a criminal. Which is another example of what’s wrong with your ululation.

      And if instead of “You should also be ashamed of implying that if people have in fact experienced injustice firsthand, their attempts to address it are illegitimate[,]” you had said Scott implied “that if people have in fact been on the receiving end of harsh crimes, their attempts to address it should be carefully considered, because such persons sometimes overreact out of pain,” that seems like it might be closer to the truth. (Although I don’t think that’s exactly what Scott implied here, I believe he has said such things in the past.) And that claim would certainly be unobjectionable.

      Apparently, Scott’s assessment of you is spot on. The only thing missing from your misleading rhetoric was a healthy sprinkling of run-on sentences to go with the breathless, contentless, pitiful howls of pain.

  5. Pete

    I’m just glad to know that in a mere three years I too can teach criminal law and procedure.
    Class of 2014 baby!

  6. Keith Lee

    Franks response above is par for the course. See:

    http://www.concurringopinions.com/archives/2013/02/the-dangerous-fragility-of-men.html

    Men are dangerously fragile! Her responses in the comments are hilarious:

    “I was not aware that there was an expectation on the part of some here that the author of a post must immediately respond to every criticism raised in the comments. Aside from the fact that guest blogging is necessarily a part-time activity for me, I don’t understand why anyone would lament the fact that commenters on a post are engaging in a lively dialogue with each other, or that an author might want to take some time to reflect rather than merely react.”

    I have to actually interact with the proletariat?!? I never!!

    1. SHG Post author

      Given the nuanced faux kindness shown between lawprofs, that’s damn near ripping her head off. But aside from her facile, self-serving spin for failing to deal with questions and criticism, it reflects how blindly biased she is and how fragile someone is who doesn’t get the validation she craves.

    2. AP

      Franks says in her comment that her “evidence is, in other words, the world we live in,” which as far as I can tell is the world of books, law reviews and cases. That’s fairly limited for somebody teaching criminal law. Hey Mary Ann try walking in the world of the courts, detention centres, jails, addiction, broken lives, poverty and bullshit charges.

      1. SHG Post author

        Don’t be ridiculous. That would get her shoes all dirty, not to mention be the end of her prissy self-righteousness.

        1. AP

          Is there an equivalent term like “champagne socialist” for criminal law professors who’ve never practiced a lick of criminal law. I mean do surgeons learn from professors who’ve never operated? Am I crazy here?

            1. Ultraviolet admin

              I feel real lucky I had the choice to pick from a former federal district attorney turned defense attorney for my crim pro and evidence opposed to the guy replacing him who was a pure academic.

  7. Marc R

    Too bad I graduated before she became a professor at my school. The wisdom she could have imparted to me. Daily. John Hart Ely then Ms. Franks in con law and crim law back-to-back…the scholarship opportunities her current students must have. What’s the 1st Amendment when you can have a genuine sexual purist (gender purist?) teach how retroactively fixing females’ bad judgement in snapchatting/facebooking/instagramming/polaraoiding nude pics to their paramours is more important than being locked in a cage for merely copying artistic expressions?

    Remind me to again not donate to my former law school.

    1. SHG Post author

      The irony here (aside from watching Ms. Franks implode) is that I am pretty sympathetic to females (not to mention any of the other genders) bad judgments not coming back to haunt them. But as DHMCarver wrote, I’m unwilling to sacrifice free speech to her cause. On the other hand, I’m sure she would have done a great job teaching how to effectively argue against detention at arraignment.

      1. Marc R

        I’m sure my clients will appreciate the sanctity of devaluing the 1st Amendment as they decide which prison gang alliance will best provide them a rape shield. Bad decisions (like emailing nude pics) shouldn’t affect anyone’s life, including the guy merely copying them. And I’m not defending a guy being an ass from moral judgments or twitter screeds, but imprisoning them is a pathetic joke. I honestly believe in Ms. Franks defended just one client after visiting him in prison, she’d change her tune. But like the guy who already re-tweeted his ex’s nudes, she’s past the point of no return. Who gives up teaching crim law to actually learn it?

  8. HA

    The author of this blog certainly lives up to his commenting policy: “I expect civility from you, but that does not mean I will respond in kind.” Humble suggestion: step up to your blog title and apply simple justice. Small-minded people attack the messenger, or in this case the law professor. Courageous people attack the argument, or better yet, stand for something.

    1. SHG Post author

      Lame. And at least Mary Anne was tough enough to use her name instead of tossing little pebbles from under a rock with your eyes closed.

      1. Sgt. Schultz

        Be nice, big guy. You know it’s always a 1L who comes up with the comment policy/blog name argument, as if it hadn’t been tried 1000 times before by every other 1L who think you’re a big old meanie.

      2. BL1Y

        The anonymity ad hominem is pretty weak. I have a friend who got sacked from his job for blogging, and not even because of what he was blogging, but because of another blogger her became associated with.

        Many people are in positions where it’s incredibly risky to blog or comment under their real names. There are plenty Mary Annes in the world who either have the power to fire their subordinates, or who can complain about a peer and get them fired, so anonymity becomes a prudent choice for many people.

        The people most exposed to serious repercussions for online commenting are young people — the untenured proletariat. But, I assume you understand the role of discourse in education (social-epistemic pedagogy, yo!). Being able to try on ideas, test them out, fail, get feedback, modify positions, try again, and so forth is incredibly valuable. Anonymity helps to facilitate that, because you get more discussion when people aren’t asked to put their careers on the line with every comment. They get to play pre-season games.

        I would have expected that in a context where you are defending the value of free speech you would have been more cognizant of the value of free speech, and that freedom takes many dimensions, not simply freedom from government sanctions.

        That said, dude’s argument was, as you said, lame. You did attack the argument, and you have plenty of times stood for something. And most of those times it was a widely esteemed principle of justice, rather than a donut. (Seriously though, if you’re ever in DC, Golden Brown Delicious.)

        1. SHG Post author

          Was the untenured proletariat at risk of negative consequences for those comments? He had a better chance of winning a prize from the Academy for challenging me. I realize the trope is strong with the young set, but he wasn’t Publius. Putting ones butt on the line for one’s expression is kinda the point. Risking censure is what makes commentary matter.

          I know it’s a harsh position, but that’s what it means to stand for something. See the irony now? That’s why it wasn’t an ad hominem. By raising it and pointing the finger, he exposes himself to the same criticism.

          1. BL1Y

            Would you get rid of mock trial because having a client with his butt on the line is the point? The risk of imprisonment is what makes trials matter.

        2. Ron Coleman

          Many people are in positions where it’s incredibly risky to blog or comment under their real names.

          Most are just wise-asses who don’t have the nerve to stand up behind what they say or, at least as typically, lack the bona fides to say it. Those who don’t want to take the risk you describe merely risk being called out for their anonymity — nothing worse than that. Nice guys likes Scott still let them comment, but it is what it is. On the Internet, there is a rebuttable presumption that you are in fact a dog.

  9. hmm

    So maybe I don’t get it. If I have a paralegal make copies of a conversation between me and my client, and then that person quits and posts them on the Internet, you better believe I’m going to pursue civil and maybe criminal actions.

    If I give my credit card to a waiter and then that person writes down the numbers and uses it to buy clothes at the Gap, I’m definitely pursuing criminal charges.

    So why is it that if I give a risque photo to a girlfriend and she then cheats on me and posts it on facebook for fun that suddenly she can claim freedom of speech? Does anyone really believe this is distinguishable from the first two situations?

    Context matters, no? Can’t I give limited permission for private use without running into first amendment issues? I don’t get the reaction here. 1A doesn’t mean I can post whatever I want regardless of the context it was given to me

    1. SHG Post author

      The issue here isn’t whether revenge porn is right or wrong, or whether the victim should take action to prevent it or go after the person who posted it. The issue is whether creating a crime sweeps in other conduct having nothing to do with revenge porn that is protected under the first amendment, and whether a law can be written that will be limited to revenge porn and not violate the Constitution and have unintended collateral consequences.

      1. Erik H.

        I’ll take a stab at a legal version:

        Pictures which are, WITHOUT the consent of the subject,
        1) Nude; (or sexually titillating, or some better definition)

        2) Taken after the date of the law; (This is crucial for a safe harbor, I think. And yes: for the first few years that the law is in place, it won’t have much effect. But it will accomplish what the anti-revenge-porn people want in time. And as a “message,” it will be effective immediately, which would satisfy many of them.)

        3) Possessed
        a) without permission (the “snap a nude while she’s asleep” or “snap a phone pic when she’s not looking”) kind; OR
        b) under a strictly limited license (i.e. “these are for your eyes only, Johnny” or “If you let me take these I promise I will never share them with anyone”); and

        4) intentionally shared with others (need to have some sort of restrictions, i.e. “electronically” or “publicly” perhaps “means which permits subsequent redistribution.” In other words, you can’t make it illegal to show the pictures to your roommate, even if you promised you wouldn’t. It’s illegal to SEND the photos to your roommate (who then possesses the pictures) and it’s illegal to post the photos on the dorm bulletin board.)

        Make it a criminal misdemeanor. That means you have to meet the reasonable doubt standard on each element. That will vastly reduce the # of people who are wrongfully convicted. It also means that the prosecution incentive is fairly low because it’s only a misdemeanor.

        1. SHG Post author

          Under your version, the woman who revealed the Carlos Danger/Anthony Weiner pics is a criminal. The rape victim who posts images of her naked rapist from a security cam is a criminal. The woman who posts pics of her taken of her nude boyfriend after finding him in bed with her best friend to warn others that he’s a cheater is a criminal.

          Then who has the burden of proving “strictly limited license?” Does that require a contemporaneous writing, or can it be proven by parole evidence? What if the limit of the license comes after the transfer? I’m not saying it can’t be done, but that I haven’t seen a law that doesn’t sweep unintended people into its ambit or leave problematic gaps.

          1. Erik H.

            SHG
            Under your version, the woman who revealed the Carlos Danger/Anthony Weiner pics is a criminal.

            Yes, for POSTING them; no for REVEALING them. Let’s keep the the goalposts in one place.

            Why is that a huge problem? She could reveal the pictures to the police under a warrant; she could describe the pictures to another which would give rise to a warrant; she could publicize the fact that she possesses them; she could even show them to a reporter. She just can’t post the pictures.

            She has an immense freedom to damage Weiner’s reputation and to protect herself: note that there is nothing in the law about possessing them, only publicizing them.

            I posit that the marginal benefits of “the rare instance where someone might want to post pictures of a politician’s dick” do not outweigh the marginal costs of the much more common postings.

            The rape victim who posts images of her naked rapist from a security cam is a criminal.

            Make an exception for dissemination to police, and let the police post it if they think it’s reasonable. Or, require a complainant before prosecution, and make an exception for pictures taken related to a criminal conviction: do you think that an actual rapist is going to want to show up at the station to complain about his picture online? Or, make an exception for appropriately labelled security cameras.

            Alternatively, simply accept that all laws have tradeoffs. Even if there’s a valid reason for an individual to wish to post a nude picture of an accused rapist, she can’t do it unless she goes through channels (police) or exposes herself to a bit of very minor risk. That doesn’t seem like an unrealistic tradeoff.

            The woman who posts pics of her taken of her nude boyfriend after finding him in bed with her best friend to warn others that he’s a cheater is a criminal.

            Yup.

            What is the concern about that? She can insult his penis size, claim that she has evidence of his bestiality, show the pictures personally to anyone she chooses, and so on.

            She can still communicate with others, and she even retains her right to show them the picture. But she just has more skin in the game: the more people she shows it to, the more potential witnesses.

            Then who has the burden of proving “strictly limited license?”

            The state, of course–beyond a reasonable doubt.
            As with most “he said, she said” cases such as rape, this will be a difficult standard to meet absent some pretty good proof. Not to mention it’s only one of many standards. That is a feature, not a bug.

            Does that require a contemporaneous writing, or can it be proven by parole evidence?

            It can be proven by any evidence, including circumstantial or parol evidence. There’s no statute of frauds here.

            What if the limit of the license comes after the transfer?

            If you possess it under an unlimited license, then you can share it unless/until the license is revoked.
            If you possess it under an irrevocable license then one party can’t unilaterally change it.
            So we have to litigate that: What’s the issue? We deal with these sorts of things in court all the time.

            I’m not saying it can’t be done, but that I haven’t seen a law that doesn’t sweep unintended people into its ambit…

            or leave problematic gaps.
            My tolerance for error is pretty damn low, but it’s not “zero.” if it were, we couldn’t have a justice system.

            Yes, there will be some people who are occasionally wrongfully accused and/or wrongfully convicted. But not many.

            It will, admittedly, encourage people to cover their ass. All that you have to do to 100% avoid a conviction is send a text “can I do what I want with this pic, girl?” and get a “yes” response. Encouraging that level of communication is not a bad thing.

            …[I’m not saying it can’t be done, but that I haven’t seen a law that doesn’t] leave problematic gaps.

            What is this, concern trolling? You’re a smart guy: you know damn well that any attempt to make the law catch everyone will certainly make the error rate too high. It’s better to have a law in which 30 guilty parties go free to every 1 convicted accurately, than to have a 3:1 ratio.

            1. SHG Post author

              Whew. Long but not persuasive. So per my examples, the woman could go to the police but not post, as that would be a crime. Think that one through a bit.

              These are images of newsworthiness and public importance. They are unquestionably fully protected free speech. But they can’t be posted publicly, so the law constitutes an impairment of fully protected free speech, which you think is fine since they can always go to the cops, which (in your thinking) is a perfectly satisfactory substitute to the First Amendmet. First, your (or Franks’) sensibilities do not trump the Constitution, no matter how important you think your personal weighing of propriety may be. You v. Constituion. You lose. Sorry, but this isn’t up for debate. Same with Franks, except she doesn’t give a damn. If it’s fully protected speech, you can’t decide you don’t like it and criminalize it.

              Second, even if your idea that fully protected free speech can be eliminated because there is an alternative: what if the cops do nothing? What if the cops conceal the sexual exploits of a public figure? What if the cops decide it wasn’t a rape, or that the rapist is one of the cops’ friends? End of story, or that can never happen because the police are our friends? There are even some folks who don’t think the cops are the good guys, but since you don’t share their feelings, you’re right and they’re wrong?

              Turning to your proof issue, what are the chances that an image gets posted online with permission and without dispute, until an employer, landlord, new boyfriend, husband, parent finds it, and suddenly it’s a problem. So if its parol evidence, then whenever the shit hits the fan, scream revenge porn and some guy gets arrested? Great idea. At least with rape, there is physical evidence. With revenge porn, anybody can be accused at any time, with the existence of the image online as all the proof needed.

              As for the “limited license” you suggested, the criteria is meaningless given the need for no proof. So your law is a joke, violates the first amendment and is so primed for abuse as to be a disaster. But then, you’re a smart guy so what do you care? Sadly, you’re a lawyer, but at least not a criminal defense lawyer.

            2. Erik H.

              SHG
              Whew. Long but not persuasive. So in my examples, the woman could go to the police but not post, as that would be a crime. Think that one through a bit.

              Your point is….?
              You can go to the police and get a warrant, but you can’t break into a house.
              You can get a civil order to seize my assets, but you can’t take them on your own.
              You can evict me through court, but not by locking me out.
              You can issue a DMCA takedown notice, but you can’t hack into my server and crash it.

              What’s the issue here?

              These are images of newsworthiness and public importance. They are unquestionably fully protected free speech.

              Wasn’t it you or someone you linked to who derided the use of things like “unquestionably” as a means of answering a question? [shrug] perhaps there should be a public figure exception. I’m not sure that this is “unquestionably” fully protected free speech, though. That’s the whole point.

              But they can’t be posted publicly, so the law constitutes an impairment of fully protected free speech, which you think is fine since they can go to the cops.

              No, that’s a misstatement. I don’t agree that, for example, “disseminating a picture of Weiner’s penis, even if you obtained it through agreement that you would not disseminate it” *IS* fully protected free speech. You can describe it, show it to others, talk about it, boast about it, but it’s not yours.

              First, your (or Franks’) sensibilities do not trump the Constitution, no matter how important you think your personal weighing of propriety may be. You v. Constitution. You lose. Sorry, but this isn’t up for debate.

              Seriously? We are, right here, debating it. For someone who seems focused on a high level of argumentation, your counterargument in this post so far is basically “I’m right, and I don’t need to explain why.”

              Of course we can’t trump the Constitution, but we are disagreeing on WHETHER the law trumps the constitution.

              Second, even if your idea that fully protected free speech can be eliminated because there is an alternative:

              This is not my argument.

              We are disagreeing about the classification. Your response is like the pro-lifers who argue “so, don’t you think we should prosecute people for murder?” when the issue is actually whether or not abortion is murder.

              Do I think that “fully protected free speech” should be protected? Yes, of course; that is a tautology. Do I think that this is “fully protected free speech?” No.

              What if the cops do nothing? What if the cops conceal the sexual exploits of a public figure? What if the cops decide it wasn’t a rape, or that the rapist is one of the cops’ friends? End of story, or that can never happen because the police are our friends?

              I am sure that–like every single law on the books–there will be some circumstances where individuals or departments attempt to evade, abuse, or otherwise warp the law. But since you presumably don’t think that we should abolish all laws, then you presumably don’t think that the existence of this particular risk is a per se reason not to have laws at all.

              So I surmise you must think that this in particular is susceptible to abuse. What in particular about this law is, in your view, more likely to lead to uncontrolled abuses?

              (For what it’s worth: if the police did nothing, then the person doesn’t get charged. And they retain the right to show the picture to anyone they want, so long as they don’t publish it.)

              Turning to your proof issue, what are the chances that an image gets posted online with permission and without dispute, until an employer, landlord, new boyfriend, husband, parent finds it, and suddenly it’s a problem.

              You can, with my permission, do all of these things:
              -sign a check
              -take money from my wallet
              -buy yourself medical marijuana with my credit card
              -pay yourself money from my funds in your IOLTA account
              and so on.

              Because you’re a smart dude, you’d probably recognize that if you are doing something where my permission is crucial to the legality of the transaction, you would be wise to retain some proof of the legality.

              Once people realize that they can get in trouble for doing it, they will start saving the texts.

              Now, this might lead to conversations like this one:
              “thanks for the nude photo, Barbara. Can I share it on Sex-Ex.com?”
              “Sure, Johnny!”
              “Will you send me a text for permission, so I don’t get in trouble later?”
              “No.”

              Do you think that Johnny really has a first amendment right to do that, or that the refusal carries an implication of a limitation on his rights?

              Admittedly: some people who might have obtained permission will possibly have their speech chilled to some degree, though they will fully retain the right to throw a house party and show it to their guests, carry it in their wallet and show it off at a bar, etc.

              So if its parol evidence, then whenever the shit hits the fan, scream revenge porn and some guy gets arrested?

              Right. Because the police are so incredibly quick to arrest people for misdemeanors based entirely on circumstantial evidence. You must have a very busy police department in your town. Hell, I can hardly get an officer to make a “pay the dude” phone call even when I’m holding a bounced check in my hand, and that’s illegal too.

              “It’s online” is one of multiple elements. The elements mean that you can go to the police and say “here’s a text of the picture which says “don’t you ever share this, EVER” and here’s a text from him saying “OK, I won’t” and here’s the picture online, and here’s my affidavit that I didn’t send it to anyone else, will you please send him a summons?

              Otherwise, the police aren’t going to do much.

              Great idea. At least with rape, there is physical evidence.

              Right. And there’s also the issue of a much less pleasant trial and there’s also the issue of a much more serious crime. And so on.

              And even then, it’s not as if the police get an accusation of date rape and immediately go screaming out in their squad cars loaded for bear.

              With revenge porn, anybody can be accused at any time, with the existence of the image online as all the proof needed.

              … for ONE ELEMENT.
              Say that Nude Nadia is smiling at the camera. Or holding it, in the mirror. That’s one element down: knowledge. And unless Nadia accuses the poster of physically stealing her phone, then we know she gave it to him. OK, now she has to prove that it was a limited license, beyond a reasonable doubt. And so on. I’m sure the prosecutors will jump on that one.

              As for the “limited license” you suggested, the criteria is meaningless given the need for no proof.

              Um, what?
              Verbal contracts and verbal licenses are enforceable. I litigate disputes all the time in which the parties are relying on verbal or circumstantial agreements. It’s not much different than some types of evidence in a rape case, though arguably it’s harder to prove since there are more elements.
              If you can litigate “I told him to stop” versus “she said she wanted to screw” then what’s the concern?

              So your law is a joke, violates the first amendment

              You’ve spent a variety of lines insulting me and the post.
              As far as I can tell, you’ve spent pretty much zero space actually explaining why it violates the first amendment, other than “because.” This is not your usual style.

              and is so primed for abuse as to be a disaster.

              Abuse by who?
              Remember: you can’t accuse someone of this without showing your nekkid picture around. And given the relatively low social stigma of “I hear he was accused of posting some girl’s picture on Sex-Ex.com” versus “I hear he’s an accused rapist and sex offender” there is much less incentive to make a false accusation. It’s a hell of lot better than the generic “harassment” alternative.

              But then, you’re a smart guy so what do you care?

              I do care. I merely disagree. Smart people do that.

              Sadly, you’re a lawyer, but at least not a criminal defense lawyer.

              Sigh.
              Sometimes I am right. Sometimes I am wrong. I change my mind all the time in response to expertise, reading, lectures, etc. But you’re being a damn poor advocate, because the only thing you’ve said amounts to “so there, asshole” and that is not much of an argument.

              Do you think there are ANY limits on free speech? If not, then OK: there’s not much point in discussing what the limits should be if you won’t concede they exist; we would first need to have the argument about whether they should exist.

              But presumably you agree that there are limits, whatever they may be. Well, at that point you should be able to entertain an argument about where the limits are, as well as an argument about where the limits should be, and why. If you can’t have that discussion, why write the post?

            3. SHG Post author

              In trying to make sense of your extremely lengthy comment, it appears we have two bottlenecks: first is that you don’t have a working understanding of free speech under the first amendment, and second is you don’t appreciate the necessary differences between the constitutional mandates for a criminal law versus a civil law. There isn’t a debate as to whether the nude image of Anthony Weiner is protected speech. You are welcome to disagree, but that changes nothing. What Franks seeks to do is create a new categorical exception to free speech to exclude the digital distribution of naked images without consent, which would at least be arguably fine if it could be defined without excluding speech that isn’t criminal. The problem is that she is unable to craft a definition for her categorical exception that would work. In fact, at Co-Op, she concedes that the Weiner poster would violate her law, even though her law is expressly intended to criminalize revenge porn, whereas it now falls squarely within protected speech. As protected speech, neither you, Franks nor I can dictate that a person can’t use it, or can only use it only in a way of our choosing. That’s what makes it free speech, that they are free to use it any damn way they please.

              If you want to debate this point, that’s fine, but do it elsewhere. It is not a debate worthy of my bandwidth.

              Second, criminal laws must provide fair notice of what conduct is prohibited, and must, by their elements, only include prohibited conduct within their ambit, or they are unconstitutional for overbreadth and/or vagueness. Again, this is not a subject of debate here, whether you agree or not. So, comparing vagaries with civil concepts of license is a false analogy, and as such, isn’t worth debating either.

              I don’t doubt your sincerity in trying to debate these points, but your arguments are just not as debate-worthy as you think. And given your propensity for enormously lengthy comments at the expense of my bandwidth, your arguments simply aren’t worth the time to read them or the space they take up. Sorry, but your arguments aren’t nearly as good as you think they are. And lest you be overly insulted, they are all posted here for anyone to read and to reach their own conclusion as to the value of your arguments. So, you’ve made your points. Be well.

            4. Ken

              Dude,

              There is just so much wrong with the nits of your argument that it makes my head spin. No, I’m not going to get into 1000 word debate, but you lack the foundation and you’re not seeing it. The only way to get to the meat of the issue is to be able to get beyond the obvious, and you can’t as you just don’t know the basic. Let it go. You’re in way over your head.

            5. Steve

              Basic First Amendment law: “Congress shall make no law . . . abridging the freedom of speech…” There are no exceptions in the First Amendment. The Supreme Court has created certain categorical exceptions, but nude images posted on the internet without consent do not fall within any of them. Look it up.

              While you and Mary Anne Franks are trying to debate whether a law seeking to criminalize the posting of lawfully obtained and possessed images online without consent, not just “revenge porn” but anyone who does so regardless of motive or the ensuing harm, it is an obvious First Amendment infringement. Maybe it shouldn’t be, and given the attitude in this country, it could well happen, but it is unconstitutional under the law as it now exists.

              See Marc Randazza’s comment above. He’s a First Amendment lawyer, widely considered one of the best.

              I think your law is fucking idiotic. Absolutely. Fucking. Idiotic.

              Nothing but the academic circle jerk and a few vote-starved legislators could possibly consider *criminalizing* the publication of photographs to be tolerable. So go write another law review article about something else you have no first-hand experience about, and leave the legal work to the big boys and girls.

              While you’re obviously not an academic, you demonstrate no grasp of the First Amendment issues at stake here. The whole notion is so idiotic that it’s unworthy of debate except among those who are so determined to stop revenge porn that they are perfectly willing to infringe on the First Amendment.

              So if you want to be honest, your point is that you don’t like free speech as it now exists and want to eliminate speech that offends you. If that’s not what you want, then your argument is pointless and asinine. You can’t have it both ways.

            6. SHG Post author

              I think this is harder to understand given Franks’ continued pounding on the “there is no free speech right to say things I don’t like” position. Though her credibility is lacking, she is a lawprof and lawyers who are clearly unfamiliar with 1st A law assume should couldn’t be totally out of her mind, so she must be at least somewhat right.

              The problem with Erik, aside from the fact that his writing was long, boring and barely comprehensible, was that he was arguing based on an false assumption and couldn’t understand why I wouldn’t “debate” its validity. To anyone with more than a passing familiarity with 1st A law, this was like arguing over whether the sun rises in the east. But even if we got past the 1st A problems, he really had no idea how monumentally screwy (but it’s just a misdemeanor, so who cares?) some of his point were.

    2. Marc R

      Your examples:
      1) your paralegal is committing fraud and exposing information that was not given to the paralegal for her benefit. rather, the client info was given so that the paralegal can assist the attorney and the courts adjudicate some action in their favor.
      2) the waiter is committing fraud and you gave the cc info to the restaurant to pay the bill, the waiter having the info is superfluous to one’s intention in merely buying a meal/service from a business.

      you think that is somehow equivalent to a person willingly giving nude photos to a person, the same person who perhaps posts it elsewhere? really? the first two example were not “asshole” conduct merely but are pure economic crimes where their direct purpose was to undermine the object of the info for a 3rd party profit. a guy posting pictures of his ex that she gave him is horrible conduct but trying to say it’s similar to your first 2 examples is just a wrong application of law and a poor analogy.

      1. SHG Post author

        You took the arg more seriously than I did. Since the basic grasp of the issue was wrong, it didn’t strike me as worthwhile to address the examples, as they weren’t even in the ballpark of the problem.

      2. hmm

        Marc – you’re assuming the conclusion.

        1) is fraud, but there’s no existing contract that makes it so. It’s fraud because we as a society have defined it as such through criminal la2.

        2) is even more obvious. The waiter isn’t my employee, there’s no written contract in place. 2 is fraud because we have laws that criminalize that behavior.

        So we can talk about whether we want revenge porn to be considered criminal fraud or not. You can’t say “this is different because it’s not fraud.” That’s assuming the conclusion.

        1. SHG Post author

          No, you can’t because revenge fraud being criminal fraud isn’t what this post, or the law, is about. Want to discuss your personal vision of what it could be? Do it at your own blog.

          And Marc, if you try to go down this path, your comment gets tossed. So don’t bother.

    3. BL1Y

      What if rather than giving your girlfriend risque photos, you simply have sex with her, and occasionally during your relationship say stupid things?

      Following a nasty breakup, she goes on to Facebook and (truthfully) repeats the stupid things you said for the purpose of making fun of you, and (again truthfully) describes how you were mediocre and somewhat selfish in the sack.

      Should that activity be criminalized?

      1. hmm

        so this is actually engaging with the issue! There may be reasons why we don’t criminalize critique but do criminalize sharing images. Let me go back to the paralegal situation.

        If the paralegal quits and posts a critical review of me on Yelp, that’s not fraud. But posting documents is. Linedrawing!

        Just throwing hands in the air and saying “this is dumb, how can you draw lines” is not what I expect from smart people.

        1. SHG Post author

          That’s your last comment. This is what I get for allowing your tangential comment to post, and letting others respond substantively to such nonsense. And not to put too sharp a point on it, if you’re going to write “this…is not what I expect from smart people,” then have the balls to comment under your own name, because nobody gives a flying shit what “hmm” expects from anybody.

          1. Allen Spaulding

            Happy to use my own name although unclear why this is so touchy. I don’t see this as off-topic. New technologies may cause societies to rethink the lines drawn around what is and isn’t criminal speech. I made an argument by analogy.

            It seems like the point of this post is not to substantively dispute the bill or show why this speech should not be criminalized, but to mock the very idea itself. I think there are good arguments against criminalizing this – but if you don’t want to bring up fraud, blackmail, or any other analogies and if you want to shut down substantive engagement with the issue, maybe you should put that up front.

            Simple Justice – Analogies Need Not Apply

            1. SHG Post author

              Last try, and only because you used your name (and you don’t have to see why this is so touchy. The universe isn’t limited to things you think, and it doesn’t owe you an explanation for every stray thought that pops into your head.)

              Your analogy strays into an entirely different line of thinking about dealing with revenge porn. I think you’re totally off the wall. No one else think’s well of your idea. That leaves you alone fascinated by your analogy. That doesn’t make you wrong, but it also doesn’t make you fascinating to anyone else.

              But this post is limited to its subject because that’s what I’ve chosen to write about. You may not see this as “off-topic,” but this isn’t your blog and you don’t get a vote. I see it as not only a silly point (see above), but substantially off topic. You have been persistent, which is a trait I admire, but have also shown a decided lack of discretion and respect for the fact that you are a guest here and don’t get to decide what tangential topics get discussed in the comments. There is a word for that, hijacking, and respectful commenters don’t do it.

              The point is that you don’t have to agree. Not with the post. Not with my view. Not with this comment. Not with anything. However, this remains my soapbox, not yours, and if you are displeased with my failure to embrace your analogy, then feel free to start your own blog and write about your brilliant thoughts as much as you would like.

              I’m sure this clears up all your misconceptions, and you are now done commenting here. Apology accepted, thanks for your effort and good-bye.

        2. BL1Y

          I have absolutely no problem with drawing lines, so long as there is a rational basis for the line.

          With the paralegal, this is easy. First, he did not have ownership of the documents. He stole them. Makes a lot of sense to say you can’t publish stolen information. Second, there are confidentiality rules at work. I’m not sure exactly how they operate in regard to paralegals, but I believe in that situation the law treats the paralegal as basically just an extension of the lawyer. The lawyer is not allowed to publish his client’s confidential conversations, and so the same rule extends to the paralegal.

          Now explain drawing the line at (a) nude (b) photos. Why not draw the line at all photos which might be harmful to the person (why is nudity all we’re protecting)? Why not draw the line at all forms of communication (what makes photos so special)?

        3. Sgt. Schultz

          This is just remarkably off the mark. Nobody, SHG included, suggested that the people who engage in revenge porn were protected. The argument is that there is no way to draft a law that doesn’t infringe on the free speech of others, whose speech would be criminalized under the law even though they weren’t engaged in revenge porn.

          This just isn’t that hard a concept to grasp, and yet you’ve completely missed it. And you have the chutzpah to say that this isn’t what you would expect of smart people? Pal, you’re a total idiot, and you’re the only one who can’t see it. Sheesh.

          1. SHG Post author

            I thought I explained this in the first place? If he didn’t get it the first time, why would he get it when you say so?

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  17. MAD

    If these images/circumstances should give rise to 1A exceptions, then those same arguments should logically extend to efforts to criminalize the creation of such images in circumstances likely to result in similar outcomes.

    Even without such twisted logic, otherwise generally applicable conspiracy/accessory statutes could make things fun.

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