A maxim that was taught when I went to law school long ago was that the law can’t provide a remedy for every wrong man can conceive. That was back when we were allowed to say things like “man,” without anyone pretending to choke. Except that one weird kid in the back of the room who seemed to find offense in places no one else did.
The point was that people seemed to always manage to come up with some variation on a theme of harm that nobody anticipated, nobody thought possible, and for which there was no law, whether criminal or civil, that applied. “Why not?,” budding lawyers demanded of the professor. ”Why shouldn’t the law prohibit this awfulness?”
To make a long explanation short, it’s because the law is an imperfect weapon. It requires a scalpel, but often ends up as a bludgeon. When we begin with a specific evil we seek to eradicate, words are written to smite it. The same words, however, cover conduct never meant to be included. Examples of this abound recently with children thrown out of schools for biting a Pop-Tart into gun shape, or making a finger-gun. Most agree this is nuts, but they should have seen this coming before crafting the prohibitions that gave rise to the insanity.
Yet, we never seem to learn. George Santayana’s admonition comes to mind, just as it does every time we ignored it in the past, and no doubt will in the future.
But there is a secondary problem, hidden behind the obvious bludgeon, revealed by this New York Times editorial:
Revenge porn is one of those things that sounds as if it must be illegal but actually isn’t. It’s the term of art for publishing sexual photos of someone without his or her — usually her — permission, often after a breakup.
Consider Holly Jacobs, founder of the Cyber Civil Rights Initiative, who exchanged intimate pictures with a boyfriend while in graduate school. When the relationship ended he started posting them online. She sought help from law enforcement, but the police said she didn’t have a case because she was over 18 when the pictures were taken, and they were her ex-boyfriend’s property.
Having written about this at length already, this comes as nothing new. There is a law being proposed to criminalize revenge porn. It’s being called a scalpel, but it’s not, and anyone who says so is a misogynist. Just like anyone who disapproved of the gun prohibition in schools that compelled the expulsion of a child who made an imaginary finger-gun is a child-hater.
But don’t fall into the other side of the dark hole, blaming Holly Jacobs for being foolish to send out naked seflies. People do stupid things. They do them all the time. It doesn’t make them evil, just stupid. Just like the angry woman who catches her boyfriend in bed with another and, in a fit of well-deserved pique, posts his intimate picture on the internet to warn other women that he’s a lying, cheating philanderer. Stupid too. But should it be criminal?
That’s one, and only one, of the questions begged by the hyping of law to cure the “plague” of revenge porn, because there is nothing in the law to limit it to revenge porn. That’s just the marketing pitch, tie it to the most disgusting thing available and hope no one sees beyond it. Remember, this is directly tied to Cyber Civil Rights, as Danielle Citron makes proudly clear, and its goal is well established.
The New York Times makes a critical point about the next corner to be turned:
Neither current nor proposed state laws are likely to have an effect on the Web sites that make the explicit images available to the prurient public, because they can claim protection under the Communications Decency Act. Section 230 of that statute has been interpreted by courts to shield sites that host third-party content from liability, unless that content, like child pornography, violates federal law. (Or unless sites cross the line from aggregators to co-creators of the material in question.)
See what they did there? They’re correct, that the laws being hyped, while rife with the potential for abuse, won’t actually “get” the people they most hate. Revenge porn purveyor Hunter Moore won’t be touched, as he’s protected by the safe harbor provisions of Article 230. So let’s start screwing with Article 230 to get the really bad dudes. Why shield these horrible people?
Because the same law that shields them shields me, and every other blogger, and every website that allows comments, and Reddit, and every other website that allows anyone to post anything on the internet. Without the safe harbor, there will be no free speech on the internet. Here’s reality, I’m not losing my shirt because of your comment. Neither is the New York Times, though its editorial eyes are clouded by the same conflicted desire for a perfect world that lets them see only the low-hanging fruit without grasping that they will kill the tree by plucking it.
The Cyber Civil Rights notion is that women are subject to cruel, hateful verbal attacks on the internet in comments. Citron wants to gut speech:
Prof. Citron begins her remedies discussion with the suggestion that ISPs be stripped of § 230 immunity for postings by others, in the hopes that this will force them to police their customers. She proposes that they be subject to distributor liability – that we move to the takedown regime we have come to know and love under the DMCA.
Why? Because internet speech is “dominated by aggressive bullies, nasty haters and monetizing opportunists,” all of whom chill the speech of women. This “silences” women because they fear posting anything because of the response, calling them mean names, threatening them with harm, posting their pictures online. The goal is to eliminate speech they deem hurtful to women.
It’s not just about revenge porn. It’s not just about threats of physical violence that manifest in real world conduct, which is already illegal. It’s about making the internet a safe place for women’s feelings, and making anyone who posts words that violate the sanctity of feelings, and anyone who allows those posts to see daylight, criminals for doing so.
Cut to the quick, the point is to create a categorical exception to the First Amendment to the Constitution prohibiting speech that hurts a woman’s feelings. They will deny it, but that’s the end game. This is how the slide down the slope is being played, and anyone with even a tiny bit of foresight can see where the battles will be fought until the war is won. If you’re good with this, then support these initiatives.
If, after realizing where all of this is heading, you aren’t comfortable with the sanitization of the internet so no woman’s feelings are hurt, then stop this before we slide down the slope to silence. Even if you despise revenge porn, as most rational people do, consider whether you’re good with what this will ultimately do.
The law can’t provide a remedy for every wrong man can conceive.
Defying this maxim has had dire consequences in the past. It will be the same this time. And next time. Now, before the damage is done, is when we need to put a stop to the madness. Not after we come to the realization that this was how internet speech came to die.
Update: At Concurring Opinions, Danielle Citron has posted a lengthy argument in an effort to address the glaring hole left behind by Mary Anne Franks in her nasty and dishonest attempt to smear her antagonists. She adds a new wrinkle to the argument, that perhaps the solution to the Anthony Weiner failure of Franks’ model law is to carve out an exception for public figures, which may actually resolve, at least to some extent, that aspect of the problem. Clearly, Citron offers a far more formidable intellectual perspective than her more impetuous colleague.
But it’s not entirely persuasive either. First, there is a reliance on Eugene Volokh’s “I think it’s possible” statement when it comes to drafting a law that’s sufficiently narrow as to only catch the evil-doers without silencing others as well, and the actual creation of such a law. Citron overstates her case when she suggests that Eugene approves of Franks’ model law. He may, but he hasn’t yet as far as I’m aware.
Then again, it’s also fascinating that Citron elevates Eugene to the Supreme Court, as if his one sentence changes the face of the First Amendment. Given Eugene’s libertarian bent, does this mean the she adopts everything Eugene has to say, like his embrace of Citizens United? I suspect Citron wants to shut her eyes very tight so she can cherry pick.
But then she draws a bizarre analogy between Snyder v. Phelps and revenge porn, leaping over the gap between the two in a single bound.
We can only speculate what the Court actually meant, but the sharp distinction between the church’s protest and the non-consensual posting of sexually explicit images is not. That online users can claim a prurient interest in viewing private sexual activity does not transform a sexually implicit image into a matter of legitimate public concern. Much like the sex videos that the majority referred to in Snyder, a sexually explicit image of a private individual involves expression on purely private matters that should receive less rigorous First Amendment protection.
No, you didn’t miss anything. Logical connections are for the non-believers.
And finally, Citron notes with approval the success of suits for infliction of emotional distress against people who caused harm by posting revenge porn. There you go! So there is a means by which rights can be vindicated without resort to creating a new crime to criminalize speech. Even Danielle Citron says so.