While no one would accuse me of being delicate in my criticism of the First Amendment implications of Mary Anne Franks’ jihad against revenge porn, at no time did I suggest that it had anything to do with revenge porn itself being acceptable or any affinity toward those who engage in it or run such websites. While gender politics may be at the core of others, my concern is limited to creating new crimes and criminalizing the exercise of First Amendment rights.
Kaimipono D. Wenger – October 23, 2013
Admin note: Professor Franks has become a bit of a lightning rod of late for some bizarre, stalker-ish online attacks — sort of the blogosphere equivalent of McInnis’s frustratedly yelling “you’re a fucking idiot.”
Regardless of anything else, no one should be subject to “bizarre, stalker-ish online attacks.” I sent Kaimi an email asking if he would provide more information so that I could condemn this conduct. I received no response. I did get a comment here from Kaimi complaining that I misstate him, but nothing in response to my email.
In the interim, both Mark Bennett and Ken White responded to a comment left by Franks explaining her version of the First Amendment. Unfortunately, the program used at Concurring Opinions doesn’t allow links directly to comments, so scroll down and read comments 24 through 28. Mark wrote about it separately as well.
It all struck me as substantive and, well, quite respectful. A long-time schism between academics and practitioners is our tendency not to argue with the tone and level of respect they deem necessary. If we don’t engage in a manner that pleases them, they dismiss us as barbarians.
The point was brought home when Brian Tannebaum left a comment to Kaimi Wenger’s latest salvo on Franks’ behalf, the one that generated Kaimi’s “bizarre, stalker-ish online attacks” comment:
BRIAN TANNEBAUM – October 23, 2013
Mr. Wenger, as a Miami lawyer and blogger very familiar with UM, I find it odd that Professor Franks and others are not receptive to comments from some of the most respected criminal law bloggers in the country that disagree with her position. I hope her students don’t take from this that debate in the law is a bad thing. That would concern me, and I think the administration of UM.
Maybe not in the nuanced language of academics, but hardly vulgar. Yet, Tannebaum’s comment elicited this reply (posted in full so Kaimi won’t complain that I’ve distorted his writing and because it’s worth reading in its entirety):
What a curious comment, Mr. Tannebaum. I can’t speak for Mary Anne, but let’s start with a few off-the-cuff possibilities.
First, you seem to think it is self-evident that Professor Franks should change her views. As support for this, you cite to “some of the most respected criminal law bloggers in the country that disagree with her position.” This might be more convincing if critics were arguing that Professor Franks had gotten her Brady analysis wrong or her Apprendi analysis wrong.
But they aren’t. These fine folks are lecturing her on the First Amendment. And it’s an area where — well, as you yourself describe, her self-appointed interlocutors are crim-law practitioners. They _aren’t_ First Amendment experts; they may not have discussed First Amendment law since they were law students. In contrast, Professor Franks is a published scholar on First Amendment issues and arguably a legal authority on the topic.
I’m happy that your practitioner friends have opinions, but I’m not convinced that a scholar who publishes First-Amendment scholarship ought to bow to the wisdom of crim-law practitioners in an area that is _within her expertise_ and _outside of theirs_, if she reasonably believes that they’re wrong on their First Amendment analysis.
Substantive disagreements happen. This isn’t a bad thing. What you’ve characterized as a negative act of Professor Franks “not [being] receptive to comments” is actually an instance in which she is aware of and has considered these objections, and she does not find them convincing. And why is anybody unreceptive to unconvincing objections? Because they’re unconvincing.
Second, Professor Franks has, in fact, engaged in some extended back-and-forth with a number of interlocutors about revenge porn and other issues. She has used Concurring Opinions and other venues to refine her proposals and discuss concerns. She has been highly receptive to comments that have come from many different directions.
But let’s face it, some of her interlocutors seem to pride themselves in being assholes. They deliberately distort her statements and want to engage only in over-the-top polemics. And while I’m not her, I don’t think it’s any surprise that Professor Franks — like most of the rest of us — has very little interest in conversing with assholes.
It appears that Kaimi has dismissed us as “assholes,” thus saving him and Franks from the effort of addressing Bennett’s legal arguments. To her credit, Franks responded to Mark Bennett’s and Ken White’s comment challenging her interpretation, where she asserts an appeal to authority:
In other words, there is no battle here between First Amendment advocates and First Amendent [sic] opponents. The majority of First Amendment scholars and experts that have expressed views on the issue do not believe that a narrowly crafted law against non-consensual pornography violates the First Amendment.
The only problem is this isn’t quite true. To the extent she offers substantive rebuttal, it would get at best a “C” on a law school exam. While she asserts her own expertise and says she has one First Amendment prof in her corner, Neil Richards, her reliance on Eugene Volokh for support is somewhat problematic as he has not, at least as yet, endorsed Franks’ or become involved in this dispute. Even so, this hardly comprises “the majority of First Amendment scholars and experts,” but rather one and maybe a second.
On the one side, the dismissal of practitioners’ problems with the First Amendment implications of Franks’ revenge porn law raises some serious questions of intellectual honesty in the Academy. If she or Kaimi tried to pull off such arguments before a court, they would neither be impressed nor take kindly to it.
Using the title of law professor to pursue this course, to enjoy the gravitas of scholar to avoid the duty of intellectual honesty, raises some very serious questions for the rest of the Academy. While they may have a tendency to circle the wagons, most are aware that this subjects prawfs to unpleasant thoughts among practitioners.
At a time when they aren’t held in the highest esteem for other issues surrounding law school, they can’t afford to lose their one defense: intellectual honesty. The question now will be whether the Academy will circle the wagons to protect one of their own or demonstrate the fortitude of ending the embarrassment brought to their door.
In the meantime, if there is anyone out there engaging in “bizarre, stalker-ish online attacks,” that would be despicable and I condemn them without reservation. Oh wait, could Kaimi be talking about me? Are my posts, maybe Bennett’s, maybe Ken White’s comments, the attacks of which he speaks?
Well, it could be. After all, Kaimi says I’m an asshole. I trust I didn’t distort your word, Kaimi. By the way, you should really consider cleaning up your language. There is no need to be so vulgar.