To Tell The Truth, 1st Amendment Edition

Regular readers are painfully aware of the issues that have appeared here and at Mark Bennett’s Defending People with Miami lawprof Mary Anne Franks’ revenge porn law, and more particularly with her nasty, childish and dismissive responses to anything shy of adoration.

Sadly, Mr. Bennett, I do not have endless amounts of time to read everything that people write about me or my ideas. I also do not have time to review basic principles of reading comprehension or logic with every commenter with an axe to grind.

She is so brilliant. Bennett (and I) are such lowly trench lawyers, unworthy of her time and attention. But let’s test the veracity of her pomposity.

Who has won a major court victory in a First Amendment case?

Bennett hasEugene Volokh writes about the case.  Not bad for a guy who Mary Anne says has problems with “basic principles of reading comprehension or logic.”

Marc Randazza didn’t love Mary Anne’s law. He’s won a bunch of major First Amendment victories.

Ken White fights First Amendment censorious asshats all the time and has protected many powerless people in court.  He’s expressed grave doubts about Mary Anne’s law.

These are all lawyers who have actually practiced law, fought First Amendment cases, and won.

Assistant Professor Mary Anne Franks?

There is no indication that she has ever stood before a court, any court, anywhere, in any case. Ever.

She did, however, write a law review article entitled When Bad Speech Does Good, which expresses her view that there is good speech and bad speech.  The difference between the two is that the speech she likes is good speech, and the speech she doesn’t like is bad speech.

The purpose of her article is to rationalize the existence of bad speech by noting that enough of it drowns itself out, diffusing the impact of bad speech by its volume.  That pretty much sums up her entire article, though she spends many thousands of words to say so.

When you read and consider arguments, and find yourself being swayed by the free use of words like “scholarship” to convince you that someone who puts professor before their name must know what they’re talking about, consider whether someone’s intellectual abilities and reasoning have been tested by the crucible of the legal system or whether they just write stuff to fill the empty pages of hundreds of unread law reviews.

To tell the truth, would you rather rely on the opinion of a lawyer who has actually fought and won First Amendment cases, or someone who has accomplished nothing and relies solely on the attributed credibility that comes with claiming to be a scholar while telling the lawyers who actually win cases that they are idiots compared to her brilliance?

Oh yeah. I won a First Amendment case before the highest court in New York too.


9 thoughts on “To Tell The Truth, 1st Amendment Edition

  1. Dan

    I’m reluctant to “go there” but there’s something that I think has been danced around here- attractive women aren’t necessarily that used to having people disagree with them.

    1. SHG Post author

      At least you didn’t call her bitchy, as that would be too sexist for publication. I’m not sure whether it’s acceptable to indulge in lookism, no matter how accurate it may be.

  2. Pete

    Why do many professors have Franks’ attitude of disdain toward trench lawyers?
    Not all of them, obviously, but a handful of mine seem very unimpressed with and dismissive of the kind of work I want to do. Other students as well. I’m not losing sleep over it, but it’s perplexing.

    1. SHG Post author

      Obviously, different prawfs have different reasons, but I think there are few common themes. First, they were the “smart” kids in law school, the law review editors, and we weren’t. They looked down on us, and therefore what we do. Second, there is a mythical belief that if they wanted to, they could do what we do with their hands tied behind their back because they’re so special. They just don’t want to (and don’t want to get their hands dirtied). Third, some trench lawyers aren’t the brightest bulbs, and still do fairly well, proving their superiority and the importance of what they do since one has to be brilliant to be a prawf.

      Or to put it another way, it’s a psychological protective mechanism that allows them to maintain a fictional belief in their superiority despite all evidence to the contrary.

  3. Marty

    Not that I don’t find your past First Amendment analysis persuasive, but how is your case a First Amendment case? It seems like it was a quesiton of whether Bluestone’s faxes were unsolicited adverstisements or informational messages under the TCPA, which was a factual determination.

    1. SHG Post author

      The issue in the case was whether his First Amendment right to send out an informational newsletter was restricted by the TCPA’s limitations, which were constitutional as a restriction on commercial speech. We prevailed on the argument that even lawyers were entitled to fully protected First Amendment rights to express their opinions, and that the fact that it was a faxed newsletter did not render it commercial speech and thus subjection to lesser scrutiny and restriction.

      There was never any question of what he sent, but a question of whether, as a matter of law, it was commercial speech because it was unsolicited and sent by a lawyer. The point was that just because it came from a lawyer didn’t automatically make it commercial speech.

  4. Bruce Godfrey

    Appears that Professor Franks is a near life-long academic or student, though one of exceptional academic success. But isn’t academia itself the very business of “endless amounts of time to read everything that people write about [salaried academics with benefits] or [their] ideas”?

    In the end, neither Professor Franks’ chutzpah nor that of her critics (scholarly, experienced in the arena, both or neither) controls this issue. Of greater interest to me than the attempt to criminalize such speech is the extent to which it may result in civil liability. My state recognizes intentional infliction of emotion distress, though with pretty stiff pleading and proof requirements, and tortious interference with contractual advantage; I’d expect to see more tort claims than criminal prosecutions even if a narrowly-drafted criminal statute passed constitutional muster.

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