In a troubling reaction to a legal argument made against a Massachusetts law, that shooting “upskirt” photos is protected by the First Amendment, a lawprof abandoned thought to emotion. Via Gideon at A Public Defender:
In what has become a hallmark of the site, Above the Law yesterday “posted” about a fascinating Massachusetts case and managed to distill it down for their LCD readership: man argues that upskirt photography is protected by the First Amendment.
That led a LawProf Jessica Smith to redistribute the same article with a comment appended:
No bounds to zealous advocacy? MT @atlblog: Lawyer argues for Constitutional right to be pervert & take upskirt pics http://t.co/WjRnYGE3bb
— Jessica Smith (@ProfJessieSmith) November 7, 2013
Mark Bennett, fresh off his 1st Amendment win, does a brilliant job of explaining why not only is this argument the correct argument and that, if the Massachusetts Supreme Judicial Court wishes to follow the First Amendment, it will be constrained to find the statute unconstitutional, but also that any lawyer who failed to make this argument for a client charged with that statute might well have been ineffective.
As Gid entitles his post, zealous advocacy is not bound by your discomfort. Discomfort is the key word. As the snarky adage goes, opinions are like assholes; we all have one and they all stink. There is an element to almost every normative commentary that draws a line at the point of personal discomfort. Each of us is good with going right up to the line, but beyond it and we cry “halt,” you’ve gone too far. You’ve gone “over the top.”
What does this mean? It means that it’s hit the point of your discomfort. There is no objective line based on discomfort, as discomfort isn’t objective. But when you do what Jessica Smith did, announce that someone has done wrong because they went beyond her personal point of discomfort, you’ve gone over the top.
Your line of discomfort may serve to suit your sensibilities, but it’s not the line for anyone else. Ever. And if you fail to grasp that you don’t get to impose your personal line of discomfort on others, then you are wrong for objective reasons. You aren’t the king of the world, deciding the parameters of respectability for others to abide.
Reactions to statements, arguments, assertions tend to reflect a deeply problematic grasp of this concept. Bennett writes of the reaction he received from a lawyer, James Burdick, who sought permission to scrape his content so he could slide into the blawgosphere without the effort of thinking. Bennett was blunt in refusing to be complicit in the scheme, and offered sound advice in what appears to me to be a benign tone. Burdick took issue:
I have to say I’m a little surprised by this angry response, as the goal of my blog is to get important information out there, whomever writes it, with attribution, so that the public sees the reality of justice in America, and that’s why I proposed an about-the-author postscript. I’d like to think that it’s just that you’re having a bad day, so I won’t take the acrimonious tone personally.
Don’t lose any sleep over it.
Angry and acrimonious? Not to my eyes, but obviously Burdick felt that it lacked the sweetness he expected. Bennett asks why someone would attribute a less-than-sugarcoated-as-expected response to the other person having a bad day, to manufacture blame to impose on someone upon whom Burdick imposed for not responding in a way that pleased Burdick.
It’s worth noting in passing that Burdick, in an effort to maintain some semblance of dignity after being smacked, closes with “don’t lose any sleep over it,” as if Bennett might be deeply concerned about having lost Burdick’s adoration.
A commenter to Bennett’s post noted a fascinating study that speaks to the idiosyncrasies of the language piece (though the narcissism piece remains available for further study). It’s called “mitigated speech.” It distinguishes degrees of “deferential” and how ideas are sugar-coated to make them more palatable to others.
Based upon this, it would appear that Bennett’s response to Burdick lacked the level of deference Burdick demanded of Bennett. Why he should have expected any deference is an objective mystery, but subjectively easy to explain. To Burdick, he is important and deserving of deference. To the rest of the world, he doesn’t matter at all.
Similarly, when marketeer David Faltz dug himself into a deep hole here the other day, one of his primary contentions was that I didn’t react to his unsolicited overtures with the level of courtesy he thought he deserved. As he quickly came to learn, beggars don’t get to dictate the level of courtesy they get in response.
This has become something of an epidemic, people expecting that others will somehow adhere to their measure of propriety. They have a line they believe to be not merely reasonable, but one they are entitled to impose on others. When others don’t behave or react as they think they should, then they are over the top, beyond the bounds, wrong, wrong, wrong.
Each of us has the ability to decide for ourselves how we wish to deal with others, whether to show deference, to be courteous, to sugarcoat, or not. No one, not lawprof Jessica Smith, not lawyer James Burdick, not marketeer David Faltz, gets to make the decision for everyone else.
If you don’t like the way someone else conducts themselves, your choice is to walk away. You are free to express your feelings (and it’s important to note that it is not a thought, but a feeling, as there is no rational basis for it) for those who care what you think, but you have no right to demand that others validate your expectations of courtesy.
In other words, it’s your problem, not the other guy’s. And if you think they’re over the top, or fail to meet your approval, or didn’t make you feel as good about yourself as you think they should, then it’s a reflection of your sensibilities. The other guy gets to make his decisions for himself, just like you, and your only choice is to walk away.
I find this expressed quite often when one points out a bad argument or a viewpoint based on bad facts and the response is “well, it’s my opinion and I’m entitled to it”. Yes, you are, and I’m entitled to point out that that opinion is unfounded (or just plain stupid). What’s interesting is, more often than not, the further response is to “calm down” or “why are you so angry” or, as you’ve pointed out “you’re rude”. If you bring your thoughts/ideas/opinions to the table, expect them to be put to the test. If that is too bruising, stay on the porch. As a complete side note, I will say that Prof. Smith provides a lot of useful info for criminal defense lawyers here in NC. Her response was wrong and deserved the criticism it got, but I did want to point out that she does a lot of good work.
I agree with you about lawprof Jessica Smith, which is why her twit was particularly worthy of notice. Had she not been such a worthwhile voice, but one of the zillion dopes who say stupid stuff on the internets, it wouldn’t have caused a blink.
And just to complete the circle, I am not entirely of the view that everybody is entitled to an opinion.
“The other guy gets to make his decisions for himself, just like you, and your only choice is to walk away…” In a skirt?
The problem I see here is attacking a woman who is outraged by a male argument that ignores the privacy of females. Would it be okay under the First Amendment to take photos of people on toilets in public bathrooms?
As demonstrated in your quote above, you don’t walk in my shoes or in my skirt. This is men dismissing the privacy needs of women and becoming annoyed by women who emotionally voice their concerns. Let me guess, that time of the month?
While you may feel that your feelings are more important than anything else, no one else’s rights end where your feelings begin.
Kristy, you seem to be missing the point. The criticism of Prof. Smith’s response is that the response clearly implies that one’s legal representation of a client should conform to some standard (hers?) of decorum. No, it shouldn’t. If that position offends you (or Prof. Smith) is wholly irrelevant to whether the lawyer has the responsibility to espouse that position.
I take it farther. While it is not merely true of zealous representation (to the point where it would be a dereliction of duty to fail to make a valid argument because it might hurt someone’s feelings), it’s true of life. Your offense is not the bar of propriety for anyone else. And yes, Kristy seems to miss the point entirely.
And just so Kristy understands, I think upskirt photos are pretty sick, and if I saw a guy taking them, my inclination would likely get me in trouble (and I could explain why bathroom pics aren’t the same as public pics, but that ought to be obvious and would be going too far off topic). But that’s the point, it’s no more about my sensibilities than hers.
“The problem I see here is attacking a woman who is outraged by a male argument that ignores the privacy of females.”
Uninformed hooey. The lawyer making the outrageous argument—because that’s what criminal-defense lawyers do—was Michelle Menkin.
“Would it be okay under the First Amendment to take photos of people on toilets in public bathrooms?”
Under current Supreme-Court First-Amendment jurisprudence, yes. All speech (including photographs, at least if they’re taken for publication) is protected unless it falls within one of a small number of narrow and clearly defined recognized categories of historically unprotected speech. The Supreme Court has not yet recognized a “privacy” exception to free speech (which is not to say that it won’t).
Should it be okay? Reasonable minds can certainly differ.
The biggest problem with this logic is there can never be criminal defense then for violence against women if what you say is true. Heck, I know someone who worked defense on the high profile case of the 90’s, and he gets crap regularly from other lawyers for working on that case. Usually someone saying, ‘how could you work for that monster’.
People accused of horrible crimes deserve lawyers who will represent them to their fullest abilities. If we’re not going to have this because someone is icky, then, might as well give up the entire charade and get rid of juries and impartial judges.
Malcolm Gladwell briefly discusses mitigated speech in his book Outliers. Because he does so in the context of flight crews deferring to pilots in air crashes, the internet seems stuck on that aspect of mitigation. In my opinion though, it’s much more common as an everyday politeness. If you consider ordering at a restaurant, people rarely say e.g. “bring me the chicken,” and instead go with the more polite version, “I would like the chicken.”
If you are familiar with other languages, most have similar structures. I only ever knew German, but it has two forms of “you,” one formaland one familiar, and requires the subjunctive tense when speaking politely. I am also informed that French also has two yous, Japanese has six relationship-based forms of address, etc.
None of which says you have any sort of obligation to comply with society’s arbitrary norms, but my experience suggests that, as with grammar, you get best results if you don’t break rules by accident.
Yes, I read the paper. The lack of clarity issue arises from deference, not from saying what you mean. As for simple politeness (adhering to social norms), that’s fine, and most people abide it without thinking. The question here is whose rules apply, not breaking rules.
I was expanding, not disagreeing.
But to answer the question: the reader’s rules always apply, because they are doing the interpreting.
No, the rules of the person who wants less from the transaction apply. If I want something from the reader, I will adjust to her rules or not get it. If she wants something from me, she will adjust to mine or not get it.
“Beauty is in the eye of the beholder,” or, in this case, rude is in the eye of the reader.
How much you care about the reader, and how you conduct yourself accordingly, may well be driven by relative needs.
The unmentioned problem in trying to shoehorn the conduct into a constitutional challenge on the statute on First Amendment grounds is that it brings uncomfortable light onto the defendant for engaging in such scuzzy conduct.
Unlike many other 1st Amend challenges, such as Cohen v. California (“the “fuck the draft” case, for our non-lawyers who may be reading) this defendant doesn’t have any moral high ground to claim.
Even on the very long shot chance he succeeds, he will now be haunted forever with this, or haunted so long as Google exists.
Just because a D is entitled to zealous advocacy doesn’t always mean such advocacy is wise.
This is why you don’t practice criminal defense. Once “the problem” exists, zealous advocacy is necessary.
We operate under the assumption that any defendant convicted of any crime will be haunted by it for as long as Google exists. Better to beat the case and be haunted by it than to lose and be haunted by it anyway.
We operate under the assumption that any defendant convicted of any crime will be haunted by it for as long as Google exists.
Not 100% true. If you or I or SHG were busted for DUI, for example, and quietly plead to something less, the item might never be found by a casual Google search. Same is true for someone with a common name.
When it’s something like upskirt pics (because it wouldn’t happen with something as pedestrian as a DUI, unless we were prosecutor or Judge), the news is already out in the relevant area, and damage is long since done. Too late. Now win, as opposed to lose, or else you have this problem:
Unlike civil litigation, there is no such thing as voluntary withdrawal.
No assumption is 100% true. But it’s close enough to 100% true to be functional, and becoming truer every day, with for-profit republication of all the embarrassing public records republishers can think of.
I have no problem with defense lawyers finding loopholes in laws in order to defend clients, however distasteful those loopholes may seem. That is their job and the right of the defendent under due process. But I don’t see why a female who points out that the loophole in the First Amendment will allow “perverts” free reign is castigated for her emotional reaction to an issue that needs to be addressed. We cannot protect “photography” taken without the consent of an individual which exposes private body parts of that individual. That protects the “artist” over the “reasonable” expectations of others to walk in public without the fear of being secretly violated, recorded, and possibly shared. So why are we attacking the outraged woman and not the law?
I can’t believe you went there.
First, having been castigated already, you now call the Constitution a “loophole”? Oh my. Perhaps you hate all constitutional rights, but on the assumption that’s not true, then the rights that protect freedom are magically turned into “loopholes” when they touch a subject that hurts your feelings? You ask why a “female” should be “castigated for her emotional reaction”? This is why. It makes you say stupid things in place of thought.
The problem is not the law. It’s the “outraged woman” who is blinded by her emotions to think she’s entitled to have the world bow to her feelings.
Edit: It’s not my choice to direct this at “females,” but yours, Kristy, in framing it that way. As far as I’m concerned, it’s a gender neutral issue.
You keep saying “attacking”; all I’ve seen is reasonable disagreement. Who’s “attacking” whom? Citation required.
It’s an internet term of art meaning, “you did not agree with me and I do not feel validated.” I thought you understood this techy stuff.
The thing is, there’s not really a good way to protect her offense with the law without creating massive pain beyond a narrow intended goal, because the loophole is the first amendment and constitutional freedoms. Here also, the original female in the article being talked about was a law professor who seemed to turn on the concept of lawyers doing their duty to their client when it’s icky. That’s worth talking about, as whether the professor is throwing out a rockbed of the legal profession for the sake of emotion.
As for the action, there is another recourse, civil lawsuits for various privacy torts. I’m not aware if Mass has taken up the 4 privacy torts, but those give a pretty good recourse to such actions. They cover revenge porn, as well as several other disturbing acts, pretty well. The 1st amendment protections are a bit different, and make getting recourse easier.
There is a perpetual tendency in blog comments for someone to mention something tangential that riles up the natives and compels them to lose their focus and follow the tangent to some foreign land. So we’ve gone from core issues to things that interest or outrage individual commenters who must write about it because “someone on the internet is WRONG!!!”
So yes, the point is that a lawprof tossed a bedrock constitutional principle for the sake of emotion. It is not about who should win the Massachusetts case, no matter what angst pushes Bennett today.
The cartoon actually comes from xkcd, which is an excellent cartoon and unfortunately, yet another digression. The link is here: http://xkcd.com/386/
Matt should know better.
After all, your link is wrong and has to be corrected.
Yes, everyone knows it comes from xkcd, but I needed a quick link and that was the first one that came up. Did you stay up all night to correct me?
Pingback: On Mitigated Speech » Defending People
Pingback: The petulance of power | a public defender
I think something is being overlooked here. Under the First Amendment, speech that is integral to criminal conduct is not protected. For example, solicitation of a crime, although speech, is not constitutionally protected. Because it is properly a crime for someone to physically intrude into a bathroom or shower to see other people naked without their consent, it is also properly a crime to photograph or film that conduct. For that reason, a rape does not become constitutionally protected speech merely because the offender recorded the rape and posted the video online.
The question relevant to this “upskirt photos” case is not whether the conduct is protected by the First Amendment, since it seems to easily fit into “speech integral to criminal conduct,” but whether the conduct violates this particular statute (i.e. whether women have a reasonable expectation of privacy in the area beneath their skirts when they wear skirts in public). If it can be a crime for a person to stick their head underneath a woman’s skirt in public without her consent, it can be a crime for that person to photograph the area beneath her skirt as well.
Don’t get hung up in the bathroom photos, as that’s a red herring on both sides. But the argument in the upskirt pics case is that if they can be taken by a person in a lawful position in a public place, then they are no different than any other photo taken in public. Whether this argument prevails has yet to be seen, but it’s a perfectly rational argument.
I agree with that. If the defendant was merely photographing something that was open to the general public, then his conduct could not violate the statute in question since the woman would not have a reasonable expectation of privacy. But, in a separate hypothetical circumstance, if the defendant had to manipulate the woman’s clothing so that he (or his camera) could see beneath her clothing, I think that might qualify. In any event, this argument turns not on whether the defendant’s conduct is protected by the First Amendment, but on whether his conduct violates the specific statute.
I mention the bathroom scenario merely because a previous commenter asserted that that conduct would be constitutionally protected speech, and I disagree. If the underlying conduct can be constitutionally made illegal, then the fact that you took a photograph or a video of it is no defense to the crime.
I think Kyllo is the big case here, and it found that thermal imaging that could see thru walls violated privacy in the context of the 4th Amendment. OTOH, thats the 4th, and it might not stretch. Besides which, you can use passive filters such that nothing is being manipulated to do thermal and IR imaging.
No, no, no. You’ve completely muddled entirely separate constitutional concepts. No.
Like I said, it was for the 4th, and might not stretch.
So I should be thankful you didn’t mention the UCC? Or the Alien and Sedition Act? Or random strings of letters? How do you start a comment that “Kyllo is the big case here” when it has absolutely nothing whatsoever to do with it?
Some days, just reading the comments makes me want to stick needles in my eyes.
I mentioned the case as it was on the expectation of privacy versus electronic imaging. The tech is the same, and it hit similar themes. Apologies if I seem too far off base, as you mentioned the tendency for threads to drift as people focus on what they want. Feel free to delete my comment thread or use me as an example.
Reasonable expectation of privacy is purely a 4th A concept, per Katz. It is not a 1st A concept at all, even if non-lawyers and a certain revenge-porn hating lawprof can’t keep the concepts straight.
I’m responding to “Kaylei Elworth” use of it. And it comes up in privacy torts and the first amendment defense (especially intrusion to seclusion cases), however the only real privacy tort case I can think of that hit SCOTUS was Zacchini, which is way off.
See what I replied to Bennett? If “Kaylei Elworth” said you should jump off a roof, would you? Okay, bad example.
Actually jumping off a roof with whomever says jump is what I do for a living. I’m used to finding an interpretation of what they say that kinda sort of fits reality.
Also my brain was in tort mode from my other response, where you pointed out the ‘someone on the internet is wrong’ issue, which I am prone to.
Well then, I’m glad I could help.
No, I don’t think that’s internally consistent. If you talk about/film/do interpretive dance of a rape, the rape remains illegal, but the speech does not. (If that weren’t true, The Laramie Project would (finally!) be banned.) In that case, you should be able to point to some non-speech act which you believe is at issue, and would have no problem with the photography per se.
Alternately, you might be claiming that the first amendment just says that all speech is legal only so long as there’s no law against it. I think that actually was an original interpretation, but it fell out of favor more than 200 years ago.
Unfortunately, Josh, you don’t get to make up law because that’s how you think it should be. Kaylei is absolutely correct that “speech integral to criminal conduct” is one of the categorical exceptions to the First Amendment from the 1949 case, Giboney v. Empire Storage & Ice Co. Whether any particular speech meets the criteria is a different question.
You’re both right. There is a categorical exception (though it’s arguably not a separate exception), but merely photographing a crime being committed doesn’t fit the exception.
Saying something is “arguably not a separate exception” is normative, not descriptive. It is inaccurate to confuse the two, and while some (like Eugene Volokh) may argue that speech integral to criminal conduct is not an independent categorical exception (he contends it’s still part of a categorical exception, though it’s unclear which one), it remains so until a court says otherwise, and it’s wrong to suggest the normative view reflects the state of the law. If you’re going to confuse things, then at least straighten them out afterward and don’t leave them more confused than when you started.
False assumption. If you’re taking a shower in my bathroom, manners, and not the law, prevent me from walking in on you.
Non sequitur. Merely “photographing crimes” is not “speech integral to crime.”
If it were a crime for a person to stick his head underneath a woman’s skirt in public without her consent (query: absent offensive contact (which would make it assault), is it a crime?) then it might arguably be a (separate) crime for that person to take a photograph while he’s there. But if it’s not a crime, then speech integral to it is not speech integral to crime.
The rest of your position is one grand non sequitur.
So Kristy goes off on a tangent involving a poor analogy, others follow, and so you have to do so too? Is it really that hard to ignore it?
As for “merely photographing crimes is not a crime,” he didn’t say it was. His example was that videotaping a rape doesn’t mean the rape itself wasn’t a crime. He didn’t suggest that the videotaping was the crime.
I think Kayleigh is probably not a “he.” I was replying to her. Try to keep up. And you don’t want digressions? Don’t encourage them.
I’m gender neutral, so he/she whatever. And the one thing I don’t do is “encourage” digression.
You just did.
“Is it really that hard to ignore it?”
We aren’t in comparable positions, this being my blog and all. As much as I give you far great latitude than others because we’re old friends, I still give myself more.
[Ed. Note: You do realize, of course, that I could have stopped this long ago, rather than let you continue. But silly digressions don’t bother me nearly as much as tangential substantive digressions, especially when they are wrong. And you’re special.]
I was actually hoping you’d reply. Yes, you’re right, it depends on where the bathroom is. [Ed Note: Balance of comment deleted because it’s off topic. Enough. You want to discuss bathroom photos, start your own blog and do it there.]
Or you’re more than welcome to come exhibit your dazzling First Amendment expertise on bathroom photos or any other topic on my blog.
Pingback: Pop Law » Defending People