Revenge Porn and the Death of Section 230? The Answer is 42 (Update)

A little over a month ago, the question arose: how long before the anti-revenge porn advocates would go after the Safe Harbor provisions of Section 230?  The answer appeared, via a post by Josh Blackman, in an article in U.S. News & World Reports:

Activists seeking to criminalize “revenge porn” say they are working with a member of Congress to prepare federal legislation that would force Internet companies to take down the sometimes X-rated content.

The proposed law has not be [sic] finalized and its sponsor does not wish to be identified yet, according to University of Miami law professor Mary Anne Franks, who is helping draft the bill.

And what’s at the heart of this effort?

Websites that specialize in revenge pornography cannot currently be forced by state law to remove content because Section 230 of the federal Communications Decency Act grants Internet companies legal immunity if third-party content doesn’t violate federal copyright or criminal law.

“A lot of companies are under the impression they can’t be touched by state criminal laws,” Franks said, because “Section 230 trumps any state criminal law.”

The Communications Decency Act, however, doesn’t trump federal criminal law, she said, pointing to child pornography.

Well, that didn’t take long at all. In their zeal to end revenge porn, which no one disputes is a blight on the internet, Franks and her ilk are more than happy to destroy free speech on the internet.  After all, what’s free speech when compared to their feelings?

As noted in the article, Matt Zimmerman of the Electronic Frontier Foundation explains why this could be a disaster:

“Going after intermediaries is a really bad idea,” says Matt Zimmerman, a senior staff attorney at the Electronic Frontier Foundation. “The entire speech ecosystem ends up suffering because those service providers [would] decide what people can and cannot post, even if it isn’t illegal.”

Zimmerman says EFF doesn’t have any sympathy for posters of the offensive content, but considers criminal law a “dangerous” way to pursue culprits.

“Frequently, almost inevitably, statutes that try to do this type of thing overreach,”  he says. “The concern is that they’re going to shrink the universe of speech that’s available online.”

Behaving in their best corporate interests, Zimmerman says, Internet companies would likely respond to such a law by removing content any time there’s a complaint, to reduce their liability and to save time.

Not to let facts or truth stand in the way of her zealous advocacy, Franks pretends this never happened:

I do want to point out that neither the EFF nor the ACLU has expressed opposition to any specific law that I have personally drafted. I have sent my draft statutes to members of both organizations and am awaiting their responses.

Notice the attempt to weasel out of reality, “any specific law that I have personally drafted”? Franks neglects to mention that she sent an email to an EFF non-lawyer advocate, who was never an appropriate person to contact and who didn’t respond to her personal email, and has tried to parlay this by claiming these organizations don’t oppose her, in a deliberate effort to mislead.

But she doesn’t stop there:

It is unfortunate that neither of the two anti-criminalization articles that have received attention so far (the Wired piece you link to and Cathy Reisenwitz’s piece at TPM) addressed the specific laws that I have helped draft (Mark Bennett, whom you also mention, did engage with my model state statute, and you can see my responses to his critique in the comments section at this Concurring Opinions post about my work.

Her comments at Co-Op were an insipid exercise in deflection and ad hominem.  Notice here that she cherry picks her detractors, mentioning (and dismissing) “Professor” Bennett only because Blackman mentioned him in the post. Not to call Franks disingenuous, but rather willfully seeking to conceal commentary that doesn’t support her. Intellectual (not to mention, basic) honesty must be for tenured lawprofs, not babies like Franks who have never seen the inside of a courtroom, who are free to artfully spin as hard as they can.

Lawprof Danielle Citron joins the fray in Blackman’s comments, adding their “Eugene Volokh approves” spin.  Not even Josh Blackman is buying that crap:

Eugene Volokh (by my count) last blogged about revenge porn in April 2013 [well before Franks and Citron began their campaign to rid the internet of things they don't like]  (http://www.volokh.com/2013/04/…. His endorsement of the law was with some reservations.

But the wheels continue to grind, and politicians continue to see the opportunity to grab some love from ending the blight of revenge porn at the expense of free speech (which they aren’t all that thrilled about anyway).

It’s happening. Up to now, most lawprofs have sat silently on their hands, many thinking that this is sheer madness but unwilling to come out and call bullshit on their fellow academics for fear of being labeled misogynists.  What do you plan to say or do about it after the damage is done?

Update:  Mark Bennett replies to Mary Anne Franks’ claim at Josh Blachman’s blog that she  responded to all his questions:

Ms. Franks, your claim that you responded to my critique of your rationalization of your proposed statute is untrue, given that when I pointed out in comments on Concurring Opinions that you hadn’t responded to it, you replied, “I do not have endless amounts of time to read everything that people write about me or my ideas.”

I am just a simple small-town lawyer, lacking in the elaborate manners of the academy, so I hope that Josh will forgive me for any lapse in decorum. You know what we lawyers call someone who claims to have done things that she knows she didn’t do? “A liar.”

That is, indeed, what we simple small-town lawyers call people who lie. Liars.

17 comments on “Revenge Porn and the Death of Section 230? The Answer is 42 (Update)

  1. Eric L. Mayer

    I’d appreciate it if you’d stop your criticism. Some of us are big fans of a good, healthy ad hominem attack, and Ms. Franks is in our hall of fame for demonstrated mastery and consistent excellence in the field.

    1. SHG Post author

      But what about deflection? Doesn’t she get any credit for whining incessantly about how mean everyone is to her for not loving her laws and never actually responding to any criticism? And then there’s the dissembling? You think it’s easy to make shit up the way she does? What about the dissembling? You are such a fair weather fan.

  2. Wheeze The People™

    I gotta admit, and forgetting for the moment that she uses the First Amendment as her preferred toilet paper, I have a crush on Ms. Mary Anne. I see those pics of her in boxing gloves and all I can think about is how lovely it would be to get a couple of cauliflower ears from her via a good walloping . . . I’d like to be her gimp . . .

  3. John

    You’ve mentioned a number of times that fellow academics have yet to step out and call this what it is (and I agree it would be nice to see that happen), but you wonder how many have thought through the consequences of what Ms. Franks is trying to do? Do they think that only “conservative” online speech is going to be censored and that what will be left will be the “truthful” liberal speech?

    1. SHG Post author

      Having heard from a number of academics on the subject, they know better, but nobody wants to be the first one to say the empress has no clothes.

      1. Sgt. Schultz

        The flip side is that there are no scholars backing her up either. She keeps bringing up Volokh, and his silence speaks volumes. The harder she tries, the more full of shit she looks. I hope I don’t hurt her feelings by saying that so she comes to beat me up or call me bad names.

  4. Tim Cushing

    Of all the comments at Concurring Opinion’s gushing “interview”

    [which can be summarized thusly:

    Kaimi: You're so amazing and correct!
    Franks: Oh, absolutely!
    ad nauseum...]

    this one was my favorite, as it shows Franks’ disconnection from the very world (aka, the internet) she’s trying to regulate:

    [Franks' quote:] “They would never argue that the fact that a person voluntarily gave personal information to a cellphone gives that provider the right to hand that information over to, say, the NSA.”

    [Commenter:] “You do realize that this is known as the third party doctrine, and is the actual reason used to justify government spying, right?”

    Ignorance: so blissful yet so dangerous.

    No wonder Section 230 Safe Harbor seems like nothing more than an inconvenience, rather than a key element that prevents the internet from turning into a litigious free-for-all that would see a great many hosting companies and platforms pushing the eject button rather than be held responsible for the actions of millions of others.

    1. SHG Post author

      When tipping sacred cows, it’s so much easier to wrap oneself up in a convenient fantasy. You have to admire Franks’ tenacity in denial, though.

      1. ExCop-LawStudent

        Then I can safely assume that you are “also in possession of a toothbrush, washcloth, soap, tin of biscuits, flask, compass, map, ball of string, gnat spray, wet-weather gear, space suit etc.”

        Very good.

        Maybe we can appeal to Ms. Franks’ humanity and common sense. Or, failing that, show her your towel (hey, it worked on the Vogons).

        Realistically, nothing we do will dissuade her from her quest. Once a true believer gets into the emotional arguments instead of logic, it is unlikely that you will draw them back into a discussion of the issues. She will continue to press for the changes in the law and will likely succeed somewhere. It’s then up to you and others (like Bennett) to knock it down.

        1. SHG Post author

          No, Franks is not susceptible to reason (nor, I suppose, to common sense, whatever that is). She is “passionate,” and thus well outside the realm of reason. But Mary Anne has an advantage that those of us who aren’t such zealots lack; she has no qualms about making sure neither accuracy nor honesty stand in her way, while we’re constrained by both.

  5. Marc R

    it’s also misleading to be upset and the people not commenting while neglecting to mention all the actual lawyers she knows tearing up “her law.” perhaps a jealous female prof will first lead the charge to discuss the slight harms in using sec 230 against providers.

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